Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 888 F.2d 1394 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Mirza T. BAIG, Defendant-Appellant.

No. 89-10064.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1989.Decided Nov. 6, 1989.

Before SNEED, KOZINSKI and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

The district court stated that it would not rely on the probation office's confidential information regarding defendant's criminal history. R.T. 17-19. Because defendant has failed to produce evidence that the court was sentencing in bad faith, we must take the court's statement "at face value." United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986).1  Moreover, the district court summarized for defendant the probation office's confidential information in accordance with Fed. R. Crim. P. 32(c) (3) (B). R.T. 17. Because the confidential report contained no other material information, defendant was not entitled to read the report under Fed. R. Crim. P. 32(c) (3) (A).

Defendant also challenges the constitutionality of Fed. R. Crim. P. 32(c) (3) (A), claiming that "due process and the appearance of justice" required he be informed of the probation office's secret final recommendation as to his sentence. Appellant's Opening Brief at 4-5. According to Baig, under the sentencing guidelines the probation office has assumed an adversarial role against criminal defendants. He contends that disclosure was necessary to ensure that the factual basis for the recommended sentence was correct.

We need not question defendant's characterization of the probation office's role under the guidelines. Defendant has read the presentence report and has heard a summary of the probation office's confidential report. These two documents contain the facts upon which the probation office's recommendation was based. Defendant thus has had an opportunity to rebut the facts upon which the recommendation was based. Because defendant was informed of all facts upon which the probation office and the district court relied in imposing sentence, he was not denied due process. " [D]ue process affords the defendant no right to rebut evidence not relied upon in the sentencing process." Gonzales, 765 F.2d at 1397, quoting United States v. Brown, 715 F.2d 387, 389 (8th Cir. 1983).

Defendant has been denied access only to information concerning the probation office's opinion of what constitutes an appropriate sentence. He has provided the court with no convincing reasons why the enactment of the sentencing guidelines should permit him to see what is merely a recommendation itself devoid of facts. Therefore, we see no reason not to follow pre-guidelines decisions applying Rule 32(c) (3) (A). See, e.g., Gonzales, 765 F.2d at 1398; United States v. Howard-Arias, 679 F.2d 363, 367 (4th Cir.), cert. denied, 459 U.S. 874 (1982).

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

We note that the district court may have erred by failing to attach a written record to the presentence report of its decision not to rely on the confidential information. See Fed. R. Crim. P. 32(c) (3) (D). However, we decline to address this issue as defendant has not raised it on appeal. See United States v. Columbus, 881 F.2d 785, 788 n. 4 (9th Cir. 1989)