United States v. Nicolas Herrera-Figueroa
918 F.2d 1430
9th Cir.
1991
Check Treatment

*2 Before LEAVY, REINHARDT and Circuit Judges, KING,* Senior District Judge. Court REINHARDT, Judge: Circuit Defendant Herrera-Figueroa Nicolas ap- peals sentence, contending that the dis- trict court misapplied the Sentencing refusing grant him a two- point reduction in the level of his of responsibility. ap- His peal question raises the whether a federal probation officer may refuse to honor a request defendant’s that his attorney be present during the presentence interview. Concluding that the exclusion of counsel interviews serves no ra- purpose, tional we exercise our supervisory power over orderly administration of justice to hold that when a federal defen- requests dant that his attorney permit- to accompany ted him at a officer must honor request. Accordingly, we reverse the sentence and remand to the district court proceedings consistent with rule herein announced.

BACKGROUND May 18, 1989, On Nicolas Herrera-Fi- gueroa driving large along sedan Interstate 8 near the California-Mexico border stopped when was by the United States Border Patrol. A search of the ve- hicle Herrera-Figueroa was driving re- packages vealed containing approximately pounds of marijuana in the trunk. May 26, On 1989 a federal grand jury sitting in the Southern District of Califor- nia returned a one-count against indictment Herrera-Figueroa, charging him pos- Hays, M. Shawn Federal Defenders of session of a Schedule I Controlled Sub- Inc., Diego, Cal., San Diego, San for defen- stance distribute, with intent to in violation dant-appellant Herrera-Figueroa. of 21 841(a)(1). U.S.C. Castetter, R. Bruce Asst. Atty., Los filed pre-trial motions, several including a Angeles, Cal., plaintiff-appellee. suppress motion to the marijuana as the * King, Hon. Hawaii, Samuel P. Senior District Court sitting by trict of designation. Judge, United States District Court for the Dis- may receive the two- that a defendant stop. Follow- clear illegal allegedly fruit of an notwithstanding the fact point reduction Hon- hearing before evidentiary ing an plead guilty. that he did Turrentine, Senior Unit- B. Howard orable that because asserted officer Judge for Southern ed States District *3 interview of the no there was California, the motion was de- District of to ascertain he was unable defendant Brewster, Rudi M. The Honorable nied.1 accepted Herrera-Figueroa re- whether Judge the Court District States result, As a for his actions. sponsibility California, presided District Southern that Herr- report did not recommend the jury Herrera-Figueroa’s trial. The two-point a reduction era-Figueroa receive guilty the offense defendant the found presen-' the lieu of in the offense level. In

charged. interview, Herrera-Figueroa sub- law, officer probation a required As in which he to the court mitted a letter investigation and family back- personal a and his conducted described commit his to ground, assist the district and how came a to prepared facts of the describing the crime. After sentencing. See United States court “I am case, Herrera-Figueroa admitted: Commission, Man- Sentencing car having driven this guilty of therefore (“Sentencing or “Guide- Guidelines” ual Honor, drugs. those Your contained which general it is the lines”) Although 6A1.1. § having committed this very sorry for I am to interview probation officers practice my “it’s He went on to observe: crime.” in- the part as defendants deported.” I will be now even fault and in- case no vestigation, this hearing, the court During the dispute as is no place. There took terview that, consequence of noting as a began by officer the reason. When to unwillingness to his attend to schedule contacted attorney present, his interview without terview, Herrera-Figueroa, who does “given” a two- Herrera-Figueroa was not stated, suggestion of speak English, responsi- acceptance of point reduction defender, to have that he wished public to state that went on bility.3 The court How- at the interview. counsel his not to Herrera-Figueroa chose be since inter- ever, refused to probation officer risk,” court “at his own interviewed and of counsel him in the view proba- upset “not would be attorney him that would his advised off officer, taken points that no were Herrera-Figueroa, to permitted attend.2 respon- acceptance level for the offense ad- public following defender’s again sibility.” without vice, interviewed declined to be attorney then ar- Herrera-Figueroa’s counsel. Herrera-Figueroa should receive gued 3El.l(a) Guide- Sentencing Section of re- acceptance two-point a clearly provides: “If the lines letter to the upon his based sponsibility recognition and affirmative it did noted that government demonstrates court. responsibility for “strong to such acceptance personal objection” not have Nevertheless, the district conduct, offense reduce the reduction. his position stated previously its 3El.l(b) to adhered makes by 2 levels.” Section level sentence, of uniform as a matter presentence interview appealing Herr- addition to In argument defense counsel policy, at oral office appealed era-Figueroa the district court’s also government agreed in the Southern and the separate suppression motion. denial of probation officers of California some District permit disposition, filed October memorandum attorneys accompany their defense result, As a decision. we affirmed that others do not. clients while stop surrounding the facts do not set forth the opinion. arrest in this respect “With court observed: 3.The calculations, notes that the guideline Court prac- appear give uniform an interview does not would not There Defendant respect Department whether his counsel without tice in Ninth Circuit Probation therefore, no there was accompanied present, and ... defendants therefore, was, Defendant, Although and he view of acceptance re- points given [of] [for] two Ninth not sponsibility.” districts within the departments in some attorneys permit attend Circuit defense that it the finding by would disturb responsibility for refusal to officer, speak did not grant officer does not consti- penalty tute a for the exercise of fifth two-point reduction.4 The district court right. amendment We therefore must re- rejected also argument counsel’s ject the defendant’s fifth claim. amendment entitled to playing level reduction for a mini- question We last addressed whether mal or minor role in requires the crime. the sixth See amendment that a defen dant be S.G. 3B1.2. allowed to have his present at interview in The court then sentenced Herrera-Fi- States, Baumann 692 F.2d 565 gueroa a term imprison- of months *4 (9th Cir.1982). pre- We there held that the ment by years to be followed three of su- sentence interview does not constitute a pervised Herrera-Figueroa timely release. stage” “critical of the adversary proceed appealed. ing at which consultation with counsel is guaranteed by the sixth amendment. Id. DISCUSSION at (citing Smith, 577-78 Estelle v. 451 U.S. I. Constitutional Claims 454, 14, 1866, 1877 14, n. 470 101 S.Ct. n. 68 (1981)). 359 L.Ed.2d that dis- contends trict of probation court’s Baumann, The defendant argues that report punishes him the exercise of his which was decided adoption before the of Guidelines, Sentencing apply does right asserted fifth not amendment not to sentences under the Guidelines. We not- speak to the officer. also He ed in judge Baumann that has “[a] argues guaran- that sixth amendment determining wide in appropri- discretion every right tees defendant imposed.” ate sentence to be Id. at 578. represented presentence counsel at the With the in the trial judge’s sen- interview. tencing accompanied discretion that has find that the fifth We defendant’s Guidelines, adoption of the the defendant claim amendment is foreclosed a recent presentence contends that Expressly decision our court. of disavow of stage” now constitutes a “critical ing right any fifth amendment to a warn proceedings for sixth amendment ing—which unnecessary would have purposes.5 event, in any since without even such We need not decide whether Bau- quite capable insisting warning he was of applies mann interviews attorney accompany that him the im conducted connection sentences presentence interview—the ar posed because we under Guidelines gues penalized asserting that hold, supervisory of our as exercise putative right fifth amendment orderly power administration of speak to the officer. We held Circuit, justice in the Ninth that Skillman, 1477, v. 913 F.2d United States permit defendants have officers must (9th Cir.1990), 1485 that denial of at the attorneys present their two-point reduction in level for interview.6 guarantees made The court no formal as to ac- dicta that sixth amendment However, ceptance responsibility. by stating right counsel at interview in guideline range "that the of 51 to 63 cases). months correct," implicitly the district court held Herrera-Figueroa was entitled to such a colleague’s partial dis- 6.Our concurrence and finding. makes a serious overstatement of the law sent asserts have held there no ”[w]e when it requirement Jackson, Compare United States v. F.2d 886 present for counsel to be 838, (7th Cir.1989) (holding, 844-45 in a case and a between interviews where the defendant’s was not (citing at 1438 Bau- officer.” Post place formed of interview, time or fact, ). In decided mann Baumann there sixth is no amendment the sixth amendment nor the self-in- right neither not- to counsel at a fifth con- withstanding Guidelines) Sentencing clause of the amendment adoption of crimination Saenz, right on fers a constitutional defendants to with United States v. 915 1046, (6th Cir.1990) (stating F.2d 1048-49

1434 Supervisory particularly Power appropriate II. The This is supervisory case for the exercise of our “ justice’ considerations of " ‘[GJuided because, [probation] power, ‘when the of supervisory pow ... and in the exercise he is preparing ficer ” ers, limits, may, courts within for federal acting as court.’ an arm the specifically re procedural mulate rules 1092, 894 F.2d Belgard, States 1097 quired by the Constitution or the Con Cir.1990) (quoting United States v. Gon gress.” Hasting, zales, 1393, (9th Cir.1985), 499, 505, 1974, 1978, 76 103 S.Ct. 1068, 826, denied, 474 U.S. cert. (1983)(quoting v. Unit (1986)). Thus, L.Ed.2d 96 McNabb 88 L.Ed.2d 798 unlike those 608, States, use ed 63 S.Ct. cases which we have been asked to supervisory power to formulate rules (1943). held We have L.Ed. applicable of conduct to officials in the procedural of such the formulation branch, executive here the use of our su implement as justified rules a means “to poses pervisory power no threat recognized remedy for a violation principle separation powers.7 pre Gonsalves, 781 rights.” States v. scribing applicable only a rule to the con personnel judicial duct within *5 right to a here is the defendant’s stake branch, sphere scope act in a where the sentencing proceed fair even-handed and power supervisory apex. of our is at its Coletta, ing. v. 682 See United Stated probation requiring A rule officers to denied, (9th Cir.1982), 820, F.2d 827 cert. request a that attor- honor defendant’s 1187, 1202, 103 L.Ed.2d 459 75 U.S. permitted accompany to ney be him to the (1983) (stating re process that due 433 presentence interview will do to en- much in sentencing of quires fair consideration sys- a cost to sure fairness at minimal Doe, formation); v. F.2d 655 United States or tem. Whether not the 920, Cir.1980) (9th (vacating sentence 927 stage” a in the terview constitutes “critical pro defendant’s “due for violation purposes proceeding for hearing”). right sentencing to a fair cess amendment, question that sixth there is no probation officer’s refusal to honor step proceedings in important it is an in the accompa to Herrera-Figueroa's request consequences to terms of the the defen- inter nied counsel at presen- A at the dant. defendant’s conduct infringement that view an resulted significant a ef- tence interview can have isolated right. The refusal was in the fect on the sentence recommendation product patchwork of a occurrence but rely presentence report, and district courts probation of system under which different heavily reports. of those on the contents respect policies ficers different follow plays crucial a appropriate, there requests. to such It is determining probation officer’s role fore, to whether exercise to consider As this case illus- sentence. recommended power prescribe in order to supervisory trates, probation single finding v. Zie procedural rule. United States significantly affect ultimate Cf. officer can (9th Cir.1984) (exer lezinski, 740 F.2d 727 range. that Herrera-Fi- sentencing Given to that cising supervisory power ensure history, proba- gueroa had no criminal fairly by grand are treated defendants his offense officer’s determination accept- level was in the court’s jury). 24 resulted power specifi ought supervisory en- to Baumann does not to exercise our 692 F.2d at 574-78. permitted ac- counsel be sure that defense process right cally to a fair the due address company their clients sentencing procedure. See and even-handed view. Coletta, 820, (9th F.2d 682 827 United States denied, 1202, Cir.1982), 103 S.Ct. cert. 459 Chanen, See, e.g., States v. 1187, (1983) (stating due L.Ed.2d 75 433 denied, 1306, Cir.1977), cert. 1313 process requires fair consideration of sentenc 72, (1977) (noting 98 S.Ct. 54 L.Ed.2d Doe, information); ing F.2d exercising their su must beware of courts (9th Cir.1980) (vacating for sentence prescribe pervisory power rules conduct process “due of the defendant’s prosecutors, violation “could because such exercise for readily prove sentencing hearing”). important, sepa a fair More of the doctrine of subversive powers”). whether we ration of we have never before considered mg sentencing range heavily of 51-63 months. on its contents in determining a two-point Had received a defendant’s sentence. As we have noted past, responsibility, purpose probation for the' rec- provide ommendation “to range judge trial recommended would with as possible much. as information 41-51 months. See U.S.S.G. Ch. order to judge enable the to make an in- (sentencing table). Pt. A formed decision.” Id. Because the court Yet the decision whether find that spend cannot the time necessary to exam- accepted responsibility defendant has every ine detail of the report, many important one determina- rely the court must on the conclusions of probation tions that the officer must make probation officer: officers upon based a defendant’s conduct at the therefore virtually indispensable.” “are presentenee example, Ap- interview. For case, example, Id. In this despite de- plication 1(e) Note to section 3C1.1 of the argument fense counsel’s that the defen- Sentencing Guidelines states that “furnish- dant’s letter accept- to the court indicated ing material falsehoods to a offi- ance of responsibility, despite cer in the course of other government’s indication it did not have court” investigation for the can result in any strong objections finding to a ac- two-point in the increase offense level ceptance of responsibility, the court stuck Thus, obstructing justice. a defendant with its decision not “upset who his criminal mischaracterizes record officer.” two-point officer can receive It can be argued legitimacy with some justice. increase obstruction of judge that the district in relying erred as Christman, States v. heavily as he apparently did on the *6 may A defendant receive the report, tence that he an obligation and had two-point his misrepresenting increase independent to make his own determination notwithstanding record the fact that the question on the of responsi- probation officer has access the to defen- bility. However, ultimately argument this rap FBI dant’s sheet and the defendant simply form elevates substance. Baker, does not. United States v. practical standpoint, From a judges district (9th Cir.1990). signifi- give weight must considerable to sentencing range cant difference in reports; system the could func- not may a two-point result from even increase efficiently It otherwise. is clear that strongly supports in level our con- presentence the currently plays, interview play, clusion that the interview and to will continue a most substan- determining tial in sen- plays important determining role in role defendant’s tence. recommended sentence. defendant’s importance the the Given may pose presentenee ad- defendant, jus- there is interview the no hazards the defen- ditional uncounseled excluding tification for defense counsel. instance, determining in dant. For what defendant, unsophisticated To legally the the impose, sentence to any the interview—like inter- may allegedly criminal conduct of consider court—may action the intimidat- has which the defendant not been convict- confusing procedure. ing and As Justice comment, 1B1.3, (n.2); ed. See U.S.S.G. § Court, Supreme for the Sutherland stated 1B1.4; U.S.S.G. U.S.S.G. 4A1.3. § years ago, holding in almost 60 a case conducting appointment of process requires due probation officer entitled seek is infor- cases, capital “[ejven in the intelli- counsel conduct, regarding which in- mation such gent layman has small and and educated formation, inculpatory, provide if in sometimes no skill the science of law.... significant in basis for increase his sen- knowledge skill and ade- He lacks both the tence. defense, quately prepare even Although is perfect though requires one. He have a binding on district step see Bel guiding every hand rely

gard, judges against F.2d at in him.” Powell proceedings in a de- 45, 69, circumstances which are numerous Alabama, 53 S.Ct. (1932) added). (emphasis protect will be able to L.Ed. 158 fense thereby rights and client’s interests —and lawyers are not who are Defendants avoid a shorter sentence or help obtain consequences of likely understand longer permitted he is one—if presentence interview at the their conduct represent his client accompanied by counsel. and they if are not from the defense attor- simple Such advice may make a totally honest” ney as “be permitting defense it clear that While sentencing range for a in crucial difference attorneys to attend furnishing infor- wary of who is fundamental view consistent with Similarly, a probation officer. mation to a justice system of principles on which our knows how to obtain attorney who clear that based, equally it is and while rap will be FBI sheet and read his client's stage participation this counsel’s making the defendant able assist rights and help protect proceedings will record, there- full of his disclosure defendants, no ra- discern interests of we finding of obstruc- by avoiding possible served that would be purpose tional justice. tion of govern- excluding counsel. Nor has noted, Furthermore, deter- as we so, doing any justification for ment offered recommend, the mining what sentence to lawyer’s speculation that a except for the may base his

probation officer decision ability might adversely affect upon allegedly criminal part conduct accurate in- officers to obtain not been convict- has which from formation defendants. origi- if a defendant example, For ed. multiple indict- charged in a count nally may not Although legal profession plea to one ment, guilty and entered highest in the esteem currently be held the re- exchange for dismissal of count accept the large, cannot public at probation officer maining charges, the lawyer’s of a that the net effect premise obtaining defen- precluded the sen- guilt in either the participation charged in to the crimes dant’s confession proceedings is stage of criminal tencing counts, using con- the dismissed Indeed, justice system obfuscation. *7 recommending a as the basis fession opposite as- upon precisely is based than would longer imprisonment term important in- sumption whenever appropriate. U.S.S.G. —that be See otherwise stake, comment, are terests Thus, (n.2). pre- 1B1.3, defendant by represented be is entitled to obviously occasion is sentence defendant a entitles a That the lawyer. Constitution benefit could well which a on by an- counsel at represented with counsel before to be consultation may put to him. pro- that be swering questions stage” every “critical of the Casual, answers or inaccurate ill-considered suggestion permit- that any ceedings belies understanding a full offered without important lawyers to attend an ting —al- in a sub- consequences result potential portion necessarily though not “critical”— peri- in the recommended increase stantial disrupt orderly will proceedings of the addition- Admission of incarceration. od of Thus, reject justice. we administration ways one of conduct but al criminal government’s arguments.8 re- uncounseled defendant’s which to be ob- an additional benefit There ultimately or not—can sponses—erroneous today. the rule we announce tained from It is evi- sentence. in an result increased client, the interests of protecting there discussion that above dent from the sentencing upon critical nature of based "the imply read to holding not be should 8. Our case,” Rhay, discharge duty Mempa sentencing generally their in a criminal probation officers 254, 257, complete impartiality. 128, 134, anything than 19 L.Ed.2d less with However, probation officer is that the (1967), notwithstanding the fact the fact adversary diminish is, does not not the defendant's sentencing presides like judge who importance defendant of the officer, completely presumed to be Indeed, constitu- a defendant’s tence interview. impartial. represented counsel be tional will generally assist the CONCLUSION noted, As we court. supra p. see For the given reasons above, in the 1435, it inis the defendant’s interest to be exercise of our supervisory power we di completely honest at the rect that officers be required to Thus, lawyer view. knows this who and permit defendants’ counsel to accompany who, as an officer of the has an their clients at duty candor, ethical will counsel his In this case it undisputed that the defen client to be truthful. Just as allowing de- dant’s counsel was not allowed to do so. represented by fendants to be counsel at The ultimate result of offi trials, arraignments, and sentencing hear- cer’s action was a substantially longer sen ings justice, serves the interests of so will approximately year one more—than tence— allowing represented defendants to be by the defendant would have received had he interview. We given a two-point reduction for ac are confident that counsel’s will ceptance of responsibility. Because the further rather than objective inhibit the sentencing judge explicitly declared that he obtaining accurate reports and upset would “not proba expedite will rather delay sentencing than officer,” apparent it is that the sen proceedings. tence was based on proba what even the tion officer acknowledged incomplete be Finally, we note that holding serves information. The defendant is entitled to a very policy goals adop- led to the new interview at which his at Sentencing tion of the Guidelines. The cur- torney may present, followed practice rent Depart- Probation new hearing. sentence im ment the Southern District of Califor- posed by the district court is vacated. whereby each officer is free nia— decide VACATED whether or AND attorneys allow REMANDED.9 to attend interviews—treats LEAVY, Circuit Judge, concurring, in unequally defendants great on matter of part, dissenting, part: importance. By announcing procedural applicable probation officers, rule to all I agree with the majority that this sen- policy serve of evenhandedness in sen- tence should be vacated and that the case tencing that underlies the Guidelines. should be I remanded. dissent from the majority’s holding that a new rule be estab- Indeed, Sentencing Guidelines them- requiring probation lished officers to allow contemplate selves the formulation of rules counsel to be aat prescribe as the one we such here. Section terview. 6A1.2 of the provides *8 The record shows the district court failed “[cjourts adopt should procedures pro- to determine the issue before it: whether timely vide for the presen- disclosure of the accepted the defendant responsibility for report; the narrowing, and resolu- Instead, his criminal conduct. the court tion, feasible, dispute where in issues presentence report, deferred to the inform- of the hearing; advance and the ing the partic- defendant that he failed to identification for the court of re- issues ipate interview his own maining dispute.” We believe that the findings risk and that the adopt objectives. rule we serves these The officer would not be disturbed. requirement that attorneys per- be mitted to attend interviews en- A probation officer’s ables counsel to narrow areas of dis- binding not on the district court. United pute identify for the at the earli- 1092, Belgard, (9th v. 894 F.2d 1097 States time, possible requiring Cir.1990). est the real issues sentencing judge The is in a resolution. unique position to evaluate the defendant’s Herrera-Figueroa’s 9. We do not address conten- in the crime. He is free to renew this claim in that he was entitled to an offense level the district court on remand. playing minimal minor role 1438 as a license to given this instance serves and is which in responsibility

acceptance of precedent. to a decision. Unit- ignore to come wide latitude Gonzalez, 1018, F.2d 1019 v. 897 ed States majority procedural announces a The Cir.1990). a defendant has (9th Whether required to be rule that officers for his crime is responsibility accepted presen- permit counsel at the defendants’ clear reviewed for factual determination then orders tence interview. The court limitation on Id. There is no error. pre- granted a new the defendant be may con- a federal court type evidence I present. interview with counsel sentence character, background, regarding the sider hold- disagree majority’s with aof person convicted and conduct right ing has a the defendant Watt, 910 States v. federal crime. attorney, with the of an but also 587, (9th F.2d 593 enforced, in that mechanics which it is majority treats refused the defendant Because if it distinct from pro- view as were a forum present, terviewed without in the face of district court. This flies information officer had no bation normally provides a court cir- on the remedies make a recommendation which to person deprived cumstances where responsibility. burden acceptance of attorney outside the necessary an at some location to make on has not Where a defendant responsibili- courtroom. accepted showing that he has right to an Gonzalez, given have F.2d at 1021. 897 ty. See Miranda, has ever present under no court tried to meet the defendant record shows the defendant be sent back court. writing a letter to the ordered this burden coun- jailhouse to be interviewed with decided the issue. The court should cases, defen- line-up with or without sel. where Even after an attorney present an court must decide to have attorney present, the dant’s observed, for a reen- we do not remand the issue. Instead, the court line-up. actment of courts are not to haveWe observed See, e.g., Johnson the evidence. excludes by presentence influenced improperly 723-24, 719, 86 Jersey, v. New 384 U.S. judg- independent use their reports and will (1965) 1772, 1775-76, 16 L.Ed.2d 882 S.Ct. issues before them. See ment to resolve Endell, 1528, v. (Miranda); 860 F.2d Smith A court at 1099. district Belgard, Cir.1988) (Miranda); 1531 failing punish Wade, 87 388 U.S. States fact-gathering participate in Gilbert (1967) (line-up); L.Ed.2d by some has if a defendant te'nce interview 263, 273, 87 S.Ct. California, persuad- the burden means carried other (1967) (line-up). 1951, 1957, 18 L.Ed.2d 1178 responsi- acceptance of ing the court of rights Moreover, a civil there is not even bility. give a damages for failure action to deter- court failed Because Miranda, Passic, warning. Bennett v. acceptance of mine whether there Cir.1976); Dunkin v. give the remand to must responsibility, we Lamb, (D.Nev.1980). F.Supp. do so. opportunity to inappropriate the court’s un- Thus I find requirement for is no held there We have supervi- claimed exercise of precedented its *9 present at fairness requirements of sory power. The and a probation views between remanding requiring are met States, v. United Baumann officer. it, as before consider evidence court to Cir.1982). The Seventh 565, 578 has failed usually do where Baumann, Circuit, has concluded citing miscarriage justice No issue. decide an the advent even after this is so simple remand with by a is involved Sentencing Guidelines. using avail- to decide issue structions Jackson, evidence. able holding of Bau- majority avoids ulti- opinion will lead majority it, by re- I fear distinguishing but mann adversary proceeding at mately to an power, supervisory sorting asserted presentence interview, where not de-

fendants’ counsel required but also the

prosecutor. ROBI,

Martha Plaintiff-Appellee, PLATTERS, INC.,

FIVE Bennett, Jean Ram,

and Buck Defendants-Appellants.

No. 89-55433.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct.

Decided Nov.