United States v. Melendez

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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