United States Court of Appeals
For the First Circuit
No. 01-1388
UNITED STATES,
Appellee,
v.
ENRIQUE MELENDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Jane Elizabeth Lee on brief for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
February 1, 2002
Per Curiam. Enrique Melendez appeals from his
sentence, claiming violation of Fed.R.Crim.P. 32(c) and his
due process right to be sentenced on the basis of accurate
information. He faults the sentencing court for failing to:
1) recommend him for participation in a Bureau of Prisons
(BOP) drug treatment program, and 2) make an unambiguous
finding with regard to alleged factual inaccuracies in his
presentence report (“PSR”).
With respect to the first argument, we lack
jurisdiction to review the sentencing court’s failure to
recommend to the BOP that it admit Melendez to a drug
treatment program. 1 “Decisions to place a convicted
defendant within a particular treatment program or a
particular facility are decisions within the sole discretion
of the Bureau of Prisons.” Thye v. United States, 109 F.3d
127, 130 (2d Cir. 1997) (citation and internal quotation
marks omitted). A sentencing court’s non-binding
recommendation to the BOP is not a reviewable order. United
States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000); United
States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir.),
cert. denied, 531 U.S. 983 (2000); United States v. Pineyro,
1 We note that, by federal statute, the BOP is required to
“make available appropriate substance abuse treatment for each
prisoner the Bureau determines has a treatable condition of
substance addiction or abuse.” 18 U.S.C. § 3621(b).
112 F.3d 43, 45-46 (2d Cir. 1997). By like token, the
omission of such a recommendation is a non-appealable event.
With respect to the second argument, we conclude
that the lower court adequately complied with Rule 32(c) and
that it was not required to delete the controverted portions
of the PSR. We explain briefly.
Melendez’s objection to paragraph 8 of the PSR was
not an objection to the factual accuracy of the information
contained therein but to its inclusion in the report. In
other words, Melendez did not dispute the truth of the
statements about weapon possession by co-defendant Amado
Lopez, but objected to any mention of those facts in the PSR
on the ground that the facts did not pertain to Melendez.
We agree with the Ninth Circuit that because this objection
“went to the inclusion of the statements . . . not to their
factual accuracy, . . . the district court was not required
by Rule 32(c)(3)(D) to respond to [it] at sentencing.”
United States v. Turner, 898 F.2d 705, 710 (9th Cir. 1990).
We note, moreover, that, at the disposition hearing, the
court did indicate its clear understanding that the PSR
failed to show “that any of that conduct with respect to
those firearms involved this defendant.” Melendez expressed
his satisfaction with that understanding when the court
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articulated it, and agreed to withdraw his objection to
paragraph 8 of the PSR at that juncture. Thus, the
assignment of error anent paragraph 8 of the PSR is doubly
flawed.
The defendant also objects to the reference to his
ostensible weapon possession in paragraph 13 of the PSR. In
that instance, too, the court satisfied the requirements of
Rule 32(c). We have held that “[a] court may make implicit
findings on disputed factual questions by accepting the
government’s recommendations at the sentencing hearing.”
United States v. Cruz, 981 F.2d 613, 619 (1 st Cir. 1992)
(citations omitted); accord United States v. Grant, 114 F.3d
323, 327 (1st Cir. 1997); United States v. Ovalle-Marquez, 36
F.3d 212, 227 (1st Cir. 1994). Here, the court, at the very
least, made an implicit finding that Melendez did not
possess a weapon in connection with the offense of
conviction. After all, the government recommended that the
court not make a two-level increase to the base offense
level under U.S.S.G. § 2D1.1(b)(1) for possession of a
dangerous weapon, and the court accepted that
recommendation. To cinch matters, the court’s explicit
finding that the government could not meet its burden of
proof with respect to that enhancement constitutes a finding
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sufficient to resolve the contested matter in conformance
with Rule 32(c).
The defendant argues that the court nonetheless was
required to delete the original reference from the PSR. We
do not agree. Once the court complied with Rule 32(c) by
resolving the matter of Melendez’s weapon possession in his
favor, no more was exigible. “Neither due process nor Rule
32 requires a district court judge to be an editor as well
as an arbiter of justice.” Turner, 898 F.2d at 710.
Finally, the defendant argues that the sentencing
court’s decision to deny him a recommendation for treatment
somehow “attests to the veracity of the [contested]
statements in the [PSR].” Appellant’s Br. at 34. Implicit
in that argument is the unfounded assumption that conviction
for an offense involving weapon possession precludes the
defendant, qua inmate, from participating in drug treatment
programs. The relevant statute contains no such prohibition,
and Melendez points to no other authority to support his
assumption.2
2 BOP regulations provide that inmates convicted of a felony
offense that involved the carrying, possession or use of a
firearm are not eligible for sentence reduction under 18 U.S.C.
§ 3621(e). See 28 CFR § 550.58. But Melendez never asked the
court to recommend that he be granted early release following
completion of a drug treatment program. The court’s declination
to recommend participation in a drug treatment program implies
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We need go no further. For aught that appears, the
defendant was lawfully sentenced. The judgment below is,
therefore, affirmed. See Loc. R. 27(c).
nothing about Melendez’s eligibility for early release following
completion of such a program.
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