Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding D.C. No.1:03-cr-00165-EJL-1
The opinion of the court was delivered by: Fisher, Circuit Judge:
Argued and Submitted January 12, 2011-Seattle, Washington
Before: Susan P. Graber, Raymond C. Fisher and Milan D. Smith, Jr., Circuit Judges.
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.
In October 2003, Jeffrey Whitlock pled guilty to possession of a controlled substance under 21 U.S.C. § 844(a), unlawful possession of a firearm under 18 U.S.C. § 922(g)(3) and unlawful acquisition of a firearm under 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2. He was sentenced to 60 months of incarceration to be followed by a three-year term of supervised release. Whitlock began supervised release on November 7, 2007. While under federal supervision, he was arrested and charged in Ada County, Idaho, for a number of state offenses. Having been convicted on some of those charges, Whitlock is currently serving time in the Ada County jail.
In light of Whitlock's arrests and convictions, the government petitioned the district court to revoke his federal supervised release. Before the revocation hearing, the probation office provided a violation of supervised release report (SRR) to Whitlock, the government and the district court. The SRR calculated Whitlock's sentencing guidelines range at six to 12 months. The SRR did not contain the probation officer's sentencing recommendation, which was submitted separately to the court. Whitlock did not object to the SRR, and at the revocation hearing he admitted to violating his supervised release by using methamphetamine, being convicted of domestic violence and driving under the influence.
The parties agreed that a six-month sentence, at the low end of the applicable range, was appropriate, but submitted to the district court the question whether that sentence should be served concurrently with or consecutively to Whitlock's state sentence. Before making a sentencing argument, Whitlock's counsel asked the district court to release the probation officer's sentencing recommendation and to continue the hearing until he could consider those comments. The district court denied the request, explaining:
[T]hat is the case in every case with this Court. I don't know about the other judges, but I do not require that to be disclosed to either the Government and/or the Defense so that the probation people can advise the Court as to what their feelings are. Many 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.
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.
The district court ultimately revoked Whitlock's supervised release and sentenced him to six months in prison, with three months to run concurrently with his state sentence and the remaining three months to run ...