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United States v. Ollie Peterson, No. 12-2484.

Defendant Ollie Peterson pled guilty to one count of bank robbery in violation of
18 U.S.C. § 2113(a) after robbing a bank to pay off a debt with a drug dealer. During Peterson’s sentencing hearing, the district court read from a portion of the probation officer’s confidential sentencing recommendation, which she had submitted only to the court.

At the conclusion of the hearing, the district court sentenced Peterson to 168 months in prison, which fell within Peterson’s sentencing guidelines range. On appeal, Peterson argues that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment
rights because he had no opportunity to respond to the analysis contained therein.

Peterson’s sole contention on appeal is that the district court’s reliance on the probation officer’s confidential sentencing recommendation violated his Fifth and Sixth Amendment rights. He maintains he had no
meaningful opportunity to respond to what he viewed as an argument in aggravation made secretly to the district court.

Fifth Amendment Challenge

Peterson first challenges the district court’s consideration of the probation officer’s justification contained in the confidential recommendation as a violation of his right to due process under the Fifth Amendment. He does not contest that the recommendation contained facts that were not disclosed in the PSR, but argues that
his inability to view the recommendation prior to sentencing prevented him from responding to the probation officer’s analysis.

In his brief, Peterson explicitly frames his appeal as an as-applied challenge to the district court’s procedure. He explains that he had no notice that the court would use the evidence demonstrating his lack of drug abuse and criminal involvement during childhood and his upportive family against him.

Confidential recommendations and Local Rule 32.1

In order to assist district courts in compiling evidence and fashioning reasonable sentences in criminal cases, Federal Rule of Criminal Procedure 32 requires probation officers to conduct presentence investigations and submit reports of their investigations to the court. See Fed. R. Crim. P. 32.

Rule 32 requires the probation officer assigned to a case to disclose her report to the defendant, the defendant’s counsel, and the attorney for the government prior to sentencing, and the district court must ensure that the defendant and his counsel have read and discussed the report before imposing the sentence. Fed. R. Crim. P.32(e)(2).

There are two exceptions to Rule 32’s disclosure requirement. First, subsection (d)(3) allows the probation officer to exclude from the version of the PSR given to the defendant any information relating to confidential sources, diagnoses that could seriously disrupt a rehabilitation program, and “any other information that, if disclosed, might result in physical or other harm to the defendant or others.” Fed. R. Crim. P. 32(d)(3)(A)-(C).

Second, a court may direct, “by local rule or by order in a case,” that the probation officer not “disclose to anyone other than the court the officer’s recommendation on the sentence.” Fed. R. Crim P. 32(e)(3). At the time of its enactment, the purpose behind the latter exception was to allow probation officers the opportunity to provide a candid assessment of the defendant to the court and to protect the effectiveness of the probation officer in the supervisory context. See Fed. R. Crim. P. 32 Advisory Comm. Note (1974).

In line with Rule 32(e)(3), the Northern District of Illinois has adopted a local rule, which specifies that “[t]he recommendation of the presentence report shall be submitted only to the Court.” LCrR. 32.1(f). The rule also indicates that “[t]he recommendation section shall not include any factual information not already contained in the other sections of the report.” Id. The recommendation itself is therefore given to the judge confidentially, but every underlying fact on which the recommendation is based must be disclosed to the parties.

Due process requirements

Here, Peterson is not challenging the probation officer’s authority to submit a confidential recommendation to the district court, a procedure that courts have consistently upheld as constitutional. Rather, he is suggesting that the probation officer’s explanation, rationale, or justification contained in the confidential recommendation amounts to an argument to which a defendant has no opportunity to respond.

“Due process entitles defendants to fair sentencing procedures, especially a right to be sentenced on the basis of accurate information.” United States v. Pless, 982 F.2d 1118, 1127 (7th Cir. 1992).  Consequently, we have held that if all facts on which the probation officer’s recommendation is based appear in the PSR, the district court’s consideration of the recommendation at sentencing does not violate due process.

Here, the confidential portion of the PSR that the district court referenced during sentencing contained both a numeric recommendation and the probation officer’s analysis justifying that recommendation. Importantly,however, all of the underlying factual information supporting the probation officer’s rationale is contained in the version of the PSR both parties received prior to sentencing. Under the precedent in this circuit and others, Peterson received the process he was due: he reviewed the PSR and “had an opportunity to refute
its contents before the district court.” Heilprin, 910 F.2d at 474.  By ensuring that Peterson received and reviewed all of the facts referenced in the probation officer’s sentencing  recommendation, the district court gave Peterson all the process he was due, and we therefore find no Fifth Amendment violation or plain error.

The policy question nevertheless remains whether disclosure of a probation officer’s sentencing recommendation is desirable even if not constitutionally compelled. A blanket rule against disclosure of a probation officer’s sentencing recommendation, though explicitly endorsed by several of the district courts in this circuit, is far from universal. Many district courts favor releasing the sentencing recommendation to the parties and others leave disclosure to the district judge’s discretion. See, e.g.,E.D. Cal., L.R. 460(c).

Concern about an absolute non-disclosure rule stems from a desire to maintain openness in the sentencing process. Because so few defendants proceed to trial, the sentencing hearing is often a defendant’s first and last opportunity to present argument to the court. And probation officers play an important role in that process.

We have often explained that a probation officer “acts as an arm of the court” during sentencing and does not take on the role of an adversary.  But we have also urged “district judges, U.S. Attorneys, and probation officers [to take steps] to prevent the perception that probation officers are ‘surrogate prosecutors.’ ” United States v. Turner, 203 F.3d 1010, 1014 (7th Cir. 2000).

To the extent confidential sentencing recommendations create the appearance of hidden information or a secret tilt in the government’s favor, we offer the view that our federal sentencing procedures might be better served by allowing the parties to evaluate any analysis that might form the basis of a judicial determination.

We do not suggest that district courts should necessarily release confidential sentencing recommendations in all cases and under all circumstances. But the federal rules allow courts the opportunity to make these determinations on a case-by-case basis. See Fed. R. Crim.P. 32(e)(3).

If a district court is concerned about a probation officer’s ability to produce a forthright assessment because of a potential supervisory relationship or a case-specific factor, the court could request that the probation officer submit the sentencing recommendation to the court confidentially. An order from the district court requiring confidentiality would produce the added benefit of informing the defendant that a confidential recommendation exists, something that could remain a mystery to defendants when the court does not reference the recommendation during sentencing.

If, on the other hand, no such concerns exist because of the structure of the probation office or because of the nature of the case, the district court could direct that the parties receive all portions of the PSR, including the probation officer’s sentencing recommendation. This practice could allow the defense an opportunity to see and comment on the recommendation and independently confirm that all facts forming the basis for the recommendation are contained elsewhere
in the report.

Because due process does not require disclosure of the sentencing recommendation, we have conducted an independent review of the probation officer’s analysis and can confirm the district court’s conclusion that all facts on which she based that analysis are contained in the version of the PSR given to the parties in this case.

Sixth Amendment Challenge

Notwithstanding our concern about rules requiring the confidentiality of sentencing recommendations, Peterson’s Sixth Amendment challenge to the procedure fairs no better. Peterson contends that his inability to review and respond to the probation officer’s confidential  recommendation prior to sentencing amounted to a violation of his Sixth Amendment right to counsel. Specifically, he argues that the district court’s consideration of his childhood and family circumstances as a potential aggravating factor was unforeseeable and that his counsel was unable to address or refute the probation officer’s analysis prior to sentencing.

Peterson does not assert that his counsel committed any professional errors. Instead, he maintains that he was in the same position he would have been in had he been unrepresented because his counsel could not respond to arguments that were not disclosed prior to sentencing.

Peterson seemingly argues for the application of the standard articulated in the Supreme Court’s decision in United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme Court recognized that a Sixth Amendment violation will result if the defendant’s “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659. In order for this standard to apply, however, the attorney’s failure must be complete, meaning that the defense counsel must have “failed to oppose the prosecution throughout the sentencing proceeding as a whole.” Bell v. Cone, 535 U.S. 685, 697 (2002).

Here, Peterson’s counsel engaged in a comprehensive discussion of what he viewed to be the mitigating factors in the case. He explained that Peterson’s criminal activity resulted from his drug use and that Peterson had never used a weapon to commit a robbery. He emphasized Peterson’s motivation to rehabilitate and argued that the court should consider his strong support group, including his family and friends, when fashioning a sentence.

Surely, Peterson’s counsel could have formulated a more tailored response to the district court’s interpretation of Peterson’s personal background had he known the probation officer would adopt a different view of those facts. But there is nothing remarkable about the probation officer’s gloss on Peterson’s personal history.

And this court has expressed that “[w]hat a defendant proposes as an argument in mitigation may sound to the court more like a factor in aggravation.” United States v. Vasquez-Pita, 411 F. App’x 887, 892 (7th
Cir. 2011) (nonprecedential decision). “That is a risk inherent in discretionary sentencing,” id., not a basis for a Sixth Amendment claim.


For these reasons, we AFFIRM the sentence imposed by the district court.