The Eighth Circuit stated the issue and legal landscape as follows:
Godat first argues that the district court violated his Fifth Amendment right to due process and his Sixth Amendment right to confrontation by considering and relying on factual allegations contained in a confidential sentencing recommendation prepared by the probation office that Godat was not allowed to see or challenge. The Due Process Clause of the Fifth Amendment is implicated when a sentencing court considers evidence that the defendant "had no meaningful opportunity to rebut," and only then when that consideration results in "a sentence based on material misinformation." Kohley v. United States, 784 F.2d 332, 334 (8th Cir. 1986) (per curiam). The Confrontation Clause of the Sixth Amendment is implicated when consideration by the sentencing court of evidence that the defendant was not given an opportunity to rebut results in a defendant being "sentenced on the basis of 'misinformation of constitutional magnitude.'" United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992) (en banc) (quoting United States v. Tucker, 404 U.S. 443, 447 (1972)).The Eighth Circuit resolved the issue on the facts -- the Eighth Circuit credited the district judge's claim that, in sentencing Godat, he "did not consider any undisclosed factual allegations." Further,
The record is thus unambiguous that Godat's sentence did not result from the consideration of facts from the confidential recommendation. Even if the district court had considered these facts in determining Godat's sentence, Godat's claims still would require that the district court considered some piece of misinformation, and the allegations regarding Godat's use of the victim's funds were disclosed to him at sentencing, where he confirmed their accuracy. For these reasons, we reject Godat's Fifth and Sixth Amendment claims.Although these types of challenges are relatively rare, I thought I discuss below the background for the challenge and a Ninth Circuit decision dealing with such a challenge.
Rule 32 of the Federal Rules of Criminal Procedure provide in relevant part:
(e) Disclosing the Report and Recommendation.The key part is Rule 32(e)(3) which specifically permits, by local rule or order in a case, that the Probation Officer's recommendation not be given to the defendant.
(1) Time to Disclose. Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty.
(2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.
(3) Sentence Recommendation. By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer's recommendation on the sentence.
(f) Objecting to the Report.
(1) Time to Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.
(2) Serving Objections. An objecting party must provide a copy of its objections to the opposing party and to the probation officer.
(3) Action on Objections. After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the presentence report as appropriate.
(g) Submitting the Report. At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer's comments on them.
Secret recommendations -- indeed any secret communications from the Probation Officer to the judge -- strike me as being offensive. I refer readers to Doug Berman's blog, Should probation officers be giving federal judges secret sentencing recommendations? (Sentencing Law and Policy Blog 10/25/10), here.
Finally, I refer readers to the following excerpt from United States v. Whitlock, 639 F.3d 935, 940-942 (9th Cir. Idaho 2011), here.
II. Federal Rule of Criminal Procedure 32(e)(3) and District of Idaho Local Criminal Rule 32.1 Comport with Equal Protection
Whitlock argues that Rule 32(e)(3) and its implementing Local Rule 32.1 violate equal protection. We disagree. His argument is foreclosed by United States v. Baldrich, 471 F.3d 1110, 1113-14 (9th Cir. 2006), which upheld the constitutionality of Rule 32(e)(3) in the face of a due process challenge. Whitlock makes essentially the same argument that our court rejected in Baldrich, but attempts to recast it in equal protection terms. As this court and the Supreme Court have recognized, however, and as Whitlock's argument demonstrates, "[i]n challenges to sentencing regimes, 'an argument based on equal protection essentially duplicates an argument based on due process.'" United States v. Marcial-Santiago, 447 F.3d 715, 719 n.5 (9th Cir. 2006) (quoting Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991)).
Just as Whitlock does here, the Petitioner in Baldrich questioned whether it was constitutional for a district court to refuse to disclose a probation officer's sentencing recommendation. See 471 F.3d at 1113. We held that due process was satisfied when the probation officer's recommendation was kept confidential under Rule 32(e)(3) so long as any factual information in the recommendation that the court relied upon in sentencing was disclosed. See id. at 1113-14; see also United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir. 1985). We hold that the same result obtains here, and thus Whitlock's equal protection challenge to Rule 32(e)(3) and Local Rule 32.1 fails.
We would reach this result even without Baldrich. Whitlock's claim "involves neither a fundamental right nor a suspect class," and is therefore subject to rational basis review. Nurre v. Whitehead, 580 F.3d 1087, 1098-99 (9th Cir. 2009), cert. denied, 130 S. Ct. 1937, 176 L. Ed. 2d 399 (2010). Contrary to Whitlock's argument, there is no "classification" at issue here. Defendants are randomly assigned to district court judges. As Whitlock acknowledges, although the two district judges in the District of Idaho have different policies governing disclosure of probation officers' sentencing recommendations, both apply their policies to all the cases that come before them. Such random assignment cannot be understood to target a suspect class. Furthermore, neither prisoners nor "persons convicted of crimes" constitute a suspect class for equal protection purposes. See Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999) (per curiam) ("[P]risoners are not a suspect class . . . ."); United States v. Litteral, 910 F.2d 547, 552 (9th Cir. 1990) ("[P]ersons convicted of crimes are not a suspect class." (internal quotation marks omitted)).
In addition, there is no fundamental right to receive a probation officer's supervised release revocation sentencing recommendation; indeed, there is not even a fundamental right to receive parole consideration at all. See Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir. 1989) ("[P]arole consideration is not a fundamental right requiring a higher level of scrutiny."); see also Swarthout v. Cooke, 131 S. Ct. 859, 862, 178 L. Ed. 2d 732 (2011) (per curiam) ("There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners."); United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005) (explaining that the analyses of the rights afforded at parole and supervised release revocation hearings are "constitutionally indistinguishable").
Because the rules Whitlock challenges neither burden a fundamental right nor target a suspect class, rational basis review applies and the rules are constitutional if they "bear[ ] a reasonable relationship to a legitimate governmental interest." United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001). The district court identified two rational bases: First, confidentiality is maintained "so that the probation people can advise the Court as to what their feelings are." Second, "[m]any times we have the Defendant released to supervision, and if some of those recommendations are made privy to the Defendant, it just gets them off to the wrong start." Enhancing the effectiveness of probation officers who are overseeing persons on supervised release and fostering honest sentencing recommendations are both legitimate governmental interests that are served by keeping such recommendations confidential. Rule 32 and Local Rule 32.1 survive rational basis review.
III. The District Court Comported with the Rules
Even if the rules themselves are constitutional, if the district court did not abide by them by providing Whitlock with a summary of any factual information relied on in sentencing that did not appear in the SRR, that could constitute a due process violation. See Baldrich, 471 F.3d at 1114-15; Gonzales, 765 F.2d at 1398-99. As we did in Baldrich, "[i]n order to determine whether the district court complied with Rule 32's disclosure requirements in [this] case, we have reviewed the confidential sentencing recommendation submitted to the district court," and have determined that, with one possible exception, all facts in the confidential sentencing recommendation were discussed in the presentence report or in open court at the sentencing hearing. 471 F.3d at 1114-15.
Assuming the district court did not disclose one fact, that omission does not rise to the level of a due process violation in this case. The court was not obligated to disclose evidence on which it did not rely. We held in Gonzales that a statement by a judge "that he had disclosed all the information on which he relied" was sufficient to demonstrate compliance under Rule 32. See 765 F.2d at 1398 (emphasis added). At the hearing, the district court specifically stated in response to Whitlock's request for disclosure of the confidential sentencing recommendation, "I rest on what my comments are in Court as to why I sentence a person either to probation or to a sentence of incarceration, not on a recommendation of a probation officer." Whitlock has "come forward with no evidence other than the challenged result to suggest that improper facts were considered." Id. at 1399. Furthermore, the challenged result is a sentence at the low end of the applicable range, and the district court ordered that half the sentence would run concurrently with Whitlock's state sentence despite the government's recommendation that the sentences run consecutively. Accordingly, we credit the district court's assurance that Whitlock's sentence rested only on facts it discussed at the hearing or that were disclosed in the SRR. There was no constitutional violation. See Gonzales, 765 F.2d at 1398-99.As in Godat, even if the confidential recommendation contains facts not otherwise disclosed to the defendant, so long as the sentencing judge says he was not influenced by any undisclosed facts, then we'll just have to take his word for it. And, since these facts have not been disclosed to the defendant, how is the defendant supposed to meet his burden of challenging the sentencing judge's self-serving statement that he did not rely? And, isn't it possible that the sentence was affected in some way indirectly by the undisclosed information? Aren't these problems resolved by prohibiting confidential sentencing recommendations or, at a minimum, requiring the Probation Officer or the Court to specifically disclose all facts and factual interences in the otherwise confidential sentencing recommendations?