Enriquе Melendez appeals from his sentence, claiming violation of Fed.R.Crim.P. 32(c) and his due process right tо 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 thаt it admit Melendez to a drug treatment program.
1
“Decisions to place a convicted defendаnt within a particular treatment program or a particular facility are decisions within the sole disсretion of the Bureau of Prisons.”
Thye v. United States,
With respect to the second argument, we concludе that the lower court adequately complied with Rule 32(c) and that it was not required to delete the сontroverted 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 weaрon 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,
The defendant also objects to the reference to his ostensible weapon possession in paragraph 13 of the PSR. In that instanсe, 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 sentenсing hearing.”
United States v. Cruz,
The defendant argues that the court nonetheless was required to delete the оriginal 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 proсess nor Rule 32 requires a district court judge to be an editor as well as an arbiter of justice.”
Turner,
Finally, the defеndant argues that the sentencing court’s decision to deny him a recommendation for treatment somеhow “attests to the veracity of the [contested] statements in the [PSR].” Appellant’s Br. at 34. Implicit in that argumеnt is the unfounded assumption that conviction for an offense involving weapon possession preсludes 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
We need go no further. For aught that appears, the defendant was lawfully sentenced. The judgment below is, therefore, affirmed. See Loe. R. 27(c).
Notes
. We note that, by federal statute, the BOP is required to "make available appropriate substаnce abuse treatment for each prisoner the Bureau determines has a treatable cоndition of substance addiction or abuse.” 18 U.S.C. § 3621(b).
. BOP regulations provide that inmates convicted of a felony offense that involved the carrying, possession or use of a firearm are not eligible for sentenсe 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 eаrly release following completion of a drug treatment program. The court's declination to rеcommend participation in a drug treatment program implies nothing about Melendez’s eligibility for early release following completion of such a program.