Split Sixth Circuit finds problems with ex parte communications impacting sentence

Providing an interesting primer on the uncertain legal rules governing the sentencing process, a split panel today in US v. Christman, No. 06-3266 (6th Cir. Nov. 20, 2007) (available here), vacates a sentence based on a violation of Rule 32.  Here is how the opinion starts:

Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.

For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32, which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must – for any disputed portion of the presentence report or other controverted matter – rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).

Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial.  We therefore vacate defendant’s sentence and remand for resentencing.