United States v. Simmons, No. 08-4031-cr (2d Cir. June 24, 2009)
Simmons argued on appeal that he was denied due process because his attorney did not receive a copy of an addendum to his PSR when he appeared for resentencing (and therefore did not have an opportunity to contest the factual assertions contained therein). The Second Circuit found Simmons claim to be "unavailing." Specifically, it found that the PSR addendum was referenced in a Government letter to the Court that his attorney received, and that Simmons was therefore aware of it and had an opportunity to challenge the new factual assertions (relating primarily to post-offense conduct while in custody). Accordingly, the Second Circuit was "confident that Simmons received ample notice of the contents of the USPO's supplemental memorandum." (Emphasis in original.)
The Second Circuit may be right. Simmons' counsel may have known about the PSR addendum because it was referenced in the Government's letter. Simmons counsel may have had an opportunity to respond to the Government's assertions and the actual assertions in the PSR addendum. Indeed, maybe Simmons' attorney should have asked for the PSR addendum. The fact remains, though, that it was not provided to Simmons or his attorney, and they did not have an opportunity to review or comment on it. And that strikes this reader as a bit unfair.