United States v. Peterson
| Decision Date | 28 March 2013 |
| Docket Number | No. 12–2484.,12–2484. |
| Citation | 711 F.3d 770 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Ollie PETERSON, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Anthony P. Garcia (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.
Carol A. Brook, Attorney, Daniel J. Hesler (argued), Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant.
Before FLAUM, SYKES, and TINDER, Circuit Judges.
Defendant Ollie Peterson pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) after robbing a bank to pay off a debt with a drug dealer. During Peterson's sentencing hearing, the district court read from a portion of the probation officer's confidential sentencing recommendation, which she had submitted only to the court. At the conclusion of the hearing, the district court sentenced Peterson to 168 months in prison, which fell within Peterson's sentencing guidelines range. On appeal, Peterson argues that the district court's reliance on the probation officer's confidential sentencing recommendation violated his Fifth and Sixth Amendment rights because he had no opportunity to respond to the analysis contained therein. Having determined that Peterson received and had the opportunity to comment on all facts supporting the probation officer's analysis and that Peterson's counsel presented a comprehensive sentencing argument on the basis of those facts, we affirm.
On August 1, 2011, Peterson robbed a TCF Bank located in a Jewel–Osco supermarket in Waukegan, Illinois to pay a drug dealer for drugs he had already ingested. Peterson left the bank with $1,525 in cash and used part of the money to pay the dealer who had been waiting for him nearby in the supermarket. Officers apprehendedPeterson the same day and a grand jury later issued an indictment charging him with one count of bank robbery in violation of 18 U.S.C. § 2113(a). Peterson pled guilty to the offense on January 6, 2012.
Prior to sentencing, the parties received a Presentence Investigation Report (“PSR”) prepared by the probation officer assigned to the case. Because Peterson had seven prior convictions for aggravated robbery, the probation officer determined he was a career offender with a criminal history category of VI. Together with the applicable offense level, the PSR specified Peterson's guidelines range for sentencing as 151 to 188 months' imprisonment.
The probation officer also described Peterson's personal and family history. According to the PSR, Peterson's mother raised him in a middle class neighborhood on the south side of Chicago. Peterson's father died when he was nine years old and his mother remarried a man Peterson labeled a “functioning alcoholic.” Peterson's mother described her son as an obedient child, expressed her unyielding love and support for him, and noted that he would always be welcome to return to her home. Peterson did, however, struggle with substance abuse. After experimenting with alcohol and marijuana as a teenager, he began using cocaine when he was 30 years old. His mother indicated that no one in their family had known that Peterson was abusing cocaine and alcohol until he was first convicted of robbery, and she expressed her belief that Peterson's drug use caused his criminal behavior.
At Peterson's sentencing hearing on May 25, 2012, the district court asked whether Peterson and his attorney had read and reviewed the PSR. Defense counsel acknowledged that they had and asked that two minor corrections be made to its contents. The district court accepted the changes and then turned to the attorneys for argument.
During its presentation, the defense highlighted that Peterson had sustained periods of sobriety, law-abidingness, and productivity followed by relapses of substance abuse and criminal conduct. Defense counsel conceded that Peterson had seven prior robbery convictions, but explained his new motivation to change, as reflected by his age and his attempt to enter into a drug treatment program.
The government focused on Peterson's criminal history, and argued that his prior prison sentences had not deterred him from committing additional crimes. Given Peterson's guidelines range of 151 to 188 months' imprisonment, the government suggested that a sentence within the guidelines would be sufficient to protect the public and provide Peterson with drug treatment and other services needed for rehabilitation.
Following the arguments and Peterson's brief allocution, the district court addressed the parties. During its explanation prior to the imposition of the sentence, the district court recited a portion of the probation officer's report, which the court described as an “observation” that it believed to be “quite right.” The district court quoted from page 23 of the PSR,
[I]n imposing a sentence, the Court must also consider the defendant's personal history and characteristics. What is extraordinarily troublesome in this regard is the defendant Peterson's history is quite different than the typical career offender. He was reared in a loving home, albeit without a father, in a middle-class neighborhood. According to his mother, the defendant was a compliant child throughout high school, he was active on the football team. Aside from the relatively common experimentation with alcohol and marijuana, the defendantrefrained from harsher drug use until his late 20's. On the one hand, the first half of the defendant's life was positive, and this could be viewed as a mitigating factor.
After concluding the quote, the judge explained that based on his reading of many PSRs,
this is not a typical background that defendants with this criminal history have. Usually badly broken homes, abusive parents, families that don't care, none of which is true in his case. The problem is ... that I'm not sure if that's a mitigating factor or an aggravating factor. And the reason it can be an aggravating factor is, many defendants who come before me whose early life was deeply troubled are claiming that as a mitigating factor, and they have a point. Badly raised in bad places does explain bad conduct in many cases, or at least give some kind of hint as to why it happened.
The judge continued that Peterson had displayed a recurring pattern of being unable to resist drug use to stay out of prison and noted that he had not learned from his past experiences. He then concluded that Peterson would be unlikely to break his cycle of periodic relapse and recidivism until he was much older and imposed a sentence of 168 months' imprisonment. After announcing the sentence, the judge asked counsel whether there was “anything further,” to which defense counsel responded with a question about restitution. After the court answered that question, it asked again whether the parties had anything more to address. The attorney for the government responded, “No, Your Honor,” and the court went into recess.
The passage the district court quoted from the PSR during the sentencing hearing appeared in the probation officer's confidential sentencing recommendation that she submitted only to the court. Neither party viewed the confidential recommendation prior to, during, or after the sentencing hearing. And defense counsel was evidently unaware that a probation officer's confidential sentencing recommendation includes a written justification for the recommended sentence.
Peterson filed a timely notice of appeal on June 22, 2012, and on August 3, 2012, he filed a motion with the district court to disclose to the parties the version of the PSR containing the probation officer's confidential recommendation. Peterson stated that the only nonfrivolous issue for appeal related to the district court's reliance on the recommendation, noting that it could have violated Peterson's right to due process because he had no opportunity to respond to the arguments contained therein.
On September 14, 2012, Peterson filed a supplemental memorandum in support of his motion, arguing that if he had been permitted access to the confidential recommendation, counsel could have properly addressed the district court's concerns at sentencing. Peterson explained that on appeal he would be challenging the recommended sentence, the probation officer's analysis contained in the confidential recommendation, and the lack of opportunity to comment on the probation officer's reasoning. The government responded to the motion, arguing that the precedent in this circuit has established that confidential recommendations and the local rule that permits confidential recommendations do not violate a defendant's right to due process.
Ultimately, the district court denied the motion, explaining that confidential sentencing recommendations are constitutional and that releasing the confidential report could influence the candidness of a probation officer's recommendation. In so holding, the district court emphasized that the parties had received all of the factual information supporting the probation officer's analysis about Peterson's upbringing and criminal history and explained that it had “quoted the relevant passage in full so that defense counsel could raise questions before [the court] imposed [Peterson's] sentence.” The district court pointed out that defense counsel made no objection or suggestion that the quoted passage contained anything more than an opinion drawn from facts that had been fully revealed in the PSR.
Peterson's sole contention on appeal is that the district court's reliance on the probation officer's confidential sentencing recommendation violated his Fifth and Sixth Amendment rights. He maintains he had no meaningful opportunity to respond to what he viewed as an argument in aggravation made secretly to the district court.
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