FISHER, Circuit Judge:
We held in United States v. Leonard, 483 F.3d 635, 638-39 (9th Cir.2007), that "sentencing procedures for probation and supervised release violations are primarily governed by Rule 32.1 of the Federal Rules of Criminal Procedure, not Rule 32." (Emphasis added.) This case presents a situation where Rule 32.1 does not speak to the particular question at issue—whether probation officers' sentencing recommendations following the revocation of supervised release must be disclosed. We conclude that Rule 32(e)(3) logically fills in the gap. Therefore, like post-conviction sentencing recommendations, post-revocation sentencing recommendations must be disclosed unless the district court directs otherwise "[b]y local rule or by order in a case." Fed.R.Crim.P. 32(e)(3). Accordingly, United States v. Baldrich, 471 F.3d 1110 (9th Cir.2006), applies here. We hold that the district court complied with Baldrich's requirement that the court disclose any factual information in the confidential recommendation on which it relied in sentencing. See id. at 1113-14. We further hold that Rule 32(e)(3) and its implementing local counterpart, District of Idaho Local Criminal Rule 32.1, comport with the Equal Protection Clause, so there was no violation of Whitlock's constitutional rights.
In October 2003, Jeffrey Whitlock pled guilty to possession of a controlled substance under 21 U.S.C. § 844(a), unlawful possession of a firearm under 18 U.S.C. § 922(g)(3) and unlawful acquisition of a firearm under 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2. He was sentenced to 60 months of incarceration to be followed by a three-year term of supervised release. Whitlock began supervised release on November 7, 2007. While under federal supervision, he was arrested and charged in Ada County, Idaho, for a number of state offenses. Having been convicted on some of those charges, Whitlock is currently serving time in the Ada County jail.
In light of Whitlock's arrests and convictions, the government petitioned the district court to revoke his federal supervised release. Before the revocation hearing, the probation office provided a violation of supervised release report (SRR) to Whitlock, the government and the district court. The SRR calculated Whitlock's sentencing guidelines range at six to 12 months. The SRR did not contain the probation officer's sentencing recommendation, which was submitted separately to the court. Whitlock did not object to the SRR, and at the revocation hearing he admitted to violating his supervised release by using methamphetamine, being
The parties agreed that a six-month sentence, at the low end of the applicable range, was appropriate, but submitted to the district court the question whether that sentence should be served concurrently with or consecutively to Whitlock's state sentence. Before making a sentencing argument, Whitlock's counsel asked the district court to release the probation officer's sentencing recommendation and to continue the hearing until he could consider those comments. The district court denied the request, explaining:
The district court ultimately revoked Whitlock's supervised release and sentenced him to six months in prison, with three months to run concurrently with his state sentence and the remaining three months to run consecutively, followed by 30 months' supervised release.
Whitlock appeals the denial of his request to review the probation officer's sentencing recommendation. He argues that Federal Rule of Criminal Procedure 32(e)(3), which permits district courts to refuse to disclose probation officers' sentencing recommendations, and its implementing local counterpart, District of Idaho Local Criminal Rule 32.1, violate equal protection. The government counters that Federal Rule of Criminal Procedure 32(e)(3) has no application here and thus Whitlock's equal protection challenge is moot except as to Local Criminal Rule 32.1. We disagree that Rule 32 has no application to Whitlock's revocation sentencing hearing, but hold that Rule 32(e)(3), as well as District of Idaho Local Criminal Rule 32.1, comport with equal protection.
We have jurisdiction over Whitlock's appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v. Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir.2006). We review de novo a challenge to the constitutionality of the Federal Rules of Criminal Procedure, as well as a district court's compliance with Rule 32. See Baldrich, 471 F.3d at 1112. We are not persuaded by the government's argument that we should review only for plain error because Whitlock failed to preserve his objection. Whitlock's counsel expressly asked the district court to disclose the probation officer's sentencing recommendation, and when the district court refused, counsel stated "for the record" that although he would like to review the recommendation before proceeding with argument, he would go forward without it given the court's denial of his request. This colloquy was sufficient to preserve Whitlock's objection for appeal.
Whitlock argues that Federal Rule of Criminal Procedure 32(e)(3) and its implementing local rule, District of Idaho Local
The District of Idaho Local Criminal Rule 32.1 provides, in relevant part:
The government argues that Whitlock's revocation hearing was governed by Federal Rule of Criminal Procedure 32.1 rather than Rule 32, and therefore Whitlock's challenge to Rule 32(e)(3) is moot.
As an initial matter, we must determine whether Rule 32(e)(3) applies to Whitlock's case. We conclude that it does.
In United States v. Carper, 24 F.3d 1157 (9th Cir.1994), we held that even though Rule 32.1 did not expressly recognize the right to allocution at supervised release
Following these amendments, we clarified in Leonard that "sentencing procedures for probation and supervised release violations are primarily governed by Rule 32.1 of the Federal Rules of Criminal Procedure, not Rule 32." 483 F.3d at 638-39 (emphasis added). We now conclude, as Leonard contemplated, that although Rule 32.1 "primarily" governs Whitlock's post-revocation sentencing, id., to the extent Rule 32.1 is silent as to the disclosure requirements governing supervised release revocation sentencing recommendations, we may look to Rule 32(e)(3). Doing so, we conclude that, at base, the same regime governing disclosure of probation officers' sentencing recommendations should apply to both postconviction and post-revocation sentencing. We thus proceed to the merits of Whitlock's challenge.
Whitlock argues that Rule 32(e)(3) and its implementing Local Rule 32.1 violate equal protection. We disagree. His argument is foreclosed by United States v. Baldrich, 471 F.3d 1110, 1113-14 (9th Cir. 2006), which upheld the constitutionality of Rule 32(e)(3) in the face of a due process challenge. Whitlock makes essentially the same argument that our court rejected in Baldrich, but attempts to recast it in equal protection terms. As this court and the Supreme Court have recognized, however, and as Whitlock's argument demonstrates, "[i]n challenges to sentencing regimes, `an argument based on equal protection essentially duplicates an argument based on due process.'" United States v. Marcial-Santiago, 447 F.3d 715, 719 n. 5 (9th Cir.2006) (quoting Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)).
Just as Whitlock does here, the Petitioner in Baldrich questioned whether it was constitutional for a district court to refuse to disclose a probation officer's sentencing recommendation. See 471 F.3d at 1113. We held that due process was satisfied when the probation officer's recommendation was kept confidential under Rule 32(e)(3) so long as any factual information in the recommendation that the court relied upon in sentencing was disclosed. See id. at 1113-14; see also United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir.1985). We hold that the same result obtains here, and thus Whitlock's equal protection challenge to Rule 32(e)(3) and Local Rule 32.1 fails.
We would reach this result even without Baldrich. Whitlock's claim "involves neither a fundamental right nor a suspect class," and is therefore subject to rational basis review. Nurre v. Whitehead, 580 F.3d 1087, 1098-99 (9th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1937, 176 L.Ed.2d 399 (2010). Contrary to Whitlock's argument, there is no "classification" at issue here. Defendants are randomly assigned to district court judges. As Whitlock acknowledges, although the two district judges in the District of Idaho have different policies governing disclosure of probation officers' sentencing recommendations, both apply their policies to all the cases that come
In addition, there is no fundamental right to receive a probation officer's supervised release revocation sentencing recommendation; indeed, there is not even a fundamental right to receive parole consideration at all. See Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir.1989) ("[P]arole consideration is not a fundamental right requiring a higher level of scrutiny."); see also Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 862, 178 L.Ed.2d 732 (2011) (per curiam) ("There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners."); United States v. Hall, 419 F.3d 980, 985 n. 4 (9th Cir.2005) (explaining that the analyses of the rights afforded at parole and supervised release revocation hearings are "constitutionally indistinguishable").
Because the rules Whitlock challenges neither burden a fundamental right nor target a suspect class, rational basis review applies and the rules are constitutional if they "bear[ ] a reasonable relationship to a legitimate governmental interest." United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir.2001). The district court identified two rational bases: First, confidentiality is maintained "so that the probation people can advise the Court as to what their feelings are." Second, "[m]any times we have the Defendant released to supervision, and if some of those recommendations are made privy to the Defendant, it just gets them off to the wrong start." Enhancing the effectiveness of probation officers who are overseeing persons on supervised release and fostering honest sentencing recommendations are both legitimate governmental interests that are served by keeping such recommendations confidential. Rule 32 and Local Rule 32.1 survive rational basis review.
Even if the rules themselves are constitutional, if the district court did not abide by them by providing Whitlock with a summary of any factual information relied on in sentencing that did not appear in the SRR, that could constitute a due process violation. See Baldrich, 471 F.3d at 1114-15; Gonzales, 765 F.2d at 1398-99. As we did in Baldrich, "[i]n order to determine whether the district court complied with Rule 32's disclosure requirements in [this] case, we have reviewed the confidential sentencing recommendation submitted to the district court," and have determined that, with one possible exception, all facts in the confidential sentencing recommendation were discussed in the presentence report or in open court at the sentencing hearing. 471 F.3d at 1114-15.
Assuming the district court did not disclose one fact, that omission does not rise to the level of a due process violation in this case. The court was not obligated to disclose evidence on which it did not rely. We held in Gonzales that a statement by a judge "that he had disclosed all the information on which he relied" was sufficient to demonstrate compliance under Rule 32. See 765 F.2d at 1398 (emphasis added). At the hearing, the district court specifically stated in response to Whitlock's request for disclosure of the confidential sentencing
The decision of the district court is affirmed. Rule 32(e)(3) and its implementing Local Rule 32.1 satisfy equal protection both facially and as applied.
