Appeal from the United States District Court for the District of Nevada. D.C. No. CR-91-00085-PMP. Philip M. Pro, District Judge, Presiding.
Before: Joseph T. Sneed, Arthur L. Alarcon and William C. Canby, Jr., Circuit Judges. Opinion by Judge Alarcon.
Stephen Lewis appeals from his sentence of 170 months for bank robbery in violation of 18 U.S.C. § 2113(a). Pursuant to a plea agreement, Lewis entered a plea of guilty to one count of bank robbery in exchange for the prosecutor's promise that the Government would recommend to the district court that Lewis not be sentenced as a career offender.
Lewis contends that he was deprived of his right to due process because the district Judge assumed the roles of both "advocate and magistrate" in requesting transcripts of Lewis' prior convictions. Lewis further argues that by adopting the recommendation in the presentence report that Lewis be sentenced as a career offender, the district court deprived Lewis of the benefit of his plea bargain.
On April 10, 1991, Lewis was charged in a one count indictment with bank robbery in violation of 18 U.S.C. § 2113(a). Lewis entered into a formal plea agreement with the government in which he agreed to plead guilty to bank robbery in exchange for the government's recommendation that Lewis not be sentenced as a career offender under Sentencing Guideline Section 4B1.1. Because the transcripts of Lewis' prior convictions appeared to be unavailable, the Government agreed to recommend that Lewis not be treated as a career offender.
The probation officer recommended that Lewis be sentenced as a career offender based on his three prior convictions for bank robbery. In making this recommendation, the probation officer stated that she believed that Lewis' prior pleas were constitutional because they were never appealed. On November 21, 1991, the probation office issued an addendum to the presentence report, reiterating the recommendation that Lewis be sentenced as a career offender and stating that the burden was on Lewis to establish that he was not a career offender. After receiving the presentence report and the addendum, the district court ordered the probation officer to locate the transcripts of Lewis' prior pleas so that the court could determine for itself whether those pleas were constitutional. The court continued Lewis' sentencing until December 13, 1991, in order to allow the probation office sufficient time to obtain the transcripts.
On December 13, 1991, the probation officer still had been unable to locate the transcripts. The probation officer indicated that the transcripts of Lewis' 1976 bank robbery conviction had been destroyed, but that she believed that the transcripts from Lewis' 1981 conviction in California, and his 1981 conviction in Nevada could be obtained.*fn1 The district court stated that it had been in contact with the reporters of the Nevada conviction and had directed the reporters to transcribe the notes from the Nevada plea. The matter was continued until February 4, 1992. On February 3, 1992, the probation office informed the court that the transcripts of the 1981 California plea proceedings had been located, but had not yet been transcribed. On February 11, 1992, the probation officer reported that she would need at least another month to obtain the transcript of the California plea.
On February 14, 1991, Lewis objected to a continuance of the sentencing proceeding. He argued that the court had improperly acted as an advocate in using its authority to obtain the transcripts. The district court stated that it had ordered the transcripts because it was important to resolve the issue as to the constitutionality of the prior pleas in order to determine whether or not to adopt the probation officer's recommendation.
By March 30, 1992, the court had obtained transcripts of the 1981 California plea and the 1981 Nevada plea. After reviewing these transcripts, the district court found that Lewis was a career offender and sentenced him to a prison term of 170 months.
Lewis contends that the district court denied him due process by requesting the transcripts of Lewis' prior pleas to determine whether Lewis was a career offender. In particular, Lewis argues that the sentencing guidelines have transformed a sentencing hearing into an adversarial proceeding wherein the Government must sustain its burden of proof as to any material fact relevant to sentencing. Lewis asserts that by ordering the transcripts to determine whether Lewis was a career offender after the parties already agreed not to treat Lewis as a career offender, the court usurped the prosecutor's function.
We review de novo the question whether due process has been violated. United States v. Anderson, 942 ...