The court's reliance on inaccurate information contained in the presentence report may violate due process, requiring that the sentence be vacated.[341]  There is a due process right not to be sentenced on the basis of misinformation.[342]  This includes unsupported assumptions.[343]

 

The Due Process Clause prohibits sentencing based on any false and misleading information.  Sentencing a defendant on the basis of assumptions concerning his or her criminal record which are materially untrue, “whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.”[344]  Courts have vacated the original sentence, and remanded the case for re-sentencing when the trial court relied upon erroneous or unreliable facts or inferences at sentencing.[345]

 

The prosecution also has an affirmative responsibility to assure that the court is relying on accurate facts when sentencing a defendant.[346]   See Prosecutorial Misconduct discussion, § 7.108, infra.

[341] Dorsynski v. United States, 418 U.S. 424 (1974); Townsend v. Burke, 334 U.S. 736 (1948).

[342] United States v. Curran, 926 F.2d 59 (1st Cir. 1991).

[343] United States v. Rosacker, 314 F.3d 422 (9th Cir. December 26, 2002) (affirming district court use of preponderance of the evidence standard in making drug quantity approximation affirmed, but vacating sentence because court erred in relying on police laboratory report which contained calculations resting on unsupported assumptions); United States v. Culps, 300 F.3d 1069 (9th Cir. 2002) (calculating the approximate amount of marijuana sold based on clearly erroneous information as to the transaction size and days of operation required resentencing).

[344] See Townsend v. Burke, 334 U.S. 736, 740-41 (1948). 

[345] See United States v. Tucker, 404 U.S. 443, 447-49 (1972) (remand for re-sentencing because sentencing court had relied on two convictions later found unconstitutional as a result of defendant's lack of representation). 

[346] See Berger v. United States, 295 U.S. 78, 88 (1935); ABA Standards Relating to Sentencing Alternatives and Procedures 243 (1968).

First Circuit

POST CON RELIEF - SENTENCE - GROUNDS - DUE PROCESS - RIGHT TO SENTENCE BASED UPON ACCURATE INFORMATION
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) ("due process right to be sentenced upon information which is not false or materially incorrect" is violated where the defendant is sentenced based upon a "fact" that is not supported by the record, requiring reversal of the sentence); see United States v. Pellerito, 918 F.2d 999, 1002 (1st Cir.1990); see also Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).