In United States v. Johnson, the Fifth Circuit held that a sentencing court cannot rely on facts that were not disclosed to the defendant. In that case, the district court relied on multiple allegations of witness intimidation to impose an upward variance. Those allegations were detailed in the probation officer's confidential sentencing recommendation to the court, but were not in the PSR or otherwise disclosed to the defense. On appeal, the Fifth Circuit found plain error and reversed.
The Fifth Circuit found error under F.R.Crim.P. 32(d)(2), which requires that facts relevant to sentencing be disclosed to the defendant in the PSR prior to sentencing. Rule 32(e)(3) allows for the court to receive a confidential sentencing recommendation from the probation office. But, the Fifth Circuit said, that recommendation “cannot be used to shield undisclosed facts or factual allegations upon which a probation officer substantially relies in recommending an upward departure or variance from the Guidelines sentencing range or the selection of a particular sentence within that range.” The court also found that the error was "clear or obvious" based on the language of Rule 32(d)(2). The court also noted that Johnson had not argued that the allegations were false or claimed that he could present evidence to refute them. Nonetheless, the Fifth Circuit vacated and remanded for resentencing because the disclosed evidence did not support the district court's reasons for the upward variance.