460 F2d 1266 Rodrigues v. United States

460 F.2d 1266

David RODRIGUES, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 71-2243.

United States Court of Appeals,
Ninth Circuit.

May 17, 1972.

Richard M. Sims, III (argued), of Penrod, Himelstein, Savinar & Sims, San Francisco, Cal., for petitioner-appellant.

Raymond B. Little, Asst. U. S. Atty. (argued), Bart M. Schouweiller, U. S. Atty., Reno, Nev., for respondent-appellee.

Before BROWNING and WRIGHT, Circuit Judges, and TAYLOR, District Judge.*


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Rodrigues received a fifteen-year sentence after pleading guilty to a bank robbery charge. He now asks this court to vacate his sentence because the sentencing judge relied upon allegedly misleading statements in the presentence report. We affirm the lower court's order refusing to vacate the sentence.

The judge said on the day of sentencing:


"[T]he probation report indicates that he has been involved in the use of firearms on two other occasions. He was never prosecuted for anything, but he pulled a gun on a person who was trying to repossess an automobile from him on one occasion; and on another occasion he shot his wife and grazed her arm. Those incidents carry a lot more weight with me than this particular offense."


Rodrigues did not deny his participation in either incident involving firearms. Instead he sought to convince the court that he had acted in self defense when the automobile repossessor threatened him with a blackjack.


We believe the outcome of this case is dictated by our decision in United States v. Chewning, 458 F.2d 381 (9th Cir., 1972), in which we said:


"In this case, wholly unlike United States v. Weston (9th Cir. 1971), 448 F.2d 626, 634, the information in the presentence report was not unreliable. To the extent that there was any dispute about the inferences to be drawn from the facts therein recited or the emphasis to be placed on those facts, the matters were fully explored in discussion among the court, Chewning, and Chewning's counsel."


The district court's order is affirmed.


Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho, sitting by designation