                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 18-30022
             Plaintiff-Appellee,
                                                   D.C. No.
                   v.                         4:06-cr-00065-CCL

 ASHLEY LYNN GRAY,
          Defendant-Appellant.                     OPINION



       Appeal from the United States District Court
                for the District of Montana
     Charles C. Lovell, Senior District Judge, Presiding

                Submitted September 12, 2018 *

                        Filed October 3, 2018

      Before: Edward Leavy, Michael Daly Hawkins,
         and Richard C. Tallman, Circuit Judges.

                        Per Curiam Opinion




    *
      The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                   UNITED STATES V. GRAY

                          SUMMARY **


                          Criminal Law

    The panel vacated a 20-month sentence imposed
following revocation of supervised release and remanded for
resentencing in a case in which the district court rejected a
magistrate judge’s recommendation of a five-month
sentence.

    The panel agreed that, as the government conceded, the
district court violated Fed. R. Crim. P. 32 by relying on the
probation officer’s confidential sentencing recommendation
which included factual information that had not been
disclosed to the defendant and to which she had no
opportunity to respond before sentence was imposed.

    The panel took the opportunity to address the procedure
employed by the district court. The panel held that even if
the defendant is given an opportunity to appear and speak
before the magistrate judge, the district court must provide
the defendant an additional opportunity before the actual
sentence is imposed. The panel acknowledged that the
defendant in this case could have obtained a hearing before
the district court by objecting to the magistrate judge’s
finding and recommendation, but concluded that the
defendant’s failure to do so did not constitute an explicit
waiver of her right to be present and allocute at the
imposition of sentence.



    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. GRAY                     3

    The panel remanded to the district court to conduct a
resentencing hearing at which the defendant will be present
and will have an opportunity to challenge the probation
officer’s allegations and allocute.


                        COUNSEL

David A. Merchant II and Joslyn Hunt, Assistant Federal
Defenders; Anthony R. Gallagher, Federal Defender; Office
of the Federal Public Defender, Billings, Montana; for
Defendant-Appellant.

Timothy A Tatarka, Assistant United States Attorney; Kurt
G. Alme, United States Attorney; United States Attorney's
Office, Billings, Montana; for Plaintiff-Appellee.


                         OPINION

PER CURIAM:

   Ashley Lynn Gray appeals the 20-month sentence
imposed following the revocation of her supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we vacate
and remand for resentencing.

                              I.

     Gray’s supervised release term commenced on July 26,
2016. In November 2017, Gray’s probation officer filed a
petition for revocation of supervised release and sought an
arrest warrant. After Gray was arrested and following the
initial revocation hearing, the district court issued an order
4                UNITED STATES V. GRAY

referring the petition to a magistrate judge “for hearing,
findings of fact, and recommendation.”

   The magistrate judge held a final revocation hearing on
December 21, 2017. At the beginning of the hearing, Gray
consented to have the magistrate judge conduct the hearing.
Gray admitted to all but one of the violations contained in
probation’s petition. Gray’s counsel requested a three-
month prison sentence, slightly below the Guidelines’ range
of 4–10 months, while the government requested a five-
month sentence.

    The magistrate judge stated that he would recommend a
five-month sentence and told Gray:

           As I indicated earlier, you also not only
       have the right to address me and to allocute
       or to tell me why you think a certain sentence
       is appropriate, you also have the right to
       appear before Judge Lovell and allocute
       before Judge Lovell, and that is the right to
       appear before the judge and address Judge
       Lovell personally and explain why your
       supervised release should not be revoked or
       what you believe would be an appropriate
       disposition in this case. And in order to do
       that, however, you will have to file your
       written objection within 14 days of the time
       that the findings and recommendations are
       issued by me.

The magistrate judge then issued a written finding and
recommendation (“F&R”), recommending that the district
court revoke Gray’s supervised release and impose a
sentence of five months. The F&R indicated that “[f]ailure
to timely file written objections may bar a de novo
                  UNITED STATES V. GRAY                     5

determination by Judge Lovell, and may waive the right to
appear and allocute before Judge Lovell.”

    Gray filed a response to the magistrate judge’s F&R in
which she requested that the district court recommend that
she serve her sentence in FCI Waseca. She did not object to
any portion of the F&R.

    Without holding a hearing, the district court issued a
written order adopting in part and rejecting in part the
magistrate judge’s F&R. While the district court agreed that
revocation was appropriate, it rejected the magistrate judge’s
recommended sentence. The district court quoted at length
from the probation officer’s confidential sentencing
recommendation, which had not been provided to Gray or
her counsel.         In relevant part, the sentencing
recommendation conveyed that the probation officer had
monitored Gray’s phone calls from the Yellowstone County
Detention Facility. The probation officer noted that during
these phone calls, Gray had not indicated remorse or concern
for her actions. The probation officer concluded that
“defendant was convicted of a very serious offense which
proves her to be a danger to the community. Her conduct
indicates supervised release is not an adequate deterrent to
criminal conduct. Furthermore, the defendant’s actions
indicate the only reasonable option to protect the public from
her continued criminal activity is to incarcerate her.”
Probation accordingly recommended the court impose a 20-
month sentence.

    The district court adopted the probation officer’s
recommendation and imposed a sentence of 20 months,
explaining that the “record before the Court demonstrates
that Defendant’s risk of recidivism is high and that she poses
a significant danger to the public.”
6                UNITED STATES V. GRAY

                             II.

    Gray contends that the district court violated Federal
Rule of Criminal Procedure 32 by failing to disclose to her
factual evidence on which it relied at sentencing. The
government concedes that the district court erred, and we
agree. We review de novo. See United States v. Thomas,
355 F.3d 1191, 1194 (9th Cir. 2004). Rule 32 “require[s] the
disclosure of all relevant factual information to the
defendant,” including “factual information underlying a
probation        officer’s      confidential     sentencing
recommendation.” United States v. Baldrich, 471 F.3d
1110, 1114 (9th Cir. 2006); see also United States v.
Whitlock, 639 F.3d 935, 939–40 (9th Cir. 2011) (extending
Baldrich’s requirements to post-revocation sentencings). In
its order sentencing Gray, the district court relied on the
probation’s officer confidential sentencing recommendation,
which included factual information that had not been
disclosed to Gray and to which she had no opportunity to
respond before sentence was imposed. Accordingly, we
must vacate and remand for resentencing.

                            III.

    In light of our decision to remand, we take this
opportunity to address the procedure employed by the
district court in sentencing Gray.

    Here, Gray consented to have a magistrate judge conduct
her revocation hearing. The magistrate judge, therefore, was
authorized to hold a revocation hearing in this matter and
recommend a sentence to the district court. See 18 U.S.C.
§ 3401(i); see also United States v. Colacurcio, 84 F.3d 326,
332 (9th Cir. 1996). The district court, however, then
imposed a sentence without holding a hearing. Agreeing
                  UNITED STATES V. GRAY                      7

with the reasoning of two of our sister circuits, we now hold
that the district court’s procedure was erroneous.

    Federal Rule of Criminal Procedure 43(a)(3) provides
that a defendant “must be present”            at sentencing.
Additionally, we have held that Federal Rule of Criminal
Procedure 32.1(b)(2)(E) “requires a court to address a
supervised releasee personally to ask if he wants to speak
before the court imposes a post-revocation sentence.”
United States v. Daniels, 760 F.3d 920, 924 (9th Cir. 2014).
As the Fifth Circuit explained, these “elementary” rights are
violated when the defendant’s only opportunity to appear
and be heard is before the magistrate judge, and not at the
final sentencing. See United States v. Rodriguez, 23 F.3d
919, 921 (5th Cir. 1994); see also United States v. Waters,
158 F.3d 933, 942–45 (6th Cir. 1998) (defendant’s right to
be present and allocute at sentencing violated by district
court’s adoption of magistrate’s sentencing recommendation
by written order without a hearing). In conducting
proceedings based on an order of reference by a district
court, a magistrate judge does “not possess the authority to
impose sentence; only the district court possesse[s] that
authority.” Rodriguez, 23 F.3d at 921. Thus, even if the
defendant is given an opportunity to appear and speak before
the magistrate judge, the district court must provide the
defendant an additional opportunity before the actual
sentence is imposed.

    We acknowledge that Gray could have obtained a
hearing before the district court by objecting to the
magistrate’s F&R. However, we conclude that under the
procedures employed in the District of Montana, Gray’s
failure to do so did not constitute an explicit waiver of her
right to be present and allocute at the imposition of sentence.
See United States v. Stocks, 104 F.3d 308, 312 (9th Cir.
8                 UNITED STATES V. GRAY

1997) (right to a hearing can be waived if the waiver is
knowing, intelligent, and voluntary). Before sentencing,
Gray had no cause to file an objection; indeed, the difference
between her requested sentence and the magistrate’s
recommendation was only two months. Certainly, she had
no reason at that point to anticipate that the district court
would reject the magistrate’s recommendation, on the basis
of a confidential report from the probation officer, in favor
of a sentence four times the length of the sentence
recommended by the magistrate judge and the government.
The onus should not be on the defendant to make a
prophylactic objection to the F&R in order to preserve her
right to be present for the actual post-revocation sentencing,
and we decline to find an enforceable waiver here. Cf.
Waters, 158 F.3d at 942 (defendant did not waive his right
to be present for sentencing by failing to request a hearing
before the district court where he had a valid reason for not
making the request).

                             IV.

   We vacate Gray’s sentence and remand to the district
court to conduct a resentencing hearing at which Gray will
be present and will have an opportunity to challenge the
probation officer’s allegations and allocute.

    VACATED and REMANDED for resentencing with
instructions.
