Whether the Eleventh Circuit may consider new materials not presented to the sentencing court

QUESTIONS PRESENTED In general, new materials that were never filed, presented, or considered by a sentencing court are not part of the appellate record. In contravention of this principal, the Eleventh Circuit allowed the United States (“the government”) to supplement the appellate record to include presentence investigation reports of Eddy Jimy Pinargote Mera and Ramon Elias Zambrano (together “PSRs” or “MeraZambrano PSRs”). However, those PSRs were: not part of Toala’s case, never proffered at sentencing hearing, and never reviewed by the sentencing judge. As a result, Toala opposed this in the appellate court, but it directed Toala to seek relief in the district court. The district court found no jurisdiction to decide if the MeraZambrano PSRs should be part of the appellate record as the sentencing judge never considered them. It then ordered the government to provide redacted PSRs to Toala. The Eleventh Circuit then granted the government’s motion to add Mera-Zambrano -: PSRs to the appellate record. The unorthodox ancillary proceeding did not fix the problem as it deprived: counsel of an opportunity to object at the sentencing hearing, Toala of an evidentiary hearing on the PSRs, and Toala’s use of the PSRs to argue a downward departure of the 108-month sentence. Hence, the questions presented are: 1. In reviewing a sentencing judgment, may the Eleventh Circuit consider new materials that were never introduced to the sentencing judge? (A 9-2 split). 2. Whether the holding of Gardner v. Florida, 480 U.S. 349 (1977), should extend to Toala whose sentence was reviewed at least in part, on the basis of information that he had no opportunity to deny or explain at his sentencing, in violation of the due process clause of the Fifth Amendment of the Constitution. ii