W.D.N.C. LCrR 32.3

History

Advisory Committee Notes In response to comments from federal defenders concerning the non-public nature of USPO’s sentencing recommendation, the Local Rules Criminal Subcommittee conducted research under Federal Rule 32 to determine whether any court had ever held the practice to be unlawful. No cases to such effect were found and it was determined that the practice was lawful and that Local Criminal Rule 32.3 complies with the procedural requirements of Federal Criminal Rule 32(e)(3) in making the recommendation confidential. In United States v. Whitlock, 639 F.3d 935 (9th Cir. 2011), that court held that a district court must “disclose any factual information in the confidential recommendation on which it relied in sentencing” to comply with the requirements of Due Process. Id. at 937 (citation omitted). That court found the District of Idaho’s Local Criminal Rule dealing with the sentencing recommendation complied with Due Process. While USPO has assured the Advisory Committee that its recommendations never contain such additional facts, the Advisory Committee has included, proactively, a disclosure provision in the unlikely event a fact is inadvertently contained in a recommendation upon which the sentencing court wishes to rely.