Sentencing: Procedural Protection

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SENTENCING: PROCEDURAL PROTECTION

Both the provisions of the U.S. Constitution and an array of statutes and court rules govern sentencing procedures in the United States. In considering sentencing procedures, it is important to note at the outset that sentencing is an area in which American jurisdictions vary considerably, and to recognize that differences in sentencing systems may have an important bearing on the applicable procedures.

Jurisdictions vary a great deal in the degree of discretion accorded to the sentencing judge. In jurisdictions where traditional rules apply, the judge has virtually unfettered discretion to set the sentence for an individual offender within a broad range established by statute for each offense. In many other jurisdictions, however, the sentencing judge's discretion has been channeled or restricted by various sentencing reforms. In these jurisdictions, provisions such as sentencing guidelines or mandatory minimum sentencing statutes require the judge to impose a particular sentence or to impose a sentence within a more limited range, depending upon the facts of the offense and the offender. One key issue in jurisdictions that have restricted the sentencer's discretion is whether these reforms also affect the procedures that apply at the sentencing phase.

Another important distinction among American jurisdictions concerns the type of information that may be considered at sentencing. Some jurisdictions employ charge offense sentencing, others real offense sentencing. In a charge offense jurisdiction, the sentence is based primarily upon the offense of conviction. In these jurisdictions, the defendant's conviction (at trial or by guilty plea) establishes most or all of the facts upon which the sentence will be based. The most notable example of real offense sentencing is the federal sentencing guidelines, which employ many elements of real offense sentencing. Real offense sentencing allows consideration of facts that are not elements of the offense to play a major role in determining an individual offender's sentence. Where real offense sentencing is permitted, the procedural and evidentiary rules that govern fact-finding at the sentencing phase assume greatly increased importance, since many key issues are not resolved by the guilty verdict.

It should also be noted that the requirements for the imposition of a capital sentence raise separate issues under the Eighth Amendment's cruel and unusual punishment clause. The remainder of this entry focuses on the requirements for noncapital sentences.

Constitutional requirements at sentencing

The Supreme Court has drawn a sharp distinction between the constitutional requirements applicable to the guilt/innocence stage of the trial, and those applicable to the sentencing phase. Although a few of the constitutional rights traditionally associated with the trial of criminal cases apply at sentencing, the Court has held that many others do not.

Right to counsel. Perhaps the most important constitutional right afforded a defendant at the sentencing phase is the right to counsel. In Mempa v. Rhay, 389 U.S. 128 (1967), the Supreme Court held that the sentencing hearing is a part of the "criminal proceedings" for purposes of the Sixth Amendment right to the assistance of counsel. Accordingly, a defendant who cannot afford a lawyer is entitled to the assistance of counsel provided by the state during the sentencing hearing. The Supreme Court reasoned that defense counsel can play an important role in ensuring the accuracy of the information put before the sentencing judge. Counsel is needed at sentencing both to present evidence on the defendant's behalf and to respond to adverse information.

Privilege against self-incrimination. Another right that applies at the sentencing phase is a facet of the Fifth Amendment privilege against compelled self-incrimination. The Supreme Court has long held it is improper to penalize a defendant for invoking the privilege against self-incrimination, and for that reason the trier of fact in a criminal trial may not draw any adverse inference from the fact that the defendant has invoked the privilege. In Mitchell v. United States, 526 U.S. 314 (1999), the Supreme Court held that the rule against drawing such negative inferences applies with equal force to the sentencing phase; accordingly, the sentencing judge was prohibited from drawing any adverse inference, as to the amount of drugs the defendant conspired to sell, from the defendant's exercise of the Fifth Amendment privilege at sentencing. The Court reasoned that the stakes at the sentencing phase, where an adverse inference might warrant many years of additional imprisonment, are quite different (and more severe) than those in a civil proceeding where adverse inferences are permissible. The practical importance of the Mitchell decision is unclear. The Court pointedly declined to express a view on the possibility that the defendant's silence might be relied upon at sentencing to support an inference of lack of remorse. Such an inference might be nearly as damning as an inference of guilt.

Consideration of the exercise of other procedural rights. Although the Supreme Court has held that due process is violated by sentencing that punishes the defendant for the exercise of his procedural rights, such prohibited vindictiveness must be distinguished from the inferences a sentencing judge is permitted to draw from trial-related conduct that reveals a defendant's character and bears on his prospects for rehabilitation. In North Carolina v. Pearce, 395 U.S. 711 (1969), the Supreme Court held that due process would be violated by the vindictive imposition of a higher sentence at retrial to punish a defendant for the successful appeal of his first conviction. The Court stated that it would presume vindictiveness whenever a trial judge imposed a higher sentence following an appeal that set aside an earlier conviction for the same offense. Later decisions indicate that this presumption can be rebutted by objective information justifying an increased sentence (LaFave and Israel, pp. 1128–1134). Subsequent decisions have also determined that Pearce does not apply where the defendant's conduct during the trial involves perjury, which bears on the defendant's character and prospects for rehabilitation. In United States v. Grayson, 438 U.S. 41 (1978), the Supreme Court held that the sentencer could properly give weight to his conclusion that the defendant had perjured himself at the trial, since that conduct provided important information about the defendant's character. The Court rejected the argument that this would chill the exercise of the right to testify, commenting that there is a right to testify truthfully, but no protected right to commit perjury.

Evidentiary reliability. There is considerable support in the cases for the principle that due process requires that the evidence upon which a criminal sentence is based must meet minimal standards of reliability, though it is unclear how far this principle extends. Two decisions of the Supreme Court recognized a due process requirement of evidentiary reliability, though they do little to clarify its scope. In Townsend v. Burke, 334 U.S. 736 (1948), the Supreme Court reversed the defendant's state sentence because it was premised, in part, on the sentencing judge's erroneous belief that the defendant had several previous convictions. The Court emphasized that its decision did not mean that any error in resolving a question of fact at sentencing would be a due process violation. In the case before it, however, an uncounseled defendant pleaded guilty, and the sentence rested upon an error that counsel could easily have corrected. In a later decision, United States v. Tucker, 404 U.S. 443, 447 (1972), the Court held that a new sentencing proceeding was necessary because the sentence was founded "at least in part upon misinformation of constitutional magnitude." In Tucker the sentencing court relied upon the fact that the defendant had three prior convictions, and was unaware that the defendant has been unconstitutionally imprisoned for more that ten years (some of them on a chain gang) after being convicted in proceedings in which he was not represented by counsel.

Many decisions in the state courts and the lower federal courts rely upon Townsend v. Burke and Tucker for the principle that a sentence may not be based upon misinformation of a constitutional magnitude, or that the evidence upon which a sentence is based must show indicia of reliability. These decisions do not, however, establish sharp criteria for the determination of such reliability, and they do not equate the standards for sentencing with the standard applicable to the evidence supporting a conviction.

Constitutional protections that are not applicable at sentencing

Many constitutional rights afforded at the trial stage no longer apply once the sentencing phase begins. In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court decisively rejected the claim that due process limits the sentencing judge to considering the same sources and kinds of evidence that would be admissible at trial. The Court distinguished the function of the trial and that of sentencing. At trial, the issue is the defendant's guilt or innocence of the elements of the offense and rules of evidence are used to limit the fact-finder to information that is material to these limited issues. At sentencing, in contrast, the judge traditionally had a wide range of discretion in setting an individual defendant's punishment, and in making that discretionary determination the judge should be permitted to consider a broad spectrum of information regarding the defendant's life and characteristics. The Court concluded that the judge should not be limited to considering only evidence provided in open court by witnesses who would be subject to cross-examination, but should also be permitted, for example, to consider the reports prepared by probation officers. Although the Court referred to modern efforts to employ sentencing for rehabilitative purposes intended to benefit offenders, the issue in Williams was the trial judge's reliance on hearsay evidence in the presentence report that the defendant had committed thirty burglaries for which he had never been convicted. Even though this evidence would not have been admitted at trial, the Supreme Court upheld Williams's death sentence.

Williams was a landmark decision that set the pattern for much of the analysis in the next half century. In Williams the Supreme Court drew a sharp distinction between the trial itself—with its full panoply of constitutional protections for the accused—and the sentencing hearing, at which relaxed procedures are permitted and perhaps desirable. Later decisions dealing with a number of other constitutional guarantees followed this pattern. The one exception, Specht v. Patterson, 386 U.S. 605 (1967), involved a state statute allowing the imposition of a life sentence on a defendant convicted of certain sexual offenses who was also found to be mentally ill and a habitual offender. The Supreme Court distinguished Williams on the ground that the sex offender act required the invocation of a separate criminal proceeding under a different statute. Specht has been largely limited to the particular statutory scheme involved in that case, and has not been extended to sentencing proceedings in general.

Proof beyond a reasonable doubt. In the trial itself, due process requires that the prosecution prove each fact necessary for conviction beyond a reasonable doubt. The Supreme Court has repeatedly recognized, however, that the reasonable doubt standard is not constitutionally required at the sentencing phase. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Supreme Court noted that traditionally sentencing courts heard evidence and found facts without being required to observe any particular burden of proof. Declining to constitutionalize the burden of proof at sentencing, the Court rejected the argument that a sentencing factor that subjected a defendant to a mandatory minimum sentence must be proven by more than a preponderance. In McMillan the sentencing factor in question required that the defendant receive a mandatory minimum sentence within the authorized sentencing range for the offense. As noted below, a more recent decision of the Supreme Court raises the question whether McMillan will be applied when the sentencing fact in question increases the range of the sentence to which a defendant is subject above that ordinarily applicable to the offense of conviction.

Since the government's burden of proof at trial is far higher than it is at sentencing, evidence that would not meet the standard of proof beyond a reasonable doubt may meet the preponderance ("more likely than not") standard applicable at the sentencing phase. Given this difference in the burden of proof, the Supreme Court concluded in Watts v. United States, 519 U.S. 148 (1997), that the government may rely at sentencing on conduct of which the defendant had been acquitted. The Court rejected the argument that reliance on acquitted conduct would be inconsistent with the jury's verdict or violate the double jeopardy clause. It reasoned that a jury acquittal is not a finding of innocence, but only a finding that the government has not established guilt beyond a reasonable doubt. Accordingly, an acquittal should not preclude the government from relitigating an issue in a subsequent proceeding, such as a sentencing hearing, where it need only meet a lower standard of proof. This issue arises principally in real offense sentencing systems, where facts that are not elements of the conviction offense can have a major impact on the severity of the sentence.

Trial by jury. In McMillan v. Pennsylvania , the Supreme Court also considered and rejected the claim that the Sixth Amendment right to trial by jury applies to the sentencing phase. The issue in McMillan was whether the defendant visibly possessed a firearm during the commission of his offense. The defendant argued that the Sixth Amendment requires the necessary findings should be made by the jury, rather than the court, at least where the factor relates to the commission of the offense of conviction. The Supreme Court rejected this claim with the comment that "there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact." Later decisions by the Court have reaffirmed this principle, which is consistent with the traditional Anglo-American allocation of sentencing authority to the court. Indeed, even in the context of capital punishment the Supreme Court has repeatedly rejected the argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence. It should be noted, however, that many jurisdictions that authorize the death penalty provide for jury sentencing in capital cases, and a few states authorize jury sentencing (or jury recommendations) in noncapital cases as well.

Confrontation and cross-examination. As noted above, in the Williams case the Supreme Court rejected a claim that due process was violated by the introduction of evidence, such as a probation report, that presented adverse information in a form that provided the defendant with no opportunity for confrontation and cross-examination in open court. Subsequent cases in the lower courts raised the same general arguments under the confrontation clause of the Sixth Amendment. Although this issue has not been addressed by the Supreme Court, nearly every federal circuit has relied upon the sharp distinction between the guilt phase of the trial—where full rights of confrontation are accorded—and the sentencing phase, which begins once the fact finder concludes that the defendant's guilt has been established. However, many of these decisions also recognize that due process is violated if a defendant is sentenced on the basis of "misinformation of a constitutional magnitude," and accordingly that the evidence upon which a conviction is based must show some indicia of reliability. It should be noted that many of these decisions, such as United States v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc), were rendered by divided courts, and that the dissenting judges would have required confrontation.

The Fourth and Fifth Amendment exclusionary rules. The Supreme Court's decisions outlining the scope of the exclusionary rules under the Fourth and Fifth Amendments focus on the guilt-innocence phase of the criminal trial, and the Court has not ruled on the question whether the exclusionary rules apply to sentencing proceedings. In general, the lower federal courts have concluded that the exclusionary rules do not apply to federal sentencing. These decisions follow the approach employed by the Supreme Court to determine whether the exclusionary rule should be applied to other kinds of proceedings (such as immigration deportation proceedings, grand jury proceedings, and civil tax proceedings) where the Supreme Court balanced the likelihood of deterring constitutional violations against the cost of withholding relevant and reliable information. Although recognizing the possibility that government investigators might have an incentive to illegally seize evidence in order to increase a suspect's sentence, the lower courts have generally concluded that the potential for deterrence is outweighed by the need for the sentencing judge to have access to a wide range of information in tailoring individual sentences.

On the other hand, several state courts have concluded that their state constitutions provide greater protection and bar the admission at sentencing of evidence obtained by an illegal search or by a confession obtained from a suspect who was not given his Miranda warnings. It should also be noted that some courts that do not generally apply the exclusionary rule to sentencing proceedings have indicated that illegally seized evidence will be suppressed at sentencing if it can be shown that it was seized in order to increase the defendant's sentence.

The critique of Williams and its progeny

Williams and its progeny have been criticized as affording insufficient procedural protection at a critical stage of the criminal process. In Williams the sentencing judge made the decision to impose a capital sentence on the basis of information contained in reports that the defendant never had a chance to see. The defendant in Williams had no precise knowledge about the information in these reports, and he had no opportunity to challenge it by the usual mechanism of confronting and cross-examining the persons who provided the information. Williams appears to be an outgrowth of the traditional definition of the court's role in discretionary sentencing. The Supreme Court emphasized the latitude historically afforded to courts at the sentencing phase, and the opinion expresses concern that burdensome procedures would prevent courts from obtaining important information that could assist them in exercising their discretion and tailoring the sentences to the offenders.

There are two lines of criticism of Williams and its progeny. Many scholars and jurists have argued that even discretionary sentencing judgments should be made in a forum that provides most or all of the procedural protections afforded at the trial, in order to ensure fairness to the defendant as well as the reliability of any information upon which the court relies in imposing the sentence. As previously noted, Mempa v. Rhay held that traditional discretionary sentencing is part of the "criminal proceeding" for purposes of the Sixth Amendment right to counsel. The first critique of Williams is that the Court failed to follow Mempha in extending other procedural protections as well.

A second line of criticism argues that even if Williams is appropriate in discretionary sentencing jurisdictions, it should not be extended to modern sentencing regimes where the legislature has fundamentally reformed and altered the sentencing process to follow legal rules with prescribed legal consequences. Under the traditional sentencing scheme in Williams the sentence did not rest on any particular factual findings; indeed, the judge was not required to make any findings. In jurisdictions that have instituted greater restrictions on judicial discretion, in contrast, factual findings are ordinarily required, and they drive the sentencing process. Under a mandatory minimum statute or sentencing guidelines, the court does not have discretion to give whatever weight seems appropriate to the broadest possible range of factors. Rather, the legislature (or the sentencing commission) has designated the legal effect to be given to certain facts about the offense or the offender (especially his or her prior record). For example, many jurisdictions have statutes that require the sentencing judge to impose an increased sentence if a weapon was used in the commission of an offense, or if a victim was injured. It has been argued that under a sentencing regime of this nature the sentencing phase should be subject to some or all of the same procedural protections afforded at the trial, such as proof beyond a reasonable doubt and the right to confront and cross-examine witnesses. This argument is especially cogent under the federal sentencing guidelines because many of the facts being considered at the sentencing phase are not elements of the offense, and thus were not established by the fact of conviction, yet such facts can greatly increase the guidelines' sentence.

Despite the strength of the critiques of Williams, to date they have not been persuasive in most jurisdictions. Accordingly, as noted above, most constitutional protections afforded at the trial stage are not presently applicable at sentencing.

Rules of evidence and procedure at sentencing

The rules of evidence and procedure that govern sentencing vary from jurisdiction to jurisdiction. Although these rules must meet constitutional standards, they may also provide additional procedural protections for the accused.

Evidentiary rules. Although privileges (such as the attorney-client privilege) generally are observed at the sentencing phase of a criminal trial, in most jurisdictions the rules of evidence do not otherwise apply to sentencing. Federal Rule of Evidence 1101 follows this rule, providing that the rules of privilege are applicable to all proceedings in the federal courts, but that otherwise the rules are not applicable at sentencing. Most states have similar rules. These rules reflect practices that developed when sentencing in all jurisdictions was discretionary and the judge was given the widest possible latitude to hear evidence he deemed relevant, without the evidentiary restrictions employed to restrict the jury (Young, pp. 305–309).

In many jurisdictions mandatory minimum sentences or guidelines have been adopted, and sentencing is no longer discretionary. In these jurisdictions the sentence is based upon a series of factual findings about the offense and the offender. This fundamental change in the nature of the sentencing process makes the sentencing hearing more like the trial; in both proceedings the determination of particular historical facts requires the application of particular legal rules. This is especially true in the federal system, which has adopted key features of real offense sentencing. In the federal system and in states that employ real offense sentencing many of the facts upon which the sentence depends are not elements of the offense, and they will not have been established by the finding of the defendant's guilt. The case for the application of the rules of evidence is the strongest in the federal system and in any states that employ nondiscretionary real-offense sentencing. For example, in a federal drug prosecution the key determinant of the defendant's sentence will be the quantity and type of drug. These facts are not currently deemed to be elements of the offense, and therefore they are not established by the conviction. They are determined, instead, at sentencing. If these findings are unreliable, then the offender will not receive the appropriate sentence.

It is therefore surprising that the U.S. Sentencing Commission has been unwilling to require that the rules of evidence be applied to ensure the reliability of fact-finding upon which the whole guidelines scheme depends, and to provide greater procedural fairness. Instead, the guidelines provide that "[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy" (U.S.S.G. § 6A1.3(a) (Policy Statement)). This provision seeks to strike a balance between the need for accurate findings as a basis for guidelines calculations and the need to streamline the sentencing process and reduce the burden on the sentencing court. The commentary to the guideline notes that in many cases written statements by counsel or affidavits may be sufficient, though in some cases an evidentiary hearing will be required.

Procedural rules. Most jurisdictions have formal procedural rules governing sentencing. These rules govern matters such as the preparation of a presentence report to assist the court and the conduct of the sentencing hearing. For example, Rule 32 of the Federal Rules of Criminal Procedure governs the time for sentencing, the preparation and contents of the presentence report, and the sentencing hearing.

Rule 32 provides that the probation officer shall generally make a presentence investigation and prepare a report before sentence is imposed. This report is intended to include information about the defendant's history and characteristics as well as information necessary to make the determinations required to impose a sentence under the federal sentencing guidelines. Because the federal guidelines are a modified real offense system, this requires the probation officer to make numerous determinations about "relevant conduct" beyond the elements established by the defendant's conviction. For example, the probation officer may have to determine what quantity and type of drug was involved in a narcotics case. In contrast, in jurisdictions involving charge offense sentencing there would be less focus on fact-finding that goes beyond the elements of the offense, except as it bears on the defendant's personal characteristics and history. Rule 32 provides that the probation officer shall serve the presentence report on the prosecution and defense before the sentencing hearing, in order to permit the parties to raise any objections to the report prior to the hearing.

At the hearing itself, Rule 32(c) provides that the court shall afford counsel for the defendant (and the government) an opportunity to comment on the probation officer's determinations, and that the court may, at its discretion, permit the parties to introduce testimony or other evidence on the objections. Before imposing sentence the court is also required to afford the defendant's counsel an opportunity to speak on the defendant's behalf, and the court must address the defendant personally to determine whether he or she wishes to make a statement or present any evidence in mitigation.

Except in systems employing sentencing guidelines, or permitting appellate review of sentences, judges are generally not required to give reasons for the sentence imposed. Even in guidelines systems, such reasons are usually only required if the judge "departs" from the sentence recommended by the guidelines. Perhaps surprisingly, the U.S. Supreme Court has held that due process does require a written decision, and reasons for the decisions, in postsentencing proceedings resulting in the revocation of probation or parole release, and the incarceration of the offender (Morrrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973)). It would seem that the initial sentencing decision—particularly when it involves incarceration—should also be accompanied with a statement of reasons.

There is also no general constitutional right to appellate review of the sentence initially imposed, but such review is available by statute or rule in some jurisdictions (particularly those, such as the federal system, that have sentencing guidelines). In addition, defendants may sometimes be able to gain appellate review of the procedures used to impose the sentence (but not the sentence itself); of course, a sentence that was not authorized by law can also be appealed. One likely reason for the traditional lack of appellate review of sentences is that sentencing decisions were, until fairly recently, highly discretionary, and were supposed to be tailored to the particular offense and offender; such highly fact-dependent decisions could not, it was assumed, be made subject to legal "rules" that appellate courts could articulate and enforce. (In the American legal system, appellate courts generally only decide issues of law, not issues of fact.) It is therefore not surprising to find that appellate review of sentences is more likely to be granted—and to be effective—in those jurisdictions that have adopted sentencing guidelines; such guidelines seek to define and enforce specific sentencing rules, and limit judges' discretion.

What factors—and facts—may be considered at sentencing?

Given the sharply reduced procedural protections that are available at sentencing, a good deal turns on the question whether particular facts will be established at the trial or only at the sentencing phase. The Supreme Court has considered this issue in a series of cases that vary somewhat in their analysis, but taken together establish that the legislature has a wide range of discretion in deciding whether to designate a particular fact as an element of the offense or as merely a sentencing factor.

In McMillan v. Pennsylvania, the Supreme Court held that the legislature ordinarily has the discretion to designate certain facts as an element of the offense (which must be proven beyond a reasonable doubt at trial) or as a sentencing factor (which may be proven by a preponderance at the sentencing phase). The Court noted, however, that due process might be violated in a case where the sentencing factor increased punishment out of proportion to the offense of conviction (where the "tail" of sentencing "wagged the dog" of the offense of conviction). In one sense,McMillan was an easy case: it involved setting the sentence within the range provided for by the offense of conviction, not increasing the sentence above that range. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), a sharply divided Supreme Court extended McMillan to a case where the facts at issue were used to subject the defendant to a significantly enhanced sentence. Based upon this decision, it appeared that the legislatures had virtually unfettered discretion to designate particular facts as elements of a crime or merely sentencing factors.

However, in Jones v. United States, 526 U.S. 227 (1999), a different five-justice majority stated a sharply different view that would impose some limitations on legislative discretion. Writing for the majority, Justice David Souter stated—in dicta—that the due process clause of the Fifth Amendment and the notice and jury trial provisions of the Sixth Amendment require that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt" (p. 243, n.6). If the Court follows the Jones dicta in later cases, it will allow the legislature largely unfettered leeway in designating certain facts as sentencing factors, rather than elements defining the crime, as long as those facts merely determine the sentence within the general sentencing range. Thus if the sentence for robbery is two to ten years, the legislature may provide that an offender who used a firearm shall receive any sentence up to and including ten years. However, if the fact in question is used to increase the sentencing range to more than ten years, then under Jones the facts in question must be treated as elements, at least to the extent that they must be charged in the indictment, and proved beyond a reasonable doubt at trial before a jury.

Given the shifting 5–4 majorities in Almendarez-Torres and Jones, it seems likely that this issue will be the subject of additional consideration in both the Supreme Court and the lower courts.

Sara Sun Beale

See also Burden of Proof; Capital Punishment: Legal Aspects; Criminal Procedure: constitutional Aspects; Prisoners, Legal Rights of; Probation and Parole: Procedural Protection; Sentencing: Allocation of Authority; Sentencing: Disparity; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report.

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