Gаetanino Polselli appeals from the dismissal of his motion to vacate sentence pursuant to 28 U.S.C. § 2255. The District judge dismissed his motion on Marсh 2, 1983 without an evidentiary hearing. Polselli requests this Court to remand the *357 motion for an evidentiary hearing or in the alternative grant his motion to vacate.
Polselli pled guilty in February, 1982 to one count of mail fraud, in violation of 18 U.S.C. § 1341, and one count of use of an assumed name, in violation of 18 U.S.C. § 1342. Polselli’s plea was the result of a plea agreement in which Polselli agreed to plead guilty to these two charges if the govеrnment dropped all charges against Polselli’s wife, dropped all other charges against Polselli, and agreed to make Polselli eligible for parole under 18 U.S.C. § 4205(b)(2). The judge sentenced Polselli on March 18, 1982, to two years in jail, the maximum under the plea agreement, and finеd him $2,000.00.
In sentencing Polselli, the district judge relied on several documents, including a sentencing memorandum prepared by the government and a рresentencing report prepared by probation officers. The sentencing memorandum claimed that although the indictment stated that Polselli had defrauded his victims of only $66,000, the actual amount was closer to $238,000. This estimate was repeated in the government’s version оf the facts that was included in the presenteneing report.
In June, 1982, the parole board reviewed Polselli’s case and concludеd that Polselli would have to serve his full two-year sentence. Using the government’s $238,000 estimate for the crime, the parole board found that Polselli’s crime was of “very high severity,” which made the minimum time that he must serve for his sentence twenty-four months.
In November, 1982, Polselli filed his first motion pursuant to sеction 2255. This motion was dismissed by the district judge without prejudice, and Polselli filed the present motion on January 19, 1983. The district judge dismissed this motion on March 2, 1983, withоut holding an evidentiary hearing.
In this appeal, Polselli raises two major arguments. First, he claims that he was denied effective assistance of counsel in violation of the sixth amendment because his counsel falsely guaranteed him parole and because his counsеl failed to object to the government’s claim that he had defrauded his victims of $238,000. Polselli claims that this ineffective assistance of cоunsel is an adequate ground to vacate his sentence or, in the least, is an allegation that merits an evidentiary hearing. Second, Pоlselli asserts that he is entitled to an evidentiary hearing on whether the district judge wrongfully relied on the $238,000 figure in sentencing him.
With respect to Polselli’s inеffective assistance of counsel claim, this Court cannot consider Polselli’s claim that his counsel guaranteed early parоle because it was not properly raised at the district court.
Caldwell v. United States,
This Court can, however, consider Polselli’s claim that his counsel failed to оbject to the government’s $238,000 estimate of fraud in its sentencing memorandum and in the presentencing report. Polselli argues that his counsel hаd a duty to object to this estimate so that the trial judge would not sentence him based on false information. The flaw in Polselli’s argument is that his cоunsel did object to *358 the government’s use of the $238,000 figure. Plaintiff’s counsel wrote a lengthy letter to the trial judge in which he stated the government’s estimate was “grossly inaccurate” and that the true damage was closer to $65,000. This figure was also reflected in the defendant’s version of the fаcts in the presentencing report. His attorney again raised this complaint in his Motion for Reconsideration of Motion for Reduction of Sentence, in which Polselli’s counsel stated that he and Polselli were gathering information to show that the government’s estimate of Pоlselli’s fraudulent conduct was excessive. An evidentiary hearing is not required under section 2255 if “the motion and the files and records of the cаse conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. It is clear from the records of this case that Polselli’s counsel did not object to the government’s figure, so a hearing on this issue was unnecessary.
Polselli next argues that he is entitled to an evidentiary hearing to dеtermine whether the government misstated the amount of fraud that Polselli had committed. Polselli claims that this misstatement led the district judge to impose a longer sentence than he would have received if the district court was aware of the true extent of his fraud.
The $238,000 government estimate is not a justification for a new sentence just because it would have been inadmissible at trial. Many forms of evidence that are inadmissible at trial, such as hearsay, are admissible at the sentencing stage.
Williams v. New York,
In this case, the question whether the government’s information was materially false would have to be determined at an evidentiary hearing becausе the record does not present enough evidence on that question. The question of whether the district judge relied on the government’s information, however, can be decided without an evidentiary hearing. The district judge stated in sentencing Polselli that he had considered his counsel’s letter, the presentencing report, as .well as the government’s sentencing memorandum. By considering all of these documents, the distriсt judge was able to compare the government’s valuation of $238,000 with Polselli’s valuation of $65,000. Thus, the district judge did not rely on only one source оf information but was able to compare the two estimates.
Moreover, in ruling on the Polselli’s motion to dismiss, the district judge held that he had not relied on any inaccurate information. The trial judge’s recollection of the trial can certainly be used in ruling on a motion to vacate.
See Machibroda v. United States,
The judgment of the district court is therefore affirmed.