United States v. Zargar

BOOCHEVER, Circuit Judge,

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 a seemingly-inapplicable portion of the guidelines, without explaining why or to what information the reference allegedly applied. Cf. Scrivner, 114 F.3d at 969 (where defendant fails to object to fact in PSR, “there is no basis for requiring the district court to carry out an onerous and unachievable task of considering every conceivable argument which a defendant might raise”).

In addition, there is no support for the majority’s conclusion that the PSR’s information was based on unreliable information. Because there is no information in the record about the source of the PSR’s *551information, there is no basis for concluding that the source was unreliable. Significantly, the lack of information on this issue is the result of Zargar’s failure to object in the district court. Zargar has not presented any evidence, in the district court or on appeal, that the PSR’s information is inaccurate or unreliable. See, e.g., United States v. Charlesworth, 217 F.3d 1155, 1160-61 (9th Cir.2000) (no obligation for district court to make findings on reliability of information used at sentencing where defendant did not object, “never challenged the accuracy of the information in the PSR and never offered any evidence to contradict the PSR”). Under these circumstances, I cannot agree that the district court’s reliance on that information amounted to an abuse of discretion.