922 F.2d 845
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Michael Allen SCHANNING, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 26, 1990.*
Decided Jan. 4, 1991.
Before WALLACE, SKOPIL and PREGERSON, Circuit Judges.
Schanning, a federal prisoner, appeals pro se from the district court's denial of his 28 U.S.C. Sec. 2255 motion to correct a presentence report. The district court had jurisdiction over the case pursuant to 28 U.S.C. Sec. 2255. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Secs. 1291, 2253, 2255. We review de novo the denial of a section 2255 motion. Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989). We affirm.
In 1988, Schanning pleaded guilty to conspiracy to possess with intent to distribute two kilograms of cocaine. His presentence report stated that Schanning previously "delivered as much as one to twenty kilograms of cocaine at one time to a variety of customers in the Tucson area." Schanning was given the opportunity to see the presentence report and comment upon any information within it. See Fed.R.Crim.P.32(a)(1), (c)(3). Schanning made no comment. Schanning asserts the statement did not affect his sentence, but the Bureau of Prisons has since relied on it in denying Schanning furlough.
Schanning's motion was properly denied by the district court. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990), holds that the failure to object at sentencing to statements contained in a presentence report bars collateral relief. Schanning failed to object. Collateral relief is therefore barred.
Schanning contends he was not required to object at sentencing because the statement did not affect his sentence. This contention lacks merit. If a defendant alleges factual inaccuracies in a presentence report, rule 32(c)(3)(D) requires the sentencing court to "make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." Fed.R.Crim.P.32(c)(3)(D). By requiring a determination whether or not the objectionable statement will be relied upon for sentencing, rule 32(c)(3)(D) encompasses all statements contained in the presentence report. See also Fed.R.Crim.P.32 advisory committee notes (Rule 32(c)(3)(D) enacted to allow defendants the opportunity to challenge statements that may be irrelevant to sentencing but relied upon by the Bureau of Prisons).
In addition, absent a finding by the sentencing court, we are unwilling to speculate on the basis of Schanning's assertion that the statement was not relied upon for sentencing. Rule 32(c)(3)(D) is written in a manner which properly precludes such speculation. The rule of Keller is unequivocal, and so it shall remain.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P.34(a) and Ninth Circuit Rule 34-4