OpenJurist

107 F3d 18 United States v. Torres

107 F.3d 18

UNITED STATES of America, Plaintiff-Appellee,
v.
Hector Jaime TORRES, Defendant-Appellant.

No. 95-30122.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1997.*
Decided Feb. 7, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: CANBY, HAWKINS and TASHIMA, Circuit Judges.

1

MEMORANDUM**

2

Hector Jaime Torres appeals his sentence for his guilty plea conviction for distribution of two pounds of methamphetamine, and possession of machine guns.

3

Torres contends that the district court erred in basing his sentence on d-methamphetamine rather than l-methamphetamine. In his plea agreement, however, Torres stipulated that the methamphetamine involved was d-methamphetamine, and Torres does not allege that his plea was involuntary. Consequently, the district court did not err in sentencing Torres for distribution of d-methamphetamine.

4

Next, Torres contends that the district court failed to comply with Fed.R.Crim.P. 32(c)(3)(A), which requires the court to verify that the defendant and his counsel have read and discussed the pre-sentence report ("PSR"), and that he was prejudiced because the PSR states that the drug involved was d-methamphetamine. It appears from the record that the district court did fail to comply with the requirements of Rule 32. Where a district court fails to comply with Rule 32, but it is clear that no prejudice resulted from the error, the district court's error is harmless. United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.1994). The PSR's reliance on d-methamphetamine was based on the stipulation in the plea agreement that d-methamphetamine was involved in the crime, and Torres is bound by the plea agreement. Torres, therefore has failed to establish how he was prejudiced by the district court's reliance on the PSR, and, accordingly, the district court's denial of Torres' 2255 motion is

5

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3