                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0272p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                  X
                                      Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                       No. 05-4196
         v.
                                                   ,
                                                    >
 HATEM MAHMOUD HAMAD,                              -
                                    Appellant. -
                                                  N
                   Appeal from the United States District Court
                 for the Northern District of Ohio at Youngstown.
                No. 05-00074—David D. Dowd, Jr., District Judge.
                                            Argued: April 25, 2007
                                      Decided and Filed: July 19, 2007
             Before: GILMAN and SUTTON, Circuit Judges; TARNOW, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: David C. Jack, Wadsworth, Ohio, for Appellant. Mark S. Bennett, UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. Douglas A. Berman, THE OHIO STATE
UNIVERSITY, MORITZ COLLEGE OF LAW, Columbus, Ohio, as court-appointed Amicus
Curiae. ON BRIEF: David C. Jack, Wadsworth, Ohio, for Appellant. Vasile C. Katsaros,
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. Douglas A. Berman, THE OHIO
STATE UNIVERSITY, MORITZ COLLEGE OF LAW, Columbus, Ohio, as court-appointed
Amicus Curiae.
                                              _________________
                                                  OPINION
                                              _________________
        SUTTON, Circuit Judge. What happens when a district court, applying the advisory
sentencing guidelines, not only increases a sentence based on its own fact findings but also does so
on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32
of the Federal Rules of Criminal Procedure would authorize this procedure; another would not.
Because the escalation of a sentence based on undisclosed evidence raises serious due process
concerns, we construe the rule to require a sentencing court either to disclose sufficient details about


         *
          The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                          1
No. 05-4196           United States v. Hamad                                                   Page 2


the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain
from relying on the evidence. We vacate Hatem Hamad’s sentence and remand for resentencing.
                                                  I.
       When Warren County (Ohio) police officers responded to the scene of a reported fight, they
met Nick Loomis, who claimed that he had just been stabbed by his neighbor, Hatem Hamad. At
Hamad’s nearby residence, the officers met Hamad’s wife, who told them that her husband kept
weapons in the home—two, to be exact, a semi-automatic pistol and a shotgun.
        A federal grand jury indicted Hamad for (1) violating the felon-in-possession statute (he
previously had been convicted of distributing cocaine), see 18 U.S.C. § 922(g)(1), and (2) failing
to register a shotgun with a barrel shorter than 18 inches, see 26 U.S.C. § 5861(d). Hamad pleaded
guilty to both offenses.
        The district court scheduled Hamad’s sentencing hearing for August 2, 2005. A day before
the hearing, the court postponed it, explaining that the court had received “in chambers a number
of documents that reflect poorly on the defendant.” JA 20. The documents, the court noted, “were
submitted with a request that the information be kept confidential.” In an effort to comply with
Criminal Rule 32, which permits the submission of confidential information at sentencing as long
as the court provides a summary of the information to the defendant and gives him a reasonable
opportunity to respond, see Fed. R. Crim. P. 32(d)(3)(B) & 32(i)(1)(B), the district court provided
the following summary of the documents:
       In a general sense, the documents describe a man who has been violent with his own
       wife and children, threatens harm to other persons, treats his wife as an inferior
       person because of her gender and should be considered a dangerous man. The
       information supplied predicts that when the defendant is released from confinement
       and rejoins society he will continue to be abusive to his family and will come to a
       new neighborhood with no warning signs.
Id.
        Also attached to the court’s order was a public letter jointly written by Warren’s Mayor and
its Director of Public Service and Safety. The letter described Hamad as “a menace and a threat to
the lives of the many good and law-abiding citizens in [their] community,” noted that “[t]here ha[d]
been several incidents where Hatem Hamad [had] demonstrated his abusive and violent temperament
by inflicting harm to others without remorse” and requested that the court sentence him “to a lengthy
and extended incarceration.” JA 22.
        After receiving this information, the district court indicated that it was considering imposing
a sentence above the 41–51 month guidelines range, rescheduled the sentencing hearing and placed
the documents under seal.
        Hamad moved to disclose the full contents of the documents, arguing that the court’s reliance
on them to increase his sentence would violate Criminal Rule 32 and, if not that, the Federal
Constitution. Reasoning that its prior order provided “a fair summary” of the information, as
required by Criminal Rule 32, and that “a failure to provide a more thorough disclosure would not
be prejudicial” to Hamad, the district court denied the motion. JA 45. At the same time, it offered
to disclose the documents to Hamad’s counsel and the government in camera on the condition that
counsel “not reveal the particulars of the accusations in such a manner as to identify the person or
persons supplying [the] information.” Id.
No. 05-4196           United States v. Hamad                                                  Page 3


        Hamad’s counsel declined the offer, explaining that he could not adequately rebut the
evidence if he could not discuss it with Hamad. Without additional information, counsel observed,
Hamad would not be able to tell him that, say, “Jim Blow is a crack head who [has] had it in for me
since day one” and, even if counsel could satisfactorily investigate the information contained in the
documents himself, he could not present the fruits of any investigation in court if it “might arguably
reveal to my client” that the “information . . . might have come from Jim Blow.” JA 55–56. The
district court repeated its view that the summary was “adequate to prepare [Hamad] for the
sentencing hearing,” JA 58, but recognized that “there is a great deal more that’s contained here that
[counsel did] not have,” JA 53.
        At the hearing, counsel noted that Hamad’s wife and children were there to support him.
Although counsel offered to let the court question them in chambers, he declined to offer their
testimony. In addressing the mayor’s letter, counsel noted that the mayor must have relied on
second-hand information in writing the letter because Hamad and the mayor had never met and the
Warren police had never arrested Hamad. Hamad testified that he was a good husband and father,
that he did not view women as inferior, that it bothered him that people were making false
allegations about him and that, since the September 11, 2001 terrorist attacks, he had been targeted
unfairly because he is a Muslim. Hamad’s counsel recommended a sentence at the bottom of the
41–51 month range.
         The district court sentenced Hamad to 48 months’ imprisonment. “[T]o be very clear,” the
court acknowledged, it had “taken into consideration materials that [were] under seal, and ha[d]
relied upon them in the exercise of [its] discretion within the advisory guideline range.” JA 97. The
district court denied Hamad’s motion to unseal the confidential documents during appeal and
ordered the clerk to send the sealed documents to the Sixth Circuit.
        On appeal, our court initially slated the case for disposition without oral argument. In view
of the district court’s candid acknowledgment that it had relied on the sealed documents presented
to the court and in view of the question whether Criminal Rule 32 authorizes this procedure, or
indeed whether the United States Constitution permits it, we scheduled the case for oral argument.
We also appointed Douglas A. Berman, Esq., a Professor of Law at the Moritz College of Law at
The Ohio State University, as an amicus curiae to offer written and oral presentations about the
appropriate resolution of the appeal. We are grateful for his assistance and, as always, for the
assistance provided by counsel for both parties.
                                                 II.
                                                 A.
        Two provisions of Criminal Rule 32 have a direct bearing on this appeal. “The presentence
report,” Rule 32(d)(3) says, “must exclude”:
               (A) any diagnoses that, if disclosed, might seriously disrupt a
               rehabilitation program;
               (B) any sources of information obtained upon a promise of
               confidentiality; and
               (C) any other information that, if disclosed, might result in physical
               or other harm to the defendant or others.
(Emphasis added.) Rule 32(i)(1)(B) says that a sentencing court “must give to the defendant and
an attorney for the government a written summary of—or summarize in camera—any information
No. 05-4196            United States v. Hamad                                                     Page 4


excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing,
and give them a reasonable opportunity to comment on that information.”
        Under one reading of these provisions, the district court did all that Criminal Rule 32 asks
of it. The court correctly recognized that the rule applies even when confidential information is
given directly to the district court, as opposed to the probation department. See United States v.
Hayes, 171 F.3d 389, 393–94 (6th Cir. 1999). Although Rule 32(e)(2) deals expressly only “with
the right to review the presentence investigation report,” Hayes explained that “the right to review
other information relied on by a court at sentencing is implicit in the adversarial scheme created by
Rule 32 . . . .” Id. at 392; see also id. at 394 (recognizing that district courts need not always funnel
ex parte information through the probation department, particularly when “the court receives
[information] after the presentence report has been prepared”).
         The court, at first glance, also appears to have complied with the requirements of these
provisions. It did not disclose the confidential information. See Fed. R. Crim. P. 32(d)(3)(B). It
provided a “written summary” of the confidential information to the parties. See Fed. R. Crim. P.
32(i)(1)(B). And by all appearances it gave Hamad all the notice and time he needed to
respond—what the rule refers to as a “reasonable opportunity to comment.” See Fed. R. Crim. P.
32(i)(1)(B). Having reviewed the confidential documents ourselves, we can add that the court
accurately summarized them and that, had the court been more specific about the contents of the
documents, it would have risked exposing the sources of the information. Cf. United States v.
Scalzo, 716 F.2d 463, 466 (7th Cir. 1983) (“The trial court must, on a case by case basis, balance
the policy of making disclosure as specific as possible with the need to preserve confidentiality.”)
(internal quotation marks omitted); United States v. Woody, 567 F.2d 1353, 1362 (5th Cir. 1978)
(“In some cases, because of the need to protect sources . . . the summary may be very general and
of little help to the defendant in either providing additional information or in commenting on the
substance of the report or challenging its factual accuracy.”) (internal quotation marks omitted).
         But the district court’s interpretation of these rules is not the only plausible reading of them,
and it is not the one we adopt. First, as applied to this case, the district court’s sentencing procedure
raises serious constitutional concerns—even if the required summary was as accurate and as specific
as it could be without disclosing its sources and even if the defendant was given as much time as he
wished and as many witnesses as he needed to respond to the summary. The fact remains that the
court did not—and could not—disclose sufficient information to allow the defendant to counter or
test the reliability of this evidence that he was a dangerous person and a blight on the community,
and the fact remains that the court relied on this information in increasing his sentence.
        A sentencing hearing, we recognize, is not a criminal trial, and many of the constitutional
requirements of a criminal trial do not apply at sentencing. See Williams v. New York, 337 U.S. 241
(1949). The Rules of Evidence do not apply at sentencing, see Fed. R. Evid. 1101(d)(3), and due
process does not require otherwise, Williams, 337 U.S. at 251 (“The due-process clause should not
be treated as a device for freezing the evidential procedure of sentencing in the mold of trial
procedure.”). Congress prefers the inclusion rather than the exclusion of information at sentencing,
see 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.”), a preference that during
most of the twentieth century led the courts and the rules’ drafters to favor the completeness of
information presented at sentencing over its accuracy. See Stephen A. Fennell & William N. Hall,
Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence
Reports in Federal Courts, 93 Harv. L. Rev. 1615, 1632–35 (1980).
       While the Constitution requires evidence submitted at a criminal trial to be assessed under
a “beyond a reasonable doubt” standard, In re Winship, 397 U.S. 358, 364 (1970), it could be said
No. 05-4196           United States v. Hamad                                                     Page 5


as late as 1986 that “[s]entencing courts have traditionally heard evidence and found facts without
any prescribed burden of proof at all.” McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986). The right
to confront adverse witnesses and to prohibit the introduction of testimonial hearsay without cross-
examination does not apply at sentencing. See United States v. Katzopoulos, 437 F.3d 569, 576 (6th
Cir. 2006); United States v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992) (en banc); see also
Williams, 337 U.S. at 250 (“The type and extent of [sentencing] information make totally impractical
if not impossible open court testimony with cross-examination.”) (applying the Due Process Clause
at a time when the Court had not yet incorporated the Confrontation Clause); Williams v. Oklahoma,
358 U.S. 576, 584 (1959). Until the amendment of Criminal Rule 32 in 1975, the Criminal Rules
did not make the disclosure of a presentence report to the defendant mandatory, see Federal Rules
of Criminal Procedure Amendments Act of 1975, Pub. L. 94-64, § 2, 89 Stat. 370, and our court (and
several other courts of appeals) upheld the validity of this procedure in the face of due process
challenges. See United States v. Lowe, 482 F.3d 1357, 1359 (6th Cir. 1973) (per curiam) (citing
cases). Even the Apprendi-Blakely-Booker right to have a jury make fact findings used to increase
a sentence, which by its terms does apply at sentencing, does not cover this case because the judge
did not apply his findings of fact to a mandatory guidelines system. See United States v. Booker,
543 U.S. 220, 245 (2005).
        While many of the protections, constitutional or otherwise, that guard a criminal defendant’s
procedural rights at trial have not historically applied at sentencing or to this type of case, that does
not end the inquiry. Most of these decisions applied to a different sentencing regime from the one
we consider today. Today, district courts face an elaborate set of sentencing guidelines under which
a district court must compute a recommended guidelines range and consider, if not necessarily
follow, that recommendation—and relief from those sentences through parole is the exception, not
the rule. Then, district courts sentenced individuals under an utterly indeterminate sentencing
regime and were not required to make fact-based sentencing computations in determining a
sentence—and relief from those sentences through parole was the rule, not the exception. Under
today’s system, it remains unclear whether the Constitution gives sentencing courts a free hand to
rely on undisclosed—or, to be more dramatic, secret—accusations that increase an individual’s
sentence. When the Court in Williams v. New York determined that the Constitution does not give
a criminal defendant the right to cross-examine witnesses against him at sentencing, it was careful
to point out that this did not mean that “sentencing procedure[s] [are] immune from scrutiny under
the due-process clause.” Williams, 337 U.S. at 252 n.18. Other cases prove the point. See, e.g.,
Mempa v. Rhay, 389 U.S. 128, 137 (1967) (due process right to counsel at sentencing); Brady v.
Maryland, 373 U.S. 83, 87 (1963) (due process right to obtain evidence favorable to the accused,
held by the government and “material either to guilt or to punishment”) (emphasis added); Townsend
v. Burke, 334 U.S. 736, 741 (1948) (due process right to ensure that sentence was not based upon
“assumptions concerning [defendant’s] criminal record which were materially untrue”); cf. Gardner
v. Florida, 430 U.S. 349, 362 (1977) (plurality) (qualifying Williams v. New York in the context of
capital cases and holding that defendant had a due process right not to receive a death sentence
based on information that he “had no opportunity to deny or explain”).
        The upshot is this: while a defendant may not have the constitutional right to confront the
witnesses against him at sentencing, it remains unclear under modern sentencing practices what due
process right he has to know who these witnesses are and what they have said, to respond
meaningfully to the accusations or otherwise to ensure that the accusations are accurate. Although
“[t]he district court may consider hearsay evidence in determining a sentence, . . . the accused must
be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability
in respect of defendant’s right to due process.” Silverman, 976 F.2d at 1512 (internal quotation
marks and emphasis omitted); see Scalzo, 716 F.2d at 466 (noting the “fundamental and undisputed”
due process “right of a defendant to be sentenced on the basis of accurate information”).
No. 05-4196           United States v. Hamad                                                   Page 6


        Second, we need not determine the scope, or even the existence, of this due process right nor
whether the district court violated it by increasing Hamad’s sentence based on confidential
accusations. When a court faces two plausible interpretations of a law, it may—indeed
must—resolve the ambiguity on the basis of the interpretation that sidesteps rather than precipitates
resolution of the constitutional question. See Jones v. United States, 529 U.S. 848, 858 (2000)
(“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such questions are avoided, our duty is to
adopt the latter.”) (internal quotation marks omitted); Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Califano v. Yamaski, 442 U.S. 682, 693
(1979). Otherwise, the court would be attributing to the lawmakers an intention to adopt a statute
(or rule) that implicates a serious question about limits on their authority rather than attributing to
them the more respectful intention of acting well within their constitutional authority. See Burns
v. United States, 501 U.S. 129, 138 (1991) (“declin[ing] to impute . . . an intention to Congress” to
adopt a Rule of Criminal Procedure that would allow a district court “sua sponte [to] depart upward
from an applicable Guidelines sentencing range without providing notice to the defendant”).
        Third, the path of least constitutional resistance remains open to us here. There is another
way of reading one of the provisions before us—Rule 32(i)(1)(B)—that diminishes, if not
eliminates, the due process issue. The provision, recall, says that a sentencing court must provide
the parties with a “summary” of the confidential information and must give the parties “a reasonable
opportunity to comment on that information.” Fed. R. Crim P. 32(i)(1)(B). The requirement of a
“summary,” when read in conjunction with Criminal Rule 32(d)(3)(B)’s prohibition on disclosing
confidential information, indicates that the summary may not disclose the source of the information
or what comes to the same thing: revealing so many details as to make that source knowable.
        The question is whether one can fairly say that a defendant has “a reasonable opportunity
to comment on that information” when the court has summarized it so generally that a meaningful
response is not possible. The right created by the rule is the right to comment on the information
relied upon by the sentencing court, not the summary of that information. See id. (“[T]he court . . .
must give to the defendant and . . . the government a written summary of—or summarize in
camera—any information excluded from the presentence report . . . on which the court will rely in
sentencing, and give them a reasonable opportunity to comment on that information.”) (emphases
added). The “reasonable opportunity to comment” proviso, in other words, may be read in one of
two ways. It could be read to require the court to give the defendant reasonable notice of the
confidential information through an accurate summary of it, a reasonable time to prepare a response
and a reasonable opportunity at the sentencing hearing to put on as many witnesses as need be to
respond to the information disclosed—which is how the district court read the rule. Or it could be
read to say that a defendant never has a reasonable opportunity to respond when the summary—due
to a promise of confidentiality and the nature of the charge—cannot offer the defendant sufficient
information to form a meaningful response.
         The two central policies underlying Rule 32 cut in opposite directions. The rule plainly
seeks to maximize the amount of information available to district courts in exercising their
sentencing discretion. See Fed. R. Crim. P. 32(d)(2) (requiring presentence report to include “the
defendant’s history and characteristics” and “the financial, social, psychological, and medical impact
on any individual against whom the offense has been committed”); see also 18 U.S.C. § 3661. Read
in light of this consideration, we could permit sentencing courts to rely on confidential information
even when the summary makes a meaningful response unrealistic. At the same time, the procedural
requirements of this provision and the rest of Rule 32 plainly advance due process concerns. See
United States v. Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000) (“This Circuit has consistently
construed the requirements of Rule 32 in a strict manner, largely because the rule protects a
defendant’s right to due process.”); Hayes, 171 F.3d at 392 (“Federal Rule of Criminal Procedure
32 protects the right to due process by requiring disclosure of most information relied upon at
No. 05-4196           United States v. Hamad                                                    Page 7


sentencing.”). Read in light of this consideration, we could require a sentencing court under
circumstances like these either (1) to obtain permission to disclose the information or (2) to refrain
from using it in sentencing the individual.
         Faced with two interpretations of the rule, each plausibly supported by the text and each
plausibly supported by a policy underlying the rule, we adopt the construction that avoids the
constitutional question. In reaching this conclusion, we take a path not unlike the one the Supreme
Court followed in Burns v. United States, 501 U.S. 129 (1991). At issue in Burns was whether
Criminal Rule 32 required a district court to give a criminal defendant notice before it sua sponte
departed from the guidelines sentencing range. At the time, Rule 32(c)(3)(A) required a court to
give the parties 10 days’ notice of the contents of the presentence report but did not contain a similar
provision requiring the court to notify the parties that it was considering a sua sponte departure.
Based on this silence, the government argued that no notice was required. In rejecting this
interpretation, the Court observed that it (1) would “render[] meaningless the parties’ express right
‘to comment upon . . . matters relating to the appropriate sentence,’” id. at 136 (quoting Fed. R.
Crim. P. 32(a)(1)), and (2) would be “inconsistent with Rule 32’s purpose of promoting focused,
adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences,” id. at
137. Of particular importance, for our purposes, the Court concluded that, “were we to read Rule
32 to dispense with notice, we would . . . have to confront the serious question whether notice in this
setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district
court sua sponte may depart upward from an applicable Guidelines sentencing range without
providing notice to the defendant we decline to impute such an intention to Congress.” Id. at 138.
For many of the same reasons the Court embraced in Burns, it seems appropriate to avoid a serious
due process question here.
                                                  B.
        That leaves us with two additional tasks in resolving this appeal. One, in light of this
construction of Rule 32, did the district court’s summary give Hamad sufficient information so that
he had a “reasonable opportunity to comment” on the confidential documents? The answer is no.
The court’s summary provided only a “general sense” of the charges made by the confidential
witnesses, saying that Hamad (1) was “violent with his own wife and children,” (2) “threaten[ed]
harm to other persons,” (3) “treat[ed] his wife as an inferior person” and (4) should be generally
“considered a dangerous man.” JA 20. These accusations both attacked Hamad’s reputation—his
reputation as a husband, father and member of the community—and suggested his future
dangerousness. While Hamad retained the option of putting on witnesses saying he was a good man
and a risk to no one, it did not give him the option, in defense counsel’s words, to point out that his
accuser “is a crack head who’s had it in for [Hamad] since day one.” JA 55. Because the summary
did not refer to any specific incident or name its source(s), it did not give Hamad a “reasonable
opportunity” to rebut the information or otherwise question its accuracy. The district court’s
inability to provide Hamad with information regarding the “precise nature of any behavioral
characteristics or instances of illegal conduct,” United States v. Woody, 567 F.2d 1353, 1361–62 (5th
Cir. 1978), not only handicapped his ability to contest those accusations, but also undercut Rule 32’s
purpose of promoting “focused, adversarial resolution of the legal and factual issues relevant to
fixing Guidelines sentences,” Burns, 501 U.S. at 137. See Rita v. United States, 127 S. Ct. 2456,
2465 (2007) (“[T]he sentencing court subjects the defendant’s sentence to the thorough adversarial
testing contemplated by federal sentencing procedure.”).
        It is true, as the government points out, that the district court gave Hamad ample time and
opportunity to respond to this summary. See Br. at 33 (The district court “alerted Hamad to the use
of the sealed information fully two weeks prior to the sentencing hearing.”); id. at 33–34 (“[D]uring
the actual sentencing hearing, the court provided Hamad with a full opportunity to contest the
substance of the information relied upon, as contained in the Mayor’s letter and the summary
No. 05-4196           United States v. Hamad                                                     Page 8


provided by the court.”). But, in this case, no amount of notice and opportunity to respond would
have permitted Hamad to respond to these allegations fairly when only we, and not Hamad, have
seen them.
       It is also true, as the government points out, that the district court offered to reveal the
confidential documents to Hamad’s counsel. Rule 32, however, directs sentencing courts to provide
information to defendants, not just their counsel. See Fed. R. Crim. P. 32(i)(1)(B) (“[T]he court . . .
must give to the defendant . . . a written summary of . . . any information excluded from the
presentence report . . . .”) (emphasis added). And as counsel pointed out in rejecting the offer, there
are some accusations that can be met only with the assistance of the client, and most accusations can
be met only by presenting evidence at the hearing that ultimately would risk disclosing to the client
who the accuser was.
        Two, was this erroneous application of Rule 32 here harmless? See United States v.
Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (“[T]he fact that there was error in . . . sentencing
does not necessarily mean that [defendant] is entitled to resentencing.”). The answer again is no.
The district court to its credit candidly acknowledged that it relied on the confidential documents
in increasing Hamad’s sentence. See JA 97 (district court expressing its intention to make “the
record . . . very clear that [it had] taken into consideration materials that are under seal, and ha[d]
relied upon them in the exercise of [its] discretion within the advisory guideline range”). This
confidential information thus plainly “affect[ed] the district court’s selection of the sentence
imposed.” Hazelwood, 391 F.3d at 801 (internal quotation marks omitted). To this day, moreover,
Hamad has no way of knowing who his accuser is or how to respond to, much less impeach, the
accusations. Compare Hayes, 171 F.3d at 394 (holding that “the letters in this case contain factual
assertions and therefore are not the type of evidence that is ‘essentially irrebuttable’” and that “[w]e
will not insist that Hayes rebut evidence he has never seen in order to establish that he was
prejudiced by the district court’s reliance on that evidence”), with United States v. Meeker, 411 F.3d
736, 742 (6th Cir. 2005) (holding that district court committed harmless error by failing to provide
victim impact letters, relied on at sentencing, to the defendant; “[t]here seems to be little that Meeker
could have done to effectively rebut the heart-wrenching descriptions of his victims’ emotional
distress that were recounted in many of the letters,” and Meeker failed to explain how he could have
done so even though he was given access to the letters on appeal). By any measure, the error was
not harmless.
                                               *****
        Under Rule 32, sentencing courts will not invariably be faced with the stark choice between
obtaining permission to disclose confidential information or ignoring it. Testimony that primarily
describes the impact of a specific instance of a defendant’s behavior upon another’s emotions, for
example, frequently may be described particularly without revealing its source (so long as many
people witnessed the conduct), and at any rate it is the kind of information that, in contrast to the
information presented here, frequently will be “essentially irrebuttable.” Hayes, 171 F.3d at 394
(internal quotation marks omitted). And testimony that a defendant committed a certain act at a
certain time and place can often be described with particularity and exposed to meaningful
adversarial testing without revealing its source (again so long as many people witnessed the
conduct). A review of the sealed documents at issue in this case, however, convinces us of two
things: (1) that the district court’s summary did not give Hamad a meaningful opportunity to contest
the allegations they contained and (2) that any summary that provided such an opportunity would
almost certainly have revealed the documents’ sources. Because Hamad did not, and could not,
“reasonably comment on that information,” Hamad’s sentence violated Rule 32(i)(1)(B).
       In assessing our resolution of this appeal, the reader no doubt wonders what these letters
said. How else to know whether we have handled the case correctly? That curiosity, however, only
No. 05-4196           United States v. Hamad                                                  Page 9


begins to approach what must have been Hamad’s feeling about the matter—how can I argue for a
shorter sentence when I cannot know why unidentified members of the community think I deserve
a longer sentence? If nothing else, reading an opinion premised on letters that the court has seen but
the public has not ought to give the reader a sense of what it was like to be in Hamad’s shoes.
                                                 III.
       For these reasons, we vacate Hamad’s sentence and remand the case to the district court to
resentence Hamad without relying on the sealed documents. As for the suggestion of the amicus
curiae that we require a different district judge (who has not seen the documents) to resentence
Hamad, we entrust Judge Dowd with that decision.
