dissenting.
Although prior decisions, cited by the majority, may have foreclosed defendant’s arguments that his constitutional rights were violated because the information received was hearsay, the majority has misapprehended the point of Yates’ argument based on Fed.R.Crim.P. 32. Rule 32(c)(1)1 directs the United States Probation Office to make a presentence investigation and to prepare a report based upon this investigation. The defendant may waive this procedure or the court may find the record sufficient in itself as a basis for sentencing. Rule 32(c)(3)(A)2 requires the judge to permit the defendant the opportunity to comment upon it and, within the court’s discretion, to introduce testimony concerning factual inaccuracies.
These two sections, taken together, demonstrate a policy clearly intended by Congress, to channel all factual data considered by the judge in sentencing through the *345probation office and its report. There is good reason for such a policy. The probation office, which routinely handles such investigations has the expertise and disinterest necessary to evaluate information and its sources, especially hearsayt Probation officers, who regularly come into contact with such information, are in the best position to determine its value and credibility in reporting it. Further, the probation office is a much more objective filter for such information than the federal prosecutor, who presented the hearsay in this case. In fact, the district court had indicated to both parties that they should present any relevant information to the probation office. Congress, in providing this screening procedure which can be waived only by the defendant or the judge if there is sufficient information already in the record, was expressing a policy that any additional information pass through it.
Moreover, Rules 32(c)(1) and (c)(3)(A) indicate that Congress intended that a defendant have an opportunity to meaningfully challenge information received by the sentencing judge. Such a challenge can be made when the material is contained in a presentence report. It may, however, be impossible to do anything but deny a factual inaccuracy with which the defendant is confronted for the first time immediately prior to sentencing. This is especially true of hearsay where, as in the instant case, the original declarant was not even identified.
I am not persuaded that the judge here did not permit this information to influence his decision. The Government was asked at oral argument whether a sentence of four years was a normal one in the Eastern District of Illinois for such an offense. It stated that a normal sentence in the district for an offense of this type is more than four years because the offender generally has a prior criminal record. The Government never stated what a usual sentence for a person with no prior record would be in the district. At oral argument, however, it implied that this four year sentence was not usual; this implication can be found in its speculation, in response to the question, that the sentence was the result of the judge’s examination of the presentence report. Before he pronounced sentence, however, the judge had also heard the damaging hearsay-on-hearsay testimony. Despite the trial judge’s disavowment that he was influenced by the hearsay testimony, we are ignoring the facts as well as human nature to say that this testimony might not have had an influence — perhaps a subconscious one — on the sentence.
Because the procedure taken by the sentencing judge was contrary to the policy expressed by Congress in Fed.R.Crim.P. 32, I would vacate the sentence and remand the case to another judge for resentencing. In urging this disposition of the case I do not wish to indicate any reflection on the fairness of the trial judge.
. Rule 32(c)(1) reads in part:
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, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds that there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.
. Rule 32(c)(3)(A) provides:
Before imposing sentence the court shall upon request permit the defendant, or his counsel if he is so represented, to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to-comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.