*2 MOORE, Circuit Judge.
Otis appeals his sentence for bank robbery, claiming that court improperly parte on ex com- munications from victims of the crime. Because the court’s failure to disclose this was plain error and prejudi- * Oliver, Jr., Ohio, Honorable Solomon ce sitting by designation. Judge District for the Northern District she can’t me that wrote woman One we VACATE rights, cial able to She wasn’t go to work. even resentencing. and REMAND robbery. after for six months work I. BACKGROUND seriously, Now, not take you *3 very seri- I take sir, judge, a but as of in federal was convicted Hayes doing are people who These ously. during use of a firearm robbery and bank do- just simply job or their nothing but officer A violence. a crime of into They go in life. they do what to which report, a prepared go family would bank, your if just as re- opportunity Hayes was or a supermarket a or into a bank into Im- “Victim heading Under spond. somebody would and store convenience in this stated, victim “The report pact,” peoples’ them gun, put however, in with walk Bank National Michigan case is understand may You heads. Ap- Joint recovered.” money was all the you I want people. But on these impact The (J.A.) at 5. II vol. pendix feel people what these to understand under the level offense Hayes’s calculated reacted. they’ve how with twenty-four, as Sentencing Guidelines Neither IV. category of history a criminal the court I Before at 56-57. J.A. vol. calculation, which this objected to party nor remarks, Hayes neither these made range of a Guidelines leads to de- letters attorney knew his months. See ninety-six seventy-seven After com- the court existed. scribed APt. Ch. history U.S. SENTENCING criminal Hayes’s on menting again GUIDELINES Table). presen- The (1998) (Sentencing would use he hope that expressing the firearm noted report also constructively, the dis- prison in his time consecutive, mandatory, carried ninety-six count Hayes court sentenced trict sentence. sixty-month robbery bank prison in months permitted count, maximum the law- hearing, after At the filed Hayes then the Guidelines. under and Hayes arguments made their had yers appeal. this of timely to address opportunity given the had been court, pronounced II. ANALYSIS briefly by commenting began It object to relatively did not Hayes history and Because Hayes’s criminal in the letters past. in the use of received had he light sentences sentence, his analyze we determining then stated: his judge The 52(b) the Federal of under appeal to the bench me out bring with I didn’t Procedure, per Criminal Rules have, unfortunately these I should regardless errors” “plain to notice defendants, mits us Ibut of other in the files are object. failure appellant’s people from a number received framework laid out Court Supreme the time that at bank were who 52(b) States in United analysis it, and cus- including tellers robbed you 1770, 123 S.Ct. U.S. 507 know the you to tomers, just I want (1993). must establish 508 L.Ed.2d people. those had on this effect occurred, and second error that an in first are people those Several id. 732- “plain.” error was sleep night. can’t they counse[l]ing; Third, must demon he S.Ct. 113 The teller nightmares. having They’re substantial affected the error strate jumped Mr. Herron particular, S.Ct. 1770. 113 See id. rights. is in gun, with the the counter over present, factors are if all three Finally, I think that don’t situation. desp[e]rate an appro determine must consequences understand you our discre to exercise in which case priate en- been you’ve activities kind despite error correct the tion in. gaged procedural 735-36, forfeiture. See id. at we held that the district court had S.Ct. committed notice, error relying, without on evidence from another defendant’s sen
A. ERROR tencing hearing to determine Patrick’s role Fifth Amendment offense. See United Pat rick, person that no deprived liberty Cir.), with cert. denied, out process due of law. See U.S. Const. (1993).
amend. V. Federal Rule of Criminal Proce L.Ed.2d 99 We this con reached protects dure 32 right process even though clusion we described the sen by requiring disclosure of most informa tencing judge as having in pass “referred tion upon at sentencing. See Fed. *4 ing” to the extraneous evidence. See id. at 32(c)(3)(A). The purpose of the 644. It was sufficient that “[t]he sentenc R.CrimP. “focused, rule is promote adversarial ing judge clearly had [the extraneous evi resolution of the legal and factual issues dence] mind” when determining Pat relevant to fixing Guidelines sentences.” rick’s sentence. Id. at 647. The district States, 129, Burns v. 501 U.S. court’s reliance on undisclosed evidence is (1991). S.Ct. L.Ed.2d 123 far more apparent here than it was in Patrick. We therefore conclude that the The government dispute does not court committed error. reliance undisclosed letters would have been improper but argues instead
that the district court did not in rely fact B. PLAIN ERROR on the letters. In support of argu- We also conclude that this error was ment, government points out that the “plain,” which means that it was “clear” or district court did not depart from the “obvious.” 507 U.S. at Guidelines or enhance S.Ct. 1770. under any particular provision. Guidelines Guidelines, however, leave the sen- Notice opportunity to be tencing judge with discretion to choose heard are the core of process. from range sentences, this case 32 requires that except in certain limited Hayes was sentenced to the per- maximum circumstances, see, e.g., 32(b)(5), missible The fact that the court defendant must have the opportunity to did not take the additional step depart- review information that will be used for ing from the Guidelines on the basis sentencing. Though Rule only ex letters does not mean that it rely did not pressly deals the right with to review the on the letters in deciding to sentence presentence investigation report, right ninety-six rather than seventy- to review other information on by seven months in prison. at sentencing is implicit court in the adver The district court’s comments explaining sarial scheme created Rule 32 and in Hayes’s sentence up take less than three 32(c)(1) of Rule that both pages in the and one transcript, page full counsel for the defendant govern and the is devoted to discussing the letters. provided ment must be “an opportunity to court stressed that it took experiences comment on the probation officer’s deter victims, letters, as described in the mination and on other matters related to “very seriously.” J.A. vol. I. at 57. “We the appropriate sentence.” Even when it are not at liberty assume items necessary is to exclude information from given such emphasis by the sentencing the presentence report for reasons con court, did not influence the fidentiality, the sentencing court must the prisoner is now serving.” v. Townsend summarize in writing any information Burke, 736, 740, 334 U.S. 92 upon relies, which it and the defendant (1948). L.Ed. 1690 In United v. States must have “a reasonable opportunity to applicable Guidelines choose within Fed. information.” on that comment Fur- Burns, S.Ct. 32(c)(3)(A). range.” the Su Id. P. R.GRiM. thermore, held Patrick this court the adversarial held Court preme factual evidence undisclosed by Rule 32 reliance on created scheme found depart in that case we although notice before give improper, suggested We therefore range of sentences harmless. from the error ing held The Court court’s reliance the Guidelines. conclude “[bjecause the necessary notice was determine such parte ex communications on no limit on essentially place in error. plainly Guidelines Hayes’s sentence may war factors that potential number of Curran, the First In United States in a one is that “no so departure,” rant a held, supervisory to its pursuant grounds when or what guess position must be as these such that letters powers, less to much might depart, a district disclosed, expressly stated in a coher possibility on such ‘comment’ Rule 32 neither disclose violated failure to 136-37, 111 way.” ent See United Due Clause. nor the Process fail held that also Court 2182. The (1st Curran, 61-62 require Rule 32 to construe *5 Cir.1991). conclu- with this disagree We a “serious raise would departure a possible correct the First Circuit While sion. Process Clause. the Due under question” Process the Due Rule 32 nor that neither 2182. Id. at everything absolutely requires Clause rule in the held court has This disclosed, presume id. at see be from departures to Bums is limited entitled generally are defendants criminal require extend to does not and Guidelines them. against notice of the to to plans district court when the notice fur- information not agree doWe in a different manner the Guidelines apply is utilized the court that directly to nished presen- is recommended from what to be dis- required sentencing is v. Guth See United States report. because merely 32 closed under Rule Cir.1998) (6th rie, 1012 presentence of the part was “not made pro need not court (holding that district the re- Holding that Id. report.” of its to defendant notice advance vide only to what apply quirements ato pursuant intent to enhance “presentence as the designates the court is, of A defendant provision). Guidelines Bums, which contrary to would be report” course, of the contents on notice to the district applies Rule 32 held that on “no limit” there is While Guidelines. from depart to mere intention basis identify as the might what the court used at Evidence Guidelines. to legal determination departure, sim- the defendant from not be kept one that provision particular apply it into incorporate by failing to ply reasonably be can more defense counsel presentence report. to respond and to anticipate, to expected on the basis hearing has the Tenth Circuit Similarly, as dissent Even the known facts. to used that letters held, Rule 32 say however, so far as Bums, go did not generally report presentence prepare notice of is not entitled that a defendant See United to the defendant. disclosed be the sentenc which on factual information 1065, 1072 Burger, rely. intends ing court Cir.1992). Burger, In (Souter, J., n. and its from the FDIC letters received fact, suggest the dissent dissenting). In considered whom chairperson, ed, of matter example as As fraud. bank comment, defendant’s victims a defendant Rule 32 entitles the court forwarded practice, its in was of facts significance “the existence The office. the probation letters to the court should dicating later asserted that disclosure to the defen- nent in the explanation court’s own for the dant of unnecessary be- cause its sentencing decision was based Patrick, we concluded that the sen- not on letters but on presentence tencing court’s reliance on extra-record in- report. However, See id. at 1069. it was formation was harmless because that infor- clear that the probation office had consid- was, mation for the part, most cumulative ered the letters in preparing the report. of other evidence properly before the
See id. at 1072. Although Rule 32 refers court. only non-cumulative evidence only to disclosure “the re- was the district court’s “essentially irre- port,” the Tenth rightly held that impression buttable” of how Patrick’s de- letters relied on in preparing meanor differed from another defendant’s. must be disclosed. Because of circumstances, these advance would Patrick “any provides special additional incentive or ability to circumstances, challenge when evidence received by the accuracy of the evidence.” a probation officer must kept be confiden contrast, F.2d at tial, 32(c)(3) the letters in seeks to satisfy due pro this case contain factual assertions cess providing an alternative means for therefore are not the type of evidence that informing the defendant nature of is “essentially irrebuttable.” govern- that evidence. It would be anomalous to ment, however, faults for failing to conclude other evidence to be utilized specify how he would have responded by the court at sentencing subject is not the letters had he received notice of them. similar requirements. We think that the We are not sure how he can expected best is for course the district court *6 do so. The letters are part direct of the letters to the officer to case, record of this and so far as not, we are incorporated depending on the —or Hayes aware and his attorney yet applicability of Rule pre the—in see them. government The asks that report. circumstances, some Hayes do exactly what he has been another denied procedure might be appro more the opportunity to do: respond priate to the reasons, for evi- practical such as when dence against submitted him. We will court receives letters presen after the insist Hayes that rebut evidence he has report has been prepared, but in all never seen in order to cases the establish that he defendant must have notice and prejudiced was by the district court’s reli- opportunity respond to information ance on that evidence. relied on in determining the sentence. Relying on the letters without providing reason, For the same we cannot accept
them to the defense plainly violated the on faith government’s assertion that procedures required by Rule 32. the letters are similar to present evidence ed at trial. The district court did not read
C. EFFECT ON SUBSTANTIAL
the letters into the record or even have
RIGHTS
them in the courtroom during the sentenc
step
final
in determining
ing
hearing. The sentence pronouncement
Hayes is eligible for relief under Rule was based on what the court remembered
52(b) is
Hayes
that
must persuade us
letters,
that
about the
counsel
not in a
the error “affected the outcome of the
position any
correct
mistakes in proceedings.”
507 court’s
Townsend,
recollection.
Cf.
U.S. at
BATCHELDER, Judge, dissenting. POWER D. DISCRETIONARY 52(b) RULE
UNDER nor process due constitutional Neither that we have the result Having determined Fed.R.Crim.P. appeal de this case. majority in act on power reached forfeiture, we must be inter- addition, Rule 32 could even if procedural his spite De- to the appropriate it is disclosure requiring as preted now consider in the relief. grant contained information our discretion of the fendant exercise discussion appropriate sentencing judge’s letters, is this discretion of Use this otherwise fulfilled would justice of miscarriage letters at “a of the to dis- failure thus his result.” omitted). harmless (internal entirety was marks quotation in their close them jus “miscarriage of phrase error. Although errors to describe used sometimes
tice” is for provides Reform Act Sentencing an inno of conviction in the that result , in only limited sentences judicial review phrase defendant, this context in cent 3742(a) pro- § 18 U.S.C. circumstances. “ that ‘seri to errors broadly refers more if appeal may a defendant vides fairness, or integrity ously a£fec[t] sentence: proceed judicial reputation public ” law; (1) in violation imposed was v. At- (quoting United Id. ings.’ (2) imposed as a result of an judge’s incor- consideration of the letters without application rect of the sentencing guide- disclosing first them violates Fed. R.Crim. lines; or P. 32 process, the issue is ap- and/or (3) pealable. greater is than the speci- in applicable guideline fied range to First, I distinguish must between the the extent that the sentence includes a majority’s explicit case, i.e., holding this greater fine or imprisonment, term of that the sentencing court violated Rule 32 probation, supervised or release than in failing to turn over the letters or a the maximum established in the guide- summary of their contents probation to the line range, or includes a officer, more limiting assertion, and a more broad condition supervised or explicitly re- upon majority, (b)(ll) lease under section or the actions violated constitutional due pro- than the maximum established in the cess. This recognized Court has guideline range; or sometimes certain may actions constitute a (4) technical imposed violation offense for Federal Rules of Procedure, there Criminal sentencing, is no guideline may not rise to plainly the level of a unreasonable. constitutional violation. See Mandell, United States (West 3742(a) § U.S.C.A. Supp.1998). (6th Cir.1990); 973-74 United States v. only subsection potentially applicable Fry, Cir.1987). 667-68 appeal is an allegation that Defendant’s imposed sentence was Mandell, in viola- we addressed a district tion law. In an unpublished opinion, 32(c)(3)(D) we court’s violation of Rule in fail- previously set forth examples of sen- ing to make findings as to alleged factual tences imposed violation of law: inaccuracies in the defendant’s presen- can clearly tence investigation
[W]e review a report. sentence with- 905 F.2d at guideline in the that, 973. We noted range order example, to state a due process violation, exceeds the statutory maximum sen- defendant “must grave tence for the raise offense. Additionally, doubt as to the veracity we can review information sentences within the and show guide- that the court relied lines allegedly violate false information in Constitu- determining Thus, (internal tion .... if sentence.” judge Id. explic- quotation omitted). itly stated that he marks was sentencing While adhering to the defendant to highest technical violation process versus due within vio- guideline the correct lation distinction, however, because the defen- we noted that it black, female, dant was be necessary to remand for would resen- clearly tencing be able to even for a review the technical violation of the *8 rule. Id. at 974. Blanton, United States v. No. 90-5533, (6th 197832, 1990 WL at *3 7, Cir. Therefore, Dec. I again must emphasize that 1990) (unpublished); accord United 32, States is Rule and not constitutional due Nichols, v. 402, 979 F.2d 409 n. 4 process, provides that the basis for the Cir.1992). Nichols, In we found majority’s that fact, decision. In due process where a defendant alleged that the sen- does not compel the result in this case. tencing judge violated his Fourth Amend- States, See Burns v. United rights ment by considering ob- 111 S.Ct. (1991) L.Ed.2d 123 tained in violation of rights those to arrive (refusing to address whether due process at sentence, defendant’s the requires defendant that a notify parties of its properly set forth an appealable issue un- intention to sponte sua depart upward 3742(a). der 18 § U.S.C. Id. at 409. from the sentencing guidelines, instead re Therefore, because in Defendant the in- lying on a 32); technical violation of Rule stant case alleges that the sentencing Berzon, United States v. 19 &
397 behind Fed.R.Crim.P. rationale “the Cir.1991) Bums and (noting that (1st 17 n. 32(c)(3)” to defendant disclosure require to Rule citing process, on due rely not does opportunity information (1966): of outside “It is *9 drawn to be factual inferences any nor tion Cir.1987) fairness (2d (relying on ("Courts adopt procedures mentary should in Bums: Court noted Supreme 1. narrowing reso- for ... provide to lution, timing rea- question of Because feasible, dispute of issues in where by Rule 32 is not required notice sonable hearing”). in advance us, opinion on that express no before estab- (listing local rules supra also n. Rather, the lower it to we leave issue. objections govern resolution lished course, which, courts, free remain report). findings rule. by local procedures appropriate adopt 2182. n. 6A1.2, com- § official See Guidelines warranted”). from it—reversal is not Al-
though judge’s we found error fail- MOUNT ELLIOTT CEMETERY notify ure to defendant he was consid- ASSOCIATION, Plaintiff- testimony ering the of another defendant Appellant, from that defendant’s sentencing hearing, harmless, we found the error to be partial-
ly based on the fact defendant’s coun- TROY, CITY OF Defendant-Appellee. only sel made minimal argument to rebut information, did not ask for continu- No. 97-2146. ance, and seemed to have no argu- other United States Court of Appeals, ment to counter the outside information. Sixth Circuit. Id. at 649. Similarly, the Tenth Circuit in United Argued Jan. 1999. v. Burger also any noted that Decided March requirement by created Rule 32 can be fulfilled notifying defendant of the out-
side letters at hearing. 964 (10th Cir.1992). In Burg-
er, in order to calculate the restitution
amount, officer and the court
relied on them; sent however, letter
the court did not mention the letter at thus,
sentencing and the defendant knew
nothing about it. Id. at 1072. Although found a violation of Rule
noted that the defendant was not necessar-
ily entitled to a hearing to challenge the
truthfulness of the allegations. Id. at In simply ordering resentencing, that,
the court noted “Rule
only that each of parties ‘an
opportunity to comment upon proba-
tion officer’s determination and on other
matters relating to the appropriate sen-
tence.’ ... Whether a defendant is also
entitled to a hearing is within the discre-
tion the sentencing court.” Id.
Our discussion in taken con-
junction with language in Bums and
Burger, suggests that any nebulous notice case, which exists in this aas
result of Rule spirit of due
process, was fulfilled the district court’s
description of the letters at the sentencing
hearing. There was no plain error here.
For reasons, the foregoing I dissent. notes advisory committee 32 . respond). to a of law process due a denial not of a rely report sentencing to in implicitly Rule 32 find that if we Even disclos without investigation which presentence upon information all requires that giving or the defendant to report rely such which to judge intends sentencing the it.”); United to rebut ex- opportunity him an Rule fall within the not does (1st Curran, 62 F.2d 926 report v. States in the presentence must be ception judi no form, Cir.1991) there that (recognizing in some to the defendant disclosed Pro Due that the holding to the discretion precedent cial be judge must the infor of all disclosure within falls Clause the information cess whether decide sentencing reasoning the 32(b)(5). upon majority’s mation Rule requirement are such where we court; noting that to later cases lead us may sentencing with be irreconcilable the to whether appeal’ review would asked determining nondisclo 32(c)(8) in authorizes which his discretion abused judge Rule information); excep- see also within falls information of certain sure that 146-56, 2182 111 addition, judge S.Ct. Burns, U.S. 501 tion. (offering cogent purportedly any letters (Souter, J., dissenting) discern ie., defendant, not would process on behalf why written analysis counselors, friends, or majority family, his result reached from compel should which information case). may also contain in this some to the defendant disclosed be Rule addition, language plain over- inject unneeded would This reason. majority’s reason- support the not 32 does process. into the sight of infor- types two addresses Rule 32 ing. 32 assuming Finally, be in must even mation: information all defendant 32(b)(4)) to the (Rule in- compels disclosure report presentence judge intends upon from the information be excluded that must formation case law indicates sentencing, (Rule 32(b)(5)). rely Al- this complied with' im- the rule argues majority though the v. States United noted in As case. con- judge cannot plies decision Patrick, Court’s Supreme information, not Rule does other sider open possibility “left with Bums courts faced Other directly so state. simply met might in this us before to that similar situations hearing.” [sentencing] by notice recognized straightforwardly case have (citing n. 7 646 F.2d 988 govern the explicitly does 32 n. Curran, cases. See in these result Corace, 146 2182)1; States United does that Rule (recognizing F.2d cf. Cir.1998) (2d (holding that 51, 54-55 court, F.3d sent apply only the challenges a “defendant superviso- court’s relying therefore nei notice—-but give such failure de- require disclosure powers ry in the communica contained facts Louis, ther the fendant);