United States of America v. Jerry M C Ilwain

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2019 Decided July 26, 2019
No. 18-3087
UNITED STATES OF AMERICA ,
APPELLEE
v.
J ERRY M C I LWAIN ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00214-1)
A.J. Kramer, Federal Public Defender, argued the cause and
filed the memorandum of law and fact and reply for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause
for appellee. With him on the memorandum of law and fact
were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman,
Assistant U.S. Attorney.
Before: GARLAND , Chief Judge, TATEL , Circuit Judge, and
SENTELLE , Senior Circuit Judge.

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Opinion for the Court filed by Chief Judge GARLAND .
Opinion concurring in part and concurring in the judgment
filed by Senior Circuit Judge SENTELLE .
GARLAND , Chief Judge: Federal Rule of Criminal
Procedure 32(e)(3) provides that, “by order in a case,” a district
court “may direct the probation officer not to disclose to anyone
other than the court the officer’s recommendation on the
sentence.” Defendant Jerry McIlwain filed an unopposed
motion asking the district court to direct the probation officer to
disclose the sentencing recommendation in his case. The court
denied McIlwain’s request pursuant to its “policy” of “always
treat[ing]” the recommendations “as confidential.” 11/30/18
Sent’g Tr. 3 (App. 58). Rule 32(e)(3), however, requires a
district court to exercise discretion in deciding whether to
withhold the recommendation. Because that discretion must be
based on case-specific reasoning rather than on a uniform
policy, we vacate McIlwain’s sentence and remand for
resentencing.
I
In June 2017, the Federal Bureau of Prisons released Jerry
McIlwain from detention in Cumberland, Maryland and directed
him to report to Hope Village, a halfway house in Washington,
D.C., to serve the remaining ten months of his sentence.
McIlwain never reported to the halfway house, and the Bureau
placed him on escape status. About a year later, a federal grand
jury indicted McIlwain for escape, in violation of 18 U.S.C.
§ 751(a). A magistrate judge issued a warrant for his arrest, and
U.S. Marshals took him into custody soon thereafter.
McIlwain pled guilty on October 3, 2018. In exchange for
his plea, the government agreed to ask for a sentence at the low

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end of the Guidelines range -- eight months -- and to allow
McIlwain to argue for a sentence of time served. McIlwain filed
a sentencing memorandum requesting time served -- about four
months.
On November 27, McIlwain filed an unopposed motion
asking the district judge to order the probation officer to disclose
the sentencing recommendation, pursuant to Rule 32(e)(3). The
rule states that, “[b]y local rule or by order in a case, the court
may direct the probation officer not to disclose to anyone other
than the court the officer’s recommendation on the sentence.”
F ED . R. CRIM. P. 32(e)(3). McIlwain noted that “[t]here is no
such local rule in this district, nor has the court directed that the
sentence recommendation not be disclosed.” Motion for
Disclosure of Sent’g Rec. 1 (App. 35).
McIlwain also pointed out that not merely was his motion
unopposed, but both the U.S. Attorney’s Office and the U.S.
Probation Office supported (and still support) the disclosure of
sentencing recommendations as a matter of course. Id. at 1-2
(App. 35-36); see Letter from Federal Public Defender A.J.
Kramer to Chief Judge Beryl A. Howell (May 15, 2017) (App.
41) (confirming the U.S. Attorney’s continued support for
routine disclosure); Letter from Chief U.S. Probation Officer
Brian D. Shaffer to Chief Judge Beryl A. Howell (Sept. 6, 2017)
(“2017 Shaffer Letter”) (App. 39-40); Letter from U.S. Attorney
Eric H. Holder to Judge Thomas F. Hogan, Chair, District Court
Rules Committee (Sept. 22, 1995) (“1995 Holder Letter”) (App.
49-50).
Nonetheless, at the November 30, 2018 sentencing hearing,
the district judge denied McIlwain’s motion to disclose the
recommendation. 11/30/18 Sent’g Tr. 2 (App. 57). After
acknowledging that he had discretion in the matter, the judge
explained his decision as follows:

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Sentencing has become too complicated and the
guidelines have become too complicated[,] . . . and I
find . . . [the] experienced probation officers[’] . . .
recommendations . . . very helpful . . . . I have been
concerned and remain concerned that the candor of
those recommendations would be affected by their
disclosing them and having to answer for them to
outside counsel. And because they’re officers of the
court, I have always treated them as confidential and
have always exercised my discretion to maintain their
confidentiality and do not disclose them . . . , and so I
have always maintained that policy myself and I have
interpreted the rule to not require a judge to require . . .
disclosure.
Id. at 3 (App. 58). The judge then concluded:
I don’t think, in any particular individual case,
[disclosure] would necessarily have any great effect,
but the cumulative effect of the different relationship
that I would have in particular with the probation
officers and the candor of their recommendations and
their ability to assist the Court in the sentencing
process, I have consistently thought, would be greatly
affected, and so I will deny the motion.
Id. at 3-4 (App. 58-59). Thereafter, the judge rejected
McIlwain’s request for time served and instead sentenced him
to eight months, as the government had requested. Id. at 19
(App. 74).
McIlwain now appeals, raising a single argument: “The
district court improperly refused to disclose the sentencing
recommendation.” McIlwain Br. 9.

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II
Rule 32(e)(3) provides:
By local rule or by order in a case, the court may
direct the probation officer not to disclose to anyone
other than the court the officer’s recommendation on
the sentence.
FED . R. CRIM. P. 32(e)(3) (emphasis added). The notes of the
Advisory Committee on Criminal Rules make clear that the
rule’s inverse is also true: If the court does not direct
nondisclosure “in an individual case or in accordance with a
local rule,” then “the recommendation . . . is subject to
disclosure.” FED . R. CRIM . P. 32, advisory committee note to
1994 amendment.1 Thus, the default position -- in the absence
of a local rule or order in a case -- is disclosure. See Gov’t Br.
8 (agreeing “that the default position of Rule 32(e)(3) is that the
recommendation must be disclosed” (internal quotation marks
omitted)).
That has not always been so. The rule governing
presentence investigations was originally adopted in 1944 and,
by 1966, provided that “[t]he court before imposing sentence
may disclose to the defendant or his counsel all or part of the
material contained in the report of the presentence
investigation.” FED . R. CRIM. P. 32(c)(2) (1966). The 1966 rule
did not specifically mention the sentencing recommendation at
all, and it left the decision whether to disclose the presentence
report up to the district court. Both of those things remained
true until the 1974 amendment, when the rule was changed to
1 See United States v. Vonn, 535 U.S. 55, 64 n.6 (2002) (“In the
absence of a clear legislative mandate, the Advisory Committee Notes
provide a reliable source of insight into the meaning of a rule . . . .”).

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require that the district court “shall upon request permit the
defendant . . . to read the report of the presentence investigation
exclusive of any recommendation as to sentence.” FED . R. CRIM.
P. 32(c)(3) (1975) (emphasis added). In 1983, the requirement
that the defendant request the report was removed, making
disclosure of the report automatic. F ED . R. CRIM. P. 32(c)(3)(A)
(1983). Left in place, however, was the bar against disclosing
the recommendation. Id.
Finally, in 1994, the essence of the current rule was
adopted: “Not less than 35 days before the sentencing
hearing . . . the probation officer must furnish the presentence
report to the defendant, the defendant’s counsel, and the attorney
for the Government. The court may, by local rule or in
individual cases, direct that the probation officer not disclose the
probation officer’s recommendation, if any, on the sentence.”
FED . R. CRIM . P. 32(b)(6)(A) (1994). In 2002, the text of that
provision was changed, solely for stylistic purposes, and the
provision was renumbered as Rule 32(e)(2) and (3). See FED . R.
CRIM. P. 32, advisory committee note to 2002 amendment. The
current text of the second sentence just quoted now reads: “By
local rule or by order in a case, the court may direct the
probation officer not to disclose to anyone other than the court
the officer’s recommendation on the sentence.” FED . R. CRIM.
P. 32(e)(3).
As this history shows, the defaults for both the report and
the recommendation have evolved over time. Disclosure of the
report was formerly optional, and disclosure of the
recommendation was prohibited. Now, disclosure of the report
is mandatory, as is disclosure of the recommendation -- absent
a “local rule” or “order in a case.”
The question before us, therefore, is whether a “local rule”
or “order in a case” properly barred disclosure here. The answer

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to the “local rule” part of the question is easy. That term does
not refer to a rule governing proceedings before a single judge
(often referred to in this district as a “standing order”). Rather,
it refers to a rule, adopted by a majority of the judges of the
relevant district court, that governs proceedings before every
judge of that court. See FED . R. CRIM. P. 57(a)(1).2 The U.S.
District Court for the District of Columbia has not adopted any
local rule regarding disclosure of a probation officer’s
sentencing recommendation. See Letter from Chief Judge Beryl
A. Howell to Federal Public Defender A.J. Kramer (Sept. 20,
2017) (App. 38). Thus, as the government acknowledges, the
district judge did not deny McIlwain’s motion for disclosure (or
direct nondisclosure) pursuant to the “local rule” provision.
Gov’t Br. 10.
As both parties agree, however, the judge here did issue an
“order in a case” -- namely, McIlwain’s case -- that effectively
directed the probation officer not to disclose the sentencing
recommendation. Gov’t Br. 12; Oral Arg. Tr. 5:17-21
(McIlwain’s counsel); see 11/30/18 Sent’g Tr. 4 (App. 59);
Minute Order (11/30/18). The order, which denied McIlwain’s
motion for disclosure, had that effect because everyone
concerned understood the judge’s position to be that the
probation officer could not disclose the officer’s
2 Rule 57(a)(1) provides:
(1) Adopting Local Rules. Each district court acting by a
majority of its district judges may, after giving appropriate
public notice and an opportunity to comment, make and
amend rules governing its practice. A local rule must be
consistent with -- but not duplicative of -- federal statutes
and rules adopted under 28 U.S.C. § 2072 . . . .
F ED. R. CRIM . P. 57(a)(1).

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recommendation without an affirmative order. See 11/30/18
Sent’g Tr. 2 (App. 57); McIlwain Br. 4-5, 12. We therefore turn
to McIlwain’s contention that the nondisclosure order was
improper.
III
Once again, Rule 32(e)(3) provides that, “[b]y order in a
case, the court may direct the probation officer not to
disclose . . . the officer’s recommendation on the sentence.”
FED . R. CRIM. P. 32(e)(3) (emphasis added). “The word ‘may’
clearly connotes discretion.” Halo Elecs., Inc. v. Pulse Elecs.,
Inc., 136 S. Ct. 1923, 1931 (2016). And the 1994 Advisory
Committee notes confirm this reading: “Under th[e] new
provision . . . , the court has the discretion (in an individual case
or in accordance with a local rule) to direct the probation officer
to withhold any final recommendation.” F ED . R. CRIM. P. 32,
advisory committee note to 1994 amendment (emphasis added).
Because the rule grants the district court discretion, it
follows that we review the court’s order for abuse of discretion.
This conforms with how we treat other federal rules providing
that a district court “may” do something: We have held that
such rules authorize discretion and are reviewed for abuse of
discretion. 3 Both parties to this appeal agree that this is the
standard of review applicable to the district court’s order here.
3 See, e.g., United States v. Cordova, 806 F.3d 1085, 1090 (D.C.
Cir. 2015) (Rule 16(d)(1): the court “may” grant protective orders);
United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006) (Rule 7(f):
the court “may” direct the government to file a bill of particulars);
United States v. Ginyard, 444 F.3d 648, 651-53 (D.C. Cir. 2006) (Rule
23(b)(3): the court “may” permit an eleven-person jury to return a
verdict).

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See McIlwain Reply Br. 2, 4; Gov’t Br. vi, 7-8; Oral Arg. Tr.
17:18-20 (government counsel).
But before we can assess whether the district court abused
its discretion, we must determine what discretion under Rule
32(e)(3) entails. That question -- the meaning of a federal rule
itself -- is one we decide de novo. See, e.g., United States v.
Gewin, 471 F.3d 197, 200 (D.C. Cir. 2006) (“A district court’s
interpretation of the Federal Rules of Evidence is a question of
law, which we review de novo.”); Handy v. Shaw, Bransford,
Veilleux & Roth, 325 F.3d 346, 349 (D.C. Cir. 2003) (“Whether
the lower court applied the proper legal standard in exercising
[its] discretion . . . is a question of law reviewed de novo.”).
We turn first to the scope of a district court’s discretion
under the rule. We then address the manner in which
McIlwain’s sentencing court exercised that discretion.
A
To determine the scope of the court’s discretion, we begin
with the text of the current rule, which (as relevant here)
authorizes an individual judge to direct nondisclosure “by order
in a case.” The best reading of that language is that the order
must be based on something particular about the “case” at issue
-- as distinct from an order governing all cases coming before an
individual judge. Had the drafters intended Rule 32 to authorize
that latter kind of order, they could easily have said so. They
could have accomplished that end either by simply leaving “in
a case” out of the provision or by providing for nondisclosure
pursuant to a judge’s standing order -- just as they expressly
authorized each federal district to adopt a nondisclosure policy
by “local rule,” applicable to every judge and every case in the
district.

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This reading is confirmed by examining the text of the rule
as it stood in 1994. As recounted in Part II above, that version
of the rule stated: “The court may, by local rule or in individual
cases, direct that the probation officer not disclose the probation
officer’s recommendation . . . .” FED . R. CRIM. P. 32(b)(6)(A)
(1994) (emphasis added). The reference to “in individual
cases,” even more strongly than the current text’s reference to
“in a case,” indicates that the drafters did not intend to authorize
the use of a standing order applicable to all of a judge’s cases.
And the Advisory Committee notes make clear that the 2002
amendment that produced the current text was not intended to
change the meaning of the 1994 rule.4
This reading is further confirmed by the 1994 Advisory
Committee notes, which expressly state that, “[u]nder th[is]
provision . . . , the court has the discretion (in an individual case
or in accordance with a local rule) to direct the probation officer
to withhold any final recommendation.” FED . R. CRIM. P. 32,
advisory committee note to 1994 amendment (emphasis added).
To exercise “discretion” in an “individual” case, there must be
something about that individual case that warrants the exercise
of discretion. Accordingly, a policy of always barring
disclosure -- regardless of an “individual” case’s circumstances
-- does not constitute the exercise of discretion authorized by
Rule 32.
This reading likewise fits with how the Supreme Court
defines discretion. “[D]iscretion,” the Court has explained,
4 F ED. R. CRIM . P. 32, advisory committee note to 2002
amendment (“The language of Rule 32 has been amended as part of
the general restyling of the Criminal Rules to make them more easily
understood and to make style and terminology consistent throughout
the rules. These changes are intended to be stylistic only, except as
noted below [with respect to provisions not at issue here].”).

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entails a duty “to locate a just result in light of the circumstances
peculiar to the case.” Albemarle Paper Co. v. Moody, 422 U.S.
405, 421 (1975) (internal quotation marks omitted). And it also
fits with the Court’s definition of what discretion is not: “The
term ‘discretion’ denotes the absence of a hard and fast rule.”
Langnes v. Green, 282 U.S. 531, 541 (1931).
Finally, our reading is compelled by this circuit’s repeated
holdings regarding an analogous provision of an earlier version
of Rule 32 that governed permissive disclosure of presentence
reports. As we also recounted in Part II, by 1966 the rule’s
language with respect to the presentence report closely
resembled its current language regarding the probation officer’s
recommendation. It stated: “The court before imposing
sentence may disclose to the defendant or his counsel all or part
of the material contained in the report of the presentence
investigation . . . .” F ED . R. CRIM. P. 32(c)(2) (1966) (emphasis
added). Thereafter, we consistently interpreted this conferral of
discretion to require that district judges rely on case-specific
reasons when denying disclosure.
In United States v. Queen, for example, the district court
had “refused disclosure of the presentence report pursuant to
[its] general policy of non-disclosure, and without any reference
to the need for disclosure or confidentiality in the circumstances
of this particular case.” 435 F.2d 66, 67 n.2 (D.C. Cir. 1970).
We held, to the contrary, that “the discretion called for by Rule
32 is the exercise of discretion in individual cases, not the
discretion of the trial judge to adopt a uniform policy of non-
disclosure in all cases irrespective of circumstances.” Id. at 67.
In United States v. Bryant, the district court similarly had
denied, “consistently with the judge’s uniform policy,” a
defendant’s request to inspect the presentence report. 442 F.2d
775, 776 (D.C. Cir. 1971). Adhering “to the view expressed in

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Queen that the discretion [under Rule 32] must be exercised in
each individual case,” we held that the district court “did not
properly exercise its discretion in denying the request.” Id. at
777, 776; accord United States v. Dockery, 447 F.2d 1178, 1184
(D.C. Cir. 1971) (quoting Queen, 435 F.2d at 67, and Bryant,
442 F.2d at 777-78); cf. Pillai v. Civil Aeronautics Bd., 485 F.2d
1018, 1027 n.27 (D.C. Cir. 1973) (“We have repeatedly held that
a trial judge, to be held to have properly exercised his discretion,
must necessarily have . . . knowingly made a selection of the
legal alternatives in relation to the facts of the particular
case . . . .” (citing Queen, 435 F.2d 66)).5
In sum, these authorities make clear that a district court
exercising its discretion to withhold a probation officer’s
sentencing recommendation under Rule 32(e)(3) must ground
that decision in the circumstances of a particular case. The rule
5 The Second Circuit took the same view of the rule. In United
States v. Brown, that court said:
When the Federal Rules of Criminal Procedure were
amended in 1966 to provide . . . that the sentencing court
“may disclose” the pre-sentence report, it certainly was
intended that the sentencing court exercise its discretion in
each case. It is equally clear that when a judge states, as he
did here, that in effect his policy is never to disclose
presentence reports, that is not an exercise of discretion on
an individual basis. Discretion under [then-]Rule 32(c)(2)
must be exercised on a case-by-case basis, not by a blanket
policy of non-disclosure.
470 F.2d 285, 287-88 (2d Cir. 1972) (citing Bryant, 442 F.2d 775, as
well as cases from the Seventh and Eighth Circuits).

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does not grant the district court discretion to adopt a blanket
policy applicable to all sentencings that come before it.
B
With this understanding of discretion in hand, we next ask
whether the district court properly exercised its discretion in this
case. The government agrees that, under Rule 32(e)(3), an
individual judge may not adopt a “blanket policy” of
nondisclosure that “applies in all cases.” Oral Arg. Tr. 18:13-
22. It further agrees that nondisclosure requires “case-specific
reason[s].” Id. at 18:1-9. It insists, however, that the district
court found such case-specific reasons here. As to this last
point, we disagree.
At sentencing, the district court made clear that it was
denying disclosure based on its own, blanket nondisclosure
policy:
[B]ecause they’re officers of the court, I have always
treated [the officers’ recommendations] as confidential
and have always exercised my discretion to maintain
their confidentiality and do not disclose them . . . , and
so I have always maintained that policy myself and I
have interpreted the rule to not require a judge to
require . . . disclosure. So the motion for disclosure of
their recommendation is denied.
11/30/18 Sent’g Tr. 3 (App. 58) (emphasis added). Moreover,
the court forthrightly acknowledged that its ruling was not based
on circumstances particular to McIlwain’s case:
I don’t think, in any particular individual case,
[disclosure] would necessarily have any great effect,
but the cumulative effect of the different relationship

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that I would have in particular with the probation
officers and the candor of their recommendations and
their ability to assist the Court in the sentencing
process, I have consistently thought, would be greatly
affected, and so I will deny the motion.
Id. at 3-4 (App. 58-59) (emphasis added). To bar disclosure
“always,” “consistently,” and pursuant to a “policy” is to
contravene Queen’s holding -- applicable to the current version
of Rule 32 as well -- that “the discretion called for by Rule 32 is
the exercise of discretion in individual cases, not the discretion
of the trial judge to adopt a uniform policy of non-disclosure in
all cases irrespective of circumstances.” 435 F.3d at 67; accord
Bryant, 442 F.2d at 776.
Notwithstanding the transcript quoted above, the
government maintains that the district court did rely on a case-
specific reason. This is the government’s argument: “The
district court’s conclusion that nondisclosure was necessary in
McIlwain’s particular case to avoid the ‘cumulative effect’ of
repeat disclosures [on the probation officers’ candor] constituted
an adequate ‘specific reason[] for its denial in this case.’” Gov’t
Br. 16 (quoting Bryant, 442 F.2d at 776). But the court made
clear that, in its view, nondisclosure was required in every case,
regardless of any case’s particular facts, in order to prevent such
a cumulative effect. See 11/30/18 Sent’g Tr. 3 (App. 58) (“I
don’t think . . . any particular individual case . . . would
necessarily have any great effect, but the cumulative effect of
the different relationship that I would have . . . would be greatly
affected . . . .”). And the government acknowledges that the
court’s prevention-of-cumulative-effect rationale would in fact
apply in every case: “It’s a case-specific reason,” the
government says, “that would apply in all cases.” Oral Arg. Tr.
19:9-10; see id. at 20:9-11 (government counsel’s
acknowledgment that the judge “didn’t point to anything

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particular about McIlwain’s case that made it different from
other cases”).
But a reason that applies in every case is not a case-specific
reason. It is a uniform policy. And Rule 32 does not authorize
an individual judge to issue a nondisclosure order on that basis.
None of this is to say that the district court’s policy is
unreasonable. The court defended its decision on the ground
that “sentencing has become too complicated” for “law
clerks . . . to keep up with,” and that the views of “experienced
probation officers” are therefore “very helpful to the Court.”
11/30/18 Sent’g Tr. 3 (App. 58). The court feared that “the
candor of [the officers’] recommendations would be affected by
their disclosing them and having to answer for them to outside
counsel.” Id. The court’s concerns are the same as those that
animated the pre-1994 version of Rule 32, which required the
district court to disclose the presentence report but barred
disclosure of “any recommendation as to sentence,” FED . R.
CRIM. P. 32(c)(3)(A) (1974). See United States v. Peterson, 711
F.3d 770, 776 (7th Cir. 2013) (“At the time of its enactment, the
purpose behind [barring disclosure of the recommendation] was
to allow probation officers the opportunity to provide a candid
assessment of the defendant to the court and to protect the
effectiveness of the probation officer in the supervisory
context.” (citing FED . R. CRIM. P. 32, advisory committee note
to 1974 amendment)).
The opposing position is also reasonable. Both the
probation office and the U.S. Attorney’s Office support
disclosure. The probation office believes that routine disclosure
of the recommendation has the potential to “strengthen[] the
perception of the probation office’s independent role in the

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sentencing process.” 2017 Shaffer Letter (App. 40). 6 The U.S.
Attorney’s Office likewise “agree[s] that it’s good policy for
judges to disclose the probation officer’s recommended
sentences,” Oral Arg. Tr. 17:13-15, both because “an individual
who faces incarceration should be apprised of any sentencing
recommendation which may be considered by the court,” and
because routine disclosure may benefit the government as well,
1995 Holder Letter (App. 50). And as for McIlwain, he adds the
concern that an undisclosed recommendation could contain
factual misinformation or legal mistakes that the defendant
would be unable to rebut before sentencing. See McIlwain
Reply Br. 6-7; Letter from Federal Public Defender A.J. Kramer
to Chief Judge Richard W. Roberts (July 21, 2014) (App. 47)
(citing instances in which sentencing recommendations
contained incorrect information not included in the presentence
reports).
This policy debate, however, is beside the point. As both
parties agree, the 1994 amendment “change[d]” the former rule,
adopting instead a default rule of disclosure. Gov’t Br. 9; see
McIlwain Br. 11-12. An individual district judge can override
that default rule only by exercising case-specific discretion, not
by following a blanket policy of nondisclosure -- regardless of
the reasonableness of the concerns that underlie that policy. By
resting its decision on a blanket policy, rather than the facts of
McIlwain’s individual case, the district court acted outside of the
discretion conferred by Rule 32.7
6 The probation office also reported that it has found “no evidence
to support the position that probation officer safety is compromised
from routine disclosure” of the recommendation. 2017 Shaffer Letter
(App. 39).
7 In addition to arguing that the district court abused its discretion
by failing to grant his motion for disclosure, McIlwain argues that

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IV
Although the district court erred in denying McIlwain’s
motion on the basis of a blanket policy, we must nonetheless
affirm the court’s judgment if that error was harmless. See FED .
R. CRIM. P. 52(a). In the sentencing context, an “error [is]
harmless . . . [if] the error did not affect the district court’s
selection of the sentence imposed.” Williams v. United States,
503 U.S. 193, 203 (1992). But “[i]f we ha[ve] any doubt as to
whether the erroneous understanding the District Court
expressed . . . affected the District Court’s sentencing decision,
we w[ill] not hold the error to be harmless.” United States v.
Ayers, 795 F.3d 168, 176 (D.C. Cir. 2015).
The government argues that “[t]here is no indication that the
district court relied on the probation officer’s sentencing
recommendation in imposing its sentence.” Gov’t Br. 17.
Maybe so. But the government bears the burden of showing that
the district court did not rely on the recommendation. See
United States v. Powell, 334 F.3d 42, 45 (D.C. Cir. 2003)
(explaining that the harmless error rule “places the ‘burden of
showing the absence of prejudice’ on the government” (quoting
United States v. Olano, 507 U.S. 725, 741 (1993))); see also
Williams, 503 U.S. at 203 (“If the party defending the sentence
persuades the court of appeals that the district court would have
imposed the same sentence absent the erroneous factor, then a
remand is not required . . . and the court of appeals may affirm
the sentence . . . .” (emphasis added)).
Rule 32 requires the probation officer to disclose the sentencing
recommendation automatically, without a motion by the defendant.
McIlwain Reply Br. 1-2. Because McIlwain did file a motion, which
we hold was erroneously denied, we need not address this secondary
argument.

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In this case, the district court did not itself give any
indication of nonreliance. To the contrary, the judge said
that “I find . . . [the] experienced probation officers[’]
recommendations . . . very helpful” as a general matter.
11/30/18 Sent’g Tr. 3 (App. 58). Nor can we conclude that there
was no misinformation, factual or legal, in the recommendation.
As we said with respect to the undisclosed presentence report in
Bryant, “[i]t is difficult to see how it can be known whether a
court has relied upon misinformation unless the information is
disclosed to the defendant or his counsel.” 442 F.2d at 778.
Accordingly, we cannot say that the district court’s error did not
affect the sentence it imposed.
V
For the foregoing reasons, we vacate McIlwain’s sentence
and remand for resentencing. See Bryant, 442 F.2d at 778-79;
Brown, 470 F.2d at 288. On remand, the district court must
disclose the probation officer’s sentencing recommendation
unless it finds that case-specific reasons justify nondisclosure.
So ordered.

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SENTELLE , Senior Circuit Judge, concurring in part and
concurring in the judgment: The majority has done an excellent
job of reciting the history of the shift of normative rules
governing a district judge’s discretion to release or withhold a
probation officer’s sentencing recommendation under Fed. R.
Crim. P. 32. As the majority notes, the district judge was long
obligated to withhold, then granted, discretion to release, and
now exercises, perhaps, a more cabined discretion.
The result of this unfolding progression is embodied in the
present language “by order in a case, the court may direct the
probation officer not to disclose . . . the officer’s
recommendation on the sentence.” Fed. R. Crim. P. 32(e)(3)
(emphasis added). As the majority notes, the language of the
rule recognizes discretion residing in the district judge. “ ‘The
word “may” clearly connotes discretion.’ ” Maj. Op. at 8
(quoting Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923,
1931 (2016)). The majority concludes that if the drafters had
“intended Rule 32 to authorize” an order by the district court
reflecting a general policy in all cases rather than a case-specific
analysis, the drafters “could easily have said so.” Maj. Op. at 9.
If the story ended there, I would express my recognition that if
the drafters intended to deprive district courts of a type of
discretion they had long exercised, they could have expressly
said that as well. I would therefore have dissented. But the
story does not end there.
The majority relies with great credibility on United States
v. Queen, 435 F.2d 66, 67 (D.C. Cir. 1970), as reiterated in
United States v. Bryant, 442 F.2d 775, 777 (D.C. Cir. 1971), that
“the view expressed in Queen that the discretion [under Rule 32]
must be exercised in each individual case . . . .” While Queen
and Bryant are clearly distinguishable from this case, as they
applied to the presentence report per se and not a
recommendation, this case is sufficiently parallel to fall within
their precedential force. Therefore, I agree with the majority

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2
that the district court erred in withholding the presentence
recommendation without a case-specific rationale.
Once the hurdle is crossed establishing error, I agree with
the majority that we cannot say that that error was harmless
beyond a reasonable doubt. I therefore, in the end, concur in the
majority’s judgment.

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