Summary
The Ninth Circuit held that, under its supervisory power, a federal probation officer must permit a defendant's attorney to attend a requested presentence interview. The court vacated the defendant's sentence and remanded for a new presentence interview and sentencing hearing because the exclusion of counsel contributed to the denial of an acceptance-of-responsibility reduction.
Topics
Practice areas
Questions Presented
- Whether denying a two-level reduction for acceptance of responsibility because the defendant refused to participate in a presentence interview without counsel penalized the exercise of a Fifth Amendment right.
- Whether the Sixth Amendment requires that counsel be permitted to attend a presentence interview conducted under the Sentencing Guidelines.
- Whether, under the Ninth Circuit's supervisory power, a federal probation officer must permit counsel to accompany a defendant who requests counsel's presence at a presentence interview.
- Whether the district court erred by relying on the probation officer's failure to recommend acceptance of responsibility instead of independently deciding the issue.
Holdings
- Denial of the two-level reduction for refusing to speak to a probation officer did not constitute a penalty for exercising a Fifth Amendment right.
- The court did not decide whether the Sixth Amendment guarantees counsel at a presentence interview conducted under the Sentencing Guidelines.
- When a federal defendant requests that counsel accompany him or her at a presentence interview, the probation officer must honor the request.
- The sentence had to be vacated because the district court relied on the probation officer's incomplete assessment and did not independently determine whether the defendant qualified for the acceptance-of-responsibility reduction.
Key quotations
“when a federal defendant requests that his attorney be permitted to accompany him at a presentence interview, the probation officer must honor that request.” (918 F.2d at 1433-1434)
“The defendant is entitled to a new presentence interview at which his attorney may be present, to be followed by a new sentencing hearing.” (918 F.2d at 1437)
Factual background
Herrera-Figueroa was stopped by the Border Patrol near the California-Mexico border while driving a sedan containing approximately 200 pounds of marijuana. After his conviction, a probation officer refused his request to have counsel present during the presentence interview, and Herrera-Figueroa declined to participate without counsel. The probation officer therefore did not recommend the two-level reduction for acceptance of responsibility, and the district court imposed a 60-month sentence without independently determining whether the defendant qualified for the reduction.
Procedural history
A grand jury indicted Herrera-Figueroa for possession of a Schedule I controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1). The district court denied his motion to suppress, a jury found him guilty, and the court imposed 60 months' imprisonment followed by three years of supervised release. The Ninth Circuit vacated the sentence and remanded for a new presentence interview with counsel present and a new sentencing hearing.
Remand instructions
The district court must permit a new presentence interview with defense counsel present and then conduct a new sentencing hearing. The defendant may also renew his claim for a reduction based on a minimal or minor role in the offense.