United States v. 2006-12-26 | 05-50676 | USA VBALDRICH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-50676
Plaintiff-Appellee, D.C. No.
v.  CR-05-00129-SJO
MARIO JOSEPH BALDRICH, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
October 23, 2006—Pasadena, California
Filed December 27, 2006
Before: A. Wallace Tashima, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
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COUNSEL
Maria E. Stratton, Federal Public Defender; Davina T. Chen,
Deputy Federal Public Defender, Los Angeles, California, for
the appellant.
Debra Wong Yang, United States Attorney; Thomas P.
O’Brien, Lamar W. Baker, Assistant United States Attorneys,
Los Angeles, California, for the appellee.
OPINION
IKUTA, Circuit Judge:
Mario Baldrich pleaded guilty to five counts of bank rob-
bery and one count of attempted bank robbery in violation of
18 U.S.C. § 2113(a). At sentencing, the district court denied
Baldrich’s request for disclosure of the United States proba-
tion officer’s confidential sentencing recommendation as
allowed by Rule 32(e)(3) of the Federal Rules of Criminal
Procedure. The district court also rejected Baldrich’s argu-
ment that he was entitled to a reduction in his offense level
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under section 3E1.1(b) of the United States Sentencing
Guidelines.
On appeal, Baldrich raises two challenges to these rulings.
First, he argues that the district court violated his right to due
process at sentencing by denying his motion to disclose the
probation officer’s confidential sentencing recommendation.
By the same token, Baldrich argues that Rule 32(e)(3) of the
Federal Rules of Criminal Procedure is unconstitutional to the
extent it allows the court to withhold the recommendation.
Second, he argues that the district court’s denial of his motion
to reduce his offense level under section 3E1.1(b) of the Sen-
tencing Guidelines violated his constitutional rights to pro-
ceed to trial and to effective assistance of counsel.
We reject Baldrich’s first argument because the district
court’s compliance with Rule 32’s requirement to disclose
factual information relied on in sentencing satisfies the defen-
dant’s due process rights. See United States v. Gonzales, 765
F.2d 1393, 1398-99 (9th Cir. 1985). We reject Baldrich’s sec-
ond argument because the incentive provided by section
3E1.1(b) to plead guilty in a timely manner did not violate
Baldrich’s constitutional rights. See United States v.
Espinoza-Cano, 456 F.3d 1126, 1137-38 (9th Cir. 2006).
BACKGROUND
On January 12, 2005, Mario Baldrich was arrested and sub-
sequently charged with seven counts of bank robbery and two
counts of attempted bank robbery all in violation of 18 U.S.C.
§ 2113(a). During the three months after Baldrich was
indicted, Baldrich and the government discussed a possible
plea agreement. Baldrich ultimately declined the govern-
ment’s offer, but on May 23, 2005, the day before trial, Bal-
drich notified the government and the district court of his
intention to plead guilty to six of the nine counts without the
benefit of a plea agreement. The district court accepted his
plea the next day.
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Before the August 22, 2005 sentencing hearing, the parties
received the United States probation officer’s presentence
report. The presentence report recommended a reduction of
the defendant’s offense level by two levels pursuant to section
3E1.1(a), but did not recommend the third one-level reduction
under section 3E1.1(b) because the government had not
moved for the reduction.1 In addition, the probation officer
submitted her confidential sentencing recommendation to the
district court under seal. The district court denied Baldrich’s
motion to disclose the confidential recommendation.
At sentencing, the district court disclosed that the probation
officer had recommended a sentence of 162 months, the high
end of the range, because the probation officer believed that
Baldrich was “a danger.” However, the district court stated it
did not intend to follow this recommendation. The district
court also ruled that Baldrich was not eligible for the offense-
level reduction under section 3E1.1(b) because Baldrich had
not provided timely notice of his intent to enter a guilty plea,
and the district court and government had dedicated signifi-
cant resources in preparation for trial. The court then sen-
tenced Baldrich to 144 months in prison, a three-year period
of supervised release, $20,906 in restitution, and a $600 spe-
cial assessment. After imposition of the sentence, the district
1Section 3E1.1 of the applicable Sentencing Guidelines provides:
(a) If the defendant clearly demonstrates acceptance of respon-
sibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection
(a), the offense level determined prior to the operation of subsec-
tion (a) is level 16 or greater, and upon motion of the government
stating that the defendant has assisted authorities in the investiga-
tion or prosecution of his own misconduct by timely notifying
authorities of his intention to enter a plea of guilty, thereby per-
mitting the government to avoid preparing for trial and permitting
the government and the court to allocate their resources effi-
ciently, decrease the offense level by 1 additional level.
U.S. Sentencing Guidelines Manual § 3E1.1 (2004) (emphasis in original).
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court dismissed the remaining three counts against Baldrich
on the government’s motion.
After judgment, Baldrich filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
STANDARDS OF REVIEW
We review de novo a district court’s compliance with Rule
32 of the Federal Rules of Criminal Procedure. United States
v. Thomas, 355 F.3d 1191, 1194 (9th Cir. 2004). A challenge
to the constitutionality of the Federal Rules of Criminal Pro-
cedure is also subject to de novo review. See Doe v. Rumsfeld,
435 F.3d 980, 984 (9th Cir. 2006).
Although the Sentencing Guidelines are now effectively
advisory, we “continue to address challenges to a district
court’s interpretation and application of the Guidelines”
because the district court has a continuing duty to calculate
the Guidelines range accurately. United States v. Cantrell,
433 F.3d 1269, 1278 (9th Cir. 2006). “ ‘[W]hether the district
court misapprehended the law with respect to the acceptance
of responsibility reduction’ [under the Guidelines] is reviewed
de novo,” Espinoza-Cano, 456 F.3d at 1130 (quoting United
States v. Cortes, 229 F.3d 1030, 1037 (9th Cir. 2002)), as are
attacks on the constitutionality of a provision of the Sentenc-
ing Guidelines, United States v. Leasure, 319 F.3d 1092, 1096
(9th Cir. 2003).
DISCUSSION
1. The Probation Officer’s Confidential Sentencing
Recommendation
Baldrich asserts that his right to due process at sentencing
was violated by the district court’s failure to disclose to him
the probation officer’s confidential sentencing recommenda-
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tion. According to Baldrich, the district court had to produce
the recommendation, summarize it, or “expressly disclaim
reliance” on it in order to avoid this violation. Baldrich also
asserts that Rule 32(e)(3) of the Federal Rules of Criminal
Procedure is unconstitutional to the extent it allows withhold-
ing of any facts, analysis, or opinions contained in the sen-
tencing recommendation.2
We rejected a similar due process argument in United
States v. Gonzales, 765 F.2d 1393, 1399 (9th Cir. 1985). In
that case, the defendant argued that due process entitled him
to investigate the substance of oral ex parte communications
between the court, the sentencing council (consisting of other
judges), and the parole officer, through an evidentiary hear-
ing. Id. at 1398. We disagreed because the defendant had
received all underlying factual information as required by
Rule 32.
[1] We began our analysis by “observ[ing] that rule 32
expressly provides that the district court may withhold the
recommendation portion of the presentence report from the
defendant, provided that if the court relies on any factual
information in that portion, the defendant must be provided
with a summary of such factual information.” Id. (citing to an
older version of Rule 32). We then analogized the oral com-
munications received by the district court to the written confi-
dential sentencing communications discussed in Rule 32
stating,
[a]lthough rule 32[ ] does not mention oral commu-
nication, there is no question but that the spirit of the
2Subsection (e)(3) of Rule 32 of the Federal Rules of Criminal Proce-
dure states:
Sentence Recommendation. By local rule or by order in a case,
the court may direct the probation officer not to disclose to any-
one other than the court the officer’s recommendation on the sen-
tence.
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rule would be violated if the probation officer related
facts orally to the district court, on which it relied
and which were not disclosed. Thus, if the district
court received any additional factual information, it
would have to disclose it to the defendant.
Id. (citation omitted). Applying these principles, we noted that
the defendant had reviewed the presentence report and that
the district court had specifically stated “that all facts on
which [it] relied had been disclosed.” Id. Absent any evidence
that the ex parte communications resulted in the district court
considering undisclosed or improper facts, we concluded that
the district court did not abuse its discretion in refusing to
order an evidentiary hearing. Id. at 1399.
[2] Our conclusion—that compliance with Rule 32’s
requirement to disclose factual information satisfies due
process—covers a probation officer’s written recommenda-
tions as well as ex parte oral communications. This holding
is in conformance with rulings in several other circuits. See
United States v. Kalady, 941 F.2d 1090, 1096-97 (10th Cir.
1991); United States v. Heilprin, 910 F.2d 471, 474 (7th Cir.
1990); United States v. Headspeth, 852 F.2d 753, 755 (4th
Cir. 1988), overruled on other grounds by Taylor v. United
States, 495 U.S. 575, 580 n.2 (1990).
The structure of Rule 32 has been modified several times
after our decision in Gonzales, but these changes do not affect
our conclusion. Gonzales interpreted an earlier version of
Rule 32 as requiring the district court to provide the defendant
with a summary of factual information contained in the confi-
dential sentencing recommendation. See FED. R. CRIM. P.
32(c)(3)(A) and (B), 18 U.S.C. Appendix (Supp. II 1983).
After several subsequent reorganizations of Rule 32, the
court’s duty to summarize facts underlying excluded portions
of the presentence report is no longer directly applicable to
the sentencing recommendation. Compare FED. R. CRIM. P.
32(c)(3)(A) and (B), 18 U.S.C. Appendix (Supp. II 1983) with
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FED. R. CRIM. P. 32(b)(5), (b)(6)(A), and (c)(3)(A) (West
1995) and FED. R. CRIM. P. 32(e)(3) (West 2003) and FED. R.
CRIM. P. 32(e)(3) (West 2005).
Nevertheless, Rule 32 continues to require the disclosure of
all relevant factual information to the defendant. In an
extended discussion of the purpose and structure of Rule 32,
the Supreme Court stated that Rule 32 “provides for focused,
adversarial development of the factual and legal issues rele-
vant to determining the appropriate Guidelines sentence. Rule
32 frames these issues by directing the probation officer to
prepare a presentence report addressing all matters germane
to the defendant’s sentence.” Burns v. United States, 501 U.S.
129, 134 (1991). The Court further noted the extensive scope
of the presentence report, which must include:
(a) information about the history and characteristics
of the defendant, including his prior criminal record;
(b) the classification of the offense and the defendant
under the Sentencing Guidelines, possible sentencing
ranges, and any factors that might warrant departure
from the Guidelines; (c) any pertinent policy state-
ments issued by the Sentencing Commission; (d) the
impact of the defendant’s offense upon any victims;
(e) information relating to possible sentences not
requiring incarceration, unless the court orders other-
wise; and (f) any other information requested by the
court.
Id. at 134 n.2. This comprehensive report must be disclosed
to the parties, “whom the Guidelines contemplate will then be
afforded an opportunity to file responses or objections with
the district court.” Id. at 134. Finally, Rule 32 mandates that
counsel for the defendant has “an opportunity to comment
upon the probation officer’s determination and on other mat-
ters relating to the appropriate sentence.” Id. (quotations omit-
ted). Although certain types of information that could result
in harm to the defendant or third parties may be excluded
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from the presentence report, the district court must provide a
summary of such excluded information to the defendant at
sentencing. See FED. R. CRIM. P. 32(i)(1)(B).
[3] In light of its purpose and structure, Rule 32’s require-
ment that all facts relevant to the defendant’s sentence be pro-
vided to the defendant for adversarial testing clearly extends
to the factual information underlying a probation officer’s
confidential sentencing recommendation, even though the rec-
ommendation itself need not be disclosed. Under Gonzales,
compliance with these Rule 32 disclosure requirements satis-
fies due process.
[4] In order to determine whether the district court com-
plied with Rule 32’s disclosure requirements in Baldrich’s
case, we have reviewed the confidential sentencing recom-
mendation submitted to the district court. We have deter-
mined that all of the facts in the confidential sentencing
recommendation were discussed in the presentence report or
in open court at the sentencing hearing. Therefore, the district
court’s decision not to disclose the confidential recommenda-
tion to Baldrich did not violate Rule 32 or Baldrich’s due pro-
cess rights.3
[5] We also reject Baldrich’s argument that the district
court must disclose the probation officer’s confidential analy-
sis and opinions. The Supreme Court has previously consid-
ered the non-disclosure of presentence reports and has not
adopted any constitutional requirement that extends beyond
the factual disclosure that Rule 32 already requires. See, e.g.,
Gardner v. Florida, 430 U.S. 349, 358-62 (1977); Williams v.
New York, 337 U.S. 241, 251-52 (1949).
3Because we uphold the district court’s nondisclosure of the probation
officer’s sentencing recommendation, there is no need to consider Bal-
drich’s request for a new judge on remand.
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2. The Section 3E1.1(b) Third-level Reduction
[6] Baldrich contends that U.S. Sentencing Guidelines
Manual section 3E1.1(b) is unconstitutional because it penal-
izes defendants for exercising their constitutional right to go
to trial and deprives defendants of the right to effective assis-
tance of counsel. Section 3E1.1(b) permits a court to reduce
a defendant’s offense level by one level upon a motion by the
government which states “that the defendant has assisted
authorities in the investigation or prosecution of his own mis-
conduct by timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the government and
the court to allocate their resources efficiently.” U.S. Sentenc-
ing Guidelines Manual § 3E1.1(b) (2004).
[7] After the parties submitted briefing on this matter, this
court decided United States v. Espinoza-Cano, 456 F.3d 1126
(9th Cir. 2006). In that case, we rejected the argument that
section 3E1.1(b) violated a defendant’s constitutional rights
by requiring a defendant to waive the right to proceed to trial
in order to obtain the offense-level reduction. Id. at 1137-38.
We noted that “ ‘[n]ot every burden on the exercise of a con-
stitutional right, and not every pressure or encouragement to
waive such a right, is invalid.’ ” Id. at 1138 (quoting Corbitt
v. New Jersey, 439 U.S. 212, 218 (1978)). This decision elim-
inates Baldrich’s identical argument.
[8] Although the defendant in Espinoza-Cano did not chal-
lenge section 3E1.1(b) on the ground that it violated his right
to effective assistance of counsel, this argument similarly
fails. A requirement that a defendant plead guilty in a “time-
ly” manner in order to receive the reduction allowed by sec-
tion 3E1.1(b) does not bar effective assistance of counsel. A
defendant could receive “a reasonable opportunity to employ
and consult with counsel,” Chandler v. Fretag, 348 U.S. 3, 10
(1954), and still plead in time to receive the reduction. In this
case, for example, Baldrich had four months between his
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arrest and the expiration of the government’s offer in which
to consult with his counsel.
[9] In Espinoza-Cano, we established a standard for review
of the government’s decision not to move for the additional
reduction, namely that “ ‘the government cannot refuse to file
. . . a motion on the basis of an unconstitutional motive (e.g.,
racial discrimination), or arbitrarily (i.e., for reasons not ratio-
nally related to any legitimate governmental interest).’ ”
Espinoza-Cano, 456 F.3d at 1136 (quoting United States v.
Murphy, 65 F.3d 758, 762 (9th Cir. 1995)). Baldrich does not
contend that there was any improper motive in this case nor
is there evidence of one. Rather, the record is clear that Bal-
drich waited until the day before trial to change his plea, and
the district court noted that it, as well as the government, had
expended significant time and energy preparing for trial due
to Baldrich’s failure to inform the court of his intention to
plead guilty in a timely manner. Therefore, Baldrich was not
entitled to the reduction by the terms of section 3E1.1(b).
AFFIRMED.
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