U.S. v. Herrera-Figueroa

• Decision Date: 05 February 1991
• Docket Number: No. 89-50660,D,HERRERA-FIGUERO,89-50660
• Citation: 918 F.2d 1430
• Parties: , 4 Fed.Sent.R. 71 UNITED STATES of America, Plaintiff-Appellee, v. Nicolasefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1430

918 F.2d 1430

59 USLW 2347, 4 Fed.Sent.R. 71

UNITED STATES of America, Plaintiff-Appellee, v. Nicolas HERRERA-FIGUEROA, Defendant-Appellant.

No. 89-50660.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 10, 1990.

Decided Nov. 14, 1990.

As Amended Feb. 5, 1991.

Shawn M. Hays, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant Herrera-Figueroa.

Bruce R. Castetter, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before REINHARDT and LEAVY, Circuit Judges, and KING, ^* Senior District Court Judge.

REINHARDT, Circuit Judge:

Defendant Nicolas Herrera-Figueroa appeals his sentence, contending that the district court misapplied the Sentencing Guidelines by refusing to grant him a two-point reduction in the level of his offense for acceptance of responsibility. His appeal raises the question whether a federal probation officer may refuse to honor a defendant's request that his attorney be present during the presentence interview. Concluding that the exclusion of counsel from presentence interviews serves no rational purpose, we exercise our supervisory power over the orderly administration of justice to hold that when a federal defendant requests that his attorney be permitted to accompany him at a presentence interview, the probation officer must honor that request. Accordingly, we reverse the sentence and remand to the district court for sentencing proceedings consistent with the rule herein announced.

BACKGROUND

On May 18, 1989, Nicolas Herrera-Figueroa was driving a large sedan along Interstate 8 near the California-Mexico border when he was stopped by the United States Border Patrol. A search of the vehicle Herrera-Figueroa was driving revealed packages containing approximately 200 pounds of marijuana in the trunk.

On May 26, 1989 a federal grand jury sitting in the Southern District of California returned a one-count indictment against Herrera-Figueroa, charging him with possession of a Schedule I Controlled Substance with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Herrera-Figueroa filed several pre-trial motions, including a motion to suppress the marijuana as the As required by law, a probation officer conducted a presentence investigation and prepared a report to assist the district court in sentencing. See United States Sentencing Commission, Guidelines Manual ("Sentencing Guidelines" or "Guidelines") Sec. 6A1.1. Although it is the general practice of probation officers to interview defendants as part of the presentence investigation, in this case no presentence interview took place. There is no dispute as to the reason. When the probation officer contacted the defendant to schedule an interview, Herrera-Figueroa, who does not speak English, stated, at the suggestion of the public defender, that he wished to have his counsel present at the interview. However, the probation officer refused to interview him in the presence of counsel and advised him that his attorney would not be permitted to attend. ² Herrera-Figueroa, again following the public defender's advice, declined to be interviewed without counsel.

                fruit of an allegedly illegal stop.  Following an evidentiary hearing before the Honorable Howard B. Turrentine, Senior United States District Judge for the Southern District of California, the motion was denied. 1   The Honorable Rudi M. Brewster, United States District Court Judge for the Southern District of California, presided over Herrera-Figueroa's trial.  The jury found the defendant guilty of the offense charged
                

Section 3E1.1(a) of the Sentencing Guidelines provides: "If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels." Section 3E1.1(b) makes clear that a defendant may receive the two-point reduction notwithstanding the fact that he did not plead guilty. The probation officer asserted in his report that because there was no presentence interview of the defendant he was unable to ascertain whether Herrera-Figueroa accepted responsibility for his actions. As a result, the report did not recommend that Herrera-Figueroa receive a two-point reduction in the offense level. In lieu of the presentence interview, Herrera-Figueroa submitted a letter to the court in which he described his personal and family background, and how he came to commit his crime. After describing the facts of the case, Herrera-Figueroa admitted: "I am therefore guilty of having driven this car which contained those drugs. Your Honor, I am very sorry for having committed this crime." He went on to observe: "it's my fault and now I will even be deported."

During the sentencing hearing, the court began by noting that, as a consequence of his unwillingness to attend the presentence interview without his attorney present, Herrera-Figueroa was not "given" a two-point reduction for acceptance of responsibility. ³ The court went on to state that since Herrera-Figueroa chose not to be interviewed "at his own risk," the court would "not upset the finding by the probation officer, that no points were taken off the offense level for acceptance of responsibility."

Herrera-Figueroa's attorney then argued that Herrera-Figueroa should receive a two-point reduction for acceptance of responsibility based upon his letter to the court. The government noted that it did not have a "strong objection" to such a reduction. Nevertheless, the district court adhered to its previously stated position The court then sentenced Herrera-Figueroa to a term of 60 months imprisonment to be followed by three years of supervised release. Herrera-Figueroa timely appealed.

                that it would not disturb the finding by the probation officer, and did not grant the two-point reduction. 4   The district court also rejected defense counsel's argument that Herrera-Figueroa was entitled to an offense level reduction for playing a minimal or minor role in the crime.  See U.S.S.G. Sec. 3B1.2
                

DISCUSSION

I. Constitutional Claims

Herrera-Figueroa contends that the district court's acceptance of the probation report punishes him for the exercise of his asserted fifth amendment right not to speak to the probation officer. He also argues that the sixth amendment guarantees to every defendant the right to be represented by counsel at the presentence interview.

We find that the defendant's fifth amendment claim is foreclosed by a recent decision of our court. Expressly disavowing any fifth amendment right to a warning--which would have been unnecessary in any event, since even without such a warning he was quite capable of insisting that his attorney accompany him at the presentence interview--the defendant argues that he was penalized for asserting his putative fifth amendment right not to speak to the probation officer. We held in United States v. Skillman, 913 F.2d 1477, 1485 (9th Cir.1990), that the denial of a two-point reduction in the offense level for acceptance of responsibility for refusal to speak to a probation officer does not constitute a penalty for the exercise of a fifth amendment right. We therefore must reject the defendant's fifth amendment claim.

We last addressed the question whether the sixth amendment requires that a defendant be allowed to have his attorney present at the presentence interview in Baumann v. United States, 692 F.2d 565 (9th Cir.1982). We held there that the presentence interview does not constitute a "critical stage" of the adversary proceeding at which consultation with counsel is guaranteed by the sixth amendment. Id. at 577-78 (citing Estelle v. Smith, 451 U.S. 454, 470 n. 14, 101 S.Ct. 1866, 1877 n. 14, 68 L.Ed.2d 359 (1981)).

The defendant argues that Baumann, which was decided before the adoption of the Sentencing Guidelines, does not apply to sentences under the Guidelines. We noted in Baumann that "[a] district judge has wide discretion in determining the appropriate sentence to be imposed." Id. at 578. With the reduction in the trial judge's sentencing discretion that has accompanied the adoption of the Guidelines, the defendant contends that the presentence interview now constitutes a "critical stage" of the criminal proceedings for sixth amendment purposes. ⁵

We need not decide whether Baumann applies to presentence interviews conducted in connection with sentences imposed under the Guidelines because we hold, as an exercise of our supervisory power over the orderly administration of justice in the Ninth Circuit, that probation officers must permit defendants to have their attorneys present at the presentence interview. ⁶

II. The Supervisory Power

" '[G]uided by considerations of justice' ... and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983) (quoting McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). We have held that the formulation of such procedural rules is justified as a means "to implement a remedy for a violation of recognized rights." United States v. Gonsalves, 781 F.2d 1319, 1320 (9th Cir.1986). The right at stake here is the defendant's right to a fair and even-handed sentencing proceeding. See United Stated v. Coletta, 682 F.2d 820, 827 (9th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 433 (1983) (stating that due process requires fair consideration of sentencing information); United States v. Doe, 655 F.2d 920, 927 (9th Cir.1980) (vacating sentence for violation of the defendant's "due process right to a fair sentencing hearing"). The probation officer's refusal to honor Herrera-Figueroa's request to be accompanied by counsel at the presentence...