Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was “misleading and inaccurate,” Cargill wrote in a protest letter. (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

Probation officers work for the court, for judges — not for the defense or the prosecution, Conrad said. Any facts the probation officer turns up are supposed to be in the report shared with the defendant and the lawyers, Conrad said. The sentencing recommendation is supposed to be the probation officer’s interpretation of the facts. People accused of a crime have a constitutional right to face their accusers, but that’s at trial, for a judgment of guilt or innocence, Conrad said.

Remember, CAAF has held that the Sixth Amendment right to confrontation does not apply at sentencing, but that Fifth Amendment due process does. See United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001).

On appeal, Eyster argues that the District Court erred by increasing his criminal history from Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior “sex offense conviction” as defined by § 4B1.5.. . . The Government concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was not a qualifying “sex offense conviction” for purposes of § 4B1.5. Therefore, Eyster’s advisory Guidelines range should have been calculated using criminal history Category II, not Category V. This was error[.]As explained, however, the applicable Guidelines range was the same—360 to 840 months—under either criminal history Category. Because this mistake did not result in the calculation of an incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.

It appears this would be related to United States v. Eyster, NMCM 88 1339, 1988 CMR LEXIS 761 (N-M C.M.R. October 27, 1988). The court affirmed the conviction in a straight-legal review. There does not appear to have been a petition to CAAF.