1st Circuit: Sentencing Judge Can Sentence Based on Facts in PSR

An important new 1st Circuit decision reminds us that the lawyer's duty to object to inadmissible material can be just as important during sentencing, as at trial.

Luis Cirilo pled guilty to unlawful firearm possession, pursuant to a plea agreement where the prosecutor and defense agreed that his guideline range should be 24 to 30 months.

The presentence report ("PSR"), however, made the factual finding that Mr. Cirilo possessed the gun while fleeing (along with several others) from the scene of an attempted burglary. The PSR determined that this conduct implicated a four-level enhancement of the offense level, raising the guideline range to 37 to 46 months.

Can Defendant be Sentenced Without Guilty Plea or Trial?

The government never filed a charge of attempted burglary. No trial was ever held to determine whether Mr. Cirilo committed that crime. He had not admitted his guilt to that crime during the sentencing process. Nevertheless, the sentencing judge relied on the facts in the PSR, applied the four-level enhancement, and then went even further, sentencing Mr. Cirilo to 60 months in prison, more than double the low end of the guideline range stated in his plea agreement.

Failure to Object Equals Doomed Appeal

On appeal in the First Circuit Court of Appeals, Mr. Cirilo contended that the trial judge could not sentence him based on facts that the government had not proven, and that he had not admitted. The Court rejected his claim and upheld his sentence. A court rule allows the District Court to rely on facts in the PSR that are not "disputed" or "controverted." Mr. Cirilo's lawyer had argued that he should not be sentenced based on facts that he did not "[plead] guilty to," but Mr. Cirilo's lawyer had not disputed the accuracy of those facts. Thus, unfortunately, because Mr. Cirilo's lawyer made the wrong objection... he might as well have made no objection at all.

Practical Impact of Decision

The Cirilo case reminds us of two important considerations during sentencing. First, if a plea agreement is not binding on the district court, than it will provide little or no protection if the PSR goes a different direction. Second, lawyers in federal court have to plan carefully for sentencing hearings, taking into consideration not just the guideline provisions for the crime of conviction, but looking out for any facts - and making a contemporaneous objection to any facts - that might raise the guideline range.

Read United States v. Cirilo, No. 14-1793 (1st Cir. Sep. 28, 2015).