(concurring in part and dissenting in part).
I concur in this decision insofar as it holds that the conviction of the defendant can be sustained. However, I would remand the matter to the trial court because of its failure to disclose to the defendant the substance of a presentence report on him which contained derogatory information.
Although this Court has stated that the decision to permit disclosure of the presentence report is within the discretion of the trial court, we have also recognized that
“ * * * the Advisory Committee, in recommending Rule 32(c), did not contemplate an absolute rule of nondisclosure without relevancy to the particular circumstance of a case. In fact the Advisory Committee observed in part:
“ ‘It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may he given full opportunity to rehut or *776explain facts in presentence reports which will be material factors in determining sentences.’ [Emphasis included.] Notes of Advisory Committee on Rules, Fed.R.Crim.P. 32(c) (2) (18 U.S.C.A.Supp. 1970.)
“See United States v. Fischer, 381 F. 2d 509 (2 Cir. 1967).”
United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970).
In Carden, we held that it was not an abuse of discretion to deny the defendant’s request for his full presentence report where the facts relied upon in sentencing were “fully disclosed to the defendant in such a manner that the defendant had an opportunity to explain away any misapprehension the court may have had.” See, United States v. Mims, 440 F.2d 644 (8th Cir. 1971). We also stated in United States v. Carden, supra, 428 F.2d at 1118:
“It is always advisable for the trial judge to at least state on the record the various factors he has taken into consideration in rendering his sentence. The court may advise counsel of these factors without necessarily disclosing the sources of the information to him. Such a procedure serves as a checkmate to the danger of misinformation being placed in the hands of the court. Cf. Verdugo v. United States, * * * [402 F.2d 599 (9th Cir. 1968), cert. denied, 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971)]; Baker v. United States, * * * [388 F.2d 931 (4th Cir. 1968)]. If the defendant’s record, as publicly disclosed at the hearing, is incorrectly reported, defendant should have an opportunity to explain any discrepancy. If factual background is erroneous, defendant should have the opportunity to inform the court concerning the alleged misinformation.”
At the sentencing proceedings in the present case, the defendant’s attorney presented the following statement in mitigation of the sentence:
“MR. BARIS [counsel for the defendant] : Very briefly, your Honor, I would like to call the court’s attention to the fact that Mr. Schrenzel is a man 59 years old, a family man, he has three daughters. He is not a well man. I submitted some letters from Mr. Schrenzel’s doctor to the probation officer, and I presume that those have been made available to the court, as to the nature of his heart condition.
“THE COURT: Yes.
“MR. BARIS: And other ailments. He has never been in trouble previously. The effect of this conviction, I think almost certainly, your Honor, is that he will lose his license to practice as a pharmacist.”
The defendant’s attorney also asked for an opportunity to review the presentence report and respond to it. The court denied this request and did not reveal that there was derogatory material in the report.
In view of these facts and to protect the important interests of the defendant which we recognized in Carden, as well as to insure that the intention to afford liberal disclosure is implemented, I would find that the trial court abused its discretion in refusing to disclose derogatory material in the presentence report and in failing to give the defendant an opportunity to respond to it.
I also believe, however, that this case presents an appropriate opportunity to fully reexamine our position relating to the disclosure of presentenee reports. I would require the trial court, absent extraordinary circumstances, to disclose to the defendant the substance of the presentence report. Such a requirement would more fully protect the defendant’s interests by opening up this aspect of sentencing to the scrutiny of the defendant and his attorney. It would aid in avoiding the difficulties faced by trial courts in exercising their presently unstructured discretion, and would assist in reviewing the exercise of this *777discretion.1 Finally, to impose some measure of mandatory disclosure would be substantially in accord with a growing body of judicial and scholarly opinion.2
For the above reasons, this case should be remanded to the trial court with instructions to vacate the sentence, to advise the defendant of the substance of the presentence report, to extend to him an opportunity to respond to this material, and thereafter to impose a new sentence.
. See, K. Davis, Discretionary Justice, 133-141 (1969).
. E. g., United States v. Dockery, 447 F.2d 1178, 1186 (D.C.Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971) (dissenting opinion of J. Skelly Wright); United States v. Bakewell, 430 F.2d 721, 723 (5th Cir.), cert. denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970) (dissenting opinion of J. Wisdom); Verdugo v. United States, 402 F.2d 599, 613 (9th Cir. 1968), cert. denied, 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971) (separate opinion of J. Browning); Baker v. United States, 388 F.2d 931, 934 (4th Cir. 1968) (concurring opinion of J. Winter); State v. Kunz, 55 N.J. 128, 259 A.2d 895 (1969); ABA Standards, Sentencing Alternatives and Procedures, § 4.4 (Approved Draft, 1968) ; Model Penal Code § 7.07(5) (Proposed Official Draft, 1962) ; The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 145 (1967); The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, 20 (1967) ; Guzman, Defendant’s Access to Presentence Reports in Federal Criminal Cases, 52 Iowa L.Rev. 161 (1966) ; Lerlich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225 (1969); Pugh and Carver, Due Process and Sentencing: From Mapp to McGautha, 49 Tex.L.Rev. 25, 37 (1970). See also, Note, Presentence Reports, 58 Geo.L.J. 451 (1970).