United States v. Terry Wayne Turner

HARLINGTON WOOD, Jr., Circuit Judge,

dissenting.

Because I believe the district court relied upon both improper and materially inaccurate information in sentencing the defendant, I must respectfully dissent. I would vacate the present sentence and remand to the district court for a fresh sentencing.

Turner claims that he is entitled to a resentencing because, in imposing sentence, the district judge relied primarily upon 1) evidence of Turner’s refusal to testify before the first two grand juries without a formal grant of immunity, and 2) the judge’s mistaken impression that Turner reneged on his plea agreement with the government when he appeared before the third grand jury.

The record reveals that those two situations formed the core of the judge’s sentencing decision. Could the sentencing judge properly rely upon such considerations when imposing sentence? In my opinion, reliance upon either ground constitutes a violation of Turner’s due process rights sufficient to dictate a resentencing. In any event it constitutes error reversible on direct appeal.

It is well recognized that sentencing judges have broad discretion concerning what information they may look to in sentencing. See, e.g., United States v. Harris, 558 F.2d 366, 372 (7th Cir.1977). That information need not be the sort that would be admissible at trial. United States v. Tucker, 404 U.S. 443, 446 , 92 S.Ct. 589, 591 , 30 L.Ed.2d 592 (1972) (cited in Harris, 558 F.2d at 372 ). This is not to say, however, that there are no outside bounds. The Supreme Court has declared that defendants have a due process right not to be sentenced on the basis of either improper or inaccurate information. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed.2d 592 (1972) (due process violation to be sentenced on basis of improper information); Townsend v. Burke, 334 U.S. 736 , 68 S.Ct. 1252 , 92 L.Ed. 1690 (1948) (due process violation to be sentenced on basis of materially inaccurate information). See also North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969); United States v. Kerley, 838 F.2d 932 (7th Cir.1988); United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir.1984); United States v. Hubbard, 618 F.2d 422 (7th Cir.1979) (per curiam).

*1402 The majority holds that the test for determining whether a sentence must be vacated as violative of due process is whether it was based upon “misinformation of constitutional magnitude”; yet they choose a reading of this phrase which I view as narrower than either Supreme Court or our own precedent dictates. True enough, a judge’s reliance upon “misinformation of constitutional magnitude” will result in a vacated sentence. See Tucker, 404 U.S. at 447-49 , 92 S.Ct. at 591-93 (coining the phrase “misinformation of constitutional magnitude”); cf. Pearce, 395 U.S. at 724-26 , 89 S.Ct. at 2080-81 (sentence vacated where judge’s imposition of enhanced sentence on reconviction was based upon defendant’s appeal of first conviction). However, the majority's interpretation ignores a number of cases which show that this concept encompasses both improper considerations and inaccurate information.

The phrase “misinformation of constitutional magnitude,” as used by the Court in Tucker , connoted improper information. The defendant’s sentence in Tucker was vacated because the sentencing judge had enhanced the defendant’s sentence in reliance upon his prior record of three convictions, at least two of which were later found to be constitutionally invalid. Id. at 447-49 , 92 S.Ct. at 591-93 . It was not suggested that the information concerning the convictions was materially false or inaccurate as to the fact of conviction or defendant’s actual guilt. The Court simply found it improper to enhance a defendant’s current sentence based upon a record of such convictions.

Yet, the Court also recognizes material inaccuracy or falsity as a basis for vacating a sentence. See Townsend v. Burke, 334 U.S. at 740-41 , 68 S.Ct. at 1255 . In Townsend , the sentencing judge had either been supplied an inaccurate record of the defendant’s prior convictions, or had misread the record, or both, when imposing sentence. The Court held that reliance upon materially inaccurate information in sentencing violates a defendant's due process rights. 1 Id. at 740-41 , 68 S.Ct. at 1255 .

When pronouncing sentence in the present case, Judge Mills clearly articulated the bases for the sentence imposed:

I just reread here a few moments ago in your file the plea agreement that you entered into with the Government. And you agreed to cooperate with the Government, to help and assist in investigations, including truthful testimony before any Federal Grand Jury and United States District Court proceeding, and in exchange for that the Government was going to do a whole lot of things, dismissing counts, not prosecute Randy Rex Turner and make known to me how much your cooperation involved today at the time of sentencing right now.

You reneged on your bargain. That’s a signed contract and the day I took your plea, I turned to the last page of it, and I had you look at it, come up here and I asked you, is that your signature, and you said yes, it was. You didn’t live up to your bargain. You didn’t cooperate, and you didn’t testify the first two times before that Federal Grand Jury. So, your immunity was withdrawn, and, you know, all of this kind of goes back full circle to the two times when the Court in Morgan County had to issue bench warrants to get you in, to get you in before that Court. (Emphasis added).

Again Judge Mills commented:

Well, I can certainly say this to you Mr. Turner. In my twenty-one years as a Judge, I recall very, very few cases of the Defendant who has committed as many aggravating acts prior to his sentencing in the offense that he’s in Court *1403 for. I’ve had plenty with [records] as long as your arm before that offense. I’m not talking about that. I’m talking about the involvement here and your lack of cooperation, your lack of living up to your agreement with the Government and the plea agreement that you asked me to accept here in Court, and I did.

Well, we simply can’t tolerate this, and here Mr. Robinson argues very eloquently concerning rehabilitation and acknowl-edgement of errors, et cetera, but it comes so late and so little.

(Emphasis added).

These excerpts make it clear that Judge Mills relied in sentencing upon both improper information (Turner’s refusal to give up his fifth amendment privilege against self-incrimination before the first two grand juries), and inaccurate information (the judge’s mistaken impression that Turner reneged on his plea agreement with the government when he appeared before the third grand jury).

In order to understand how improper Judge Mills’ reliance upon Turner’s refusal to testify before the first two grand juries was, it is necessary to understand that Turner was validly asserting his fifth amendment privilege. The government offered use immunity to the defendant in a letter signed by an Assistant United States Attorney on October 10, 1986. 2 The letter represents that the Assistant United States Attorney has the authority to grant immunity. The source of this claimed authority, whether high officials in the Department of Justice or the United States Attorney, was not set forth. The letter mentions that there had been preliminary discussions between the government and the defendant, but the record does not reveal the content of those discussions. The Assistant United States Attorney’s letter further undertakes to assure the defendant that he is being accorded use immunity as provided in Title 18 of the United States Code. The particular section of the statute is not specified in the letter.

Title 18 unequivocally sets forth the proper procedure for granting statutory immunity. See 18 U.S.C. §§ 6001-6005 . To grant immunity, the United State Attorney must receive the approval of appropriate top officials of the Department of Justice by demonstrating to them that the grant of immunity is in the public interest. Id. § 6003(b). The statute also requires that the district court approve the grant of immunity. Id. § 6003(a).

The present record is devoid of any suggestion that the government followed this statutory procedure. As noted by the majority, an informal immunity offer based on an alleged but unspecified conversation with the defendant does not compel a defendant to waive his fifth amendment rights. Only a grant of statutory immunity can accomplish that. United States v. Murphy, 768 F.2d 1518, 1532 (7th Cir.1985), cert. denied, 475 U.S. 1012 , 106 S.Ct. 1188 , 89 L.Ed.2d 304 (1986). The defendant, therefore, was under no obligation to cooperate with the government.

This does not, howevér, imply that the defendant did not wish to cooperate with the government. As set forth in the majority opinion, the defendant testified at the sentencing hearing that he would have cooperated with the government and testified at the first two grand juries if he had seen, as other co-conspirators had, a court order authorizing the grant of immunity. While I do not intend to challenge the validity of the common use of informal immunity generally, I note that Turner had some reason to hesitate over the government’s failure to obtain a court order authorizing the immunity offered him. The effectiveness of the government’s informal immunity offer in protecting him from the subsequent use of *1404 his testimony, particularly in courts outside the Central District of Illinois, could be viewed by him as uncertain. See United States v. D’Apice, 664 F.2d 76, 78 (5th Cir.1981); United States v. Sanderson, 498 F.Supp. 273, 276 (M.D.Fla.1980). The cases on this subject are ordinarily concerned with whether and to what extent the government itself is bound by its informal offer of immunity, particularly after a witness has testified in reliance on the immunity. See, e.g., United States v. Williams, 809 F.2d 1072, 1081-82 (5th Cir.), cert. denied, — U.S. —, 108 S.Ct. 228 , 229, 269, 506, 98 L.Ed.2d 187 (1987) (four petitions for certiorari denied). In any event the government did not extend to Turner the statutory immunity that it represented.

This state of affairs must be seen as a critical factor in evaluating the genuineness of Turner’s reliance upon his fifth amendment privilege in refusing to testify under the informal immunity offer. The defendant and his co-conspirators had crossed through several states in committing the acts to which he later pled guilty. It appears that Turner’s refusal to cooperate under the informal immunity offer reflected a reasonable assertion of his fifth amendment privilege.

The majority characterizes the defendant’s refusal to testify before the first two grand juries as “noncooperation,” justifying enhancement of his sentence under United States v. Roberts, 445 U.S. 552 , 100 S.Ct. 1358 , 63 L.Ed.2d 622 (1980). Noncooperation it may be, but it is still protected behavior under the fifth amendment, and Roberts in no way supports the proposition that a criminal defendant’s sentence may be enhanced for failure to cooperate with the authorities when that noncooperation is founded upon the fifth amendment.

The Court in Roberts did hold that the sentencing judge properly relied upon the defendant’s lack of cooperation in enhancing his sentence, 445 U.S. at 557-58 , 100 S.Ct. at 1362-63 , but as I see it, not for the reason which the majority today supposes. Roberts involved a criminal defendant who refused to cooperate with authorities after he had made a full confession of his own criminal activities. The defendant was asked to provide the prosecution not with information which might incriminate him (which was not at issue since he had already confessed), but with information that could lead to the arrest and prosecution of others. Only upon appeal, nearly three years after the prosecution requested the defendant's help, did the defendant in Roberts assert that the basis for his noncooperation was the invocation of his fifth amendment privilege against self-incrimination.

The Court reasoned that the defendant's failure to raise the issue of self-incrimination over a prolonged period of time, in a scenario that did not suggest to the prosecution or the sentencing judge that the defendant was concerned with incriminating himself, gave rise to a reasonable inference that the defendant’s lack of cooperation was not based on a legitimate exercise of his fifth amendment privilege but upon some other, unprotected motive.

The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the Government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion.

Roberts, 445 U.S. at 559-60 , 100 S.Ct. at 1363-64 (citations omitted).

The Court thus rejected the defendant’s objection to his enhanced sentence in Roberts , not because assertion of the fifth amendment privilege may be burdened with the threat of increased punishment for its exercise, but because the defendant in Roberts did not in fact rely upon the privilege when he refused to cooperate. In fact, the Court stated that although Roberts’ invocation of the fifth amendment was too late to be credible, “[tjhese arguments would have merited serious consideration if they had been presented properly to the sentencing judge.” Id. at 559 , 100 S.Ct. at 1363 . All that Roberts truly stands for, therefore, is the proposition that a defendant’s refusal to cooperate with an investigation may be held against him at the sentencing stage if his silence is *1405 not founded upon the fifth amendment privilege. Where a defendant’s silence is based on the fifth amendment privilege against self-incrimination, a judge cannot rely upon the defendant’s noncooperation in making a sentencing decision. United States v. Garcia, 544 F.2d 681 , 685 & n. 5 (3d Cir.1976); see also United States v. Lemon, 723 F.2d 922, 937 (D.C.Cir.1983).

There is no serious question that Turner was asserting a valid fifth amendment privilege when he refused to testify before the first two grand juries; the majority concedes this point. 3 Turner was asked to testify before he was indicted or had admitted any involvement in criminal activity. In contrast to the defendant’s lack of cooperation in Roberts , Turner’s refusal to testify before the first two grand juries was clearly motivated by a desire to avoid self-incrimination. Nothing in Roberts sanctions Judge Mills’ decision to enhance Turner’s sentence on the basis of this valid and appropriate exercise of his fifth amendment privilege.

The majority cites Bordenkircher v. Hayes, 434 U.S. 357 , 98 S.Ct. 663 , 54 L.Ed. 2d 604 (1978), for the proposition that a criminal defendant can be given a stiffer sentence for standing on, rather than relinquishing, his constitutional rights. Bor-denkircher addressed the question of whether a prosecutor could constitutionally coax a criminal defendant to plead guilty to a charge he had already been indicted on by threatening to pursue a more serious charge if the defendant refused. The defendant in Bordenkircher refused to plead guilty to a relatively minor current charge, was indicted on a far more serious charge, was convicted and received a life sentence. Significantly, the sentencing differential in Bordenkircher did not arise out of the exercise of judicial discretion — the offense of which the defendant was convicted carried a mandatory life sentence. Id. at 358-59 , 98 S.Ct. at 665-66 .

A closely divided Court (5-4) ruled that such a practice was constitutionally acceptable where the prosecution could in fact have indicted the defendant on the more serious charge to begin with, and the defendant in fact knew from the beginning of the plea negotiations that the prosecution would seek a conviction on the greater charge if the defendant refused to plead guilty to the lesser charge. The Court was careful to limit its decision to the facts and circumstances of that specific case:

We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

Bordenkircher, 434 U.S. at 365 , 98 S.Ct. at 669 .

Nowhere in the Bordenkircher opinion did the Court address the issue of whether, once the defendant is convicted, a sentencing judge may enhance a defendant’s sentence as punishment for refusing to relinquish constitutional rights. Bordenkircher at most sanctions the practice of leveraging by prosecutors during plea negotiations; it does not endorse the practice of sentence enhancement by judges based upon defendants’ refusal to waive constitutional rights.

In fact, such practices have been strongly condemned by the Supreme Court. In North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), the Court held that it constitutes a violation of due process for a sentencing judge to enhance a criminal defendant’s sentence on the grounds that the defendant had exercised his right of appeal. In a pair of consolidated cases the Court reviewed the practice by sentencing judges of imposing greater sen *1406 tences on criminal defendants upon recon-viction after a successful appeal of an earlier conviction. The Court held that penalizing the exercise of the right to appeal by-imposing an enhanced sentence was constitutionally flawed:

Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725 , 89 S.Ct. at 2080 .

If it is improper for a sentencing judge to burden, through sentence enhancement, a defendant’s right to appeal, how can it be appropriate for a judge to similarly encumber the most basic of constitutional guarantees: the privilege not to incriminate oneself? The answer is quite simple — it is not appropriate.

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort ... and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.”

Bordenkircher, 434 U.S. at 357 , 98 S.Ct. at 665 (citing Pearce, 395 U.S. at 738 , 89 S.Ct. at 2082 ; Chaffin v. Stynchcombe, 412 U.S. 17 , 32-33 & n. 20, 93 S.Ct. 1977 , 1985-86 & n. 20, 36 L.Ed.2d 714 (1973)).

The majority’s characterization of the defendant’s exercise of his fifth amendment privilege as noncooperation does not alter this analysis. A sentence based upon a defendant’s legitimate assertion of constitutionally guaranteed rights is no less founded upon “misinformation of constitutional magnitude” than reliance upon a record of constitutionally invalid convictions, Tucker , or upon the successful exercise of the right of appeal, Pearce. See also United States v. Carter, 804 F.2d 508 (9th Cir.1986) (judge cannot enhance sentence based upon defendant's decision not to plead guilty but rather to put prosecution to its proof); United States v. Hutchings, 757 F.2d 11 (2d Cir.), cert. denied, 472 U.S. 1031 , 105 S.Ct. 3511 , 87 L.Ed.2d 640 (1985) (same). In such situations the defendant is not entitled to sentence consideration (as Turner might have been had he cooperated), but neither can his sentence be enhanced. The majority’s point is well taken — such a distinction may be difficult to make at times, but difficulty in applying the law has never been an adequate excuse for failing to try. In this particular case the decision is less difficult, for the circumstances strongly support the conclusion that enhancement occurred.

The second inappropriate factor relied upon by the sentencing judge in this case was his mistaken impression that the defendant also had not fulfilled the terms of his plea agreement when he appeared before the grand jury the third time. In oral argument at the sentencing hearing the Assistant United States Attorney argued:

The defendant testified before a Federal Grand Jury on this pass [sic] Friday. I examined him in the Grand Jury. My characterization of his testimony would be useless. He provided the Government with very little information which we could proceed upon. His testimony was of no value to the Government. True, he has appeared. He did testify, but I would recall to the Court that the Defendant also appeared earlier before the Grand Jury and refused to testify.

(Emphasis added).

This argument indicates that the defendant, in keeping with his plea agreement, actually did appear before the grand jury and testify. The government, however, was dissatisfied for some reason with what it learned from the defendant’s testimony. The government does not claim that the defendant’s testimony was false, that the defendant refused to answer, that the defendant misled the government in what information he did provide, or that the de *1407 fendant held back information. The government merely asserted that the defendant’s testimony was “useless,” that the defendant provided “very little information,” and that his testimony was of “no value” to the government.

The district judge’s comments in the sentencing record make it clear, however, that he misunderstood the government’s comments to indicate that the defendant had failed to live up to the terms of the plea bargain. The government concedes that the district judge was under the impression that the defendant had violated the terms of the plea bargain. The record, to the contrary, suggests that the defendant did not violate the agreement. Some of the information he gave is revealed by the Assistant United States Attorney’s cross-examination of the defendant. That the government was disappointed not to have netted a counterfeiting kingpin cannot be blamed on the defendant, who defense counsel seems correctly to have labelled as a “small cog” in the conspiracy. And even more certainly, the defendant’s sentence cannot be based upon a mistaken apprehension by the judge that Turner did not live up to the plea agreement.

In United States ex rel. Welch v. Lane, 738 F.2d 863, 864-65 (7th Cir.1984), we noted:

The Supreme Court has held that convicted defendants have a due process right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447 [ 92 S.Ct. 589, 591 , 30 L.Ed.2d 592 ] (1972); Townsend v. Burke, 334 U.S. 736, 741 [ 68 S.Ct. 1252, 1255 , 92 L.Ed. 1690 ] (1948). The foundation of that right is due process protection against arbitrary government decisions. A convicted offender does not have a constitutional right to a particular sentence available within a range of alternatives, but the offender does have a right to a fair sentencing process — one in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information.

Lane, 738 F.2d at 864-65 . And although not every mistake made in sentencing rises to the level of a due process violation,

a sentence must be set aside where the defendant can show that false information was part of the basis for that sentence. The two elements of that showing are, first, that information before the sentencing court was inaccurate, and second, that the sentencing court relied on the misinformation in passing sentence.

Lane, 738 F.2d at 865 .

The majority today, in my view, alters this rule laid down by the Supreme Court and followed in this circuit, by reading the phrase “misinformation of constitutional magnitude” so narrowly as to virtually exclude the very concerns that gave rise to the rule. While the Court coined the phrase “misinformation of constitutional magnitude” in Tucker, Townsend v. Burke was the first case in which the Court recognized the existence of a due process right to be sentenced on the basis of accurate and appropriate information. The defendant in Townsend had been sentenced to a substantial prison term upon entering a plea of guilty to charges of burglary and robbery. The record revealed that the judge, in imposing sentence, relied upon a record of prior convictions that was inaccurate. The judge also appeared to misunderstand that part of the record which was accurate. 4 The Court held that a sentence imposed in reliance upon such inaccurate information was violative of due process:

[W]e conclude that, while disadvantaged by lack of counsel, this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.

Townsend, 334 U.S. at 741 , 68 S.Ct. at 1255 .

*1408 In the instant case, the majority implies that the judge’s misunderstanding of Turner’s compliance with the plea agreement was at most a mischaracterization of the true facts. It was more than that. Judge Mills concededly believed an “untrue” fact —that Turner reneged on his plea agreement. This is exactly the type of mistake made by the sentencing judge in Townsend which prompted the Supreme Court to vacate the defendant’s sentence. Thus, contrary to what the majority opinion seems to imply, 5 mistaken impressions can fatally flaw a sentence to the same extent as mistaken facts. In United States v. Kerley, 838 F.2d 932 (7th Cir.1988), a defendant had been sentenced to prison for failing to register for the military draft. We vacated the sentence when the record revealed that the judge had relied not upon mistaken facts, but upon mistaken impressions in imposing sentence. The judge incorrectly believed that the defendant would receive parole within one year based upon the sentence imposed, and he incorrectly surmised that the defendant had encouraged others not to register for the draft, apparently based upon the defendant’s membership in a political organization. Id. at 940-41 .

In the instant case, Judge Mills was under the mistaken impression that the defendant had reneged upon his plea agreement with the government, and he clearly relied upon that false impression in sentencing the defendant. Under the test of Townsend-Tucker, as interpreted by this court in Lane, Kerley and other cases, this defendant has established that the sentence imposed upon him is violative of due process.

While I firmly believe that the sentence imposed in this case is violative of the defendant’s right to due process, I note that the procedural status of this case does not require us to find a due process violation in order to vacate this faulty sentencing. Tucker , upon which the majority bases its view that Turner must prove an error of “constitutional magnitude” in order to receive a resentencing, was a collateral attack case; the defendant had to prove a violation of his constitutional rights in order to obtain relief. The same is true of the other seminal case in this area, Townsend . However, reliance upon inaccurate or improper information, even if not rising to the level of a due process violation, constitutes reversible error, which can be redressed upon direct if not collateral review. Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir.1986).

In the present case, the defendant has sought timely direct review of errors committed during sentencing. And although defense counsel was perhaps less than diligent at times during the sentencing hearing, the government has not argued that the defendant waived these sentencing errors. This court has held that the failure of defense counsel to object as strongly as he should have at sentencing, particularly where the government does not argue waiver, is no bar to relief, even on collateral review. See United States ex rel. Welch v. Lane, 738 F.2d 863 , 864 n. 1 (7th Cir.1984).

Also, this case may be distinguished from a case where incorrect information is contained, for instance, only in a probation report and no one calls it to the attention of the government, or the sentencing judge. Here what actually had happened before the grand jury was clearly revealed in the testimony at sentencing. It was apparently misinterpreted by Judge Mills. The government even concedes in its brief (as it did at oral argument) that Judge Mills believed the defendant had reneged on his plea agreement. At sentencing the government unfortunately did nothing to help clarify the situation, nor did defense counsel. It is clear, nevertheless, that the defendant did not renege on his bargain. The defendant himself, in answering questions *1409 on cross-examination, made it plain that he had appeared and testified in accordance with the plea agreement. The government admitted in open court that he had, but his answers apparently were not of use to the government. The government’s disappointment about the defendant’s lack of useful information is no grounds for sentence enhancement. The error that occurred here should have been as obvious then as it is now in the record of that proceeding. The error was plain, very plain, regardless of what defense counsel did or did not do. And although the actual sentence which Judge Mills imposed is within the statutory limits, as the majority notes, I consider that fact totally irrelevant in this case. The general rule that this court will not disturb a sentence that is within the statutory guidelines has one very important exception. We can and will vacate a sentence where “the trial court relied on improper or unreliable information in exercising its discretion or failed to exercise any discretion at all in imposing sentence.” United States v. Plain, 856 F.2d 913, 918 (7th Cir.1988) (quoting United States v. Bush, 820 F.2d 858, 862 (7th Cir.1987)). This case falls within the exception, not the rule.

A trial judge in these circumstances, if some problem is sensed, would be well advised, I believe, to follow Justice Brennan’s sage advice in his concurrence in Roberts, 445 U.S. at 563 , 100 S.Ct. at 1365 . That advice is for the trial judge to raise the issue and to question the circumstances of the defendant’s claimed noncooperation, even where no one else does, so as to avoid sentencing upon mistaken facts or unfounded assumptions. But the trial judge should have the help of the government and defense counsel, and neither was adequate in this case.

Finally, I note that contrary to the majority’s assertion, Fed.R.Crim.P. 35 (as applicable to offenses committed prior to November 1, 1987) does not offer a complete avenue of relief for this defendant. Turner could, theoretically, file a 35(b) motion in the district court, requesting that Judge Mills reevaluate and reduce his sentence in light of the circumstances surrounding his first sentencing. The majority holds, however, that these circumstances do not require a resentencing. The validity of the sentence was properly raised on appeal, and it should be confronted and decided by us, and not left to the discretion of the trial judge under a different procedure.

I, therefore, find justification for vacating this defendant’s sentence (but not his plea of guilty), and remanding for a new sentencing by Judge Mills based upon grounds both constitutional and correct.

Therefore, I must respectfully dissent.

. The Court in Townsend also found the defendant's lack of representation at the sentencing hearing to be significant. However, lack of counsel does not seem to be the determinative factor in these cases. This court has never so held in any event. See, e.g., United States ex rel. Welch v. Lane, 738 F.2d 863 (7th Cir.1984) (sentence vacated because based on inaccurate information even though defendant represented at sentencing hearing): United States v. Harris, 558 F.2d 366 (7th Cir.1977) (same). In other words, if a trial judge relies upon inaccurate or improper information in imposing sentence, the presence of counsel will not cure or excuse the due process violation.

. The informal immunity letter, in its entirety, stated:

Pursuant to the authority vested in me, and pursuant to our discussions, please be advised that you are accorded use immunity as provided for in Title 18, United States Code. This use immunity is contingent upon your being completely truthful in your answers to requests directed to you by government agents and personnel both before the Grand Jury and outside the Grand Jury. It is further contingent upon your extending complete cooperation to the United States.

. Specifically, the majority states:

Only a formal grant of immunity ... strips a suspect of his privilege (by eliminating the possibility of incrimination) and requires tes-timony_ Turner was not under such compulsion and was entitled to deem the threat of prosecution real until the United States took the steps legally required to dissipate it. So when Turner balked before the grand jury the first two times he was called, he was asserting a valid privilege against self-incrimination.

Maj. op. at 1398 (citations omitted).

. The Court in Townsend also found the lack of counsel significant: this court does not find it controlling. See note 1, supra.

. “Too, we doubt that disagreements of this sort concern ‘inaccurate’ information. We do not have a dispute about the facts; we have a dispute about the right way to characterize the facts (‘recalcitrant’ and the like). We are not aware of any case that even suggests that an appellate court may set aside a sentence because of a judge's characterization (or mischaracteri-zation) of undisputed facts.” Maj. op. at 1400.