United States v. McIlwain

          Argued March 19, 2019

          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.

          OPINION

          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 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." Fed. 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:

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.

         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 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 ...