How to object to a presentence report
Object to both the facts and the legal conclusions set forth in the presentence report. Remember that "[a]t sentencing, the court . . . may accept any undisputed portion of the presentence report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A). If a defendant properly disputes a fact in the PSR, the government must prove that fact at sentencing.
Be timely. Objections must be provided, in writing, to the probation officer within 14 days after receiving the presentence report. Fed. R. Crim. P. 32(f).
Be specific in your objections, and include alternate objections.
- Not specific enough: In United States v. McDonald, 43 F.4th 1090 (10th Cir. Aug. 9, 2022), counsel objected that the source of facts contained in the PSR was not credible or reliable, but did not object that the facts were untrue. On appeal, the Tenth Circuit held that this was "insufficient to raise a proper objection and trigger the district court's Rule 32 fact finding obligation." Counsel must make "specific allegations of factual inaccuracy" and say why the facts are untrue. "In other words, the defendant must assert that the facts alleged in the PSR are false." The Tenth Circuit aligned itself with the Fourth Circuit in requiring an assertion of falsity. Other circuits hold that an assertion of unreliability is enough. Try to satisfy McDonald, but if you only have grounds to assert unreliability (as opposed to affirmative falsity), make that objection as detailed as possible. Invoke Rule 32 (set up that circuit split for cert), but consider also invoking your client's constitutional right to be sentenced on accurate evidence. See United States v. Tucker, 404 U.S. 443 (1972). The district court can only determine accuracy by testing reliability, so make sure the court understands why the PSR facts are unreliable.
- Specific enough: The Tenth Circuit reversed a drug sentence and remanded for a new drug-quantity calculation and resentencing in United States v. Williams, ___ F.4th ___, 2022 WL 4102823 (10th Cir. Sept. 8, 2022). Counsel preserved the drug-quantity issue there by making specific objections to the presentence report, disputing both whether packages delivered to Mr. Williams's home contained methamphetamine and, if they did, whether the PSR incorrectly determined the weights of the drugs in those packages by failing to account for packaging material. Counsel also objected to the PSR's ACCA determination, another issue decided in Mr. Williams's favor on appeal.
Check the PSR addendum to see how the PSR writer recorded any unresolved objections per Rule 32(g). Does it accurately and completely state your objections? Or is it a poorly summarized account that you need to clean up with a request for an amended PSR or in a sentencing memorandum? Be cautious about relying on the addendum alone to preserve your objection.
Follow your court's rules and conventions when filing a sentencing memorandum to restate or expand on your PSR objections. Does your court have deadlines for sentencing memoranda? Page limits? Rules requiring separate filings for PSR objections and motions for variance/departure? Other preferences that only regular practioners know about? Find out and follow those preferences.
Object again. You are a dog with a bone. Good dog! Don't let go of that bone! Growl if they try to take it away from you. Pick it up again if you accidentally drop it. It's yours. Don't give it up. Ever. See United States v. Godinez-Perez, 737 Fed. Appx. 894, 900 (10th Cir. 2018) (defendant abandoned argument made in sentencing memorandum by responding in the negative to district court's query whether there were any other arguments).