Tooby's California Post-Conviction Relief for Immigrants

False and Misleading Information.  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.”[187]  Courts have remanded for re-sentencing when the court relied upon erroneous or unreliable facts or inferences at sentencing.[188]

            Not only must the court guard against using false evidence, the prosecution has an affirmative responsibility to assure that the court is relying on accurate facts when sentencing a defendant.[189]

[187] See Townsend v. Burke, 334 U.S. 736, 740-41 (1948); United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. 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); United States v. Pellerito, 918 F.2d 999, 1002 (1st Cir.1990). 

[188] 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). 

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