                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 12 2010

                                                                        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. 09-30219

              Plaintiff - Appellee,              D.C. No. 1:07-CR-00125-JDS-1

  v.
                                                 MEMORANDUM *
ROBERT JEAN STOLTZ, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                    Jack D. Shanstrom, District Judge, Presiding

                      Argued and Submitted February 4, 2010
                               Seattle, Washington

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK, **
Chief District Judge.

       Appellant Robert Stoltz, Jr., (Stoltz) challenges the sentence imposed

following his guilty plea to making false statements to a federally insured financial

institution pursuant to 18 U.S.C. § 1014.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert S. Lasnik, United States Chief District Judge
for the Western District of Washington, sitting by designation.
      1. Any technical error committed by the district court in not strictly

complying with Rule 32(e)(2) and (g) was harmless. See United States v. Turner,

898 F.2d 705, 713-14 (9th Cir. 1990) (concluding that any error committed under

18 U.S.C. § 3552, which contains a provision nearly identical to Rule 32(e)(2), was

harmless in the absence of any prejudice). Stoltz did not suffer any prejudice by

receiving the Revised Presentence Report (PSR) and Addendum only five days

before the initial sentencing hearing. The district court continued the sentencing

hearing for one week to allow Stoltz to review the amended report. Stoltz has

never indicated, either before the district court or in his briefing on appeal, how

additional time would have resulted in a different sentence.




      2. Under either a de novo or plain error standard of review, the district court

did not err in failing to resolve some of Stoltz’s PSR objections. At the initial

sentencing hearing, the district court rejected Stoltz’s argument that the six-level

enhancement set forth under U.S.S.G. § 2B1.1(b)(1)(D) should not apply. The

district court also resolved a factual dispute in Stoltz’s favor at the continued

sentencing hearing and awarded a two-point decrease for acceptance of

responsibility. The only factual disputes that the district court did not expressly

resolve pertained to information contained in the “Ability To Pay” section of the


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revised PSR. Because these factual disputes did not “affect the temporal term of

the sentence the district court impose[d],” United States v. Saeteurn, 504 F.3d

1175, 1181 (9th Cir. 2007), there was no error in failing to resolve them.




      3. Because Stoltz did not object to the district court’s alleged failure to

adequately explain the reasons for his sentence, we “apply plain error review.”

United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (citation omitted).

The record reflects that the district court’s explanation of Stoltz’s sentence was

“sufficient[] to permit meaningful appellate review.” United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc). Specifically, the district court “considered

the evidence and arguments [proffered by Stoltz] and based its sentence on an

analysis of the advisory Guidelines range and the provisions of 18 U.S.C. §

3553(a).” United States v. Stoterau, 524 F.3d 988, 1000 (9th Cir. 2008) (citation

omitted). Accordingly, Stoltz has failed to establish that his substantial rights were

affected.




      4. The district court did not abuse its discretion in denying Stoltz’s motion

for appointment of a psychologist pursuant to 18 U.S.C. § 3006A(e)(1). A district

court commits an abuse of discretion in denying a request for an expert under §


                                           3
3006A(e)(1) only where “(1) reasonably competent counsel would have required

the assistance of the requested expert for a paying client, and (2) the defendant was

prejudiced by the lack of expert assistance.” United States v. Rodriguez-Lara, 421

F.3d 932, 940 (9th Cir. 2005) (citation and internal quotation marks omitted).

“The prejudice cannot be merely speculative; it must be demonstrated by clear and

convincing evidence.” United States v. Chase, 499 F.3d 1061, 1068 (9th Cir.

2007) (citation omitted). Stoltz has failed to meet this standard.

      AFFIRMED.




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