Sixth Circuit thoughtfully discusses due sentencing process

The Sixth Circuit today issued a thoughtful opinion in US v. Hamad, No. 05-4193 (6th Cir. July 19, 2007) (available here), a fascinating little case in which I had the honor be being appointed as an amicus to share my views.  Here are highlights about the case and the ruling by Judge Jeffrey Sutton:

What happens when a district court, applying the advisory sentencing guidelines, not only increases a sentence based on its own fact findings but also does so on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32 of the Federal Rules of Criminal Procedure would authorize this procedure; another would not. Because the escalation of a sentence based on undisclosed evidence raises serious due process concerns, we construe the rule to require a sentencing court either to disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain from relying on the evidence....

While many of the protections, constitutional or otherwise, that guard a criminal defendant’s procedural rights at trial have not historically applied at sentencing or to this type of case, that does not end the inquiry.  Most of these decisions applied to a different sentencing regime from the one we consider today.  Today, district courts face an elaborate set of sentencing guidelines under which a district court must compute a recommended guidelines range and consider, if not necessarily follow, that recommendation — and relief from those sentences through parole is the exception, not the rule.  Then, district courts sentenced individuals under an utterly indeterminate sentencing regime and were not required to make fact-based sentencing computations in determining a sentence — and relief from those sentences through parole was the rule, not the exception.  Under today’s system, it remains unclear whether the Constitution gives sentencing courts a free hand to rely on undisclosed — or, to be more dramatic, secret — accusations that increase an individual’s sentence.

The upshot is this: while a defendant may not have the constitutional right to confront the witnesses against him at sentencing, it remains unclear under modern sentencing practices what due process right he has to know who these witnesses are and what they have said, to respond meaningfully to the accusations or otherwise to ensure that the accusations are accurate.

UPDATE:  Since this opinion is out, I now feel comfortable posting the amicus brief I filed in this case.  It can be downloaded below, and readers will see that my take on these interesting procedural issues ended up being in line with the Sixth Circuit's ultimate ruling.

Download final_form_hamad_brief_for_sixth_circuit_37.DOC