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2005 B.Y.U.L. Rev. 835, *897

Congress was taking an expansive view of the victim's right to be heard at sentencing, including a view that [*898] would embrace a victim's right to make a specific sentencing recommendation. 262

Most important, the Practitioners' Group's letter fails to consider the impact of denying the victim access to the presentence report on the victim's right to fairness. Presumably the Group, comprised primarily of defense attorneys, would be outraged if defendants were sentenced without receiving notice about relevant parts of the presentence report, because of the defendant's due process rights. But victims now also have due process rights during sentencing, which make it clear that they should receive the same information.

The Practitioners' Group raises one concern that can be readily dispelled. The Group wonders whether a victim's right to be heard on Guidelines issues implies a general right to appeal a sentence. It would not. The CVRA contains its own specific remedial provision, which permits victims to appeal only denials of their rights. 263 It specifically allows a victim to file a motion "to re-open ... a sentence" only for violations of the victim's "right to be heard." 264 Moreover, while victims possess due process protections, due process does not guarantee a right to an appeal. 265 Finally, the Sentencing Reform Act spells out the limited rights of appeal on Guidelines issues available to only the government and the defense. 266 For all these reasons, victims have the right to review relevant parts of the [*899] presentence report and to be heard on Guidelines issues in the trial court, but if the court properly hears them on the Guidelines issues, victims would not have the right to appeal the sentence the court ultimately imposes.

Because victims have a right of access to the presentence report, the question arises of how to provide that access. Nothing in current law precludes releasing presentence reports to victims. While 18 U.S.C. 3552 requires disclosure to government and defense counsel, it does not forbid further dissemination. Several federal courts have held that circulation of reports to third parties is proper on a showing of particularized need approved by the court. 267 Some courts' local rules also allow additional distribution with court approval. 268 Victims always have a particularized need for access to the Guidelines calculations and

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261 See supra notes 239-44 and accompanying text.

262 The Group cites a 2000 Senate Judiciary Committee Report regarding the Victims' Rights Amendment, which referenced a Tenth Circuit decision restricting the right of victims to present a sentencing recommendation. See Letter from Amy Baron-Evans, supra note 258 (citing S. Rep. No. 106-254, at 12 (2000) (discussing Robinson v. Maynard, 943 F.2d 1216 (10th Cir. 1991))). By 2003, however, the same passage in the Senate Judiciary Committee Report was changed to remove the citation to that case and instead to cite a leading proponent of expansive rights for victims to give judges specific sentencing recommendations:

Victim impact statements concerning the character of the victim and the impact of the crime remain constitutional. See Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 88 Cornell L. Rev. 282 (2003). The Committee does not intend to alter or comment on laws existing in some States allowing for victim opinion as to the proper sentence.

S. Rep. No. 108-191, at 38 (2003). It is hard to see anything in this history suggesting that Congress wanted victims to be deprived of the chance to review presentence reports.

263 18 U.S.C.A. 3771(d)(5) (West 2004 & Supp. 2005). See generally In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 561-64 (2d Cir. 2005) (discussing appeals under CVRA).

264 18 U.S.C.A. 3771(d)(5).

265 See McKane v. Durston, 153 U.S. 684 (1894).

266 18 U.S.C. 3742 (2000).

267 See, e.g., United States v. Corbitt, 879 F.2d 224, 238 (7th Cir. 1989) (compelling, particularized need standard); United States v. Schlette, 842 F.2d 1574, 1579 (9th Cir. 1988) (interests of justice standard); United States v. Charmer Indus., Inc., 711 F.2d 1164, 1174 (2d Cir. 1983) (compelling need standard).

268 See, e.g., D. Utah Crim. Local R. 32-1(c) (presentence reports not released without order of the court).

DAVID SCHOEN

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