Larry P. Nicely v. United States , 875 F.2d 866 ( 1989 )

875 F.2d 866

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Larry P. NICELY, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-3997.

United States Court of Appeals, Sixth Circuit.

May 26, 1989.

1

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and BENJAMIN F. GIBSON, District Judge.*

ORDER

2

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

This federal prisoner, through counsel, appeals the denial of his motion to vacate sentence filed under 28 U.S.C. Sec. 2255. Mr. Nicely entered a guilty plea to two charges of possession with intent to distribute marijuana and one count of filing a false income tax return. He received a total sentence of thirteen years, with four years special parole. At sentencing, Mr. Nicely challenged the accuracy of his pre-sentence report, but the district court made no findings on the challenged matters, stating that they had not been taken into consideration in imposing sentence. Petitioner argues that findings of fact were required on the challenged issues, because the report is used to determine his parole eligibility.

4

Upon consideration, we conclude that this motion to vacate was properly denied. Under Fed.R.Crim.P. 32(c)(3)(D), the district court is required either to make findings of fact regarding challenged information in the pre-sentence report, or to state that the challenged information was not considered in imposing sentence. As the district court in this case complied with the latter requirement, no factual finding was required. See United States v. Fry, 831 F.2d 664, 668 (6th Cir.1987). Moreover, the Parole Commission may consider evidence upon which the sentencing judge disclaimed reliance, including hearsay and dismissed counts of an indictment, and must resolve any dispute over the accuracy of such evidence. See Hackett v. United States Parole Comm'n, 851 F.2d 127, 130-31 (6th Cir.1987) (per curiam).

5

Accordingly, the district court's order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Benjamin F. Gibson, U.S. District Judge for the Western District of Michigan, sitting by designation