OCTOBER D87 - Voice For The Defense Online

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evidentiary hearing to establish the accuracyof this or other information containedin apresentence report before it canbe considered by the trial court."'9The lesson should be clear: The defendantand his lawyer will be given the opportunityto speak-but little else. Thereis no trial on the issue of punishment asthereis inTexas courts under Article 37.07VACCP. Even though the Federal Rules ofEvidence do not apply to sentencing proceedings[FRE 1101(d)(3)], a written offerof proof as contemplated by FRE 103(a)(2) would show on appeal what youwere trying to get before the sentencingjudge and this may well be the only wayto get the information into the recordbecause of the amendment to Rule 35.The Court's DutySince 1983, Rule 32(c)(3)(D) has providedfor the following procedure to be followedat the sentencing proceeding:"If the comments of the defendantand the defendant's counsel or testimonyor other information introducedby them allege any factualinaccuracy in the presentence investigationreport or the summary ofthe report or part thereof, the Courtshall, as to each matter controverted,make (i) a finding as to the allegation,or (ii) a determination that nosuch fmding is necessary because thematter controverted will not be takeninto account in sentencing. A writtenrecord of such findings and determinationsshall he appended toand accompany any copy of the presentenceinvestigation report thereaftermade available to the Bureauof Prisons or the Parole Commission."The latest amendment to this sectionsimply deletes reference to the ParoleCommission. Title 18 U.S.C. Sec. 3583@)requires that, beginning on Noven~ber I,1987, "The court, at time of sentencing,shall state in open court the reasons for itsimposition of the particular sentence . . ."Rule 32(c)(3)(D) has been strictly constrnedby the Courts of Appeal, and it issafe to predict that 3553(b) only reinforcesthe requirement of the Rule. As we shallsee in the next topic, a failure to complywith the Rule will ordinarily result in avacating of the sentence imposed.This rule gives the sentencing judge aneasy out: All he has to do is choose (ii) insteadof (i), and this "cleans up therecord" as far as the appellate courts areconcerned.Problems at theSentencing ProceedingAlthough the sentencing judge did not requirethe holding of a heari?g and did notrule on the request to3trike the informationfrom the Presentence InvestigationReport, the5th Circuit found that he compliedwith the Rule by stating, afersentence was pronounced, that he had notconsidered the matters complained of inpronouncing sentence.]22Failure of the Sentencing JudgeThe Prosecution Sentencingto Comply With Rule 32(c)(3)(D)Memorandum andIn United States v. Lnwal, the defen-Rule 32(c)(3)(D)dant's attorney objected to the amount of In United States v. Manotas-Mejia, thethe victim's loss as it was projected in the United States Attorney filed a "Sentenc-Presentence Investigation Report: The ing Memorandum" with the sentencingReport said $100,000; the defendant judge. In the Memorandum was a suggessuggestedthat $1,200 was accurate. The tion that the defendant had delivered somesentencing judge was ambiguous in his 15 kilos of cocaine for which he had notresponse to the objection andmade no find- been charged. This allegation was not inings regarding the accuracy of the infor- the Presentence Investigation Report. Themation contained in the Presentence Inves- defendant objected to this allegation, andtigation Report. Because the sentencing the sentencing judge did not address thejndge refused to comply with Rule 32(c) ohjection in any way. Had the allegation(3)(D), the 5th Circuit vacated the sentence been contained in the Presentence Investiandremanded the case for re-~entencing.~~ gation Report, the sentencing judge clear-In UnitedStates v. Velasquez, the defen- ly would have had to answer the objection.dant's lawyer objected to the label "no- On appeal, the 5th Circuit found that thetorious alien smuggler" used in the Pre- fact that the information appeared in thesentence Investigation Report to describe Sentencing Memorandum rather than inthe defendant. The sentencing judge made the Presentence Investigation Report in nono response to the defendant's ohjection to way diminished the dangers against whichthis. On appeal, the 5th Circuit wrote: Rule 32(c)(3)(D) guards. For this reason,"Once Velasquez met his burden under the the case was remanded for re-sentencing.23rule, the Court was required to make either In United States v. Salas, the 1 lth Cirafinding as to the allegation or a statement cuit was confronted with almost the samethat the uncontroverted matter would not situation as in Manotas-Mejia. There,be con~idered."~~however, the sentencing judge hadIn United States v. Castillo-Roman, the "cleaned up the record" at a Rule 35 heardefendantobjected to language in the Pre- ing, and the case was affirmed.2'sentence Investigation Report which indi- Manotns-Mejia and Salns simply incatedthat he was more culpable than his dicate the popularity of the use of theco-conspirators (He was alleged to have Prosecution's Sentencmg Memorandum.been the leader of a group known as "Las These cases were decided on August 4thTejas."). In this case, the defendant's and loth, respectively.lawyer did it right. In the languaae of the5th circuit's opinion: Tastillo fd& a motionto redact unfounded allegations con-tained in the nresentence reoort nursuant& .to Federal dule of Criminal Procedure32(c)(3)(D), requesting that the Distr~ctCourt: (1) Hold a hearing in which thegovernment would he required to provethat he was the 'Las Tejas' leader; (2) Notrely on that information when imposing asentence; and, (3) Order that the informationhe stricken from his report." [Note:The Late Requestfor CorztinuanceIn United States v. Taylor, the defendantcomplained that he was wrongfully denieda continuance to enable him to gathermaterials to influence the sentencing court.In Tnylor, the defendant's claim was rejectedbecause he gave no indication-attrial or on appeal-as to what evidence hewould have produced had be been granted10 VOICE for the Defense / October 1987
his continua~ce.~~The Limiting of Post-SentenceRelief For a.Rule 32 ViolalionAs the 11th Circuit points out in UnitedStales v. Peloso, there have been four proceduresfor pursuing a Rule 32 violation:A direct appeal; a Rule 35 Motion to CorrectSentence; a Section 2255 Habeas CorpusPetition; and, a Section 2241 HabeasCorpus Petition (directed at the ParoleCommission for using false informati~n).~~After November 1, 1987, there will beno Parole Commission and, therefore, noSection 2241 relief. Neither will there beany Motion to Correct under Rule 35. Thedefendant will be left with an ordinary appealor a 2255 Habeas Corpus Petition ashis only avenues for complaining about aRule 32 violation.In United States v. Espinoza, the sen-tencing judge stated orally-after pronouncingsentence-that he had to do sobecause the defendant's "recordof threatsand assaults was bad." The defendant fileda motion under Rule 35 in order that hemight ". . . present evidence to rebut thecourt's statement." The sentencing judgerefused to permit any rebuttal of his statedfactual basis of the sentence. On appeal,the 5th Circuit vacated and remanded forre-sentencing, holding that "The action ofthe court below, in refusing to permitrebuttal of the stated factual basis for thesentence, is tantamount to an abuse ofdiscretion and is inconsistent with the needfor enlightened senten~ing."~'In our "new era," there is no real solutionfor an Espirtozu problem. Doing awaywith the Rule 35(a) Motion to Correctprecludes the defendant's lawyer from"making a record" and the sentencingjudge from correcting an illegally imposedsentence.The United States ProbationOfficer as a Resource PersonUnited States Probation Officers can domore to help a defense lawyer than justprepare fair and accurate PresentenceInvestigation Reports. They can answerquestions -and they will if you will justask them.In every criminal case, you should askyour United States Probation Officer atleast these questions:1. What do the new Federal SentencingGuidelines do to my defendant?pe em ember that Rule 32(c)(2)@) putthe burden on the probation officerto advise the sentencing judge as to"the kinds of sentence and the sentencingrange suggested for such acategory of offense committed bysuch a category of defendant as setforth in the guidelines issued by theSentencing Commission pursuant to28 U.S.C. 994(a)(l);."]2. What are the judges doing in this typecase?[It helps to know what the judges inthe district have been doing in likecases. If your client happens to be abanker who is charged with some"white collar crime," it will behelpful to know, early on, that everybanker charged with such an offenseduring the past five years has beensentenced to "hard time."]3. Ifmy client is sentenced to co~tfifinemerit,approximately how rnrrclt tintewill he act~ially sen&??[In the Federal system, you cannotassume that your client will serve aslittle time as he would on a comparablestate sentence. With the newFederal Sentencing Guidelines, thisquestion must be asked if you are goingto make any predictions for yourdefendant.]4. Where is the bestplacefor my clientto "do his tinte?"[Sometimes the best thing that youcan do for your client is to get arecommendation from the sentencingjudge as to the place of the confinement.While this recommendation isnot binding, it is followed some 85%of the time by the Bureau of Prisons.(The US. Department of Justice,Federal Bureau of Prisons, has apublication called Facilities. A copymay be obtained by writing to thePublic Information Office, FederalBureau of Prisons, 320 First StreetNW., Washington, D.C. 20534.) Itis obvious that some places of confinementare preferable to others;e.g., "Club Fed" at Big Spring mayhe -- over-named. - -- but it is certainlv betterthan El Reno or La Tuna.]5. Will my client be permitted tobers "the lady in the Gucci dress"who was taken to jail immediatelyafter sentence was pronounced. Sheobviously had not been prepared forthis. Defendants who are permittedto surrender often go to betterfacilities (a Federal Prison Camp)and get extra time credit. A requestfor voluntary surrender should alwaysbe made in appropriate cases.]Being of Assistance inCrisis SitrralionsDefendants can have problems after theyleave the sentencing court. The UnitedStates Probation Officer who prepared thepresentence Investigation Report is theperson who can give the most assistancewhen these crises arise; e.g.,1. Death in the family of the defendant-Undercertain circumstances,a Federal prisoner may be releasedin order to attend the funeral of animmediate family member. TheUnited States Probation Officer whodid the Presentence InvestigationReport is the person best suited tocom~uunicate with the authorities atthe confinement facility.2. The suicide risk-Some individualshave more difficulty than others inadjusting to a confinement facility.The local United States Probation Officer,having had contact with the defendantprior to sentencing, can beof great assistance to the defendant'scaseworker at the confinement facility.[As a personal example, I canremember one specific occasionwhere I had reason to be concernedthat my client was a suicide risk.Within 30 minutes of my bringingthis to the attention of our local ChiefUnited States Probation Officer, apsychologist was visiting with myclient at the Federal Prison Camp atEl Reno.]VOICE ADVERT1 SERSCDLP Federal Materials. ..........7surrend>r? CDLP Publications ................9[In the Tyler Div~sion of the Eastern CDLP Seminars.. .:. ............-29District of Texas, everyone remem- National Legal Services .........-. 35October 1987 1 VOICE for the Defense 11
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Page 8 and 9: whom the officer might contact, but
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Page 21 and 22: Bafson K Kentucky:A New Weapon for
Page 23 and 24: to respond to an unresolved Batson
Page 25 and 26: Mot ion Practiceby GeraM GoldsteinA
Page 27: Conversion RatiosUpon ingestion int
Page 30 and 31: IConstitution and Article I, Sectio
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Page 35 and 36: day of1987, at o'clock. M .ENTERED
Page 37 and 38: one half cases. In the 847 cities w
Page 39: include a fixed rate, minimum and m

OCTOBER D87 - Voice For The Defense Online

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