sentencing the general question is how much process is due here of the specific question is whether it's consistent with due process for a court to receive in confidence a probation officer is sentencing recommendation and justification there of i submit that the answer to that specific question is no and district court the sentence reports are disclosed thirty five days before sentencing in this struggle is a highly formalized process of content and objection where the probation officer is confidential matter it's also just closed and that happens with eighteen out of twenty two of the active judges down the control district of california counsel's comments tend to address also the publication office's recommendations and other objections to the sentencing report but there are also comments about the probation officers are tracking the street but  hundred ninety one supreme court case and in burns the united states supreme court considered whether as a court could still sponsor you depart without giving advance notice to the parties that he was the court was going to do so opportunity to comment on matters that are related to sentencing and clearly a court's decision to still respond to depart from that then mandatory guidelines is relevant to sentencing and so giving a court giving  defendant an opportunity to comment is completely worthless if they don't have noticed as to what it is that they're going to be sentenced based upon and in reaching that conclusion the court applied the doctrine of constitutional doubt was confidence we know that generally speaking these letters contain all sorts of analysis all sorts of unstated assumptions the p s r recommended one hundred sixty two months at the high end of the range  what i don't know i believe the court may know because that's the second thing quite did submit the documents in camera for the court's review but i don't know what was in that sense a recommendation i can't know if there was something that violated my client's right was questioning raised by the trial counsel on the case on two occasions the first one was when judge carroll had some question as to whether the client had actually suffered abuse or not and in that instance mistakenly trial counsel explained that she had in fact raised that issue to the probation officer in a letter and that that information did not make it into the pre sentence report the second occasion on which the trial paragraph thirty four through forty nature of a fancy paragraph ten through fifteen that does not raise a due process violation but when the probation officer allowed to characterize that conduct in a way that the defendant is not allowed to claim that argument is that doesn't raise the due process violation because the cases and i the reason i referred to bring to the because birds is also a case in which all the facts were disclosed to the party there was no question there were extra facts that the court was considering it was the court's application of the law the fact that the defendant did not receive notice of similarly in the case where preparation off there characterized his conduct or recommendation included any information other than that was already found in the pre sentence report which was made available to you your honor it's obviously outside the record but i was a trial attorney in the central district for five years and those kind of confidential gonzalez saying that this court may properly receive confidential communications from a probation officer regarding sentencing so long as no additional factual information in part of that was not previously  sorts of the worst and the reason they want the probation officers recommendation is because that's a source that they trust our only argument is what is the interest in not allowing the defendant also to see that source of information be narrowly construed to be constitutional if the probation office report just said i recommend one hundred sixty two month period that would be a recommendation on sentencing and we would not dispute the constitutionality on that and to how are we going to determine whether there really is or is not anything not contained in the p s a but in the recommendation without making it available to defense counsel  and i think there's actually two responses that first of all this didn't make part of has been made part of the record so at least that the court is referring to we have and we this court the ninth circuit of the court has that availability of the document in the record but i think more than that i think the important factor is that volcker or post booker pre book or it doesn't matter the defendant still has the same incentive to raise all the arguments that are necessary in other words we're arguing from the point of of the dispensing process that we should be arguing from the same factual universe and with the disclosure of the p s r that's what we did here and then there can be no question as to what that fencing factors are that a defendant needs to address for example it's the thirty five fifty three eight factors everybody knows but the fact is i would say that should be addressed so a defendant has the incentive to address all the factors that the probation officers recommendation will depend upon for example we have evidence in the record that the district court disclosed during the sentencing hearing probation officer spent like the defend in this case was a danger well that was something that the defense addressed in their sentencing position papers before the district court without disclosure of the recommendation and why because that's the kind of consideration that is within the thirty five fifty three a factors that goes directly to the history and characteristics of the defendant they addressed his criminal history they pointed out in their sensing papers that always from a history is overstated he only stole a few chicken breasts he's not a danger could you please hifi could have the guidelines and that the probation officer felt like the defendant was a danger to the public if the courts question is specifically the point of the excerpts of record where the court says here i'm handing over the two or three page document that's usually what it i believe so you can give me a page citation to it so i could look at that you want to see it was made part of the appellate record under seal i don't think either party had seen it i believe that the court had to because the district court ordered to that effect but i can't give your records like because i simply interpretation doesn't necessarily mean that the court has to in every case issue a minute order that says isaac direct the probation officer not to disclose the sense of recommendation there are certain judges that accept those recommendations confidentially and they do so usually by case i think that will thirty two feet was complied with and i think it does authorize the court to accept the recommendation confidentially and that brings us alternately to what this appeal is asking this court to do and that is to declare a portion of rule thirty t death and the court disclosed the progress report from the probation officer these probation officer scotty says ok you can have the progress report of probation officer scott but i'm not going to just close the confidential recommendation as it stands and the cour contacts with the cooperation with from the probation office to the court are entirely proper that's the language in vegas and i think that there's two things that are interesting as a result of those lies cases first is that it's important to recognize that these issues are not going to come up only during sentencing these issues will also come up during supervised release revocation hearings and as the court long nosed it's common for district judges to speak with a probation officer for these hearings usually right before perhaps or just say thousands defended b he put a fact in that didn't occur how can we how can we know that that didn't occur unless we see the to articulate reasons for this and so in doing so the just a court well to kill a reasonable say well not only did this defendant who had sixteen criminal history points also he also was beating his wife and i find that that is a further reason why he is a danger to the public and that is something that obviously subject to appellate review the defendant could rightly come in at that point and say hey look we didn't know anything about that that's completely wrong but i think the more fundamental point is a point that's made by a decision that the government didn't it can't be trusted to receive a confidential report from the probation office and to not disclose back to need to be just quote if your honor if the if the court goes back and looked at this confidential sentencing recommendation from the probation office and there's a be a fact that would be disclosed in the p s r and i think that if there weren't some other evidence or represent the court would be rightly concerned and there would be air now of course there is other evidence in the record to show that the district court didn't rely exclusively or even compellingly on this had notice of what the substance of the record that recommendation was and they had an opportunity to respond to it and the third instance your honor is the exercise record two thirty four when the court expressly declines to follow the probation office recommendation so even if there weren't a question earlier with respect to how do we know and what have you had think the point i was trying to make with supervised release recommendations is that there are interesting practical problems that result if the court were to adopt the rule the fence  a court was trying to speak with a probation officer right before a supervised release hearing these things are often quick it may be the case that the court if you just walk the call up and say hey probation officer i just you know send somebody to the custody term i'd like to know how they're doing are they responding to that that now may need to be recorded you may need to call a court reporter in the back of the chambers and say well we've got to disclose it that way if there's going to be a later sentencing hearing they may be entitled to this information i think all more than that is that the defense makes a number of policy arguments and i think one of the policy argues that also bears in consideration is that the rule that the defense wants i think would undo the invade the judicial process and i say that because a probation officer sensing a short memo from my last word if it's the case that the defense is entitled to everything regardless of the fact that the probation officer when preparing a present report is acting as an arm of the courts and part of the judiciary then i think at this point th what we all know is the record the disclosure record and making recommendations to their judge second of all your honor to the court the government's argument that well everyone you know all the factors in play is simply contrary to burn burns of course everyone knows what all the factors are in play with regard to that one thing because we know that there are things that are sentencing guidelines and departures and yet the courts still held that the court was required to disclose to defend it what  the what the specific factors in play were and finally this goes to your question as to how to determine if something's in the record there is one way this term if there is not in the rest of you can i'm sorry there's one way to determine whether  probation report and the probation letter have any kind of conflict or any additional information in the letter and that's for you to review but what you don't get invalid review is how the defense attorney and his or her client might have responded to that information in the record the supreme court in gartner had a similar situation where they were presented with the documents in the excerpt of record before the supreme court and supreme court refused to look at it they said we refused to look at it because it doesn't answer the question it answers the question of what's in the document but it doesn't answer the question as to what defense counsel could have done with the information in that document