that the Court relied only upon the fact of his prior pretrial
diversion and not upon any of the contested matters in the
Once an allegation of factual inaccuracy in a presentence
report is made, the requirements of Rule 32(c)(3)(D) are
triggered, and the sentencing judge is obligated to make a
finding as to the allegation or determine that the finding is
not necessary because the controverted matter was not relied
upon in sentencing. U.S. v. Rone, supra, 743 F.2d at 1175. In
determining reliance, the reviewing court must determine
whether the sentencing judge gave the misinformation specific
consideration so that the information formed part of the basis
for the sentence. United States ex rel. Welch v. Lane, supra,
738 F.2d at 866; see also United States v. Hubbard,
618 F.2d 422, 425 (7th Cir. 1979). Where the consideration is not
explicit in the record, a showing of reliance on erroneous
information is not a prerequisite to a new sentencing. United
States v. Harris, supra, 558 F.2d at 375.
In the present case, it is clear that the sentencing judge
(this Court) relied only upon the incident involving the prior
pretrial diversion program and not upon the list of prior
arrests or the claimed loss of the victim. The Court's
reference to a first chance given to the defendant by the
court and by the U.S. Attorney can only refer to the pretrial
diversion program since none of the other incidents contained
in the presentence report involved federal crimes.
Supra, pages 260-261. In addition, the Court made it quite
clear that the fact that the defendant blew his second chance
after having been given one break was the primary basis for the
Court's imposition of defendant's sentence. The only other
factor mentioned was the involvement of defendant's family in
the fraudulent loan scheme.
Since neither of these two factors were challenged by the
defendant as inaccurate, the Court did not rely on any
controverted matter in passing sentence on the defendant and
therefore no ground exists to grant him a new sentencing
Finally, while the Court finds it unnecessary to determine
the truth or falsity of the controverted matters in the
presentence report raised by the defendant, he does not allege
the kind of circumstances, i.e., hearsay-on-hearsay or facially
inaccurate or unconstitutional prior convictions, which would
raise serious questions of reliability and accuracy regarding
the presentence report.
For the reasons stated above, the defendant is not entitled
to a new sentencing hearing under Fed.R.Crim.P. 32 or the
Fifth and Sixth Amendments to the United States Constitution.
Therefore, his motion for relief under § 2255 is denied.
IT IS SO ORDERED.
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