The probation officer’s sentencing recommendation is a confidential record and shall not
be disclosed except pursuant to Court order. The recommendation shall not contain any fact not
otherwise disclosed in the Presentence Report. If any additional facts are contained in the
recommendation, they will be disclosed by the Court at sentencing if the Court intends to rely on
those facts.
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.
