Findings of Fact in Sentencing

United States v. Ruben Arroyo, Case No. 03-3113 (05/05/2005): May the judge rely on the findings of fact in the PSI? This opinion contains a good review of the pertinent case law, which allows the judge to adopt, even implicitly, the facts stated in the PSI as long as they are completely and coherently stated. Unfortunately, the defendant in this case did not object to the district court’s reliance on a PSI that was less than informative, and the Court found the PSI adequate enough to withstand plain error analysis.

Counsel should be thinking about two broader questions, which, given the procedural posture of this case, the Court did not consider. When the judge merely states a conclusory fact, e.g., more than 500 grams of cocaine as relevant conduct, is it satisfactory that the PSI has a complete and coherent explanation of the facts leading to this conclusion? The cases allow the reviewing court to assume that the district judge relied on the PSI. For such an important matter, it is not too much to ask that the judge explicitly rely on the PSI. Circuit Rule 50 requires the judge to provide a statement of reasons; assuming that someone else’s reasons are the judge’s reasons is a hollow substitute.

Second, after Blakely, Booker, and Crawford, is there any room for a procedure in which certain facts are set forth in the PSI, and the defendant must then challenge those facts in order to put them into play? The PSI often merely parrots the government’s version of the offense, which is merely a set of allegations, sometimes of very dubious merit. The current rule waters down and shifts the burden of proof.