§772 Information Relied On: Pre-Guidelines Cases
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).