Zargar

dissenting.

The majority vacates Zargar’s sentence because it concludes that the district court abused its discretion in adopting the portion of the presentence report that references Zargar’s 16 outstanding arrest warrants for writing bad checks. I respectfully dissent. I would hold that Zar-gar waived this argument on appeal because he did not challenge the source of the PSR’s information in the district court. In his written objections to the PSR, Zargar merely quoted § 4A1.3’s policy statement prohibiting reliance on arrest records in assessing criminal history. He made no attempt to explain why this quotation applied, nor did he identify the information that was allegedly derived from arrest records. Moreover, none of the criminal history allegations appeared on its face to have been derived solely from arrest records, so it was not obvious which allegations, if any, Zargar was challenging. The defendant bears the burden of bringing errors in the PSR to the court’s attention under Rule 32, see United States v. Scrivner, 114 F.3d 964, 969 (9th Cir.1997); United States v. Visman, 919 F.2d 1390, 1394 (9th Cir.1990). I do not think Zargar met this burden by obliquely referencing…

*549 MEMORANDUM **

Abdulah Zargar appeals his sentence for thirty counts of mail fraud, eight counts of filing false and fraudulent claims, six counts of promotional money laundering, two counts of false use of a social security number, and one count of making false statements in a passport application. He argues that the district court abused its discretion in imposing an upward sentencing departure under U.S.S.G. § 4A1.3 because his prior criminal conduct was either not established by reliable evidence or was dissimilar to the conduct in the instant offenses. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we vacate Zargar’s sentence.

Zargar operated a massage and acupuncture clinic in Arizona from January 1995 to March 1999. The instant case arose from false claims that he filed with insurance companies to obtain payment for his services that were not covered. According to his Presentence Report (“PSR”), Zargar’s combined base offense level was twenty-five and his criminal history category was III. The PSR also indicated that Zargar had been charged with attempted involuntary sexual battery in 1978 and two counts of second degree sexual assault in…