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April 28, 2011

Intriguing Ninth Circuit ruling on procedure surrounding federal probation officers’ sentencing recommendations

The Ninth Circuit today handed down an intriguing little federal sentencing procedure opinion in US v. Whitlock, No. 10-30124 (9th Cir. April 28, 2011) (available here), which gets started this way:

We held in United States v. Leonard, 483 F.3d 635, 638-39 (9th Cir. 2007), that “sentencing procedures for probation and supervised release violations are primarily governed by Rule 32.1 of the Federal Rules of Criminal Procedure, not Rule 32.” (Emphasis added.)  This case presents a situation where Rule 32.1 does not speak to the particular question at issue — whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed.  We conclude that Rule 32(e)(3) logically fills in the gap.  Therefore, like post-conviction sentencing recommendations, post-revocation sentencing recommendations must be disclosed unless the district court directs otherwise “[b]y local rule or by order in a case.”  Fed. R. Crim. P. 32(e)(3). Accordingly, United States v. Baldrich, 471 F.3d 1110 (9th Cir. 2006), applies here.  We hold that the district court complied with Baldrich’s requirement that the court disclose any factual information in the confidential recommendation on which it relied in sentencing.  See id. at 1113-14.  We further hold that Rule 32(e)(3) and its implementing local counterpart, District of Idaho Local Criminal Rule 32.1, comport with the Equal Protection Clause, so there was no violation of Whitlock’s constitutional rights.

April 28, 2011 at 05:21 PM | Permalink


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