                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 22 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50428

              Plaintiff - Appellee,              D.C. No. 8:03-cr-00025-AG-1

  v.
                                                 MEMORANDUM *
JAMES DAVIS BENNETT, AKA James
Davis Bennet, AKA James Bennett, Jr.,
AKA James Butler Bennett, AKA James
David Bennett, AKA James Ralph Leon
Bennett, AKA Jim Bennett, AKA James
Brown, AKA James Butler, AKA John
Butler,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted April 10, 2013
                              Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      James Bennett (Bennett) appeals the district court’s imposition of the same

121-month sentence upon remand. See United States v. Bennett, 621 F.3d 1131

(9th Cir. 2010). We affirm the district court.




      1.     In our mandate, we vacated the district court judgment only as to the

“conviction and sentence for counts eight through ten.” Id. at 1140. “It follows

that the district court was without jurisdiction to review [Bennett’s] argument[s]”

regarding other matters. United States v. Luong, 627 F.3d 1306, 1311 (9th Cir.

2010). Accordingly, the district court did not err when it declined to rule on other

issues raised in Bennett’s motions to dismiss.




      2.     Because the district court proceeded with sentencing even though

Bennett had not reviewed the Pre-Sentence Report (PSR), and the addendum to the

PSR, Federal Rule of Criminal Procedure 32 was violated. See United States v.

Soltero, 510 F.3d 858, 863-64 (9th Cir. 2007) (per curiam), as amended. However,

because Bennett failed to identify how his failure to review the report was

prejudicial to his sentencing, the district court’s violation of Rule 32 was harmless

error. See id.; cf. United States v. Reyes-Ceja,___F.3d___, No. 11-50167, 2013

WL 1285986, at *1, n.5 (9th Cir. Apr. 1, 2013) (noting that the government ceded


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error with regard to the defendant’s first sentencing because the district court failed

to verify that the defendant had read the PSR and discussed it with his attorney);

Appellant’s Opening Brief, at 17-18, United States v. Reyes-Ceja, No. 10-50196

(9th Cir. Sept. 7, 2010), ECF No. 7 (articulating facts in the PSR that would have

been challenged).




      3.     Bennett did not establish that his counsel’s performance at sentencing

was deficient, or that any alleged deficiency resulted in prejudice. See United

States v. Labrada-Bustamante, 428 F.3d 1252, 1261 (9th Cir. 2005). The district

court allowed Bennett’s counsel to assert arguments on Bennett’s behalf and

acknowledged the same. The record does not indicate a reasonable probability of a

different outcome but for Bennett’s counsel’s performance. See id.




      4.     As evidenced by his complaints regarding counsel’s performance,

Bennett was not required to represent himself. See United States v. Skurdal, 341

F.3d 921, 927-28 (9th Cir. 2003) (describing deprivation of counsel as “denial of

the assistance of counsel altogether”) (citation omitted).




                                           3
      5.     Bennett’s claim that the district court violated Federal Rule of

Criminal Procedure 32(i)(3)(B) fails. Rule 32(i)(3)(B) required the district court to

rule on, or explain why it did not need to rule on, controverted matters prior to

Bennett’s resentencing, but we have held that “‘controverted matter’ extends only

to objections to the presentence report that make a difference in the formulation of

an appropriate sentence,” and that “Rule 32 d[oes] not require the district court to

expressly address those assertions that were not factual objections to the

presentence report . . . ” United States v. Petri, ___F.3d___, No. 11-30337, 2013

WL 1490604, at *3, *7 (9th Cir. Apr. 12, 2013), as amended (emphasis in the

original). The “controverted matters” contemplated by Bennett’s claim are not

factual objections to the PSR, so there was no Rule 32(i)(3)(B) violation.

      AFFIRMED.




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