United States v. Ernie Smith

818 F.2d 30, 1987 U.S. App. LEXIS 5692, 1987 WL 35971

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 4, 1987
• Docket: 85-5282
• Status: Unpublished

Opinion

818 F.2d 30
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Appellee,
v.
Ernie SMITH, Appellant.

No. 85-5282.

United States Court of Appeals, Fourth Circuit.

Submitted March 9, 1987.
Decided May 4, 1987.

Before PHILLIPS, ERVIN and WILKINSON, Circuit Judges.

Benjamin A. Neil, on brief, for appellant.

Breckinridge L. Willcox, United States Attorney, Robert J. Mathias, Office of the United States Attorney, on brief, for appellee.

PER CURIAM:

Ernie Smith pleaded guilty, pursuant to a plea bargain agreement, to Count ii of a sixteen-count indictment, charging conspiracy to distribute and possess with intent to distribute methaqualone, in violation of 21 U.S.C. Sec.846. He was sentenced to five years' imprisonment and was fined $4,000. He appeals, alleging that three violations of Fed R. Crim. P. 32 require resentencing. Finding no error, we affirm.

Fed R. Crim. P. 32(c)(3)(D) requires that if "any factual inaccuracy" in a presentence report is alleged by a defendant or his attorney, the court "shall, as to each matter controverted, 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." We note that the Rule's requirement of a finding or determination is triggered only when factual inaccuracies are alleged. United States v. Rone, 743 F.2d 1169, 1175 (7th Cir. 1984).

In Smith's case, counsel did not dispute the factual accuracy of the presentence report. The presentence report correctly reflected Smith's previous adult record, that firearms were discovered in his residence following his arrest, and the testimony of Teresa Sill, which caused a mistrial in an earlier proceeding. Smith's argument at sentencing and on appeal addressed the fairness of these matters' inclusion in the report, rather than their accuracy. As such, we find no violation of Fed. R. Crim. P. 32(c).

As the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below.

AFFIRMED.