We agree with Defendant’s first argument. When she challenged the drug-quantity calculation in the PSR, the district court did not require the government to put on evidence supporting the calculation, stating that the PSR was based on trial testimony. This statement was inaccurate, and the error was not harmless because the trial evidence would not compel a finding of at least 1.5 kilograms of methamphetamine.In this case, it was the defendant speaking up at sentencing, over her lawyer's apparent onset of selective mutism, that preserved the issue. The Government, of course, could have referred to trial testimony as evidence of weight, except here, the trial evidence did not support the PSR conclusions. "We are particularly hesitant because the PSR did not see fit to refer to the testimony of the witnesses."
Harrison's 360-month sentence was vacated and remanded.