                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-2484

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

O LLIE P ETERSON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 11 CR 517—James B. Zagel, Judge.



    A RGUED F EBRUARY 27, 2013—D ECIDED M ARCH 28, 2013




  Before F LAUM, S YKES, and T INDER, Circuit Judges.
  F LAUM , Circuit Judge. Defendant Ollie Peterson pled
guilty to one count of bank robbery in violation of
18 U.S.C. § 2113(a) after robbing a bank to pay off a
debt with a drug dealer. During Peterson’s sentencing
hearing, the district court read from a portion of
the probation officer’s confidential sentencing recom-
mendation, which she had submitted only to the court.
At the conclusion of the hearing, the district court sen-
2                                              No. 12-2484

tenced Peterson to 168 months in prison, which fell
within Peterson’s sentencing guidelines range. On
appeal, Peterson argues that the district court’s reliance
on the probation officer’s confidential sentencing recom-
mendation violated his Fifth and Sixth Amendment
rights because he had no opportunity to respond to
the analysis contained therein. Having determined that
Peterson received and had the opportunity to comment
on all facts supporting the probation officer’s analysis
and that Peterson’s counsel presented a comprehensive
sentencing argument on the basis of those facts, we affirm.


                     I. Background
  On August 1, 2011, Peterson robbed a TCF Bank located
in a Jewel-Osco supermarket in Waukegan, Illinois to
pay a drug dealer for drugs he had already ingested.
Peterson left the bank with $1,525 in cash and used part
of the money to pay the dealer who had been waiting
for him nearby in the supermarket. Officers appre-
hended Peterson the same day and a grand jury later
issued an indictment charging him with one count of
bank robbery in violation of 18 U.S.C. § 2113(a). Peterson
pled guilty to the offense on January 6, 2012.
  Prior to sentencing, the parties received a Presentence
Investigation Report (“PSR”) prepared by the probation
officer assigned to the case. Because Peterson had seven
prior convictions for aggravated robbery, the probation
officer determined he was a career offender with a
criminal history category of VI. Together with the ap-
plicable offense level, the PSR specified Peterson’s guide-
No. 12-2484                                             3

lines range for sentencing as 151 to 188 months’ imprison-
ment.
  The probation officer also described Peterson’s
personal and family history. According to the PSR, Peter-
son’s mother raised him in a middle class neighborhood
on the south side of Chicago. Peterson’s father died
when he was nine years old and his mother remarried
a man Peterson labeled a “functioning alcoholic.” Peter-
son’s mother described her son as an obedient child,
expressed her unyielding love and support for him, and
noted that he would always be welcome to return
to her home. Peterson did, however, struggle with sub-
stance abuse. After experimenting with alcohol and
marijuana as a teenager, he began using cocaine when
he was 30 years old. His mother indicated that no one
in their family had known that Peterson was abusing
cocaine and alcohol until he was first convicted of
robbery, and she expressed her belief that Peterson’s
drug use caused his criminal behavior.
  At Peterson’s sentencing hearing on May 25, 2012, the
district court asked whether Peterson and his attorney
had read and reviewed the PSR. Defense counsel acknowl-
edged that they had and asked that two minor correc-
tions be made to its contents. The district court accepted
the changes and then turned to the attorneys for argument.
  During its presentation, the defense highlighted
that Peterson had sustained periods of sobriety, law-
abidingness, and productivity followed by relapses of
substance abuse and criminal conduct. Defense counsel
conceded that Peterson had seven prior robbery convic-
4                                              No. 12-2484

tions, but explained his new motivation to change, as
reflected by his age and his attempt to enter into a
drug treatment program.
  The government focused on Peterson’s criminal history,
and argued that his prior prison sentences had not de-
terred him from committing additional crimes. Given
Peterson’s guidelines range of 151 to 188 months’ impris-
onment, the government suggested that a sentence
within the guidelines would be sufficient to protect
the public and provide Peterson with drug treatment
and other services needed for rehabilitation.
  Following the arguments and Peterson’s brief allocu-
tion, the district court addressed the parties. During its
explanation prior to the imposition of the sentence,
the district court recited a portion of the probation
officer’s report, which the court described as an “observa-
tion” that it believed to be “quite right.” The district
court quoted from page 23 of the PSR,
    [I]n imposing a sentence, the Court must also con-
    sider the defendant’s personal history and character-
    istics. What is extraordinarily troublesome in this
    regard is the defendant Peterson’s history is quite
    different than the typical career offender. He was
    reared in a loving home, albeit without a father,
    in a middle-class neighborhood. According to
    his mother, the defendant was a compliant child
    throughout high school, he was active on the
    football team. Aside from the relatively common
    experimentation with alcohol and marijuana, the
    defendant refrained from harsher drug use until
No. 12-2484                                                 5

   his late 20’s. On the one hand, the first half of the
   defendant’s life was positive, and this could be
   viewed as a mitigating factor.
After concluding the quote, the judge explained that based
on his reading of many PSRs,
   this is not a typical background that defendants
   with this criminal history have. Usually badly
   broken homes, abusive parents, families that don’t
   care, none of which is true in his case. The problem
   is . . . that I’m not sure if that’s a mitigating factor or
   an aggravating factor. And the reason it can be an
   aggravating factor is, many defendants who come
   before me whose early life was deeply troubled are
   claiming that as a mitigating factor, and they have
   a point. Badly raised in bad places does explain
   bad conduct in many cases, or at least give some
   kind of hint as to why it happened.
The judge continued that Peterson had displayed a recur-
ring pattern of being unable to resist drug use to stay out
of prison and noted that he had not learned from his
past experiences. He then concluded that Peterson
would be unlikely to break his cycle of periodic relapse
and recidivism until he was much older and imposed
a sentence of 168 months’ imprisonment. After an-
nouncing the sentence, the judge asked counsel whether
there was “anything further,” to which defense counsel
responded with a question about restitution. After the
court answered that question, it asked again whether
the parties had anything more to address. The attorney
for the government responded, “No, Your Honor,”
and the court went into recess.
6                                             No. 12-2484

  The passage the district court quoted from the PSR
during the sentencing hearing appeared in the proba-
tion officer’s confidential sentencing recommendation
that she submitted only to the court. Neither party
viewed the confidential recommendation prior to,
during, or after the sentencing hearing. And defense
counsel was evidently unaware that a probation officer’s
confidential sentencing recommendation includes a
written justification for the recommended sentence.
  Peterson filed a timely notice of appeal on June 22,
2012, and on August 3, 2012, he filed a motion with the
district court to disclose to the parties the version of
the PSR containing the probation officer’s confidential
recommendation. Peterson stated that the only non-
frivolous issue for appeal related to the district court’s
reliance on the recommendation, noting that it could
have violated Peterson’s right to due process because
he had no opportunity to respond to the arguments
contained therein.
  On September 14, 2012, Peterson filed a supplemental
memorandum in support of his motion, arguing that if
he had been permitted access to the confidential recom-
mendation, counsel could have properly addressed
the district court’s concerns at sentencing. Peterson
explained that on appeal he would be challenging the
recommended sentence, the probation officer’s analysis
contained in the confidential recommendation, and the
lack of opportunity to comment on the probation
officer’s reasoning. The government responded to the
motion, arguing that the precedent in this circuit has
No. 12-2484                                            7

established that confidential recommendations and the
local rule that permits confidential recommendations
do not violate a defendant’s right to due process.
  Ultimately, the district court denied the motion, ex-
plaining that confidential sentencing recommendations
are constitutional and that releasing the confidential
report could influence the candidness of a probation
officer’s recommendation. In so holding, the district
court emphasized that the parties had received all of the
factual information supporting the probation officer’s
analysis about Peterson’s upbringing and criminal
history and explained that it had “quoted the relevant
passage in full so that defense counsel could raise ques-
tions before [the court] imposed [Peterson’s] sentence.”
The district court pointed out that defense counsel made
no objection or suggestion that the quoted passage con-
tained anything more than an opinion drawn from
facts that had been fully revealed in the PSR.


                     II. Discussion
  Peterson’s sole contention on appeal is that the
district court’s reliance on the probation officer’s con-
fidential sentencing recommendation violated his Fifth
and Sixth Amendment rights. He maintains he had no
meaningful opportunity to respond to what he viewed
as an argument in aggravation made secretly to the
district court.
8                                                No. 12-2484

A. Standard of Review
  Generally, the standard of review for constitutional
errors is de novo. United States v. Farris, 448 F.3d 965, 967-
68 (7th Cir. 2006). But here, the government contends
Peterson forfeited his constitutional arguments by not
objecting to the district court’s consideration of the confi-
dential recommendation. In response, Peterson asserts
he had no opportunity to object because he did not learn
of the analysis contained in the confidential portion of
the PSR until the district court’s explanation of the sen-
tence. Even so, we find that Peterson had at least two
additional opportunities to object, and we therefore
limit our review to plain error.
  Unlike waiver, which occurs when a defendant inten-
tionally relinquishes a known right, forfeiture results
from a defendant’s failure to assert his rights in a timely
manner. United States v. Olano, 507 U.S. 725, 733 (1993);
see also United States v. Staples, 202 F.3d 993, 995 (7th Cir.
2000) (“Where waiver is accomplished by intent, for-
feiture comes about through neglect.”). Forfeited claims
are therefore reviewable under a plain error standard.
Olano, 507 U.S. at 733 (explaining that plain error
review applies to the forfeiture of a “constitutional right,
or a right of any other sort” (internal quotation marks
omitted)).
  In United States v. Heilprin, 910 F.2d 471 (7th Cir. 1990),
this court held that plain error review applied where a
defendant contested the probation officer’s authority
to produce a sentencing recommendation and the con-
stitutionality of the federal rule allowing for the confi-
No. 12-2484                                                 9

dentiality of such a recommendation without having
objected to the PSR in the district court. Id. at 474 (de-
scribing the defendant’s conduct as “waiver” but
treating it as forfeiture). There, we explained that the
defendant could have raised his objection to the
to the probation officer’s recommendation before
sentencing, during the sentencing hearing, or in a post-
sentencing motion. Id. Recognizing that the defendant
did not contest the PSR at any of those points, we ex-
plained “[i]t is by now the clear rule in this circuit that
a defendant who has been afforded such opportunities
to raise a sentencing challenge to the district court
must avail [himself] of [those] opportunities, or risk
[forfeiture] of the claim on appeal.” Id.
  Here, Peterson is not objecting to the probation
officer’s authority to produce a recommendation and is
not objecting to a simple numeric recommendation as
to what the sentence should be. Instead, he is objecting
to the probation officer’s inclusion of her explanation,
rationale, or justification as a part of the confiden-
tial recommendation. According to Peterson, he had no
knowledge that the confidential recommendation con-
templated under the federal rules included such analysis.
Although we do not hold Peterson responsible for not
having objected to this portion of the PSR prior to
his sentencing hearing, once he became aware of the
confidential recommendation, Peterson could have ob-
jected to the district court’s consideration of the justifica-
tion during or after the hearing.
  Peterson argues that even if there is “not a law that
says” an attorney cannot object during the imposition of
10                                                No. 12-2484

a sentence, “it would be, at very least, a serious breach
of decorum.” Appellant Br. at 20 n.7. He also suggests
that defense counsel could not have been sure where
the district court was taking its analysis of the proba-
tion officer’s comments before it announced the actual
sentence. Even if this is true, Peterson had the oppor-
tunity to raise an objection that would not have
required interrupting the district judge during his ex-
planation of the sentence. Before concluding the
sentencing hearing and issuing the judgment, the dis-
trict court asked the parties whether there was any-
thing further for the court to address. At that point, the
judge explicitly invited the parties to speak, and defense
counsel could have raised an objection to the court’s
consideration of the confidential recommendation. More-
over, in Heilprin, we recognized that the defendant
could have raised such an objection in a post-sentencing
motion. Heilprin, 910 F.2d at 474.
  Peterson did not avail himself of the opportunity to
object prior to the conclusion of the hearing or in a post-
sentencing motion.1 We therefore conclude that he
forfeited his claims and review the alleged violation for
plain error. We will “correct a plain forfeited error
affecting substantial rights if the error seriously affects
the fairness, integrity, or public reputation of judicial


1
  Here, Peterson filed his post-sentencing motion after filing
his notice of appeal. He did not object to the district court’s
reliance on the confidential recommendation, but instead
asked the district court to compel the probation officer’s
disclosure of the full version of the PSR.
No. 12-2484                                              11

proceedings.” Olano, 507 U.S. at 736 (internal quotation
marks and alterations omitted).


B. Fifth Amendment Challenge
  Peterson first challenges the district court’s considera-
tion of the probation officer’s justification contained in
the confidential recommendation as a violation of his
right to due process under the Fifth Amendment. He
does not contest that the recommendation contained
facts that were not disclosed in the PSR, but argues that
his inability to view the recommendation prior to sen-
tencing prevented him from responding to the probation
officer’s analysis. In his brief, Peterson explicitly frames
his appeal as an as-applied challenge to the district
court’s procedure. He explains that he had no notice
that the court would use the evidence demonstrating
his lack of drug abuse and criminal involvement during
childhood and his supportive family against him.


  1. Confidential recommendations and Local Rule 32.1
  In order to assist district courts in compiling evidence
and fashioning reasonable sentences in criminal cases,
Federal Rule of Criminal Procedure 32 requires probation
officers to conduct presentence investigations and sub-
mit reports of their investigations to the court. See Fed.
R. Crim. P. 32; see also United States v. Veteto, 945 F.2d
163, 166 (7th Cir. 1991) (“The duty of the probation
officer, who acts as an arm of the court, is to compile
information and make a recommendation to the judge.”).
12                                              No. 12-2484

Rule 32 requires the probation officer assigned to a case
to disclose her report to the defendant, the defendant’s
counsel, and the attorney for the government prior to
sentencing, and the district court must ensure that the
defendant and his counsel have read and discussed the
report before imposing the sentence. Fed. R. Crim. P.
32(e)(2); 3 Wright, Fed. Prac. & Proc. Crim. § 528 (4th ed.).
  There are two exceptions to Rule 32’s disclosure re-
quirement. First, subsection (d)(3) allows the probation
officer to exclude from the version of the PSR given to
the defendant any information relating to confidential
sources, diagnoses that could seriously disrupt a rehabil-
itation program, and “any other information that, if
disclosed, might result in physical or other harm to the
defendant or others.” Fed. R. Crim. P. 32(d)(3)(A)-(C).
Second, a court may direct, “by local rule or by order
in a case,” that the probation officer not “disclose to
anyone other than the court the officer’s recommenda-
tion on the sentence.” Fed. R. Crim P. 32(e)(3). At the
time of its enactment, the purpose behind the latter
exception was to allow probation officers the opportunity
to provide a candid assessment of the defendant to
the court and to protect the effectiveness of the probation
officer in the supervisory context. See Fed. R. Crim. P. 32
Advisory Comm. Note (1974) (“Any recommendation as
to the sentence [from the probation office] should not
be disclosed as it may impair the effectiveness of the
probation officer if the defendant is under supervision
on probation or parole.”).
   In line with Rule 32(e)(3), the Northern District of
Illinois has adopted a local rule, which specifies that
No. 12-2484                                                      13

“[t]he recommendation of the presentence report shall
be submitted only to the Court.” LCrR. 32.1(f). The rule
also indicates that “[t]he recommendation section shall
not include any factual information not already con-
tained in the other sections of the report.” Id. The recom-
mendation itself is therefore given to the judge confiden-
tially, but every underlying fact on which the recom-
mendation is based must be disclosed to the parties.
According to a 2002 Committee Comment to Local
Rule 32.1(f), the current language reflects a “long stand-
ing” and “commonly accepted practice” that has “ex-
isted for decades.” LcrR. 32.1(f) Committee Comment
(2002 Amend.).2


2
   The Committee Comment also states that “[a]ll district courts
in this Circuit treat the recommendations as confidential.” LcrR.
32.1(f) Committee Comment (2002 Amend.). This may be true
as a matter of practice, but only four out of the seven district
courts in this circuit appear to have enacted a local rule requir-
ing the confidentiality of the sentencing recommendation in
all cases, see id.; S.D.Ind.L.R. 13.1 (“The sentence recommenda-
tion provided to the court by the probation office will not be
disclosed except to the court.”); SDIL-LR Cr. 32.1(b) (“The
probation officer’s recommendation shall not be disclosed to
either party and shall be sealed separate from the presentence
report following disposition.”); CDIL-LR 32.1(D) (“Unless
otherwise ordered by the presiding judge, the probation
officer’s recommendation on the sentence will not be dis-
closed.”), and one district court explicitly allows each judge
to disclose the sentencing recommendation on a case-by-case
basis, see N.D. Ind. General Order 2001-1, In Re: Presentence
                                                      (continued...)
14                                              No. 12-2484

    2. Due process requirements
  Here, Peterson is not challenging the probation
officer’s authority to submit a confidential recommenda-
tion to the district court, a procedure that courts have
consistently upheld as constitutional. See, e.g., Heilprin,
910 F.2d at 474 (explaining the constitutional propriety
of confidential sentencing recommendations); United
States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir. 1985)
(“Although it is true that the probation officer is adverse
to the defendant in some respects, when the officer is
preparing a presentence report he is acting as an arm of
the court and this permits ex parte communication.”).
Rather, he is suggesting that the probation officer’s expla-
nation, rationale, or justification contained in the con-
fidential recommendation amounts to an argument to
which a defendant has no opportunity to respond.
  “Due process entitles defendants to fair sentencing pro-
cedures, especially a right to be sentenced on the basis
of accurate information.” United States v. Pless, 982 F.2d
1118, 1127 (7th Cir. 1992). Consequently, we have held



2
   (...continued)
Procedures, 13 (1994) (“At the direction of each sentencing
judge, the recommendation may be released to the defendant,
defense counsel and attorney for the government, separate
from the presentence report addendum. The recommenda-
tion shall be returned to the probation department at the end
of the proceedings.”). Neither the Eastern District of Wis-
consin nor the Western District of Wisconsin appears to have
a local rule addressing this issue.
No. 12-2484                                                 15

that if all facts on which the probation officer’s recom-
mendation is based appear in the PSR, the district court’s
consideration of the recommendation at sentencing does
not violate due process. Heilprin, 910 F.2d at 474. In
Heilprin, we explained that a defendant has “no constitu-
tional or statutory right to be informed of the particular
sentencing recommendation made by the probation
office to the district court.” Id.
   In United States v. Baldrich, 471 F.3d 1110 (9th Cir. 2006),
the Ninth Circuit considered a similar challenge to
the constitutionality of Rule 32(e)(3). The defendant in
Baldrich, like Peterson, asserted a violation of his right to
due process and argued that Rule 32(e)(3) is “unconstitu-
tional to the extent it allows withholding of any facts,
analysis, or opinions contained in the sentencing recom-
mendation.” Id. at 1113. The Ninth Circuit pointed out that
the defendant had received all of the underlying facts
on which the confidential recommendation relied and
followed this court and others in concluding that com-
pliance with the requirement to disclose factual infor-
mation satisfies due process. Id. The court did not limit
its holding to the numeric recommendation contained
in the confidential portion of the PSR, but extended it
to cover the probation officer’s reasoning. Id.
  Here, the confidential portion of the PSR that the
district court referenced during sentencing contained
both a numeric recommendation and the probation offi-
cer’s analysis justifying that recommendation. Impor-
tantly, however, all of the underlying factual informa-
tion supporting the probation officer’s rationale is con-
16                                               No. 12-2484

tained in the version of the PSR both parties received
prior to sentencing. Under the precedent in this circuit
and others, Peterson received the process he was due:
he reviewed the PSR and “had an opportunity to refute
its contents before the district court.” Heilprin, 910 F.2d
at 474; see also United States v. Headspeth, 852 F.2d 753, 755
(4th Cir. 1988) (“While a convicted defendant retains a
due process right not to be sentenced on the basis of
materially false or inaccurate information, access to the
sentencing recommendation, which is nothing but a
subjective judgment made on the basis of facts
contained elsewhere in the report, is not necessary to
vindicate that interest.” (internal citations omitted)).
Peterson was aware that the district court could consider
the facts contained in the PSR relating to his personal
and family history, and he should have anticipated that
the district court might disagree with his argument in
mitigation.
  Peterson incorrectly asserts that the Supreme Court’s
reasoning in Gardner v. Florida, 430 U.S. 349 (1977) (plural-
ity opinion), requires a contrary result. The defendant in
Gardner was convicted of first-degree murder and sen-
tenced to death. Id. at 351. Once the case reached the
Supreme Court, it had become clear that a portion of
the PSR on which the sentencing judge had relied had
been designated confidential and had not been disclosed
to defense counsel, which the plurality deemed to be an
error. Id. at 353-54. In reversing the sentence imposed
by the district court, the plurality explained that the
necessity of adversarial debate during the truth-seeking
process demonstrates the “importance of giving counsel
No. 12-2484                                                 17

an opportunity to comment on facts which may in-
fluence the sentencing decision in capital cases.” Id. at
360 (emphasis added).
  Even if the plurality’s decision in Gardner is not limited
to the death penalty context, the Court did not address
the disclosure of a probation officer’s confidential sen-
tencing recommendation. Rather, it held that the
parties should be able to review and comment on
the factual information contained in the PSR, which
could influence the court during sentencing. Id. at 360.
The Gardner decision is therefore consistent with the
cases in this circuit and others holding that due
process requires the full disclosure of all facts on which
the probation officer’s sentencing recommendation relies.
  By ensuring that Peterson received and reviewed all
of the facts referenced in the probation officer’s sen-
tencing recommendation, the district court gave
Peterson all the process he was due, and we therefore
find no Fifth Amendment violation or plain error. The
policy question nevertheless remains whether disclosure
of a probation officer’s sentencing recommendation is
desirable even if not constitutionally compelled. A
blanket rule against disclosure of a probation officer’s
sentencing recommendation, though explicitly endorsed
by several of the district courts in this circuit, is far
from universal. Many district courts favor releasing the
sentencing recommendation to the parties and others
leave disclosure to the district judge’s discretion. See, e.g.,
E.D. Cal., L.R. 460(c) (“A copy of the probation officer’s
proposed presentence report, including the probation
18                                             No. 12-2484

officer’s recommendations, shall be made available to
the United States Attorney’s Office and to defense
counsel not less than thirty-five (35) days before the date
set for sentencing hearing.”); S.D. Ohio Crim. R. 32.1(f)
(“[U]nless otherwise ordered in an individual case, the
Probation Officer’s recommendation, if any, on the appro-
priate sentence shall be disclosed in all copies of the
initial and final presentence report including those fur-
nished to counsel.”); W.D.Mich LCrR 32.2(b) (“The sen-
tencing judge may . . . direct the probation officer not
to disclose the officer’s recommendation on the sen-
tence.”). The American Bar Association Criminal Justice
Section has adopted a standard providing that all rules
of procedure “should prohibit confidential sentencing
recommendations.” ABA Crim. Justice Section: Sen-
tencing, Standard 18-5.7, 3d ed. (1993).
  Concern about an absolute non-disclosure rule stems
from a desire to maintain openness in the sentencing
process. Because so few defendants proceed to trial, the
sentencing hearing is often a defendant’s first and last
opportunity to present argument to the court. And proba-
tion officers play an important role in that process.
We have often explained that a probation officer “acts as
an arm of the court” during sentencing and does not take
on the role of an adversary. Veteto, 945 F.2d at 166;
see also United States v. Rosengard, 949 F.2d 905, 908
(7th Cir. 1991). But we have also urged “district judges,
U.S. Attorneys, and probation officers [to take steps] to
prevent the perception that probation officers are ‘sur-
rogate prosecutors.’ ” United States v. Turner, 203 F.3d
1010, 1014 (7th Cir. 2000). To the extent confidential
No. 12-2484                                                 19

sentencing recommendations create the appearance of
hidden information or a secret tilt in the government’s
favor, we offer the view that our federal sentencing
procedures might be better served by allowing the
parties to evaluate any analysis that might form the
basis of a judicial determination.3
  We do not suggest that district courts should neces-
sarily release confidential sentencing recommendations
in all cases and under all circumstances. But the federal
rules allow courts the opportunity to make these deter-
minations on a case-by-case basis. See Fed. R. Crim.
P. 32(e)(3) (“By local rule or by order in a case, the court
may direct the probation officer not to disclose to any-
one other than the court the officer’s recommendation
on the sentence.” (emphasis added)). If a district court is
concerned about a probation officer’s ability to produce
a forthright assessment because of a potential supervisory
relationship or a case-specific factor, the court could
request that the probation officer submit the sentencing
recommendation to the court confidentially. An order
from the district court requiring confidentiality would
produce the added benefit of informing the defendant
that a confidential recommendation exists, something
that could remain a mystery to defendants when the


3
  This disclosure would exclude any information that falls
within the exception identified in Fed. R. Crim. P. 32(d)(3),
including confidential sources, diagnosis that could disrupt a
rehabilitation program, or “any other information that, if
disclosed, might result in physical or other harm to the defen-
dant or others.” Fed. R. Crim. P. 32(d)(3)(A)-(C).
20                                              No. 12-2484

court does not reference the recommendation during
sentencing. If, on the other hand, no such concerns exist
because of the structure of the probation office or
because of the nature of the case, the district court
could direct that the parties receive all portions of the
PSR, including the probation officer’s sentencing recom-
mendation. This practice could allow the defense an
opportunity to see and comment on the recommenda-
tion and independently confirm that all facts forming
the basis for the recommendation are contained else-
where in the report.
  Because due process does not require disclosure of the
sentencing recommendation, we have conducted an
independent review of the probation officer’s analysis
and can confirm the district court’s conclusion that all
facts on which she based that analysis are contained
in the version of the PSR given to the parties in this case.


C. Sixth Amendment Challenge
  Notwithstanding our concern about rules requiring
the confidentiality of sentencing recommendations, Peter-
son’s Sixth Amendment challenge to the procedure fairs
no better. Peterson contends that his inability to review
and respond to the probation officer’s confidential rec-
ommendation prior to sentencing amounted to a viola-
tion of his Sixth Amendment right to counsel. Specifically,
he argues that the district court’s consideration of his
childhood and family circumstances as a potential ag-
gravating factor was unforeseeable and that his counsel
was unable to address or refute the probation officer’s
No. 12-2484                                                    21

analysis prior to sentencing. Peterson does not assert
that his counsel committed any professional errors.
Instead, he maintains that he was in the same position
he would have been in had he been unrepresented
because his counsel could not respond to arguments
that were not disclosed prior to sentencing.
  Peterson seemingly argues for the application of the
standard articulated in the Supreme Court’s decision in
United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the
Supreme Court recognized that a Sixth Amendment
violation will result if the defendant’s “counsel entirely
fails to subject the prosecution’s case to meaningful
adversarial testing.” Id. at 659. In order for this standard
to apply, however, the attorney’s failure must be
complete, meaning that the defense counsel must have
“failed to oppose the prosecution throughout the sen-
tencing proceeding as a whole.” Bell v. Cone, 535 U.S.
685, 697 (2002).4



4
  Ordinarily, when a defendant challenges a sentence on the
basis of ineffective assistance of counsel, the Strickland
standard will apply. See Bell, 535 U.S. at 697-98 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). A Strickland claim
“has two components: A petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced
the defense.” Wiggins v. Smith, 539 U.S. 510, 511 (2003). Here,
Peterson does not argue that his sentence would have been
different had his counsel received the probation officer’s
recommendation prior to sentencing. Thus, even if he could
show that his counsel’s performance was inadequate, Peterson
                                                    (continued...)
22                                             No. 12-2484

  Here, Peterson’s counsel engaged in a comprehensive
discussion of what he viewed to be the mitigating factors
in the case. He explained that Peterson’s criminal activity
resulted from his drug use and that Peterson had never
used a weapon to commit a robbery. He emphasized
Peterson’s motivation to rehabilitate and argued that
the court should consider his strong support group,
including his family and friends, when fashioning a
sentence. Surely, Peterson’s counsel could have formu-
lated a more tailored response to the district court’s
interpretation of Peterson’s personal background had he
known the probation officer would adopt a different
view of those facts. But there is nothing remarkable
about the probation officer’s gloss on Peterson’s personal
history. And this court has expressed that “[w]hat a
defendant proposes as an argument in mitigation may
sound to the court more like a factor in aggravation.”
United States v. Vasquez-Pita, 411 F. App’x 887, 892 (7th
Cir. 2011) (nonprecedential decision). “That is a risk
inherent in discretionary sentencing,” id., not a basis for
a Sixth Amendment claim.


                     III. Conclusion
  For these reasons, we A FFIRM the sentence imposed
by the district court.


4
  (...continued)
would be unable to make out an ineffective assistance of
counsel claim under Strickland.


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