Withdrawal of Objection to PSR Waives Challenge to Facts Set Forth Therein on Appeal

US v. Fowler: Fowler pleaded guilty to being a felon in possession of a firearm and possessing that firearm in connection with a drug trafficking crime. One issue at sentencing was whether Fowler should be a assessed a criminal history point (and therefore bumped up a criminal history category) for a prior South Carolina domestic violence conviction in which he was sentenced to take part in an intervention program.  While Fowler initially objected to it being scored, the objection was withdrawn at sentencing and his argument focused on an argument for a variance sentence. The district court rejected that argument and sentenced Fowler to 117 months in prison, the bottom of the applicable Guideline range.

On appeal, the Fourth Circuit affirmed Fowler’s sentence. Fowler raised the criminal history calculation issue, but the court ultimately concluded it had been waived when Fowler withdrew his objection at sentencing. In doing so, the court reemphasized that a “defendant has an affirmative duty to make a showing that the information in the presentence report is unreliable” and, if that burden is not met, the Government’s burden of proof is met and “the district court is free to adopt the findings of the presentence report.” Fowler could not rely on the fact that the description of his prior offense (and resolution thereof) was slight and might not have shown that the conviction should have been counted. The court also held that it could consider a document provided by the Government on appeal from South Carolina’s computer record system showing that a sentence was imposed on Fowler in that case. The court also rejected Fowler’s argument that the district court had not given sufficient consideration to his variance argument.