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Table of Contents

750 – Sentencing Hearing, Generally (§6A)

750 – Sentencing Hearing, Generally (§6A)
  • 755 Burden of Proof
  • 760 Rule 32, Presentence Report (§6A1.2)
  • 770 Information Relied On/Hearsay (for Acquitted, Uncharged, Dismissed Conduct, see §175, §270, §718)
  • 775 Statement of Reasons For Sentence Within Range (18 U.S.C. §3553)

Back to main table of contents

§772 Information Relied On: Pre-Guidelines Cases

Supreme Court
Ninth Circuit

Supreme Court holds that jury may not con­sider “victim impact state­ment” in imposing death penalty. (772) At the sentencing phase of defendant’s trial, the jury considered a “victim impact statement” as re­quired by state statute, which described the se­vere emotional im­pact of the murders on the family, and the personal characteris­tics of the victims.  In a 5-4 opinion written by Justice Powell, the Supreme Court reversed the death sen­tence, holding that the presence or absence of emo­tional distress to the victim’s family and the personal character­istics of the vic­tims are not proper consid­erations in a cap­ital case.  They serve no other pur­pose than to inflame the jury and divert it from de­ciding the case on the relevant evi­dence.  Justices White, O’Connor, Scalia and Chief Justice Rehnquist dissented.  Booth v. Mary­land, 482 U.S. 496, 107 S.Ct. 2529 (1987).

 

Supreme Court rules that exclusion of testi­mony at the sentencing hearing denied peti­tioner his right to pre­sent evidence in mitiga­tion of punishment. (772) At a hearing to de­termine whether the death penalty should be imposed on him petition­er sought to introduce the tes­timony of two jailers and a “regular vis­itor” to the ef­fect that he had “made a good ad­justment” dur­ing the 71/2 months he had spent in jail between arrest and trial.  The Supreme Court ruled that the trial court’s ex­clusion of this testimony denied peti­tioner his right to place before the sentenc­ing jury all rele­vant evidence in mitigation of punishment.  Skip­per v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669 (1986).

 

Supreme Court holds that probation officer’s sentenc­ing recom­menda­tion need not be dis­closed. (772) The trial court did not err in re­fusing to disclose the proba­tion of­ficer’s sen­tencing recommenda­tion because such disclo­sure is expressly exempted under 32(c)(3)(A), Federal Rules of Criminal Proce­dure.  Disclo­sure may impair the effectiveness of the pro­bation officer if the de­fendant is placed on probation or parole.  U.S. v. Doe, 465 U.S. 605, 104 S.Ct. 1237 (1984).

 

9th Circuit finds that sentence was not based on improper amount of restitution. (772) In this preguidelines case, the district court improperly im­posed an amount of resti­tution greater than the amount in the count of conviction.  In a later habeas corpus pro­ceeding, the district court corrected its er­ror but left defendant’s four year custodial sen­tence intact.  On appeal, the 9th Circuit found that the dis­trict court did not base its sen­tence on improper in­formation, because it considered the sentence appro­priate even af­ter reducing the amount of restitution.  U.S. v. Par­rott, 992 F.2d 914 (9th Cir. 1993).

 

9th Circuit holds that disputed facts at sen­tencing re­quire findings by sentencing judge under Fed. R. Crim. P. 32. (772) At sentenc­ing, defen­dant challenged the factual accuracy of matters contained in the presen­tence report.  The district court failed by make the findings or determinations required by Fed. R. Crim. P. 32(c)(3)(D).  Judges Beezer, Pregerson, and Canby found that this omission mandated re­sentencing.  Al­though defen­dant did not raise his Rule 32 objection before the district judge, the court reviewed the claim because no fac­tual in­quiry was necessary, the challenged in­formation was impor­tant to sentencing and continued to affect the defendant’s treatment during later stages of the correctional process, and the failure of the district court to follow Rule 32 constituted clear error.  U.S. v. Big­man, 906 F.2d 392 (9th Cir. 1990).

 

9th Circuit remands for failure to attach findings to presen­tence report. (772) The trial judge orally agreed with the defendant’s chal­lenge to statements in the presen­tence report, stated her belief that this was the defendant’s first narcotics offense.  However, she fail­ed to attach her findings to the presentence report as re­quired by Fed. R. Crim. P. 32(c)(3)(D).  She also failed to rule on the defendant’s con­tention that he did not initi­ate this drug deal.  The 9th Circuit af­firmed the sentences but or­der­ed the case re­manded to ensure compliance with Rule 32.  The court noted that on re­mand no resen­tencing hear­ing will be necessary if the district judge is confident that the disputed informa­tion played no role in the sen­tencing decision.  U.S. v. Fer­nandez-Angulo, 897 F.2d 1514 (9th Cir. 1990) (en banc).

 

9th Circuit upholds judge’s reliance on infor­mation from civil proceeding in sen­tencing de­fendant. (772) “A sentencing judge may appro­priately conduct an inquiry broad in scope, largely unlimited as to the kind of infor­mation which he may consider or the source from which it may come.”  In this case the settlement of the under­lying civil action before appeal left unanswered the ques­tion of defendant’s civil li­ability, but the 9th Circuit held that the defen­dant “has not shown that the district judge’s conclusions in that regard are mater­ially false, or that the sentence is dispro­portion­ately harsh as a re­sult.”  FTC v. American Nat’l Cellular, 868 F.2d 315 (9th Cir. 1989).

 

9th Circuit holds that judge may consider evi­dence of counts for which an indictment has been dis­missed. (772) The trial judge has broad lati­tude in sentencing and may properly take into account evidence from a wide variety of sources.  “A sentencing judge may con­sider evidence of counts for which an indictment has been dismissed by the govern­ment.”  Thus the trial court could properly consider the testi­mony on the killing charge in determining the 25-year sen­tence on the bank larceny convic­tions.  U.S. v. Lewis, 862 F.2d 748 (9th Cir. 1988).

 

9th Circuit remands to permit judge to clarify that he was not relying on disputed informa­tion. (772) The sentencing judge stated that he was not going to rely on the dis­puted allega­tions, but then added, “except when you put all the pieces together, you can find some parts to be more believable than other parts.”  The judge also per­mitted the prosecutor to argue at some length that the dis­puted information was relevant to the sen­tencing deci­sion.  The 9th Circuit found this record ambiguous, and re­manded the case for resentenc­ing in accor­dance with Fed. R. Crim. P. 32(c)(3)(D).  U.S. v. Baron, 860 F.2d 911 (9th Cir. 1988).

 

9th Circuit holds that hearsay may be relied on in sen­tencing. (772) The 9th Circuit held that fed­eral law is clear that a judge may con­sider hearsay information in sentencing a de­fendant.  Only when hearsay is so inade­quately sup­ported that “the factual basis for believing it is almost nil” can it be argued that the evidence should not have been considered.  Here the officer’s hearsay testimony about defendant’s partici­pa­tion in the distri­bution of co­caine charged in the other count of the in­dictment was properly considered.  The in­con­sistencies between the officer’s testimony and the in­formant’s were minor.  U.S. v. Fernandez-Vi­dana, 857 F.2d 673 (9th Cir. 1988).

 

9th Circuit holds that preponderance stan­dard is appro­priate for de­termining facts at sentencing. (772) Relying on McMillan v. Pennsylvania, 106 S.Ct. 2411, 2420 (1986), the 9th Circuit held that the district judge did not abuse his discre­tion in applying a preponder­ance of the evi­dence standard in mak­ing find­ings of fact at sentencing.  They also indicated that an even “lesser” standard might be suffi­cient, but that question “is not before us.”  Judge Reinhardt concurred, but suggested that a “higher” stan­dard may well be war­ranted in capital cases.  U.S. v. Fer­nandez-Vidana, 857 F.2d 673 (9th Cir. 1988).

 

9th Circuit finds no abuse of discretion in failing to re­quest a presentence report. (772) The de­fendant was convicted of espionage.  The trial court stated that the trial “wit­nessed the pro­duction of materials relating to virtually every aspect of the defendant’s life; his career, his per­sonality, and beliefs.  Rarely has a per­son’s life been held our to public inspec­tion in quite such a man­ner.”  The court stated that “there is literally nothing a presentence investi­gation could turn up which has not already been well documented, nothing a presentence report could re­late which is not presently known.  The facts of [the defendant’s] life are, at this junc­ture, almost common knowledge.”  On these facts, the 9th Circuit found no abuse of discretion in not order­ing a presen­tence re­port.  U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988).

 

9th Circuit holds court has discretion to deny eviden­tiary hearing on alleged inaccu­racies in presen­tence report. (772) Fed. R. Crim. P. 32(c)(A)(3) ex­press­ly pro­vides that the deci­sion whether testimony may be in­troduced to rebut any factual allegation is “in the discre­tion of the court.”  Thus a district court’s decision to deny a request for an evi­dentiary hearing on alleged inac­curacies is re­viewed for abuse of discretion.  Here the 9th Circuit found no abuse of discretion in deny­ing an eviden­tiary hearing regarding the loss attributable to the defendant, victim impact letters, and defen­dant’s tax liability.  U.S. v. Monaco, 852 F.2d 1143 (9th Cir. 1988).

 

9th Circuit rules that by appending defen­dant’s rebuttal to the pre­sentence report, the Bureau of Prisons com­plied with the Privacy Act. (772) The 9th Circuit held that the Bureau of Prisons has not exempted itself from the part of the Privacy Act, 5 U.S.C. 552 a(e)(5) that re­quires it to maintain records with such accuracy as is necessary to insure fairness.  Nevertheless, it adequately complied with the law by ap­pending defen­dant’s 17-page rebuttal to the presentence report, as well as in the re­ports it sent to the Parole Commission.  Fendler v. U.S. Bureau of Prisons, 846 F.2d 550 (9th Cir. 1988).

 

9th Circuit holds courts have equitable power to order expunge­ment of records. (772) Peti­tioner argued that inaccur­ate information in the presentence report relied on by the Parole Commission should be expunged.  Fed­eral courts have the equitable power “to order the ex­pungement of Government records where necessary to vindi­cate rights secured by the constitution or by statute.”  However, The 9th Circuit held that petitioner failed to show that expunge­ment was neces­sary.  Be­cause he had been released on parole, the allegedly in­accurate information posed no threat to him.  In addi­tion, he would have an opportunity to challenge the pre­sentence re­port in any future parole proceeding.  Fendler v. U.S. Bureau of Prisons, 846 F.2d 550 (9th Cir. 1988).

 

9th Circuit allows newspaper and estate of murdered former prosecutor to see presen­tence report on de­ceased murderer. (772) Defendant pleaded guilty to being a felon in possession of a firearm and was placed on pro­bation.  While on probation he walked into the law office of the former Marin County District Attorney and shot him dead.  Later that day, he committed sui­cide.  Because of public inter­est in the case a newspaper sought disclosure of the presentence report in the firearms case, as well as a psychiatric report and a post­sentence pro­bation report.  The former Dis­trict Attor­ney’s estate also sought dis­closure, to determine whether the probation service should have warned the vic­tim of a danger to his life.  The 9th Circuit held that the public interest required that all three re­ports be made available to both the newspaper and the estate “to read and make notes.”  The trial court may redact infor­mation which should remain confiden­tial, and all copies are to remain with the district court “unless the district court in its dis­cretion otherwise di­rects.”  U.S. v. Schlette, 842 F.2d 1574 (9th Cir. 1988) as amended, 854 F.2d 359 (9th Cir. 1988).

 

9th Circuit holds that Rule 32 does not give a court juris­diction to correct post-sentence re­ports. (772) Rule 32(c) of the Federal Rules of Criminal Procedure allows a defendant to challenge factual inaccuracies in the pre­sentence report during imposition of sentence.  Here, however, the defen­dant sought to chal­lenge inaccuracies in a post-sentence report prepared by the Bu­reau of Prisons.  The Ninth Cir­cuit held that Rule 32(c) does not apply to such a post-sen­tence report, nor does the Dis­trict Court have juris­diction under Rule 35.  Defendant’s rem­edy is to challenge the report in a proceeding before the Bureau of Prisons under 28 C.F.R. 2.26(e)(4).  U.S. v. Freeny, 841 F.2d 1000 (9th Cir. 1988).

 

9th Circuit finds that admission of allegedly invalid prior bur­glary conviction in death penalty sentencing hearing was not prejudi­cial. (772) Two prior convic­tions were intro­duced at the death penalty sentencing hearing.  Defen­dant challenged only one — the burglary conviction — on the ground that his guilty plea was invalid.  The 9th Circuit found it unneces­sary to decide whether the plea was in­valid be­cause the underlying facts of the case made it clear that the jury did not rely on the prior bur­glary con­viction in imposing the death penalty.  Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987).

 

9th Circuit holds that court may consider facts relating to charges on which defendant was acquitted. (772) The defendant was ac­quitted of murder, but in imposing sentence on the other charges, the trial judge stated that he agreed with the state that that defendant was guilty of murder, though he didn’t “propose to criti­cize or argue with the jury’s verdict.”  The 9th Circuit found no due process violation in the 89-year sentence.  The trial judge clearly knew that defendant was acquitted of the mur­der charge and thus knew to treat the facts with caution.  “It was perfectly proper, how­ever, for the judge to consider the facts that the victims were killed” and that de­fendant “must have been aware that it was un­likely they were going to be permitted to live.”  Walker v. En­dell, 828 F.2d 1378 (9th Cir. 1987), amended 850 F.2d 470 (9th Cir. 1988).

 

9th Circuit rules that basing sentence on de­fendant’s failure to co­operate violated Fifth Amendment. (772) De­fendant was caught try­ing to smuggle $150,000 out of the U.S.  At sen­tencing, the trial judge noted that he had warned him that if he had any hope of consid­eration by the court, he should tell where the money came from and who was involved.  De­fense counsel objected on Fifth Amendment grounds.  The 9th Circuit reversed the sen­tence, noting that the govern­ment had not of­fered the defendant immunity, and if he cooper­ated, he would risk further prosecution.  The court dis­tinguished Roberts v. U.S., 445 U.S. 552 (1980), which permitted a judge to consider the defen­dants lack of cooperation, on the ground that there the defendant never in­voked the Fifth Amendment as the basis for his refusal to co­operate.  U.S. v. Safirstein, 827 F.2d 1380 (9th Cir. 1987).

 

9th Circuit holds that court’s reliance on un­reasonable in­ference in sentencing defendant violated due process. (772) There was nothing in the record to support the inference that the $150,000 in negotiable instruments, which de­fendant had tried to smuggle out of the coun­try, constituted drug proceeds.  Never­theless, the trial judge repeatedly stated that he was basing his sentence on this in­ference, and im­posed the maximum sen­tence.  The 9th Circuit reversed the sentence, holding that basing a sentence on unreasonable infer­ences is just as improper as basing it on false or unreli­able information.  U.S. v. Safirstein, 827 F.2d 1380 (9th Cir. 1987).

 

9th Circuit finds no error in reliance on statements made by the prosecutor at the sen­tencing hearing. (772) Defendant, a doctor, pleaded guilty to illegal distribution of drugs.  At the sen­tencing hear­ing, the prosecutor re­ferred to defendant’s log book of prescriptions and as­serted it was a fraudulent cover for his illegal drug transac­tions.  When chal­lenged by the defendant, the prosecutor re­ferred to sworn affidavits which he sub­mitted to the court of witnesses who stated that defen­dant paid them for filling pres­criptions and return­ing the drugs to him.  The court relied on this at sentencing.  In a per cu­riam opinion, the 9th Circuit found no error in the trial court’s re­liance on the statements of the prose­cutor as supported by the affi­davits.  Since the state­ments were not in the pre­sentence report, Rule 32(c) did not apply, and no written findings were necessary.  U.S. v. Rachels, 820 F.2d 325 (9th Cir. 1987).

 

9th Circuit rules that court may not infer wrongful con­duct simply from arrest or deten­tion. (772) The Ari­zona trial court considered defendant’s numerous “contacts” with the law — all falling short of convictions — as aggravating circum­stances.  The 9th Circuit held that al­though a sentencing court may con­sider crimi­nal acts which did not result in con­viction, it may not infer wrongful conduct from the arrest or de­tention alone.  It must look at the un­der­lying facts.  Ac­cordingly, the case is remanded to the district court to determine whether the state court improperly consid­er­ed defendant’s con­tacts with the law.  Brothers v. Dowdle, 817 F.2d 1388 (9th Cir. 1987).

 

9th Circuit holds that prosecutor’s ex parte communi­ca­tion to judge did not prejudice de­fendant. (772) At a side-bar conference with the judge and prosecutor shortly before sen­tencing, coun­sel for a co-de­fendant ex­plained that his client had not coop­erated because he was informed there was a “contract” on his life.  There was some specu­lation that defendant could have been the per­son behind the con­tract, although the prose­cutor dis­counted the threat and the co-defen­dant’s alleged fear.  Defendant argued that this conversa­tion, at which he was not present, influen­ced the judge to in­crease his sen­tence.  The 9th Circuit found it “highly doubt­ful” that the conver­sation had any effect, and upheld the sen­tence.  U.S. v. Vaccaro, 816 F.2d 443 (9th Cir. 1987).

 

9th Circuit holds that if defendant challenges the pre­sentence report, the trial court must make findings. (772) The defendant chal­lenged the government’s sen­tencing memo­randum, and in response, the government filed an amended memorandum.  Some of the contro­verted ma­terial remained in the amended memorandum.  The trial judge stated he was restricting the ba­sis of the sentence to the amended presentence report prepared by the Probation Department.  How­ever, the record on ap­peal did not dis­close whether the pre­sentence report con­tained the challenged ma­terials.  In revers­ing the other grounds, the 9th Circuit ruled that if the defendant is sentenced again, the judge should attach his findings to the pre­sentenced report, as required by Rule 32.  U.S. v. Sharon, 812 F.2d 1233 (9th Cir. 1987).

 

9th Circuit reverses for failure to make timely findings after an evi­dentiary hearing on dis­puted matters. (772)  Defendant disputed the alle­gations in the presentence report and an evi­dentiary hearing was conducted, but the trial court failed either to make find­ings or to state that it was disregarding the contro­verted in­formation, as re­quired by Fed.R. Crim.P. 32(c)(3)(D).  The Ninth Cir­cuit re­versed, holding that even though the district court did enter findings of fact some five months after defen­dant filed his notice of ap­peal, it did so with­out jurisdic­tion, and resen­tencing was re­quired.  U.S. v. Edwards, 800 F.2d 878 (9th Cir. 1986).

 

9th Circuit reverses for failure to show that defendant was repre­sent­ed by coun­sel on prior drunk driving convic­tions. (772) Defendant’s presentence report show­ed three prior drunk driving convictions, but noted that “there is no indication that he was represented by coun­sel on all three cases.”  At the sentenc­ing hearing, defen­dant offered to testify that he had not been provided with counsel and had not waived his right to counsel.  But the magis­trate pre­sumed that the Washington State pro­ceed­ings were regular and sentenced him as a third-time offender.  This was error.  The 9th Circuit va­cated the sentence and remanded to per­mit the govern­ment to meet its “burden” to show either rep­resentation or the waiver of the right to it.  U.S. v. De­bevoise, 799 F.2d 1401 (9th Cir. 1986).

 

9th Circuit finds no need for evidentiary hearing when court did not rely on contested information and ex­plained basis for 22-year difference in sen­tence between two defendants. (772) The sen­tence in this case was va­cated in U.S. v. Stewart, 770 F.2d 825 (9th Cir. 1985) be­cause it was not clear whether the trial judge considered events in Canada which were dis­puted by the defen­dant.  On re­mand, the trial judge imposed the same sen­tence.  But this time he explained that he was not considering any of the disputed events.  He also explained the rea­sons why he imposed sentences totaling three and one-half years on the co-defendant, but 25 years on the de­fendant.  On appeal the Ninth Circuit af­firmed, finding sufficient com­pliance with Fed. R. Crim. P. 32(c)(3)(D).  U.S. v. Stewart, 799 F.2d 580 (9th Cir. 1986).

 

9th Circuit upholds court’s consideration of informa­tion in government’s sentencing mem­orandum des­pite defen­dant’s protests that he was not asso­ciated with organ­ized crime. (772) The gov­ernment’s sentencing memo­randum in­clud­ed tape-recorded conversations between defen­dant and his co-conspirators in which they re­ferred to organized crime connec­tions.  In ad­dition, an affidavit from a Se­cret Service agent stated that multiple in­formants had identified defendant as an “enforcer” for an or­ganized crime figure, and that defendant him­self had admitted to association with that per­son.  De­fendant also made admissions during negotia­tions with the govern­ment in another criminal proceeding.  Despite defen­dant’s ar­gument that this information was unreli­able and that he was powerless to disprove it, the Ninth Circuit upheld the trial court’s con­sideration of it.  The court quoted U.S. v. Miller, 558 F.2d 1256, 1266-67 (9th Cir. 1978): “Nothing in [U.S. v. Weston, 448 F.2d 626, 631 (9th Cir. 1971)] requires the sentencing judge to conduct a trial-type inquiry into the validity of in­formation in the presen­tence report merely because a defendant objects to its va­lidity.”  U.S. v. Branco, 798 F.2d 1302 (9th Cir. 1986).

 

9th Circuit upholds consideration of evidence that de­fen­dant com­mitted other thefts. (772) After giving defen­dant a month to develop proof of the source of the jewelry she pawned, the trial court sen­tenced her to an extra year on the ground that the jewelry was stolen in other thefts.  She did not dispute that jewelry packages had disappeared from her section at the post office, that the thefts stopped after she was arrested, and that she had pawned jewelry.  These facts were suffi­cient­ly reli­able to justify the trial court’s inference in determining her sentences.  U.S. v. Hull, 792 F.2d 941 (9th Cir. 1986).

 

9th Circuit finds it proper to consider defen­dant’s lack of re­pentance in sentencing. (772) Under U.S. v. Gray­son, 438 U.S. 41, 50-52 (1978) the inclu­sion of de­fendant’s failure to “recant,” i.e. his lack of repentance, in the court’s sen­tencing calculus was permissible.  U.S. v. Malquist, 791 F.2d 1399 (9th Cir. 1986).

 

9th Circuit holds that self-incrimination priv­ilege ap­plies at sentencing. (772) A court can­not condition le­niency upon a de­fendant’s re­fusal to admit to a crime not charged.  Al­though a judge has broad dis­cre­tion in consid­ering information for sen­tencing, that discre­tion does not extend to information obtained in violation of a de­fendant’s privilege against self-incrim­ina­tion.  U.S. v. Messer, 785 F.2d 832 (9th Cir. 1986).

 

9th Circuit rules that failure to show presen­tence re­port to defendant was not ineffective assistance of counsel. (772) To prevail on a claim of ineffective assis­tance of counsel, a defendant must identify acts or omis­sions that are “outside the side range of professionally competent assistance” and that “but for coun­sel’s un­professional errors, the re­sult of the pro­ceeding would have been differ­ent.” Strick­land v. Washington, 446 U.S. 668 (1984).  A defense counsel’s failure to show his client the presentence report may fall be­low the standard of reasonably competent representa­tion.  But here, the record shows that the trial court did not rely on the chal­lenged information, so de­fendant’s claim fails.  Jones v. U.S., 783 F.2d 1477 (9th Cir. 1986).

 

9th Circuit holds that judge has broad discre­tion to de­cide relevance and reliability of sen­tencing information. (772) Where a § 2255 petition alleges reliance on mater­ially false sentencing information, the sen­tence will be vacated only if the challenged information is (1) false or unreliable and (2) demonstrably made the basis for the sen­tence.  Here, the judge found that tes­timony pre­sented at trial and at the eviden­tiary hearing was suffi­cient to support the presentence report’s statements as to the defendant’s narcotics involvement and the Court of Appeals declined to interfere with the trial judge’s “broad discretion to decide not only the relevance but the relia­bility of sen­tencing information.”  Moreover, the trial court stated that the sentence was jus­tified based on the trial testimony, regard­less of the presen­tence report, and such “findings of nonreliance will be taken at face value.”  Jones v. U.S., 783 F.2d 1477 (9th Cir. 1986).

 

9th Circuit holds that judge may rely on con­duct which did not result in conviction. (772) Defendant contended that his sentence was enhanced be­cause of a void con­viction.  But the district court properly relied on the un­derlying arrest. A sentencing judge may rely on criminal con­duct not result­ing in conviction and activity which leads to an invalid conviction.  Resen­tencing was not re­quired.  U.S. v. Williams, 782 F.2d 1462 (9th Cir. 1986).

 

9th Circuit rules that prosecutor’s mistaken advice to judge re­quired re-sentencing. (772) At sentencing, the prosecutor told the judge that even if defen­dant were sentenced to life without possibility of parole under 21 U.S.C. § 848, he would be eligible for parole in 10 years.  The government con­ceded this was wrong, and that the judge may have erron­eously relied on it.  The sentence was vacated and the case was remanded for re­sentencing.  U.S. v. Stewart, 779 F.2d 538 (9th Cir. 1985).

 

9th Circuit rules that government’s ex parte sentencing memo re­quired rever­sal. (772) 21 U.S.C. § 849 authorizes the govern­ment to request a sen­tencing hearing to determine whether the de­fendant is a special drug of­fender.  Relying on this statute, the govern­ment filed an ex parte memo in support of its request for a hearing.  The trial court declined to sentence under § 849, but refused to disclose the ex parte material.  Based on the judge’s com­ments, it was not clear that he was able completely to ig­nore the ex parte ma­terial, and it was improper for such material to be filed.  The sen­tence was reversed.  U.S. v. Reece, 775 F.2d 1066 (9th Cir. 1985).

 

9th Circuit finds that prisoner failed to ex­haust admin­is­trative remedies with regard to presentence report. (772) A prisoner filed a civil suit to expunge al­leged in­accuracies in his presentence report, on which he said the Pa­role Commission was im­properly relying in setting his parole date.  The Ninth Circuit up­held the district court’s dis­missal of the claim because the prisoner failed to exhaust his ad­ministrative remedies before filing suit.  Fendler v. U.S. Parole Commission, 774 F.2d 975 (9th Cir. 1985).

 

9th Circuit holds that challenge to informa­tion in the presentence report required a hearing. (772) The defen­dant disputed some extremely preju­dicial information in the pre­sentence report.  The trial court erred in failing to either resolve the dispute or to say that it would not consider the disputed information.  The case was re­manded for resentencing.  U.S. v. Stewart, 770 F.2d 825 (9th Cir. 1985).

 

9th Circuit upholds exclusion of polygraph evidence at sentencing. (772) It was not an abuse of discretion for the trial court to ex­clude polygraph evidence at sen­tencing.  U.S. v. Givens, 767 F.2d 574 (9th Cir. 1984).

 

9th Circuit holds that probation officer prop­erly com­municated with judge ex parte at sen­tencing. (772) The court found it proper for the probation officer to com­municate ex parte with the judge, either orally or in writing at the time of sentencing.  U.S. v. Gonzales, 765 F.2d 1393 (9th Cir. 1985).

 

9th Circuit rules that court’s skeptical re­marks were suf­ficient to show it did not rely on disputed informa­tion. (772) The trial court made statements ex­pressing skepti­cism about the information in the presentence re­port that was disputed by the defendant.  Accordingly, the Ninth Circuit held that the trial court sub­stantially complied with Rule 32(c)(3)(D).  Defendant failed to show that the trial court demonstrably relied on the challenged infor­mation in the presentence re­port.  U.S. v. Ibarra, 737 F.2d 825 (9th Cir. 1984).

 

9th Circuit holds that judge did not rely on disputed facts in presentence report. (772) The trial court com­plied with Rule 32(C)(3)(D) by stating that it would not con­sider the contro­verted matters in sentencing, and that it would attach copies of defendant’s objections and the sentencing transcript to the presentence report.  U.S. v. Travis, 735 F.2d 1129 (9th Cir. 1984).

 

9th Circuit upholds use of illegally-seized evi­dence at sentencing. (772) Whether illegally-seized evidence may be used at sentencing de­pends on whether the purpose of deterring il­legal police conduct outweighs the detri­mental effects of excluding the evidence.  Here the evi­dence was sup­pressed in State court on a “technicality”; i.e., insufficient evidence to jus­tify a nighttime search, so it was properly relied on at sentenc­ing in federal court.  U.S. v. Kidd, 734 F.2d 409 (9th Cir. 1984).

 

9th Circuit holds that Youth Act conviction in pre­sentence report was properly considered. (772) The trial court could properly consider a prior Youth Act drug conviction that had been included in the pre­sentence re­port when im­posing sentence.  U.S. v. Campbell, 724 F.2d 812 (9th Cir. 1984).

 

9th Circuit reverses due to misinformation in sen­tencing. (772) The probation officer mis-advised the judge that a 15-year sentence would mean eligi­bility for parole in “48 to 60 months.”  This required reversal of the sen­tence, because one-third of 15 years is 60 months, and the judge’s other com­ments indi­cated he was relying on the 48-month figure.  U.S. v. Ruster, 712 F.2d 409 (9th Cir. 1983).

 

9th Circuit holds that court may consider de­fendant’s refusal to admit guilt at sentencing. (772) In sentencing a defendant to a longer term than codefendants, a court may consider the defen­dant’s unwillingness to admit guilt following conviction.  U.S. v. Long, 706 F.2d 1044 (9th Cir. 1983).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

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