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Eighth Circuit Affirms Sentences Based on Uncontested Facts in the PSR
Mar 23rd, 2014

How must a defendant effectively object to facts in the presentence report (PSR)? With “specificity and clarity,” the Eighth Circuit repeats in United States v. Pepper, issued on March 20, 2014 (published), so as “to put the Government on notice of the challenged facts.” In other words, it is not enough for the defense lawyer simply to say that the defendant “does not admit” certain facts contained in the PSR. The defense must affirmatively dispute them (even if the “facts” in question are hearsay statements made to law enforcement officers, that were then simply relayed to the probation officers writing the PSR).

Of course, the government can then present evidence to refute the defense position (unless foreclosed by its plea agreement), which may make matters even worse for the defendant. In any event, in Pepper, in the absence of specific objections to the facts underlying a four-level enhancement for firearms trafficking, the Eighth Circuit affirmed the district court’s imposition of the enhancement. As the Court had stated last year in United States v. Freeman, “unless a defendant objects to a specific factual allegation contained in the PSR, the court may accept that fact as true for sentencing purposes.”

The case also involved a challenge to Mr. Pepper’s criminal history category, which was increased by three points based on a state sentence imposed after the guilty plea but before the federal sentencing. The Guidelines count any prior sentence “previously imposed,” which means any sentence “imposed prior to sentencing on the instant offense.” The only way, therefore, to avoid the inclusion of the new conviction in the calculations is to argue (as Pepper did unsuccessfully) that the state offense was “part of” the federal offense, or to endeavor to adjourn the state sentencing until after the federal one.



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JaneAnne Murray is a criminal defense lawyer in Minneapolis.

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