Failure to Object to PSR Doesn't Waive 6th Amendment Sentencing Rights

US v. Milam: The Milam brothers, Jason and Lee, pleaded guilty to distribution of at least 51 Ecstasy tablets. Their PSRs assigned them considerably higher offense levels based on statements from other sources as well as Jason and Lee themselves.

At sentencing, Lee objected to the relevant conduct calculation and two-level gun enhancement. The district court partially sustained and overruled Lee's objection, produced a sentencing range of 51 to 63 months and imposed a sentence of 51 months.

Jason did not object to the PSR, except to the denial of credit for acceptance of responsibility. At sentencing, Jason's range was 87 to 108 months. He was sentenced to 87 months.

Lee and Jason appealed, arguing that their sentences were increased beyond the facts to which they pleaded guilty, in violation of (initially) Blakely and Booker. The Government conceded that Jason's sentence violated the Sixth Amendment and agreed to remand.

As to Jason, however, the Government argued that because Jason had not objected to the PSR calculations he had "admitted" those facts for Sixth Amendment purposes and his sentence did not violate the Sixth Amendment.

The Fourth Circuit vacated Jason's sentence. It rejected the Government's argument that Rule 32(i)(3)(A) and USSG 6A1.2(b) required a defendant to contest any enhancement in the PSR or risk waiving his Sixth Amendment rights. Noting that facts that increase a defendant's maximum sentence are now (essentially) elements of the offense, the Court held that the defendant's silence at sentencing could no more waive his Sixth Amendment rights then than silence at a guilty plea could constitute waiver of the right to trial. The Court also noted that Rule 32(i)(3)(A), USSG 6A1.2(b), and prior Circuit law (see US v. Terry, 916 F.2d 157, 162 [4th Cir. 1990]) violated prohibitions on burden shifting by forcing the defendant to disprove allegations in the PSR. Therefore, Jason's sentence was vacated and his case remanded for resentencing.
Lee's sentence was also vacated and remanded.

Congrats to CJA panel attorney Jason Parmer (Lee) and your humble narrator (Jason) of the SDWV office on the win!