United States v. Oscar Ruiz Sifuentez

ORDER

The memorandum disposition filed June 30,1994, is redesignated as an authored opinion by Judge Norris.

OPINION

Oscar Ruiz Sifuentez challenges the district court’s reliance, in part, on an addendum to the presentence report in which the probation officer responded to various grounds for downward departure put forth by Sifuentez. Sifuentez claims the following language in the presentence report’s addendum constitutes impermissible recommendations and advocacy regarding departures in violation of Fed.R.Crim.P. 32(c), principles of separation of powers, and due process:

Sifuentez objected to this language both before, and during, the sentencing hearing. The district court granted Sifuentez’s § 4A1.3 over-representation departure, but declined to depart further on Sifuentez’s additional grounds. We AFFIRM.

We first address Sifuentez’s legal argument: that Rule 32(c), separation of powers, and due process prohibit the probation officer from making, or advocating, departure recommendations in the presentence report.

Sifuentez himself concedes that a probation officer may make “recommendations regarding offense level and criminal history categories.” Defendant’s Reply Br. at…