Factual dispute at sentencing? Object, object, and object again!

Yesterday, in United States v. Cherimond, the Second Circuit remanded a sentence for the defense to make a fuller objection.

Here’s what happened: at sentencing, the district court upwardly departed based on pending and dismissed charges. Defense counsel objected to the departure and added that the defense was “not consenting or conceding to the allegations of fact in any of those cases.” Counsel said this in a few different ways: it was “not conceding any of the factual recitations are accurate,” and later that the defense had “said repeatedly we’re not conceding.” It seems clear, right? The defense objected. But – at one point, counsel said that “certainly the Court can take [the allegations] into account if it wants.” Counsel then again said that it “wouldn’t be appropriate” to do so.

On appeal, the Circuit discussed counsel’s comments at some length, saying counsel “signaled an objection,” but also “appeared to acknowledge that” the court could take the allegations “into account if it wants.” Rather than decide if counsel’s objection was enough, however, the Circuit remanded for the district court to “clarify whether the defendant objects to allegations in the presentence report.” If the defense does object, the district court is directed to vacate the sentence and allow the parties to submit evidence on the challenged matters. So, counsel will have the chance to object yet again!

The summary order also has good language to use in other cases: The defendant has a “due process right to be sentenced based on accurate information.” The sentencing court “must ensure that the defendant has an opportunity to respond in order that the court not rely on misinformation.” And, if the defense objects to facts in the PSR, the district court is obligated to give the defense an “opportunity to respond” and to “rule on the dispute.”