I respectfully dissent.
Under the current provisions of Rule 32(c), a convicted defendant has no right to have a presentence report prepared,1 and in the event one is prepared, the district judge is not required to divulge its contents.2 Furthermore, a judge’s reliance upon a presentence report without disclosing its contents or allowing rebuttal is not a denial of due process. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Williams v. Oklahoma, 358 U.S. 576, 79 S. Ct. 421, 3 L.Ed.2d 516 (1959).
Disclosure, therefore, involves policy, and whether as a matter of policy the defendant should be accorded some opportunity to see and refute allegations made in a presentence report has been a subject of considerable controversy. See Notes of Advisory Committee on Rules, Fed.R.Crim.P. rule 32, 18 U.S.C.A., Supplementary Pamphlet 1961-70. The practice in federal courts is mixed, with *367a substantial minority of judges permitting disclosure while most deny it. See survey prepared for the Judicial Conference of the District of Columbia, as reported in Conference Papers on Discovery in Federal Criminal Cases, 33 F.R.D. 101, 125-127 (1963). See also Grone-wold, Presentence Investigation Practices in the Federal Probation System, Fed. Prob., Sept. 1958, pp. 27, 31.
As submitted to the Supreme Court by the Advisory Committee, the 1944 draft of the Criminal Rules provided that the presentence report should be made available to attorneys, parties, and such other persons as the court might designate. In adopting the rules, the Supreme Court struck this provision, and Rule 32(c) was then silent on the point. Thereafter, the courts construed Rule 32(c) to mean that the presentence report was a confidential document that need not be made available to the defendant, and that there was no obligation to allow the defendant to contradict or rebut the findings of the court. See Wright, Federal Practice and Procedure: Criminal § 524, pp. 394-395, Note 44 and cases cited in Notes 45 and 46.
On February 28, 1966, Rule 32(c)(2) was amended by adding the following provision:
“The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon.”
Although, as this Court suggests, the amendment may have been adopted to encourage disclosure, it is clear that the Supreme Court did not make disclosure mandatory, perhaps because of the obvious necessity for a case-by-case approach in sentencing. The dissolution of the draft amendment in the forms proposed by the Advisory Committee in 1962 3 and 19644 lends credence to the relative importance of the latter observation. In any event, under Rule 32(c) (2) as finally amended, the district court retained discretion to decide whether disclosure is in fact necessary.
Turning to the present appeals, the Court’s opinion would be substantially meaningless (in the current body of law) unless the statement that
“a district court should hereafter state any grounds in the presentence report motivating the imposition of the sentence”
is seen as mandating that such matters must (not “may”) be disclosed to the defendant. Again, in the judgment of the Supreme Court, reasons such as the ones advanced in this Court’s opinion have not been deemed sufficient to make disclosure mandatory. Furthermore, the Court states that
“[i]f the trial judge denies a motion seeking access to a presentenee report, he should henceforth make it clear that his sentence determination is not predicated on the contents of the report or describe the substance of any matter he considers significant.”
This too must be seen in its mandatory context. If the trial judge’s determination is predicated on the contents of the report, the third clause of this statement would require him to disclose those matters which influenced that determination.
In my opinion, it is not this Court’s responsibility to determine policy on disclosure. Formulating and urging reforms in the Criminal Rules is the prime *368function of the Supreme Court’s Advisory Committee on Rules. The means of accomplishing that which the Court here seeks to establish is by Supreme Court adoption of an amendment to the Rules. In fact, the result which this Court seeks would come about immediately (by way of existing due process) upon provision by the Supreme Court of the right to disclosure. To date, however, the Supreme Court has declined to provide that right.
Accordingly, I would affirm the district judge’s rulings denying defendants’ motions which sought disclosure of the entire contents of the presentence reports.
. Fed.R.Crim.P. 32(c)
(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. * * * *
. Fed.R.Crim.P. 32(c)(2).
. As proposed in 1962, the amendment would have made it mandatory to disclose a summary of the information in the report. See Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, December 1962, p. 25.
. As proposed in 1964, the amendment would have given counsel for the defendant an absolute right to read the report (from which sources of confidential information could he excluded) and to comment thereon. See Second Preliminary Draft of Proposed Amendments to Rules of Criminal Procedure, March 1964, pp. 39 — 40.