BRADLEY SCOTT SUMMERS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5071 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a) is reported at 895 F.2d 615. JURISDICTION The judgment of the court of appeals was entered on February 5, 1990. A petition for rehearing was denied on May 15, 1990. Pet. App. 4a. The petition for a writ of certiorari was filed on July 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the probation officer's role under the Sentencing Guidelines of conducting presentence investigations and reporting his findings and recommendations to the district court violates the separation of powers and the Due Process Clause. STATEMENT After pleading guilty in the United States District Court for the District of Oregon, petitioner was convicted on one count of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to a term of 210 months' imprisonment, to be followed by three years of supervised release. The court of appeals affirmed. 1. On December 1, 1987, petitioner robbed a branch of the Far West Federal Bank in Tigard, Oregon. After pleading guilty to that federal offense, petitioner challenged the constitutionality of the Sentencing Guidelines, contending, among other claims, that the probation officer's role under the Sentencing Guidelines of conducting presentence investigations and reporting his findings and recommendations to the district court violates the separation of powers and the Due Process Clause. Pet. App. 2a. Chief Judge Owen M. Panner, with the concurrence of the entire court, transferred to Judge James M. Burns all cases in the District of Oregon involving constitutional challenges to the Sentencing Guidelines. In June 1988, Judge Burns issued an opinion rejecting all outstanding challenges to the Guidelines. United States v. Belgard, 694 F. Supp. 1488 (D. Or. 1988). In sentencing petitioner in August 1988, the district court agreed with the Belgard decision and therefore rejected petitioner's constitutional claims. Pet. App. 2a. 2. The court of appeals affirmed. Pet. App. 1a-3a. In the court of appeals, petitioner reiterated his claim that the probation officer's role under the Sentencing Guidelines violates the separation of powers and the Due Process Clause. The court of appeals rejected that contention on the basis of its recent decision in United States v. Belgard, 894 F.2d 1092 (9th Cir. 1990). Pet. App. 2a-3a. /1/ In Belgard, the court of appeals recognized, as did the Court in Mistretta v. United States, 109 S. Ct. 647 (1989), that "there is nothing unconstitutional about nonadjudicatory activities being undertaken by auxiliary bodies that are placed within the judicial branch." 894 F.2d at 1096. And the court construed Williams v. New York, 337 U.S. 241 (1949), as "repudiat(ing) * * * the notion that probation officers cannot properly function within the judicial branch of government." 894 F.2d at 1097. The court acknowledged that the Sentencing Guidelines have changed the "duties and role" of probation officers, but concluded that the probation officer's essential functions remain the same today as before promulgation of the Guidelines, namely, "to compile information which then takes the form of a neutral written recommendation to the judge." Ibid. Accordingly, the court was unable to identify any aspect of the "new system" that would require probation officers "to be removed from the judicial branch of government." Id. at 1098. Moreover, in Belgard the court rejected an "attack * * * based on the idea that probation officers' recommendations will preclude the district court from finding facts on any issue which is disputed." 894 F.2d at 1099. The court pointed out that the "trial judge has always been permitted to consider the circumstances of the offense together with the character and propensities of the offender," ibid. (internal quotation marks and citations omitted), and that, under Fed. R. Crim. P. 32, "(t)he district court is unquestionably required to resolve any and all factual disputes," 894 F.2d at 1099. The court thus had no doubt that "district judges have the ability to read a pre-sentence report without being improperly influenced." Ibid. ARGUMENT 1. Petitioner contends (Pet. 9-17) that the probation officer's role under the Sentencing Guidelines of conducting presentence investigations violates the separation of powers. That claim is meritless, since the probation officer's investigatory role does "not trench upon the prerogatives of (the Executive) Branch." Mistretta v. United States, 109 S. Ct. at 663. As this Court has recognized, sentencing is the "uncontested responsibility" of the judiciary. Id. at 664. The presentence investigation, as its label makes plain, is part of the sentencing process; the probation officer thus plays no role in the core Executive Branch function of initiating and prosecuting criminal charges. See, e.g., United States v. Hogan, 489 F. Supp. 1035, 1038 (W.D. Wash. 1980) ("A presentence investigation report is not part of the Government's prosecution of a criminal case."). Moreover, presentence investigations conducted by probation officers -- employees of the Judicial Branch -- are "appropriate to (a) central mission of the Judiciary," namely, sentencing convicted criminal offenders. Mistretta v. United States, 109 S. Ct. at 663. In fulfilling that responsibility, judges need broad information that cannot feasibly be obtained except through the presentence investigations of probation officers. As the Court has explained: (M)ost of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues. Williams v. New York, 337 U.S. 241, 250 (1949) (footnote omitted). Indeed, in Williams, this Court emphasized that presentence probation reports "have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information," and that "(t)o deprive sentencing judges of this kind of information would undermine modern penological procedural policies * * *." 337 U.S. at 249-250. These statements "could hardly be a more clear repudiation of the notion that probation officers cannot properly function within the judicial branch of government." United States v. Belgard, 894 F.2d at 1096-1097; accord United States v. Woods, No. 89-7009 (5th Cir. July 27, 1990), slip op. 5493-5494. Petitioner seeks to avoid Williams on the basis that the Court there addressed a sentencing model aimed at rehabilitation, not uniform punishment, and thus the Court had no occasion to address the Sentencing Guidelines' model that "places new responsibilities on probation officers to conduct independent investigations and evaluate facts relating to the crime charged, as well as other criminal conduct, rather than investigating facts about the offender and his/her individual background." Pet. 15. Those distinctions are unpersuasive. As the Ninth Circuit has noted, "(a) court needs as much detailed information if it seeks to impose a uniform sentence (under the Sentencing Guidelines) as it needs if it seeks to rehabilitate directly." United States v. Belgard, 894 F.2d at 1092. Indeed, by requiring that certain factors that might not be addressed in the pre-existing record be taken into consideration at sentencing, the Guidelines make a neutral presentence investigation indispensable. In addition, the factors relating to the charged crime that sentencing courts must consider under the Guidelines -- such as the impact of the crime on the victim, the defendant's role in the offense, any obstruction of the criminal process, and the use of a firearm -- were also pertinent under the previous sentencing regime. Accordingly, even before the Sentencing Reform Act, probation officers collected information concerning not only the characteristics and background of the defendant but also "the circumstances of the commission of the offense." Fed. R. Crim. P. 32(c)(2)(B) (1983). /2/ 2. Petitioner also contends (Pet. 17-19) that the probation officer's role under the Sentencing Guidelines of reporting his findings and recommendations to the district court violates the Due Process Clause. A review of the procedures in place to ensure the defendant "the opportunity to be heard at a meaningful time and in a meaningful manner" refutes petitioner's claim. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks and citation omitted). Under Fed. R. Crim. P. 32(c)(3)(A), the district court -- at least 10 days before imposing sentence -- must provide the defendant and his attorney with a copy of the presentence report. Before the imposition of sentence, the district court must also afford the defense an opportunity to comment on the report and, in its discretion, to introduce testimony or other information relating to any alleged factual inaccuracy in the report. If the defense alleges any inaccuracy in the report, Rule 32(c)(3)(D) requires the court, as to each matter controverted, to make a written finding as to the allegation or a written determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. And under Sentencing Guidelines Section 6A1.3(b), the court must notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before the imposition of sentence. See District of Oregon Temporary Order Regarding Sentencing Guidelines 1-2, reprinted at Pet. App. 1b-2b; see also Fed. R. Crim. P. 32(a)(1)(B) and (C) (opportunity for defendant and counsel to address court and offer information in mitigation of sentence). Despite these extensive procedures, petitioner complains (Pet. 19) about the lack of "true adversarial proceedings" before the probation officer arrives at his findings and decision as to the appropriate sentence. But petitioner ignores the fact that the probation officer's findings and assignment of a particular Guideline range are recommendations. "The final word is for the judge, after all have had their say." United States v. Belgard, 694 F.Supp. at 1497. And in Williams, the Court rejected the propositions that the Due Process Clause requires full blown adversarial proceedings in sentencings or in any way precludes probation officers from conducting independent presentence investigations. 337 U.S. at 250-251; see United States v. Barnerd, 887 F.2d 841, 842 (8th Cir. 1989) (rejecting contention that Sentencing Guidelines violate the Due Process Clause by failing to provide sufficient opportunity to confront and cross-examine witnesses with respect to the facts relevant to sentencing). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney OCTOBER 1990 /1/ Petitioner also contended that he was entitled to the two-level reduction for acceptance of responsibility under Sentencing Guidelines Section 3E1.1(a). The court of appeals rejected that claim, Pet. App. 2a, and petitioner has not sought further review of it. /2/ Moreover, a defendant's background and characteristics may factor into the sentencing decision under the Guidelines, and thus Fed. R. Crim. P. 32(c)(2)(A) requires that presentence reports contain "information about the history and characteristics of the defendant." The Ninth Circuit has therefore correctly noted that "virtually everything (the Court) said (in Williams about the importance of presentence reports) remains true under the Guideline system * * *." United States v. Belgard, 894 F.2d at 1097. Petitioner also asserts that "(t)he neutrality and impartiality of subsequent judicial determinations are * * * compromised when the court must rule upon objections to reports submitted by its own agent(s) * * *." Pet. 16. This Court has already rejected such claims in an analogous context. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 486 (1972) ("it will be sufficient * * * in the parole revocation context, if an evaluation as to whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation"); see also Goldberg v. Kelly, 397 U.S. 254, 271 (1970).