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Ninth Circuit Vacates a Sentence Imposed for Violation of Supervised Release Because the District Court Failed to Disclose to the Defendant the Probation Officer’s Confidential Sentencing Recommendations

In Gray, the Ninth Circuit held that Fed.R.Crim.P. 32 requires a sentencing court to disclose to a defendant all factual evidence on which it relies at sentencing, including “factual information underlying a probation officer’s confidential sentencing recommendation” - even in cases involving sentencing for revocation of supervised release where, as here, the defendant’s rights are often given short shrift. 

The defendant in this case, Ashley Lynn Gray, appealed her 20-month sentence imposed following revocation of her term of supervised release. Her sentencing in this case is instructive because it highlights some of the common practices accorded to defendants when being sentenced for revocation of supervised release where the courts often seem to be less inclined to follow the sentencing rules rigidly.

Here, after Gray was arrested and charged with unspecified violations of the conditions of her supervised release, the district court issued an order referring the petition to a magistrate judge “for hearing, findings of fact, and recommendation.” (Id., at 1147). The magistrate judge then held a “final revocation hearing,” to which Gray gave her consent.

Gray’s counsel requested a three-month prison sentence, slightly below the Guidelines’ range of 4-10 months, while the government requested a five-month sentence. The magistrate judge stated that he would recommend a five-month sentence and he then issued a written finding and recommendation (“F&R”), recommending that the district court revoke Gray’s supervised release and impose a sentence of five months. 

The Circuit Court then described what happened next, stating:

“Without holding a hearing, the district court issued a written order adopting in part and rejecting in part the magistrate judge’s F&R. While the district court agreed that revocation was appropriate, it rejected the magistrate judge’s recommended sentence. The district court quoted at length from the probation officer’s confidential sentencing recommendation, which had not been provided to Gray or her counsel. In relevant part, the sentencing recommendation conveyed that the probation officer had monitored Gray’s phone calls from the Yellowstone County Detention Facility. The probation officer noted that during these phone calls, Gray had not indicated remorse or concern for her actions. The probation officer concluded that “defendant was convicted of a very serious offense which proves her to be a danger to the community. Her conduct indicates supervised release is not an adequate deterrent to criminal conduct. Furthermore, the defendant’s actions indicate the only reasonable option to protect the public from her continued criminal activity is to incarcerate her.” Probation accordingly recommended the court impose a 20-month sentence.

“The district court adopted the probation officer’s recommendation and imposed a sentence of 20 months, explaining that the “record before the Court demonstrates that Defendant’s risk of recidivism is high and that she poses a significant danger to the public.” (Id., at 1148) (Emphasis added).

Gray then appealed her sentence, arguing that the district court had violated Fed.R.Crim.P. 32 by failing to disclose to her factual evidence on which it relied at sentencing. The government conceded that the district court had erred, and the Circuit agreed. Rather than simply vacating the sentence and remanding for resentencing, the Court took the opportunity “to address the procedure employed by the district court in sentencing Gray” in order to emphasize a defendant’s rights at sentencing – even in cases involving a revocation of supervised release – where defendant’s rights are often given short shrift.

The Court started by noting that Rule 32 “require[s] the disclosure of all relevant factual information to the defendant,” including “factual information underlying a probation officer’s confidential sentencing recommendation.” The Court also noted that Fed.R.Crim.P. 32.1(b)(2)(E) provides that a defendant “must be present” at sentencing. It then stated “we have held that Federal Rule of Criminal Procedure 32.1(b)(2)(E) requires a court to address a supervised releasee personally to ask if he wants to speak before the court imposes a post-revocation sentence.” (Id., at 1149) (Internal citations omitted).

Finally, the Court wrote: “As the Fifth Circuit explained, these ‘elementary’ rights are violated when the defendant’s only opportunity to appear and be heard is before the magistrate judge, and not at the final sentencing.” (Id.).

Applying those legal principles to the facts of this case, the Court concluded: “In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.” (Id., at 1148.) It also explained that “even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” (Id., at 1149).

The key lesson from this decision is that the legions of defendants who are charged with violations of supervised release should always be aware that they have substantial rights at sentencing including the right to see – and challenge – the often untested confidential sentencing recommendations of probation officers. 


This article was originally published by Punch & Jurists on February 25, 2019; reprinted with permission. Copyright, Punch & Jurists.

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