                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 18 2012

                                                                        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. 11-50201

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00381-SVW-1

  v.
                                                 MEMORANDUM *
NORMA ABAPO,

              Defendant - Appellant.



                    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




        *
             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.
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.




                                           2                                     11-50201
