United States v. Norma Abapo
Opinion
Opinion
MEMORANDUM
Defendant appeals her sentence, contending the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve an alleged factual dispute concerning her intent to commit criminal acts which occurred after her guilty plea but before sentencing. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
No Rule 32 violation occurred because there was no factual dispute to resolve. In the context of the arguments and statements made at sentencing, defense counsel’s statement regarding “the issue of [defendant’s] criminal intent” was an argument in favor of mitigation, not a request that the district court determine whether defendant possessed a certain mens rea when preparing the false tax returns in 2005-2007. Rule 32 does not apply to such arguments. United States v. Grajeda, 581 F.3d 1186, 1188-89 (9th Cir.2009); United States v. Lindholm, 24 F.3d 1078 , 1085 n. 7 (9th Cir.1994).
Even if defense counsel’s statement can be viewed as such a request, there was still no factual dispute because “intent” is not a factual issue but is an ultimate conclusion which does not trigger Rule 32. Lindholm, 24 F.3d at 1085 n. 7.