Tooby's California Post-Conviction Relief for Immigrants

(D)

Notice and an Opportunity to be Heard.  Due process mandates notice of, and an opportunity to refute, the facts the prosecution intends to prove at sentencing.[185]  Due process also requires that the defendant have the opportunity to challenge information in letters from victims not included in the victim-impact report.[186]

[185] United States v. Perri, 513 F.2d 572, 575 (9th Cir. 1975); United States v. Rosner, 485 F.2d 1213, 1229-30 (2d Cir. 1973), cert. denied, 417 U.S. 950 (1974); United States v. Robin, 545 F.2d 775 (2d Cir. 1976); cf. Gardner v. Florida, 430 U.S. 349 (1977)(unconstitutional to impose death sentence on basis of materials in secret pre-sentence report -- reasoning supports disclosure in noncapital cases as well); but see Burns v. United States, 501 U.S. 129, 138 (1991) (refusing to address whether due process requires that a court notify parties of its intention to sua sponte depart upward from the sentencing guidelines, instead relying on a technical violation of Rule 32).

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