Common use of United States x Clause in Contracts

United States x. Xxxxxx-Xxxxxxx, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant’s late request to introduce rebuttal evidence by way of cross-examination). Subdivision (c)(1) (formerly subdivision (c)(3)(D)) in- dicates that the court need not resolve controverted matters which will ‘‘not be taken into account in, or will not affect, sentencing.’’ The words ‘‘will not af- fect’’ did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sen- tence even if the sentencing range were changed. The provision for disclosure of a witness’ statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise ex- cluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendant’s counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the in- formation is presented, the defendant and the defend- ant’s counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo con- tendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sen- tence imposed. Subdivision (d). Subdivision (d), dealing with entry of the court’s judgment, is former subdivision (b). Subdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was formerly subdivision (d). Both provisions remain the same except for minor stylistic changes. Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. NOTES OF ADVISORY COMMITTEE ON RULES—1996 AMENDMENT Subdivision (d)(2). A provision for including a verdict of criminal forfeiture as a part of the sentence was added in 1972 to Rule 32. Since then, the rule has been interpreted to mean that any forfeiture order is a part of the judgment of conviction and cannot be entered be- fore sentencing. See, e.g., United States x. Xxxxxxxxx, 772 X.Xxxx. 440 (X. Xxxx. 1990). Delaying forfeiture proceedings, however, can pose real problems, especially in light of the implementa- tion of the Sentencing Reform Act in 1987 and the re- sulting delays between verdict and sentencing in com- plex cases. First, the government’s statutory right to discover the location of property subject to forfeiture is triggered by entry of an order of forfeiture. See 18 U.S.C. § 1963(k) and 21 U.S.C. § 853(m). If that order is de- layed until sentencing, valuable time may be lost in lo- cating assets which may have become unavailable or unusable. Second, third persons with an interest in the property subject to forfeiture must also wait to peti- tion the court to begin ancillary proceedings until the forfeiture order has been entered. See 18 U.S.C. § 1963(l) and 21 U.S.C. § 853(m). And third, because the govern- ment cannot actually seize the property until an order of forfeiture is entered, it may be necessary for the court to enter restraining orders to maintain the status quo. The amendment to Rule 32 is intended to address these concerns by specifically recognizing the author- ity of the court to enter a preliminary forfeiture order before sentencing. Entry of an order of forfeiture before sentencing rests within the discretion of the court, which may take into account anticipated delays in sen- tencing, the nature of the property, and the interests of the defendant, the government, and third persons. The amendment permits the court to enter its order of forfeiture at any time before sentencing. Before en- tering the order of forfeiture, however, the court must provide notice to the defendant and a reasonable oppor- tunity to be heard on the question of timing and form of any order of forfeiture. The rule specifies that the order, which must ulti- mately be made a part of the sentence and included in the judgment, must contain authorization for the At- xxxxxx General to seize the property in question and to conduct appropriate discovery and to begin any nec- xxxxxx ancillary proceedings to protect third parties who have an interest in the property. CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT Section 230101(a) of Pub. L. 103–322 [set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure] provided that the amendment proposed by the Supreme Court [in its order of Apr. 29, 1994] affect- ing rule 32 of the Federal Rules of Criminal Procedure [this rule] would take effect on Dec. 1, 1994, as other- wise provided by law, and as amended by section 230101(b) of Pub. L. 103–322. See 1994 Amendment note below. COMMITTEE NOTES ON RULES—2000 AMENDMENT The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture proce- dures. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 32 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The rule has been completely reorganized to make it easier to follow and apply. For example, the definitions in the rule have been moved to the first section and the sequencing of the sections generally follows the proce- dure for presentencing and sentencing procedures. Revised Rule 32(a) contains definitions that currently appear in Rule 32(f). One substantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims of crimes of violence or sexual abuse to in- clude victims of child pornography under 18 U.S.C. §§ 2251–2257 (child pornography and related offenses). The Committee considered those victims to be similar to victims of sexual offenses under 18 U.S.C. §§ 2241–2248, who already possess that right. Revised Rule 32(d) has been amended to more clearly set out the contents of the presentence report concern- ing the application of the Sentencing Guidelines. Current Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea, has been moved to Rule 11(e). Rule 32(h) is a new provision that reflects Xxxxx v. United States, 501 U.S. 129, 138–39 (1991). In Xxxxx, the Page 121 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 32 Court held that, before a sentencing court could depart upward on a ground not previously identified in the presentence report as a ground for departure, Rule 32 requires the court to give the parties reasonable notice that it is contemplating such a ruling and to identify the specific ground for the departure. The Court also indicated that because the procedural entitlements in Rule 32 apply equally to both parties, it was equally ap- propriate to frame the issue as whether notice is re- quired before the sentencing court departs either up- xxxx or downward. Id. at 135, n.4. Revised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule, the court is re- quired to ‘‘rule on any unresolved objections to the pre- sentence report.’’ The rule does not specify, however, whether that provision should be read literally to mean every objection that might have been made to the re- port or only on those objections that might in some way actually affect the sentence. The Committee be- lieved that a broad reading of the current rule might place an unreasonable burden on the court without pro- viding any real benefit to the sentencing process. Re- vised Rule 32(i)(3) narrows the requirement for court findings to those instances when the objection address- es a ‘‘controverted matter.’’ If the objection satisfies that criterion, the court must either make a finding on the objection or decide that a finding is not required because the matter will not affect sentencing or that the matter will not be considered at all in sentencing. Revised Rule 32(i)(4)(B) provides for the right of cer- tain victims to address the court during sentencing. As noted, supra, revised Rule 32(a)(2) expands the defini- tion of victims to include victims of crimes under 18 U.S.C. §§ 2251–57 (child pornography and related of- fenses). Thus, they too will now be permitted to address the court. Revised Rule 32(i)(1)(B) is intended to clarify lan- guage that currently exists in Rule 32(h)(3), that the court must inform both parties that the court will rely on information not in the presentence report and pro- vide them with an opportunity to comment on the in- formation. Rule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding. Under current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to hear the statements by defense counsel, the defendant, the attorney for the govern- ment, or any victim. Under the revised rule, any party may move (for good cause) that the court hear in cam- era any statement—by a party or a victim—made under revised Rule 32(i)(4). Finally, the Committee considered, but did not adopt, an amendment that would have required the court to rule on any ‘‘unresolved objection to a material mat- ter’’ in the presentence report, whether or not the court will consider it in imposing an appropriate sen- tence. The amendment was considered because an unre- solved objection that has no impact on determining a sentence under the Sentencing Guidelines may affect other important post-sentencing decisions. For exam- ple, the Bureau of Prisons consults the presentence re- port in deciding where a defendant will actually serve his or her sentence of confinement. See A Judicial Guide to the Federal Bureau of Prisons, 11 (United States De- partment of Justice, Federal Bureau of Prisons 1995) (noting that the ‘‘Bureau relies primarily on the Pre- sentence Investigator Report . . .’’). And as some courts have recognized, Rule 32 was intended to guard against adverse consequences of a statement in the pre- sentence report that the court may have been found to be false. United States x. Xxxxxxxxx, 748 F.2d 972, 974 (8th Cir. 1984) (rule designed to protect against evil that false allegation that defendant was notorious alien smuggler would affect defendant for years to come); see also United States v. Bro n, 715 F.2d 387, 389 n.2 (5th Cir. 1983) (sentencing report affects ‘‘place of incarceration, chances for parole, and relationships with social serv- ice and correctional agencies after release from pris- on’’). To avoid unduly burdening the court, the Committee elected not to require resolution of objections that go only to service of sentence. However, because of the presentence report’s critical role in post-sentence ad- ministration, counsel may wish to point out to the court those matters that are typically considered by the Bureau of Prisons in designating the place of con- finement. For example, the Bureau considers: the type of offense, the length of sentence, the de- fendant’s age, the defendant’s release residence, the need for medical or other special treatment, and any placement recommendation made by the court. A Judicial Guide to the Federal Bureau of Prisons, supra, at 11. Further, a question as to whether or not the de- fendant has a ‘‘drug problem’’ could have an impact on whether the defendant would be eligible for prison drug abuse treatment programs. 18 U.S.C. § 3621(e) (Sub- stance abuse treatment). If counsel objects to material in the presentence re- port that could affect the defendant’s service of sen- tence, the court may resolve the objection, but is not required to do so. COMMITTEE NOTES ON RULES—2007 AMENDMENT

United States x. Xxxxxx-Xxxxxxx, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant’s late request to introduce rebuttal evidence by way of cross-examination). Subdivision (c)(1) (formerly subdivision (c)(3)(D)) in- dicates that the court need not resolve controverted matters which will ‘‘not be taken into account in, or will not affect, sentencing.’’ The words ‘‘will not af- fect’’ did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sen- tence even if the sentencing range were changed. The provision for disclosure of a witness’ statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise ex- cluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendant’s counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the in- formation is presented, the defendant and the defend- ant’s counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo con- tendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sen- tence imposed. Subdivision (d). Subdivision (d), dealing with entry of the court’s judgment, is former subdivision (b). Subdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was formerly subdivision (d). Both provisions remain the same except for minor stylistic changes. Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. NOTES OF ADVISORY COMMITTEE ON RULES—1996 AMENDMENT Subdivision (d)(2). A provision for including a verdict of criminal forfeiture as a part of the sentence was added in 1972 to Rule 32. Since then, the rule has been interpreted to mean that any forfeiture order is a part of the judgment of conviction and cannot be entered be- fore sentencing. See, e.g., United States x. Xxxxxxxxx, 772 X.Xxxx. 440 (X. Xxxx. 1990). Delaying forfeiture proceedings, however, can pose real problems, especially in light of the implementa- tion of the Sentencing Reform Act in 1987 and the re- sulting delays between verdict and sentencing in com- plex cases. First, the government’s statutory right to discover the location of property subject to forfeiture is triggered by entry of an order of forfeiture. See 18 U.S.C. § 1963(k) and 21 U.S.C. § 853(m). If that order is de- layed until sentencing, valuable time may be lost in lo- cating assets which may have become unavailable or unusable. Second, third persons with an interest in the property subject to forfeiture must also wait to peti- tion the court to begin ancillary proceedings until the forfeiture order has been entered. See 18 U.S.C. § 1963(l) and 21 U.S.C. § 853(m). And third, because the govern- ment cannot actually seize the property until an order of forfeiture is entered, it may be necessary for the court to enter restraining orders to maintain the status quo. The amendment to Rule 32 is intended to address these concerns by specifically recognizing the author- ity of the court to enter a preliminary forfeiture order before sentencing. Entry of an order of forfeiture before sentencing rests within the discretion of the court, which may take into account anticipated delays in sen- tencing, the nature of the property, and the interests of the defendant, the government, and third persons. The amendment permits the court to enter its order of forfeiture at any time before sentencing. Before en- tering the order of forfeiture, however, the court must provide notice to the defendant and a reasonable oppor- tunity to be heard on the question of timing and form of any order of forfeiture. The rule specifies that the order, which must ulti- mately be made a part of the sentence and included in the judgment, must contain authorization for the At- xxxxxx General to seize the property in question and to conduct appropriate discovery and to begin any nec- xxxxxx ancillary proceedings to protect third parties who have an interest in the property. CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT Section 230101(a) of Pub. L. 103–322 [set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure] provided that the amendment proposed by the Supreme Court [in its order of Apr. 29, 1994] affect- ing rule 32 of the Federal Rules of Criminal Procedure [this rule] would take effect on Dec. 1, 1994, as other- wise provided by law, and as amended by section 230101(b) of Pub. L. 103–322. See 1994 Amendment note below. COMMITTEE NOTES ON RULES—2000 AMENDMENT The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture proce- dures. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 32 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The rule has been completely reorganized to make it easier to follow and apply. For example, the definitions in the rule have been moved to the first section and the sequencing of the sections generally follows the proce- dure for presentencing and sentencing procedures. Revised Rule 32(a) contains definitions that currently appear in Rule 32(f). One substantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims of crimes of violence or sexual abuse to in- clude victims of child pornography under 18 U.S.C. §§ 2251–2257 (child pornography and related offenses). The Committee considered those victims to be similar to victims of sexual offenses under 18 U.S.C. §§ 2241–2248, who already possess that right. Revised Rule 32(d) has been amended to more clearly set out the contents of the presentence report concern- ing the application of the Sentencing Guidelines. Current Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea, has been moved to Rule 11(e). Rule 32(h) is a new provision that reflects Xxxxx v. United States, 501 U.S. 129, 138–39 (1991). In Xxxxx, the Page 121 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 32 Court held that, before a sentencing court could depart upward on a ground not previously identified in the presentence report as a ground for departure, Rule 32 requires the court to give the parties reasonable notice that it is contemplating such a ruling and to identify the specific ground for the departure. The Court also indicated that because the procedural entitlements in Rule 32 apply equally to both parties, it was equally ap- propriate to frame the issue as whether notice is re- quired before the sentencing court departs either up- xxxx or downward. Id. at 135, n.4. Revised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule, the court is re- quired to ‘‘rule on any unresolved objections to the pre- sentence report.’’ The rule does not specify, however, whether that provision should be read literally to mean every objection that might have been made to the re- port or only on those objections that might in some way actually affect the sentence. The Committee be- lieved that a broad reading of the current rule might place an unreasonable burden on the court without pro- viding any real benefit to the sentencing process. Re- vised Rule 32(i)(3) narrows the requirement for court findings to those instances when the objection address- es a ‘‘controverted matter.’’ If the objection satisfies that criterion, the court must either make a finding on the objection or decide that a finding is not required because the matter will not affect sentencing or that the matter will not be considered at all in sentencing. Revised Rule 32(i)(4)(B) provides for the right of cer- tain victims to address the court during sentencing. As noted, supra, revised Rule 32(a)(2) expands the defini- tion of victims to include victims of crimes under 18 U.S.C. §§ 2251–57 (child pornography and related of- fenses). Thus, they too will now be permitted to address the court. Revised Rule 32(i)(1)(B) is intended to clarify lan- guage that currently exists in Rule 32(h)(3), that the court must inform both parties that the court will rely on information not in the presentence report and pro- vide them with an opportunity to comment on the in- formation. Rule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding. Under current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to hear the statements by defense counsel, the defendant, the attorney for the govern- ment, or any victim. Under the revised rule, any party may move (for good cause) that the court hear in cam- era any statement—by a party or a victim—made under revised Rule 32(i)(4). Finally, the Committee considered, but did not adopt, an amendment that would have required the court to rule on any ‘‘unresolved objection to a material mat- ter’’ in the presentence report, whether or not the court will consider it in imposing an appropriate sen- tence. The amendment was considered because an unre- solved objection that has no impact on determining a sentence under the Sentencing Guidelines may affect other important post-sentencing decisions. For exam- ple, the Bureau of Prisons consults the presentence re- port in deciding where a defendant will actually serve his or her sentence of confinement. See A Judicial Guide Rule 32 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 124 to the Federal Bureau of Prisons, 11 (United States De- partment of Justice, Federal Bureau of Prisons 1995) (noting that the ‘‘Bureau relies primarily on the Pre- sentence Investigator Report . . .’’). And as some courts have recognized, Rule 32 was intended to guard against adverse consequences of a statement in the pre- sentence report that the court may have been found to be false. United States x. Xxxxxxxxx, 748 F.2d 972, 974 (8th Cir. 1984) (rule designed to protect against evil that false allegation that defendant was notorious alien smuggler would affect defendant for years to come); see also United States v. Bro n, 715 F.2d 387, 389 n.2 (5th Cir. 1983) (sentencing report affects ‘‘place of incarceration, chances for parole, and relationships with social serv- ice and correctional agencies after release from pris- on’’). To avoid unduly burdening the court, the Committee elected not to require resolution of objections that go only to service of sentence. However, because of the presentence report’s critical role in post-sentence ad- ministration, counsel may wish to point out to the court those matters that are typically considered by the Bureau of Prisons in designating the place of con- finement. For example, the Bureau considers: the type of offense, the length of sentence, the de- fendant’s age, the defendant’s release residence, the need for medical or other special treatment, and any placement recommendation made by the court. A Judicial Guide to the Federal Bureau of Prisons, supra, at 11. Further, a question as to whether or not the de- fendant has a ‘‘drug problem’’ could have an impact on whether the defendant would be eligible for prison drug abuse treatment programs. 18 U.S.C. § 3621(e) (Sub- stance abuse treatment). If counsel objects to material in the presentence re- port that could affect the defendant’s service of sen- tence, the court may resolve the objection, but is not required to do so. COMMITTEE NOTES ON RULES—2007 AMENDMENT

United States x. Xxxxxx-Xxxxxxx, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant’s late request to introduce rebuttal evidence by way of cross-examination). Subdivision (c)(1) (formerly subdivision (c)(3)(D)) in- dicates that the court need not resolve controverted matters which will ‘‘not be taken into account in, or will not affect, sentencing.’’ The words ‘‘will not af- fect’’ did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sen- tence even if the sentencing range were changed. The provision for disclosure of a witness’ statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise ex- cluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendant’s counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the in- formation is presented, the defendant and the defend- ant’s counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo con- tendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sen- tence imposed. Subdivision (d). Subdivision (d), dealing with entry of the court’s judgment, is former subdivision (b). Subdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was formerly subdivision (d). Both provisions remain the same except for minor stylistic changes. Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. NOTES OF ADVISORY COMMITTEE ON RULES—1996 AMENDMENT Subdivision (d)(2). A provision for including a verdict of criminal forfeiture as a part of the sentence was added in 1972 to Rule 32. Since then, the rule has been interpreted to mean that any forfeiture order is a part of the judgment of conviction and cannot be entered be- fore sentencing. See, e.g., United States x. Xxxxxxxxx, 772 X.Xxxx. 440 (X. Xxxx. 1990). Delaying forfeiture proceedings, however, can pose real problems, especially in light of the implementa- tion of the Sentencing Reform Act in 1987 and the re- sulting delays between verdict and sentencing in com- plex cases. First, the government’s statutory right to discover the location of property subject to forfeiture is triggered by entry of an order of forfeiture. See 18 U.S.C. § 1963(k) and 21 U.S.C. § 853(m). If that order is de- layed until sentencing, valuable time may be lost in lo- cating assets which may have become unavailable or unusable. Second, third persons with an interest in the property subject to forfeiture must also wait to peti- tion the court to begin ancillary proceedings until the forfeiture order has been entered. See 18 U.S.C. § 1963(l) and 21 U.S.C. § 853(m). And third, because the govern- ment cannot actually seize the property until an order of forfeiture is entered, it may be necessary for the court to enter restraining orders to maintain the status quo. The amendment to Rule 32 is intended to address these concerns by specifically recognizing the author- ity of the court to enter a preliminary forfeiture order before sentencing. Entry of an order of forfeiture before sentencing rests within the discretion of the court, which may take into account anticipated delays in sen- tencing, the nature of the property, and the interests of the defendant, the government, and third persons. The amendment permits the court to enter its order of forfeiture at any time before sentencing. Before en- tering the order of forfeiture, however, the court must provide notice to the defendant and a reasonable oppor- tunity to be heard on the question of timing and form of any order of forfeiture. The rule specifies that the order, which must ulti- mately be made a part of the sentence and included in the judgment, must contain authorization for the At- xxxxxx General to seize the property in question and to conduct appropriate discovery and to begin any nec- xxxxxx ancillary proceedings to protect third parties who have an interest in the property. CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT Section 230101(a) of Pub. L. 103–322 [set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure] provided that the amendment proposed by the Supreme Court [in its order of Apr. 29, 1994] affect- ing rule 32 of the Federal Rules of Criminal Procedure [this rule] would take effect on Dec. 1, 1994, as other- wise provided by law, and as amended by section 230101(b) of Pub. L. 103–322. See 1994 Amendment note below. COMMITTEE NOTES ON RULES—2000 AMENDMENT The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture proce- dures. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 32 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The rule has been completely reorganized to make it easier to follow and apply. For example, the definitions in the rule have been moved to the first section and the sequencing of the sections generally follows the proce- dure for presentencing and sentencing procedures. Revised Rule 32(a) contains definitions that currently appear in Rule 32(f). One substantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims of crimes of violence or sexual abuse to in- clude victims of child pornography under 18 U.S.C. §§ 2251–2257 (child pornography and related offenses). The Committee considered those victims to be similar to victims of sexual offenses under 18 U.S.C. §§ 2241–2248, who already possess that right. Revised Rule 32(d) has been amended to more clearly set out the contents of the presentence report concern- ing the application of the Sentencing Guidelines. Current Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea, has been moved to Rule 11(e). Rule 32(h) is a new provision that reflects Xxxxx v. United States, 501 U.S. 129, 138–39 (1991). In Xxxxx, the Page 121 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 32 Court held that, before a sentencing court could depart upward on a ground not previously identified in the presentence report as a ground for departure, Rule 32 requires the court to give the parties reasonable notice that it is contemplating such a ruling and to identify the specific ground for the departure. The Court also indicated that because the procedural entitlements in Rule 32 apply equally to both parties, it was equally ap- propriate to frame the issue as whether notice is re- quired before the sentencing court departs either up- xxxx or downward. Id. at 135, n.4. Revised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule, the court is re- quired to ‘‘rule on any unresolved objections to the pre- sentence report.’’ The rule does not specify, however, whether that provision should be read literally to mean every objection that might have been made to the re- port or only on those objections that might in some way actually affect the sentence. The Committee be- lieved that a broad reading of the current rule might place an unreasonable burden on the court without pro- viding any real benefit to the sentencing process. Re- vised Rule 32(i)(3) narrows the requirement for court findings to those instances when the objection address- es a ‘‘controverted matter.’’ If the objection satisfies that criterion, the court must either make a finding on the objection or decide that a finding is not required because the matter will not affect sentencing or that the matter will not be considered at all in sentencing. Revised Rule 32(i)(4)(B) provides for the right of cer- tain victims to address the court during sentencing. As noted, supra, revised Rule 32(a)(2) expands the defini- tion of victims to include victims of crimes under 18 U.S.C. §§ 2251–57 (child pornography and related of- fenses). Thus, they too will now be permitted to address the court. Revised Rule 32(i)(1)(B) is intended to clarify lan- guage that currently exists in Rule 32(h)(3), that the court must inform both parties that the court will rely on information not in the presentence report and pro- vide them with an opportunity to comment on the in- formation. Rule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding. Under current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to hear the statements by defense counsel, the defendant, the attorney for the govern- ment, or any victim. Under the revised rule, any party may move (for good cause) that the court hear in cam- era any statement—by a party or a victim—made under revised Rule 32(i)(4). Finally, the Committee considered, but did not adopt, an amendment that would have required the court to rule on any ‘‘unresolved objection to a material mat- ter’’ in the presentence report, whether or not the court will consider it in imposing an appropriate sen- tence. The amendment was considered because an unre- solved objection that has no impact on determining a sentence under the Sentencing Guidelines may affect other important post-sentencing decisions. For exam- ple, the Bureau of Prisons consults the presentence re- port in deciding where a defendant will actually serve his or her sentence of confinement. See A Judicial Guide Rule 32 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 124 to the Federal Bureau of Prisons, 11 (United States De- partment of Justice, Federal Bureau of Prisons 1995) (noting that the ‘‘Bureau relies primarily on the Pre- sentence Investigator Report . . .’’). And as some courts have recognized, Rule 32 was intended to guard against adverse consequences of a statement in the pre- sentence report that the court may have been found to be false. United States x. Xxxxxxxxxv. Velasquez, 748 F.2d 972, 974 (8th Cir. 1984) (rule designed to protect against evil that false allegation that defendant was notorious alien smuggler would affect defendant for years to come); see also United States v. Bro n, 715 F.2d 387, 389 n.2 (5th Cir. 1983) (sentencing report affects ‘‘place of incarceration, chances for parole, and relationships with social serv- ice and correctional agencies after release from pris- on’’). To avoid unduly burdening the court, the Committee elected not to require resolution of objections that go only to service of sentence. However, because of the presentence report’s critical role in post-sentence ad- ministration, counsel may wish to point out to the court those matters that are typically considered by the Bureau of Prisons in designating the place of con- finement. For example, the Bureau considers: the type of offense, the length of sentence, the de- fendant’s age, the defendant’s release residence, the need for medical or other special treatment, and any placement recommendation made by the court. A Judicial Guide to the Federal Bureau of Prisons, supra, at 11. Further, a question as to whether or not the de- fendant has a ‘‘drug problem’’ could have an impact on whether the defendant would be eligible for prison drug abuse treatment programs. 18 U.S.C. § 3621(e) (Sub- stance abuse treatment). If counsel objects to material in the presentence re- port that could affect the defendant’s service of sen- tence, the court may resolve the objection, but is not required to do so. COMMITTEE NOTES ON RULES—2007 AMENDMENT

United States x. Xxxxxx-Xxxxxxx, 922 F.2d 33, 36 (1st Cir. 1990) (trial court did not err in denying defendant’s late request to introduce rebuttal evidence by way of cross-examination). Subdivision (c)(1) (formerly subdivision (c)(3)(D)) in- dicates that the court need not resolve controverted matters which will ‘‘not be taken into account in, or will not affect, sentencing.’’ The words ‘‘will not af- fect’’ did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sen- tence even if the sentencing range were changed. The provision for disclosure of a witness’ statements, which was recently proposed as an amendment to Rule 32 as new subdivision (e), is now located in subdivision (c)(2). Subdivision (c)(3) includes minor changes. First, if the court intends to rely on information otherwise ex- cluded from the presentence report under subdivision (b)(5), that information is to be summarized in writing and submitted to the defendant and the defendant’s counsel. Under the former provision in (c)(3)(A), such information could be summarized orally. Once the in- formation is presented, the defendant and the defend- ant’s counsel are to be given a reasonable opportunity to comment; in appropriate cases, that may require a continuance of the sentencing proceedings. Subdivision (c)(5), concerning notification of the right to appeal, was formerly included in subdivision (a)(2). Although the provision has been rewritten, the Committee intends no substantive change in practice. That is, the court may, but is not required to, advise a defendant who has entered a guilty plea, nolo con- tendere plea or a conditional guilty plea of any right to appeal (such as an appeal challenging jurisdiction). However, the duty to advise the defendant in such cases extends only to advice on the right to appeal any sen- tence imposed. Subdivision (d). Subdivision (d), dealing with entry of the court’s judgment, is former subdivision (b). Subdivision (e). Subdivision (e), which addresses the topic of withdrawing pleas, was formerly subdivision (d). Both provisions remain the same except for minor stylistic changes. Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence. The Committee considered, but rejected, a provision which would have required the court to hear victim allocution at sentencing. NOTES OF ADVISORY COMMITTEE ON RULES—1996 AMENDMENT Subdivision (d)(2). A provision for including a verdict of criminal forfeiture as a part of the sentence was added in 1972 to Rule 32. Since then, the rule has been interpreted to mean that any forfeiture order is a part of the judgment of conviction and cannot be entered be- fore sentencing. See, e.g., United States x. Xxxxxxxxx, 772 X.Xxxx. 440 (X. Xxxx. 1990). Delaying forfeiture proceedings, however, can pose real problems, especially in light of the implementa- tion of the Sentencing Reform Act in 1987 and the re- sulting delays between verdict and sentencing in com- plex cases. First, the government’s statutory right to discover the location of property subject to forfeiture is triggered by entry of an order of forfeiture. See 18 U.S.C. § 1963(k) and 21 U.S.C. § 853(m). If that order is de- layed until sentencing, valuable time may be lost in lo- cating assets which may have become unavailable or unusable. Second, third persons with an interest in the property subject to forfeiture must also wait to peti- tion the court to begin ancillary proceedings until the forfeiture order has been entered. See 18 U.S.C. § 1963(l) and 21 U.S.C. § 853(m). And third, because the govern- ment cannot actually seize the property until an order of forfeiture is entered, it may be necessary for the Page 121 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 32 court to enter restraining orders to maintain the status quo. The amendment to Rule 32 is intended to address these concerns by specifically recognizing the author- ity of the court to enter a preliminary forfeiture order before sentencing. Entry of an order of forfeiture before sentencing rests within the discretion of the court, which may take into account anticipated delays in sen- tencing, the nature of the property, and the interests of the defendant, the government, and third persons. The amendment permits the court to enter its order of forfeiture at any time before sentencing. Before en- tering the order of forfeiture, however, the court must provide notice to the defendant and a reasonable oppor- tunity to be heard on the question of timing and form of any order of forfeiture. The rule specifies that the order, which must ulti- mately be made a part of the sentence and included in the judgment, must contain authorization for the At- xxxxxx General to seize the property in question and to conduct appropriate discovery and to begin any nec- xxxxxx ancillary proceedings to protect third parties who have an interest in the property. CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT Section 230101(a) of Pub. L. 103–322 [set out as a note under section 2074 of Title 28, Judiciary and Judicial Procedure] provided that the amendment proposed by the Supreme Court [in its order of Apr. 29, 1994] affect- ing rule 32 of the Federal Rules of Criminal Procedure [this rule] would take effect on Dec. 1, 1994, as other- wise provided by law, and as amended by section 230101(b) of Pub. L. 103–322. See 1994 Amendment note below. COMMITTEE NOTES ON RULES—2000 AMENDMENT The rule is amended to reflect the creation of new Rule 32.2, which now governs criminal forfeiture proce- dures. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 32 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. The rule has been completely reorganized to make it easier to follow and apply. For example, the definitions in the rule have been moved to the first section and the sequencing of the sections generally follows the proce- dure for presentencing and sentencing procedures. Revised Rule 32(a) contains definitions that currently appear in Rule 32(f). One substantive change was made in Rule 32(a)(2). The Committee expanded the definition of victims of crimes of violence or sexual abuse to in- clude victims of child pornography under 18 U.S.C. §§ 2251–2257 (child pornography and related offenses). The Committee considered those victims to be similar to victims of sexual offenses under 18 U.S.C. §§ 2241–2248, who already possess that right. Revised Rule 32(d) has been amended to more clearly set out the contents of the presentence report concern- ing the application of the Sentencing Guidelines. Current Rule 32(e), which addresses the ability of a defendant to withdraw a guilty plea, has been moved to Rule 11(e). Rule 32(h) is a new provision that reflects Xxxxx v. United States, 501 U.S. 129, 138–39 (1991). In Xxxxx, the Page 121 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 32 Court held that, before a sentencing court could depart upward on a ground not previously identified in the presentence report as a ground for departure, Rule 32 requires the court to give the parties reasonable notice that it is contemplating such a ruling and to identify the specific ground for the departure. The Court also indicated that because the procedural entitlements in Rule 32 apply equally to both parties, it was equally ap- propriate to frame the issue as whether notice is re- quired before the sentencing court departs either up- xxxx or downward. Id. at 135, n.4. Revised Rule 32(i)(3) addresses changes to current Rule 32(c)(1). Under the current rule, the court is re- quired to ‘‘rule on any unresolved objections to the pre- sentence report.’’ The rule does not specify, however, whether that provision should be read literally to mean every objection that might have been made to the re- port or only on those objections that might in some way actually affect the sentence. The Committee be- lieved that a broad reading of the current rule might place an unreasonable burden on the court without pro- viding any real benefit to the sentencing process. Re- vised Rule 32(i)(3) narrows the requirement for court findings to those instances when the objection address- es a ‘‘controverted matter.’’ If the objection satisfies that criterion, the court must either make a finding on the objection or decide that a finding is not required because the matter will not affect sentencing or that the matter will not be considered at all in sentencing. Revised Rule 32(i)(4)(B) provides for the right of cer- tain victims to address the court during sentencing. As noted, supra, revised Rule 32(a)(2) expands the defini- tion of victims to include victims of crimes under 18 U.S.C. §§ 2251–57 (child pornography and related of- fenses). Thus, they too will now be permitted to address the court. Revised Rule 32(i)(1)(B) is intended to clarify lan- guage that currently exists in Rule 32(h)(3), that the court must inform both parties that the court will rely on information not in the presentence report and pro- vide them with an opportunity to comment on the in- formation. Rule 32(i)(4)(C) includes a change concerning who may request an in camera proceeding. Under current Rule 32(c)(4), the parties must file a joint motion for an in camera proceeding to hear the statements by defense counsel, the defendant, the attorney for the govern- ment, or any victim. Under the revised rule, any party may move (for good cause) that the court hear in cam- era any statement—by a party or a victim—made under revised Rule 32(i)(4). Finally, the Committee considered, but did not adopt, an amendment that would have required the court to rule on any ‘‘unresolved objection to a material mat- ter’’ in the presentence report, whether or not the court will consider it in imposing an appropriate sen- tence. The amendment was considered because an unre- solved objection that has no impact on determining a sentence under the Sentencing Guidelines may affect other important post-sentencing decisions. For exam- ple, the Bureau of Prisons consults the presentence re- port in deciding where a defendant will actually serve his or her sentence of confinement. See A Judicial Guide to the Federal Bureau of Prisons, 11 (United States De- partment of Justice, Federal Bureau of Prisons 1995) (noting that the ‘‘Bureau relies primarily on the Pre- sentence Investigator Report . . .’’). And as some courts have recognized, Rule 32 was intended to guard against adverse consequences of a statement in the pre- sentence report that the court may have been found to be false. United States x. Xxxxxxxxx, 748 F.2d 972, 974 (8th Cir. 1984) (rule designed to protect against evil that false allegation that defendant was notorious alien smuggler would affect defendant for years to come); see also United States v. Bro n, 715 F.2d 387, 389 n.2 (5th Cir. 1983) (sentencing report affects ‘‘place of incarceration, chances for parole, and relationships with social serv- ice and correctional agencies after release from pris- on’’). To avoid unduly burdening the court, the Committee elected not to require resolution of objections that go only to service of sentence. However, because of the presentence report’s critical role in post-sentence ad- ministration, counsel may wish to point out to the court those matters that are typically considered by the Bureau of Prisons in designating the place of con- finement. For example, the Bureau considers: the type of offense, the length of sentence, the de- fendantxxxxxxx’s age, the defendant’s release residence, the Rule 32 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE need for medical or other special treatment, and any placement recommendation made by the court. A Judicial Guide to the Federal Bureau of Prisons, supra, at 11. Further, a question as to whether or not the de- fendant has a ‘‘drug problem’’ could have an impact on whether the defendant would be eligible for prison drug abuse treatment programs. 18 U.S.C. § 3621(e) (Sub- stance abuse treatment). If counsel objects to material in the presentence re- port that could affect the defendant’s service of sen- tence, the court may resolve the objection, but is not required to do so. COMMITTEE NOTES ON RULES—2007 AMENDMENT