904 F2d 41 United States v. Henry

904 F.2d 41

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-50519.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 1990.*
Decided May 29, 1990.


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Samuel George Henry appeals the district court's order denying his Rule 32(c)(3)(D) motion. Henry contends that the district court erred by failing to have Paragraph 7 of the presentence report stricken. We remand.


Henry pled guilty to being found in the United States after having been deported, in violation of 8 U.S.C. Sec. 1326. At his sentencing hearing, he objected to Paragraph 7 of the presentence report which stated that "the instant case resulted from the investigation conducted by the Inglewood Police Department involving Jamaican gang members involved in rock cocaine trafficking in the City of Inglewood and surrounding municipalities." Henry objected to the paragraph on the basis that there was no showing, nor any indication that he was in any way involved in the gang under investigation. The district court explicitly stated that it determined it would not rely on Paragraph 7 when sentencing Henry but did not comply with the provision of Rule 32(c)(3)(D)(ii) requiring that such a determination be appended to the presentence report. Henry appeals.


During the pendency of this appeal, Henry has completed serving his six month sentence and the government contends that this appeal is moot. The government has not demonstrated that Henry has "no legally cognizable interest" in the accuracy of the presentence report. See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir.1985), cert. denied, 475 U.S. 1019 (1986). On remand, the district court is ordered to append its determination to the presentence report.




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 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