United States v. Luis Rodriguez Recio

988 F.2d 125, 1993 U.S. App. LEXIS 10963, 1993 WL 55106

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 1993
• Docket: 91-50063
• Status: Unpublished

Opinion

988 F.2d 125

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 91-50063.

United States Court of Appeals, Ninth Circuit.

Submitted March 1, 1993.*
Decided March 3, 1993.

Appeal from the United States District Court for the Central District of California; No. CR-90-0613-R-8, Manuel L. Real, District Judge, Presiding.

C.D.Cal.

REMANDED.

Before JAMES R. BROWNING, HUG and KOZINSKI, Circuit Judges.

MEMORANDUM**

Recio made two factual challenges to the Presentence Report: First, he claimed he was only aiding the possession of 306 kilograms of cocaine, and he couldn't reasonably have known about the 344 kilograms sold before he joined the conspiracy. CR 149 at 5; see U.S.S.G. § 1B1.3 app. note 1. Second, he claimed he was a minimal participant, not merely a minor one. CR 149 at 6; see U.S.S.G. § 3B1.2(a); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989) (role in offense is question of fact).

When a defendant challenges factual assertions in a presentence report, the district court must make written findings of fact concerning the disputed matter. Fed.R.Crim.P. 32(c)(3)(D); United States v. Conkins, No. 91-10306, slip op. 1287, 1301 (9th Cir. Feb. 18, 1993). We remand for the court to do so. We also instruct the court to give its reasons for imposing the sentence it ultimately comes up with. See 18 U.S.C. § 3553(c)(1) (when Guidelines sentence range exceeds 24 months, district court must give reasons for choosing a particular point within the range).

* 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