Today, in United States v. Gray, --- F.3d ---, No. 18-30022 (9th Cir. 2018), the Court vacated the defendant's sentence based on the peculiar sentencing procedure used by the district court.
This was a supervised release revocation case.
The defendant consented to a revocation hearing before the MJ. The MJ recommended a 5-month sentence.
The district court, however, without holding a further hearing imposed a 20-month sentence, relying heavily on the probation officer’s confidential sentencing recommendation, which included factual information that had not been disclosed to the defendant.
The Ninth held this was improper. First, the district court violated Federal
Rule of Criminal Procedure 32 by failing to disclose to the defendant the factual evidence on which it relied at sentencing. Second, "even if the
defendant is given an opportunity to appear and speak before
the magistrate judge, the district court must provide the
defendant an additional opportunity before the actual
sentence is imposed."
