Davis

MEMORANDUM *

Michael D’Anthony Davis appeals his 57 month sentence for bank robbery and attempted bank robbery under 18 U.S.C. § 2113 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and reverse in part.

Davis argued that the court did not understand its discretion to depart based on his positive attitude and desire to redeem himself. We believe that the court understood perfectly its authority to depart downward for circumstances “outside the heartland” of the Sentencing Guidelines and conducted “the very inquiry” required by Koons v. United States, 518 U.S. 81 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). See United States v. Davoudi, 172 F.3d 1130, 1134 (9th Cir.1999).

Davis also challenged the sufficiency of evidence showing that he was on probation on the date of the offenses in question. A district court’s factual findings underlying sentencing decisions are reviewed for clear error. United States v. Riley, 335 F.3d 919, 925 (9th Cir.2003). We believe that the court clearly erred when it found that Davis was on probation at the time of his offense. A sentencing court may adopt factual findings included in a presentence report. United States v.…