United States v. Nicolas Herrera-Figueroa

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…

concurring, in part, and dissenting, in part:

I agree with the majority that this sentence should be vacated and that the case should be remanded. I dissent from the majority’s holding that a new rule be established requiring probation officers to allow counsel to be present at a presentence interview.

The record shows the district court failed to determine the issue before it: whether the defendant accepted responsibility for his criminal conduct. Instead, the court deferred to the presentence report, informing the defendant that he failed to participate in a presentence interview at his own risk and that the findings of the probation officer would not be disturbed.

A probation officer’s presentence report is not binding on the district court. United States v. Belgard, 894 F.2d 1092, 1097 (9th Cir.1990). The sentencing judge is in a unique position to evaluate the defendant’s *1438 acceptance of responsibility and is given wide latitude to come to a decision. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990). Whether a defendant has accepted responsibility for his crime is a factual determination reviewed for clear error. Id. There is no limitation on the type of…

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: 1 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…