United States Court of Appeals, District of Columbia Circuit
March 19, 2019
from the United States District Court for the District of
Columbia (No. 1:18-cr-00214-1)
Kramer, Federal Public Defender, argued the cause and filed
the memorandum of law and fact and reply for appellant.
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.
Garland, Chief Judge
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.
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
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
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).
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).
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).
now appeals, raising a single argument: "The district
court improperly refused to disclose the sentencing
recommendation." McIlwain Br. 9.
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. 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
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 ...