Wednesday, February 19, 2020

When the PSR has no clothes.

We know that a district court can accept facts stated in the PSR, unless the defendant objects to them. An objection triggers the government's obligation to prove the objected-to facts by a preponderance of the evidence. See United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014)

A recent Seventh Circuit decision reminds us about the practical importance of these objections. In United States v. Helding, the Seventh Circuit vacated the defendant's sentence for marijuana distribution because of the unreliability of the district court's drug-quantity finding. 140 kilograms of marijuana were seized from the defendant's car. The PSR also attributed 64 ounces of methamphetamine to him as relevant conduct, based on statements made to law enforcement by confidential informants. The meth raised the guidelines range from 180-210 months to 270-322 months. The defense objected, arguing that that the meth statements were not corroborated and the PSR did not establish that the informants were credible. The district court accepted the meth statements as reliable because the statements were specific and detailed. The Seventh Circuit held that the district court could not accept the out-of-court meth statements as reliable over an objection by the defendant, without some corroboration or information about the reliability of the informantsWhere the PSR "asserts nothing but a naked or unsupported charge, the defendant’s denial of that information suffices to cast doubt on its accuracy." 

Remember: if the defense had not objected, the district court would have been free to accept the meth statements as established fact. 

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