What is appellant's case law and what is the basis for her claim that a judge denied her due process at her sentencing?

MultiRegion, United States of America

The following excerpt is from U.S. v. Kaplan, 570 F.2d 71 (2nd Cir. 1978):

On the due process issue, appellant's principal complaint is that the sentencing judge gave insufficient consideration to appellant's alleged rehabilitation since his arrest, as evidenced by his steady employment in a responsible job for six months before sentencing and his involvement in the Sivananda Yoga Center. Thus, appellant complains that the probation officer did not visit him at his job or at the Yoga Center and that the judge, at the sentencing, did not seek the oral report of a Pre-Trial Services Officer, as suggested by appellant. The judge, however, was made aware of appellant's improved conduct since his arrest. The real complaint obviously is that the judge did not give appellant's claimed rehabilitation the weight appellant feels it demanded, a matter not our province to determine. Appellant also contends that the judge denied him due process because of a "fixed and mechanical approach," see United States v. Schwarz, 500 F.2d 1350, 1352 (2d Cir. 1974), and because the judge relied on misinformation regarding defendant's criminal record. The former claim is not borne out by the record, and the latter exaggerates the import of what was essentially a matter of semantics.

Page 72

With regard to the need for a further hearing, appellant argues that the court improperly relied upon a pre-sentence report that grossly exaggerated his transactions in narcotics. It is true that we have indicated that in some circumstances we might "require further corroboration of the (pre-sentence) report even though the sentencing judge thought it unnecessary," see United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973). But we referred there to a case "where defendant denied everything and there was a chance that an entire incident had been manufactured or that serious charges in the pre-sentence report . . . were completely false . . . ." Id. This case comes nowhere close to that situation. Appellant was given every opportunity to present his version of the facts recounted in the presentence report and his only flat factual denial was accepted by the Judge. We do not suggest that the judge would have erred had he pressed the Government for further information, cf. United States v. Fatico, 441 F.Supp. 1285 (E.D.N.Y.1977), but he did not abuse his discretion by failing to do so.

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