United States of America v. Norma Abapo

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Marco A. Hernandez, U.S. District Judge for the**
District of Oregon, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMA ABAPO,
Defendant - Appellant.
No. 11-50201
D.C. No. 2:06-cr-00381-SVW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted October 10, 2012
Pasadena, California
Before: FERNANDEZ and BERZON, Circuit Judges, and HERNANDEZ, District
Judge.**
Defendant appeals her sentence, contending the district court violated
Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve an alleged
FILED
OCT 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50201 2
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.
AFFIRMED.

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