                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0459p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 06-3266
          v.
                                                     ,
                                                      >
 RICHARD CHRISTMAN,                                  -
                            Defendant-Appellant. -
                                                    N
                     Appeal from the United States District Court
                    for the Southern District of Ohio at Cincinnati.
                    No. 04-00127—Susan J. Dlott, District Judge.
                                     Argued: March 9, 2007
                            Decided and Filed: November 20, 2007
         Before: BOGGS, Chief Judge; BATCHELDER and GRIFFIN, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: C. Ransom Hudson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee. ON BRIEF: C. Ransom Hudson, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT
UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
    GRIFFIN, J., delivered the opinion of the court, in which BATCHELDER, J., joined.
BOGGS, J. (p. 13), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
         GRIFFIN, Circuit Judge. Defendant-appellant Richard Christman pleaded guilty to two
counts of a superseding indictment, charging him with the possession of materials constituting child
pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced
defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200
special assessment. Defendant now timely appeals, claiming that in determining his sentence, the
district court improperly relied upon extraneous information obtained from ex parte communications
with a probation officer and a pretrial services officer that contradicted record evidence and
information contained in the presentence investigation report.



                                                 1
No. 06-3266           United States v. Christman                                              Page 2


        For the reasons set forth below, we hold that defendant’s sentence was imposed in violation
of Federal Rule of Criminal Procedure 32 (“Rule 32"), which requires that at sentencing, the court
“must allow the parties’ attorneys to comment on the probation officer’s determinations and other
matters relating to an appropriate sentence,” and further states that the court “must – for any
disputed portion of the presentence report or other controverted matter – rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C),
(i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications,
consisting of the probation and pretrial services officers’ subjective impressions that defendant had
acted on his pedophilia and in fact had molested children, not only deprived defendant of his right
to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also
foreclosed any opportunity for defendant to comment on and respond to the information, contrary
to Rule 32(i).
         Because the district court acknowledged three months after the sentencing hearing that were
it not for the information not disclosed to defendant, it would have imposed a lower sentence, the
error was prejudicial. We therefore vacate defendant’s sentence and remand for resentencing.
                                                 I.
        On May 13, 2004, an undercover special agent of the Federal Bureau of Investigation in
Little Rock, Arkansas, used an internet-connected computer to initiate a “Kazaa” search, a software
program that allows peer-to-peer digital file sharing between internet users. The agent initiated the
search using keywords associated with child sexual abuse imagery. As a result, the agent was able
to download, from another computer identified by a specific internet protocol (“IP”) address, child
sexual abuse images that showed minors engaging in various sex acts. The images and still pictures
included some that involved sadistic and masochistic acts, as well as other acts of sexual violence
between minors and children under the age of 12. The agent also downloaded movies from this
other computer, including some showing adult males engaging in various sex acts with children.
       The agent was able to determine that the IP address, from which the images and movies were
downloaded, belonged to defendant Christman. Other FBI agents, operating independently in
Oklahoma, also downloaded child pornography from Christman’s computer using Kazaa-enabled
searches. After independent investigation by the Cincinnati FBI Field Office confirmed the
information that had been forwarded to them from the Little Rock and Oklahoma City FBI offices,
agents sought and received a search warrant for defendant’s residence.
        The warrant was executed on August 5, 2004. FBI agents recovered computer-printed child
sexual abuse images, as well as computers and computer media. The seized items contained more
than 600 images of child pornography. Agents concluded that defendant was involved in file
sharing of child pornography on an international scale; defendant had obtained images from all over
the world, including Brazil and England, and had transported these images via computer files to
other individuals all over the world. The investigation indicated that defendant did not sell or
advertise child pornography, but possessed and transported or shared images internationally strictly
for his personal use.
       On October 20, 2004, a grand jury for the Southern District of Ohio returned a two-count
indictment against defendant, charging him with distribution of child pornography. A six-count
superseding indictment filed on November 17, 2004, charged defendant with four counts of
transporting child pornography using his computer and two counts of possession of child
pornography. A forfeiture allegation was also included in the superseding indictment pursuant to
18 U.S.C. § 2253.
No. 06-3266           United States v. Christman                                                  Page 3


       On January 7, 2005, defendant pleaded guilty, pursuant to a plea agreement, to Counts Five
and Six, possession of materials constituting child pornography, in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2), 18 U.S.C. §§ 2252A(a)(4)(B) and (b)(2), and 18 U.S.C. § 2256(8)(A).
        A final presentence investigation report (“PSR”) was prepared and transmitted to the district
court on May 3, 2005. The PSR identified the base level offense as 15 and added four enhancements
– 2 points because the material involved a minor under 12 years of age; 2 points because a computer
was involved; 4 points because the offense involved material portraying sadistic or masochistic acts;
and 5 points because more than 600 images were involved. Three points were subtracted for
acceptance of responsibility, resulting in a total offense level of 25. In evaluating defendant’s
acceptance of responsibility, the PSR noted that defendant “acknowledged possessing child
pornography, but stated he does not stalk children and would never harm them.” Another portion
of the PSR reiterated that defendant “told agents that he was not addicted to child pornography and
was different from individuals who molested children.” The resultant total offense level of 25,
combined with defendant’s criminal history category I, indicated an advisory Guidelines sentencing
range of 57-71 months.
        At the sentencing hearing held on October 28, 2005, defendant and his counsel advanced
several arguments in support of mitigation of sentence, including defendant’s chronic back pain and
depression and the fact that he acted as caretaker for his elderly ill mother. Counsel for defendant
pointed out that defendant had no criminal history and that there was no evidence that contact with
children had ever occurred or been contemplated by defendant. In this latter regard, defense counsel
submitted to the court a Psychological Assessment Report prepared by psychologist Stuart W.
Bassman, Ed.D., who, at defense counsel’s behest, interviewed defendant to assess his psychological
status. In his report, Dr. Bassman noted defendant’s contention that “his attraction is at purely a
fantasy level and that he would never harm children by acting out sexually against them.” Dr.
Bassman opined that:
       The patient is seen as having pedophilia. Pedophilia involves a sexual attraction to
       prepubescent children that may or may not have been acted upon and which
       attraction or fantasies are distressing to the individual. The patient contends that he
       has never acted on his attraction and fantasies. Nevertheless, because these fantasies
       are present and cause him distress, he meets the criteria for a diagnosis of pedophilia.

       The district court declined to deviate downward from the recommended Guidelines
sentencing range and sentenced defendant to serve concurrent terms of 57 months of incarceration,
ordered defendant to pay a $1,000 fine and $200 special assessment, and further imposed three years
of supervised release. The district court identified the information upon which it relied in imposing
sentence:
       The Court has received the presentence report prepared April 27th, 2005. The Court
       has also received and reviewed the following documents relevant to sentencing:
       One, the psychological assessment report by Dr. Stuart Bassman; two, the
       defendant’s sentencing memorandum filed October 20th, 2005; and, three, a letter
       from defense counsel dated October 20th, 2005 enclosing letters from Richard
       Christman, Mary Christman, Leonard Christman, Jarold Christman, Ron Christman,
       and Eric Blair.
The court allowed defendant to remain out of prison on bond until January of 2006, at which time
he was ordered to voluntarily surrender to authorities.
No. 06-3266          United States v. Christman                                                    Page 4


       On January 25, 2006, the district court convened an in-chambers status conference with
counsel to discuss the following matter before issuance of the judgment and commitment order:
       What I want to make a record of and bring to your attention is that, in addition to
       what’s in the presentence report and included with that I think is the psychiatric
       report and everything that was submitted by the parties, I had discussions that
       counsel was not privy to between myself, a probation officer and a pretrial services
       officer. And that influenced my decision.
       And what they told me was contra to some of the facts in the presentence report.
       They indicated to me that they believed that Mr. Christman had acted on the
       pedophilia, had in fact molested children. That was – and I accepted what they said.
       In hindsight, I realize that that’s totally inappropriate, and I should have not accepted
       what they said. And therefore I based my sentence on information that doesn’t – that
       is opposite of what it states in the presentence report, that is totally counter to the
       presentence report.
(Emphasis added.) The district judge elaborated:
       But I feel awful about this. It was my fault, my fault only, that I listened to hearsay,
       that there was no – there is no basis in fact for that. They had – that was just feelings
       that these two people had. It wasn’t based on anything they had observed or seen
       or done or conversations they had with him. And, in fact, the psychiatric report says
       to the contrary, and so does the presentence report.
       So I think it’s very significant that, you know, when I considered – when I decided
       that he had acted on his pedophilia, I decided to go with the Guidelines. Had I not
       taken that into consideration, I would have given him a much lower sentence.
(Emphasis added.)
     The following colloquy then occurred between the Assistant United States Attorney
(“AUSA”), who was not present at the original sentencing, and the district court:
       AUSA: And I didn’t know if – were these issues brought up at that time [of the
       original sentencing]? It was something that was determined after the fact?
       THE COURT: Before the fact. What happened was I had been contacted, I think,
       by both Probation and Pretrial about this case. And I coincidentally had a meeting
       with both of them at the same time. And it was during that meeting that these
       officers expressed opinions to me that were contrary to what was in the presentence
       report. And instead of giving the parties an opportunity to address that – or what I
       should have done was not considered that, because it wasn’t part of the presentence
       report and it was counter to what counsel thought I was using as a basis for my
       sentencing. I mean, counsel thought I was sentencing on the basis that he had never
       acted on his pedophilia, when, in fact, I was influenced by hearsay to the contrary.

                                                   ***
       I apologize for this. My only explanation was I sentenced 28 people in that week,
       and I was just trying to get ready for a long surgery and a long period out of the
       office. And I didn’t give this the time and thought that I should have.
No. 06-3266               United States v. Christman                                                             Page 5


        After questioning her authority to change the sentence previously imposed,1 the district judge
thereafter entered the judgment of conviction, which reflected the sentence that was announced on
October 25, 2005. This timely appeal followed.
        Defendant now argues, and we agree, that the district court’s reliance upon the undisclosed
ex parte information of dubious accuracy at sentencing violates Rule 32(i) and constitutes error that,
under these particular circumstances, requires vacation of his sentence and remand for resentencing.
                                                           II.
        “A sentencing hearing . . . is not a criminal trial, and many of the constitutional requirements
of a criminal trial do not apply at sentencing.” United States v. Hamad, 495 F.3d 241, 246 (6th Cir.
2007). Thus, it is well established that neither the rules of evidence nor the right to confront
witnesses applies at sentencing. Id.; United States v. Brika, 487 F.3d 450, 457 (6th Cir. 2007).
“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.’). . . .” Hamad, 495 F.3d at 246.
        However, Federal Rule of Criminal Procedure 32, which governs sentencing and judgment,
“contemplates full adversary testing of the issues relevant to a Guidelines sentence. . . .” Burns v.
United States, 501 U.S. 129, 135 (1991). In essence, Rule 32 “protects the right to due process by
requiring disclosure of most information relied upon at sentencing.” United States v. Hayes, 171
F.3d 389, 392 (6th Cir. 1999). As it pertains to the present case, Rule 32 fulfills this function by
mandating that at sentencing, the district court “must allow the parties’ attorneys to comment on the
probation officer’s determination and on other matters relating to the appropriate sentence.” FED.
R. CRIM. P. 32(i)(1)(C). Subsection (i)(3)(B), also pertinent to this appeal, instructs that the court
“must – for any disputed portion of the presentence report or other controverted matter – rule on the
dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing,
or because the court will not consider the matter in sentencing[.]”
       In conjunction with Rule 32, U.S.S.G. § 6A1.3, Resolution of Disputed Factors, provides as
follows:
         (a) When any factor important to the sentencing determination is reasonably in
         dispute, the parties shall be given an adequate opportunity to present information to
         the court regarding that factor. In resolving any dispute concerning a factor
         important to the sentencing determination, the court may consider relevant
         information without regard to its admissibility under the rules of evidence applicable
         at trial, provided that the information has sufficient indicia of reliability to support
         its probable accuracy.
         (b) The court shall resolve disputed sentencing factors at a sentencing hearing in
         accordance with Rule 32(i), Fed. R. Crim. P.
      “U.S.S.G. § 6A1.3(a) does establish a minimum indicia-of-reliability standard that evidence
must meet in order to be admissible in Guidelines sentencing proceedings.” United States v.


         1
          See generally, FED. R. CRIM. P. 35 and 36; United States v. Strozier, 940 F.2d 985, 987 (6th Cir. 1991)
(“[O]nce the sentence has become a final non-appealable order, the district court may no longer amend or modify a
sentence without violating defendant’s due process rights. Further, the power of a district court to amend a sentence only
extends to a situation where the district judge has misapplied the Sentencing Guidelines, not to situations where he
simply changes his mind about the sentence.”) (citation omitted).
No. 06-3266          United States v. Christman                                                Page 6


Moncivais, 492 F.3d 652, 658 (6th Cir. 2007). Thus, pursuant to § 6A1.3, “the district court is
obligated to rely on reliable evidence at sentencing.” Brika, 487 F.3d at 457.
         We have interpreted U.S.S.G. § 6A1.3 and Rule 32 to allow a district court to consider
hearsay evidence in sentencing so long as such evidence has sufficient or minimally adequate indicia
of reliability and the defendant has an opportunity to rebut such evidence that he perceives is
erroneous. See Moncivais, 492 F.3d at 657-59 (proffer statement of coconspirator contained
sufficient indicia of reliability to be admissible at sentencing); Brika, 487 F.3d at 457-58
(confessions of other persons involved in offense, corroborated by other evidence, deemed
sufficiently reliable to permit their consideration as hearsay evidence at sentencing in determining
whether enhancement for being leader or organizer was appropriate); United States v. Hunt, 487
F.3d 347, 352 (6th Cir. 2007) (citing U.S.S.G. § 6A1.3 and holding that hearsay statements of
coconspirators that the defendant was a cocaine supplier were supported by sufficient indicia of
reliability to be considered at sentencing); United States v. Silverman, 976 F.2d 1502, 1512-13 (6th
Cir. 1992) (en banc) (statements from coconspirator and confidential informant held sufficiently
reliable for sentencing purposes).
        We have, in several cases, addressed the procedural notice requirements of Rule 32 and the
concomitant opportunity to respond that must be afforded to a defendant when a sentencing court
relies upon undisclosed evidence. In United States v. Patrick, 988 F.2d 641 (6th Cir. 1993), the
defendant alleged that the sentencing judge improperly relied on information obtained from a
codefendant’s plea hearing in adopting the probation department’s recommendation that an offense
level be adjusted upward to reflect the defendant’s role as a leader or organizer in the charged
offense of marijuana trafficking. The defendant argued that he was not given an adequate
opportunity to challenge this evidence, mentioned by the court for the first time at the sentencing
hearing. The defendant further maintained that had the codefendant’s testimony not been
considered, the evidence of record would have been insufficient to support a finding that he was a
“leader” as defined in the Guidelines.
       We concluded that any error on the part of the district court was harmless because, first,
“other evidence already before the sentencing judge and a part of the presentence record fully
supported the judge’s ultimate finding that Patrick’s role was that of a leader,” and
       [s]econd, and more importantly, advance notice of the potential for reliance upon the
       evidence to which Patrick objects would not have provided Patrick with any
       additional incentive or ability to challenge the accuracy of the evidence. To the
       extent that the sentencing judge relied on Carmack’s testimony that he worked for
       Patrick, this evidence was cumulative, because Patrick himself admitted the
       existence of the employment relationship during earlier testimony.
                                                  ***
       Patrick was aware that his role in the offense would be at issue, and was presumably
       prepared to challenge the probation department’s recommendation at the sentencing
       hearing. Under such circumstances, Patrick already had an adequate incentive to
       present any evidence or arguments he could that would contradict the inference that
       he was a leader. Where the evidence upon which the sentencing court relies without
       previously notifying the defendant is of the same character, allows the same
       inferences, and, most importantly, is subject to the same arguments in rebuttal as
       evidence in the record of which the defendant is already aware, it seems logical to
       conclude that advance notice would not give the defendant any additional incentive
       or ability to challenge the evidence. Accordingly, we hold that, because advance
       notice would not have given Patrick any increased incentive or ability to introduce
No. 06-3266                United States v. Christman                                                               Page 7


         evidence or make arguments in rebuttal, the sentencing court’s failure to provide
         advance notice of its intention to rely on matters outside the record constitutes
         harmless error.
Patrick, 988 F.2d at 648-49 (emphasis added) (citations omitted).
       We noted that our decision in Patrick “stands in some tension” with United States v. Berzon,
941 F.2d 8 (1st Cir. 1991), but found Berzon to be “sufficiently dissimilar to merit different
treatment”:
         In Berzon, the defendant learned as the sentencing court announced its ruling that the
         court was possibly relying on evidence that was neither contained in the record nor
         even similar to any that was. The First Circuit ruled that, under such circumstances,
         the case had to be remanded to the sentencing court for a determination of whether
         the court had relied on extraneous information. Here, although Patrick was not
         notified in advance of the sentencing hearing of the potential for reliance upon
         extraneous information, he was at least so informed at the hearing, and he was given
         an opportunity to address the evidence prior to the ruling on the issue. Furthermore,
         there is no indication that the extraneous evidence relied upon in Berzon was of the
         same character as other evidence already contained in the record, an important
         consideration in this case. Accordingly, we decline to follow Berzon, and we affirm
         the sentencing court’s decision to overrule Patrick’s objection to the presentence
         report’s recommendation that two points be added to the offense level to reflect
         Patrick’s role in the offense.
988 F.2d at 649.2
        Subsequently, in United States v. Hayes, we held that the district court’s express reliance
upon previously undisclosed victim impact letters in imposing the maximum sentence permitted
under the Guidelines for defendant’s bank robbery    and firearm convictions constituted plain error
that affected the defendant’s substantial rights.3 Hayes, 171 F.3d at 395. Characterizing the district
court’s reliance on the undisclosed evidence as “far more apparent . . . than it was in Patrick,” id.
at 392, we concluded:

         2
            In Berzon, the defendant contended that the district court improperly resolved the disputed sentencing issue
of his role as a leader or organizer in a narcotics ring and made an upward adjustment of his base level offense in reliance
upon a drug enforcement agent’s prior testimony at a codefendant’s sentencing hearing, without notifying the defendant
that such testimony regarding his role in the offenses had been given or was being considered for sentencing purposes.
The defendant alleged that the sentencing court thus violated Rule 32 and U.S.S.G. § 6A1.3, as well as his constitutional
rights. The Berzon court concluded that “notwithstanding the wide scope of the sentencing court’s discretion, a
defendant may not be placed in a position where, because of his ignorance of the information being used against him,
he is effectively denied an opportunity to comment on or otherwise challenge material information considered by the
district court.” Berzon, 941 F.2d at 21. The Berzon court emphasized that “a defendant must be provided with a
meaningful opportunity to comment on the factual information on which his or her sentence is based,” id. at 10, but
added, “we do not suggest that the district court was not entitled to hear the testimony at [the codefendant’s] sentencing,
and, thereafter, consider it when sentencing Berzon. All the sentencing court need to have done, in such event, was to
timely advise Berzon in advance of sentencing that it heard or read, and was taking into account, that testimony, thus
enabling him to respond to it before the sentence was set.” Id. at 21. Because it was unclear from the record whether
the district court in fact had relied on the undisclosed information, the Berzon court did not order resentencing, but rather
remanded to the sentencing judge with directions that he indicate in the record whether he materially relied on the
information in sentencing the defendant. Id. at 10. Resentencing by a different judge was called for only if the court
indicated affirmatively that it relied on the undisclosed information.
         3
          Because the defendant failed to object at the sentencing hearing to the district court’s use of the letters in
determining his sentence, we analyzed his appeal pursuant to Federal Rule of Criminal Procedure 52(b), which allows
the review of plain errors despite the appellant’s failure to object. Hayes, 171 F.3d at 391.
No. 06-3266           United States v. Christman                                                  Page 8


       Rule 32 requires that except in certain limited circumstances, see, e.g., Rule 32(b)(5),
       the defendant must have the opportunity to review information that will be used for
       sentencing. Though Rule 32(b)(6) only expressly deals with the right to review the
       presentence investigation report, the right to review other information relied on by
       a court at sentencing is implicit in the adversarial scheme created by Rule 32 and in
       the requirement of [former] Rule 32(c)(1) [now subsection (i)(1)(C)] that both
       counsel for the defendant and the government must be provided “an opportunity to
       comment on the probation officer’s determination and on other matters related to the
       appropriate sentence.” Even when it is necessary to exclude information from the
       presentence report for reasons of confidentiality, the sentencing court must
       summarize in writing any information upon which it relies, and the defendant must
       have “a reasonable opportunity to comment on that information.” FED. R. CRIM. P.
       32(c)(3)(A) [as amended, now Rule 32(i)(1)(B) (2002)].
                                                   ***
       [W]e presume that criminal defendants are generally entitled to notice of the
       evidence against them. We do not agree that information furnished directly to the
       court that is utilized at sentencing is not required to be disclosed under Rule 32
       merely because it was “not made part of the presentence report.” [United States v.
       Curran, 926 F.2d 59, 61 (1st Cir. 1991)]. Holding that the requirements of Rule 32
       apply only to what the court designates as the “presentence report” would be
       contrary to Burns, which held that Rule 32 applies to the district court’s mere
       intention to depart from the Guidelines. Evidence used at sentencing may not be
       kept from the defendant simply by failing to incorporate it into the presentence
       report.
Id. at 392-93.
        We noted that in contrast to the circumstances in Patrick, where the extraneous evidence was
largely cumulative, “essentially irrebuttable,” and the defendant knew in advance that the issue of
his role in the offense was a possible ground for enhancing his sentence, the defendant in Hayes had
no notice that the victim impact letters would be a factor at his sentencing hearing. Id. at 394-95.
Thus, because the “use of undisclosed evidence against a criminal defendant, without the safeguards
of Rule [32], is the type of error that may undermine the fairness of a proceeding and that certainly
tarnishes the public reputation of judicial proceedings,” we vacated the defendant’s sentence and
remanded for resentencing within the already-determined Guidelines range. Id. at 395.
        In United States v. Meeker, 411 F.3d 736 (6th Cir. 2005), we addressed the issue of a district
court’s reliance upon undisclosed victim impact letters in imposing an upward departure from the
recommended sentencing Guidelines range for the defendant’s fraud convictions. At the sentencing
hearing, the district court for the first time mentioned the letters in explaining why it had concluded
that the crime was “a special or unusual case” that warranted an upward departure. Id. at 740. At
no point during the hearing, however, did defense counsel object to the district court’s consideration
of the undisclosed letters.
        On appeal, the defendant argued that the district court committed plain error in relying on
the undisclosed victim letters, in violation of Rule 32(i)(1)(C). Citing our previous decision in
Hayes, we held that the district court’s failure to provide these letters to the defendant prior to the
sentencing hearing violated the requirements of Rule 32 and thus constituted plain error. Meeker,
411 F.3d at 741. However, we concluded further that the defendant’s substantial rights were not
affected by this error because he failed to demonstrate prejudice. Not only was there additional
evidence of record to forewarn the defendant that the sentencing court would consider the impact
No. 06-3266               United States v. Christman                                                            Page 9


of his crime, i.e., the PSR contained a five-page list of the victims’ names and the enormous sums
of money lost as a result of the defendant’s massive mail fraud scheme, id. at 743, but moreover,
         [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. Because this evidence was “essentially irrebuttable,” Hayes, 171
         F.3d at 394, even if it had been disclosed to him in advance of his sentencing
         hearing, Meeker can show no prejudice warranting correction under Rule 52(b).
Id. at 742.4
        Most recently, in Hamad, we addressed the question of “[w]hat 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?” Hamad, 495 F.3d at 241. The defendant, who pleaded guilty to the offenses of being
a felon in possession of a firearm and failure to register a shotgun with a barrel shorter than 18
inches, alleged on appeal that the district court violated Rule 32(i)(1)(B), which provides that a
sentencing court must give the parties a written summary of, or summarize in camera, any
confidential 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.” FED. R.
CRIM. P. 32(i)(1)(B). At the sentencing hearing, the district court candidly acknowledged that it
relied on confidential documents alleging that the defendant was a dangerous person in increasing
his sentence within the recommended Guidelines range.
        Although the district court provided the defendant with a written summary of the confidential
information, we concluded that the summary did not disclose sufficient information to allow the
defendant a meaningful opportunity to contest the allegations and that any summary that provided
such an opportunity would have revealed the documents’ sources. Consequently, “[b]ecause Hamad
did not, and could not, ‘reasonably comment on that information,’ Hamad’s sentence violated Rule
32(i)(1)(B).” Hamad, 495 F.3d at 251. We therefore vacated the defendant’s sentence and
remanded the case to the district court for resentencing without reliance on the sealed documents.
In doing so, we noted the tension between the two central policies underlying Rule 32 – on the one
hand, to maximize the amount of information available to a sentencing court and, on the other hand,
to protect a defendant’s right to due process – and, “adopt[ing] the construction that avoids the
constitutional question,” id. at 249, we concluded that “[b]ecause the escalation of a sentence based
on undisclosed evidence raises serious due process concerns, we construe [Rule 32] to require a
sentencing court either to disclose sufficient details about the evidence to give the defendant a
reasonable opportunity to respond or, failing that, to refrain from relying on the evidence.” Id. at
241.
        In the instant case, the Government argues that, although the district court should have
disclosed its ex parte conversation with the probation and pretrial services officers to the parties
before sentencing, its failure to do so is not error warranting resentencing. The Government
maintains that the present circumstances differ from Hayes in several important respects. Chief
among these differences is the fact that the communication in this case was not between the court
and third-party victims or witnesses, but rather occurred between the court and its own officers. The
Government argues accurately that “it is not improper for the court to hold presentence conferences
with the probation staff,” United States v. Story, 716 F.2d 1088, 1090 (6th Cir. 1983), because
“[d]uring these nonadversarial communications, the court confers with its own agent in the absence

         4
            We ultimately vacated the defendant’s sentence and remanded for resentencing in light of the district court’s
error in relying upon judge-found facts to impose sentence enhancements, contrary to United States v. Booker, 543 U.S.
220 (2005). Meeker, 411 F.3d at 746.
No. 06-3266           United States v. Christman                                              Page 10


of the defendant or any representative of the prosecution.” United States v. Johnson, 935 F.2d 47,
50 (4th Cir. 1991). Indeed, “Federal Rule of Criminal Procedure 32 recognizes several
circumstances under which a probation officer may communicate ex parte with the sentencing court
through the presentence report without disclosure of the substance of these communications. . . .
For example, a probation officer’s final sentence recommendation, diagnostic opinions, and
confidential or sensitive information need not be disclosed.” Id. at 51. See FED. R. CRIM. P. 32(d)(3)
(requiring exclusion from the presentence report of confidential, diagnostic or other information that
might result in harm to the defendant or others if disclosed); 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 anyone other
than the court the officer’s recommendation on the sentence.”).
        In Johnson, the court approved ex parte presentence conferences between the district court
and probation officers, rejecting the defendant’s challenge that such contact violated the defendant’s
constitutional rights to counsel and confrontation. The Johnson court noted that “[t]hroughout the
process of interviewing a defendant, preparing a presentence report, and discussing the report during
a presentence conference with the court, a probation officer continues to be a neutral, information-
gathering agent of the court, not an agent of the prosecution.” Johnson, 935 F.2d at 49-50. The
Johnson court recognized, however, that the parameters of a court’s acceptable ex parte
communications with a probation officer are tempered by the constraints of the Guidelines
sentencing scheme and the requirements of Rule 32:
       Guidelines sentencing has formalized the sentencing process by requiring the
       sentencing judge to make specific findings of fact and articulate reasons for a
       particular sentence in open court. See U.S.S.G. § 6A1.3, comment (Nov. 1990); see
       also United States v. Belgard, 894 F.2d 1092, 1099 (9th Cir. 1990) (result of
       guidelines sentencing is that “defendants may have actually acquired more due
       process than they had before.”). While courts are entitled to consider without
       limitation any “information concerning the background, character, and conduct of
       a person convicted of an offense,” 18 U.S.C. § 3661 (West 1985), sentencing
       guidelines mandate that a sentence be based upon objective factors supported by
       reliable evidence. U.S.S.G. § 6A1.3, comment. These factors include, among others,
       aspects of a defendant’s underlying offense conduct, role in the offense, criminal
       history, and acceptance of responsibility. See generally U.S.S.G. § 1B1.1. In
       conjunction with Federal Rule of Criminal Procedure 32(c)(3)(D), the guidelines
       further require that if a defendant alleges any factual inaccuracy in the presentence
       report, the court shall make factual findings regarding the disputed issue or
       determine that no factual finding is necessary because the contested information will
       not affect the sentence. See U.S.S.G. § 6A1.3, p.s.; see also United States v. Walker,
       901 F.2d 21 (4th Cir. 1990). In comparison to the former sentencing regime,
       guidelines sentencing significantly diminishes the conceivable impact of ex parte
       communications from a probation officer to a sentencing court.
                                                   ***
       The function of a probation officer is to provide the sentencing judge with as much
       information as possible to enable the court to make a just and informed sentencing
       decision. We will not presume that a probation officer will act improperly. Further,
       we rely upon the integrity of district court judges and trust their ability to disregard
       any attempt to impermissibly influence a sentencing decision. Belgard, 894 F.2d at
       1099. The resolution of disputed sentencing issues, and indeed, the determination
       of an appropriate sentence in all respects, remains the exclusive province of the trial
       judge who exercises independent and impartial judgment in arriving at final sentence
       determinations.
No. 06-3266                United States v. Christman                                                            Page 11


Id. at 50-51.5
         Here, in sentencing defendant, the district court, by its own admission, relied upon the
subjective impressions of the court officers that defendant had acted on his pedophilia and in fact
had molested children. According to the judge, this information was no more than “just feelings that
these two people had. It wasn’t based on anything they had observed or seen or done or
conversations they had with [defendant].” The district court did not reveal its reliance upon this
information until almost three months after sentencing. The Government suggests that the ex parte
communication was harmless: “Terming the subject of this conference ‘undisclosed information’
is actually somewhat inapt, since the court officers merely supplied their own subjective feelings,
which, as the district court recognized, were not based on any additional, undisclosed observations
of or conversations with Christman or anyone else. As such, the conference did not include any
information that was contrary to any fact or recommendation in the Presentence Report.” However,
it is precisely this type of unsubstantiated insinuation – of questionable accuracy and reliability –
that the strictures of Rule 32 and U.S.S.G. § 6A1.3 are designed to screen in the sentencing process.
        Moreover, unlike the undisclosed evidence in Patrick, the subjective impressions of the court
officers cannot be characterized as evidence that is cumulative, “essentially irrebuttable,” or of the
same character as other evidence already contained in the record. Hayes, 171 F.3d at 394. Instead,
the officers’ “feelings” contradicted directly not only defendant’s statements to investigating officers
and the probation officer, as recorded in the PSR, that “he does not stalk children and would never
harm them” and that he was “different from individuals who molested children,” but also his
insistence to Dr. Bassman that “his attraction is at purely a fantasy level and that he would never
harm children by acting out sexually against them,” and Dr. Bassman’s resultant diagnosis that
although defendant met the criteria of a pedophile, his sexual attraction to children was confined to
the realm of fantasy. Most significantly, there is no evidence in the record that pedophiliac contact
between defendant and children ever had occurred.
        The circumstances in this case are unique. Because the district court did not disclose to the
parties until almost three months after sentencing at a status conference that it had relied upon the
vague impressions of the court officers in rendering the sentence, it was impossible for defendant
to respond meaningfully to the extraneous information and to “comment on the probation officer’s
determinations   and other matters relating to an appropriate sentence,” a clear violation of Rule
32(i)(C).6 As we emphasized in Hayes, “[e]vidence used at sentencing may not be kept from the
defendant simply by failing to incorporate it into the presentence report.” Hayes, 171 F.3d at 393.
As a consequence of the district court’s error, defendant’s entitlement to a ruling on what
unquestionably would have been a “controverted matter” at sentencing was wrongly denied. FED.
R. CRIM. P. 32(i)(3)(B). This error is compounded by the district court’s failure to evaluate the
extraneous information, in accordance with U.S.S.G. § 6A1.3(a), to ascertain whether it “has
sufficient indicia of reliability to support its probable accuracy.” To the contrary, the district court’s
own description of the ex parte communications clearly shows that the probation and pretrial
services officers’ “gut feelings” had no basis in the record and therefore should not have been
considered.



         5
           See also United States v. Espalin, 350 F.3d 488, 495-96 (6th Cir. 2003) (Lawson, D.J., concurring) (observing
that when a probation officer mischaracterizes relevant facts or excludes or ignores competing arguments, “even then,
the adversary system contains safeguards that protect the defendant’s interest in bringing forth facts that give an accurate
picture to the sentencing judge.”) (citing Rule 32(f)(1) and (i)(1)(C)).
         6
          Federal Rule of Criminal Procedure 51(b) provides in pertinent part that “If a party does not have an
opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”
No. 06-3266            United States v. Christman                                                 Page 12


        The effect of the district court’s error on defendant’s sentence is clear. The Government
asserts that there is no indication that defendant’s sentence would have been different had the
extraneous information been disclosed prior to sentencing, particularly in light of the fact that at the
sentencing hearing, defendant presented, and the court heard, argument regarding defendant’s
proclivity, or lack thereof, toward harming children, and imposed a reasonable sentence at the
bottom of the recommended Guidelines range.
        However, the district court declared on the record that “[h]ad I not taken that into
consideration, I would have given him a much lower sentence.” We cannot ignore this statement.
“Under the harmless error test, a remand for an error at sentencing is required unless we are certain
that any such error was harmless – i.e., any such error ‘did not affect the district court’s selection
of the sentence imposed.’” United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)). In light of the district court’s unequivocal
declaration that the error affected defendant’s sentence, the error cannot be considered harmless and
a remand for resentencing is therefore required. Id.
        As we have noted, at the sentencing hearing defendant presented the district court with
numerous reasons why a downward variance in his sentence was arguably warranted pursuant to
United States v. Booker, 543 U.S. 220 (2005). It is within the district court’s purview to reconsider
these arguments upon remand.
                                                   III.
         In remanding this matter, we note that “in the last analysis the trial judge is the filter between
the recommendation of the probation officer and the sentence actually imposed.” Espalin, 350 F.3d
at 490. We are “rel[iant] upon the integrity of district court judges and trust their ability to disregard
any attempt to impermissibly influence a sentencing decision.” Johnson, 935 F.2d at 51. Here, the
district judge suffered a lapse of judgment in this regard. Although the judge acknowledged
belatedly her mistake and brought it to the attention of the parties, the situation left no recourse but
the present appeal to this court, which could have been avoided had the familiar requirements of
Rule 32 and U.S.S.G. § 6A1.3 been observed.
       For the foregoing reasons, we vacate defendant’s sentence and remand for resentencing
without reliance upon the information obtained ex parte from the probation and pretrial officers.
No. 06-3266              United States v. Christman                                                        Page 13


                                               _______________
                                                  DISSENT
                                               _______________
        BOGGS, Chief Judge, dissenting. This case presents a disturbing set of circumstances and
a genuine conundrum as to the proper legal resolution. The district judge, several months after
sentencing and well after any time for possible correction of the sentence under Rule 35 had passed,
indicated on the record that she felt she had made an error in judgment in her sentencing, by
sentencing within the guideline range rather than granting a substantial downward variance. Such
a feeling is certainly not a unique circumstance among all of the thousands of sentences that occur
in federal courts each year.
        The judge further indicated that this error occurred, at least in part, as a result of
conversations she had with a probation officer and pretrial services officer, who conveyed their
“feelings,” not “anything they had observed or seen or done or conversations they had with
[defendant].” Under these circumstances, although I appreciate the judge’s feelings of remorse, I
cannot agree that the judge committed legal error, or should be permitted to alter her sentence at a
time when such an alteration would otherwise be barred. I therefore respectfully dissent.
        A judge is not barred from discussing a presentence report with probation or pretrial court
employees, any more than with a judge’s own law clerks. While it would generally be improper for
a judge to rely on actual fact-related statements from either source, such as a claim that the clerk or
employee had witnessed certain conduct by defendant, a discussion of the import of the record is no
more than an extension of the judge’s own thought processes. Had the judge concluded in her own
mind that defendant likely had acted on his sexual fantasies, I don’t think anyone would maintain
that the judge could come back months later and simply change her mind.
        I do not see that the judge’s assessment of a plea for leniency in the form of a downward
variance is a “controverted matter” under Rule 32(i)(3)(B). It does not constitute a ruling of fact or
law that affects the offense level or criminal history category. I see no authority that a judge must
rule separately, as a “controverted matter” on all claims (individually or collectively) that might be
made by either side in a general plea for a greater or lesser sentence. The imposition of a sentence
that properly considers the factors under 18 U.S.C. § 3553(a) adequately rules on whether a variant
sentence is justified.
        Because “sentencer’s remorse” is a significant possibility with district judges, especially in
light of the very severe limitations on alterations under the current Rule 35(b)1, I am quite hesitant
to open the potential loophole that is created by this opinion. While the circumstances of this
particular case might be unique, the principle established opens the way for remorseful district
judges to alter sentences long after the permitted time. It also opens an avenue for attack on
sentences by claims, well-founded or not, that a judge had (or “must have had”) communications
with members of the court family (clerks and pretrial and probation officers) that led to a judge’s
exercising poor judgment in sentencing.
       While I recognize that this case presents quite unusual facts (at least in the judge’s
recantation, whether or not in the judge’s discussions), I am reluctant to embrace the principle
embodied in the majority opinion, and I therefore respectfully dissent.



        1
          Prior to 1987 and the amendment of Rule 35(b) by Pub. L. 98-473, § 215, 98 Stat. 1837, 2016 (1984), a judge
could reduce a sentence within 120 days of imposition.
