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United States v. Xiong

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 20, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TONY XIONG, DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

On June 28, 2010, Defendant filed a request in which he asks "the Court [to] permit the introduction of testimony from Dr. Baljit Atwal and family members" on behalf of Defendant "at sentencing pursuant to FRCP32(i)(2)." Defendant makes the conclusory argument in this request that "[t]he purpose of this evidentiary hearing is to support defendant's Sentencing Memorandum." (Docket No. 48.) Plaintiff United States of America appears to acquiesce in Defendant's request for an evidentiary hearing since it has not opposed it.

However, an evidentiary hearing under Rule of Criminal Procedure 32(i)(2) is for the purpose of permitting a party "to present evidence on the objections" to the presentence report. No objections to the presentence report have been made as required in Local Rule 460 (Fed.R.Crim.32). Further, "Rule 32 of the Federal Rules of Criminal Procedure "does not create a 'general right to an evidentiary hearing at sentencing.' " United States v. Salcido,506 F.3d 729, 735 (9th Cir. 2007) (cite omitted). Since Defendant has not shown why an evidentiary hearing is necessary, Defendant's request for an evidentiary hearing is denied.

IT IS SO ORDERED.

20100720

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