FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30584 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00211-BLW

JESUS ANTONIO SANTIAGO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Idaho

Terry J. Hatter, District Judge, Presiding

Argued and Submitted

September 15, 2006—Portland, Oregon

Filed October 23, 2006

Before: Barry G. Silverman and Ronald M. Gould,

Circuit Judges, and John S. Rhoades, Sr.,* District Judge.

Opinion by Judge Gould

*Senior United States District Judge for the Southern District of California, sitting by designation. 

17703
COUNSEL

Greg J. Fuller, Fuller Law Offices, Twin Falls, Idaho, for

defendant-appellant Jesus Antonio Santiago. 

Michelle R. Mallard and Alan Burrow (argued), Assistant

United States Attorneys, Pocatello, Idaho, for plaintiffappellee United States of America. 

OPINION

GOULD, Circuit Judge: 

We consider whether the plain error standard of review

applies when the district court expressed “concern” about how

a Presentence Report (“PSR”) calculated the quantity of drugs

attributable to the defendant, but the defendant did not object

to any part of the PSR. We hold that in such a case the plain

error standard of review applies. Concluding here that there

was no plain error, we affirm the defendant’s sentence. 

On August 4, 2005, Jesus Antonio Santiago pled guilty to

UNITED STATES v. SANTIAGO 17705
one count of conspiracy to distribute methamphetamine.

Because the approximately three kilograms of methamphetamine seized or purchased by government agents from Santiago and his co-conspirators did not reflect the full scale of

Santiago’s offense, the PSR, pursuant to the Federal Sentencing Guidelines, estimated the quantity of methamphetamine

attributable to Santiago. See U.S.S.G. § 2D1.1 cmt. n.12

(2005). The PSR calculated this as being between 17 and

104.3 kilograms.1 The PSR based its estimate on interviews

with persons who purchased methamphetamine from and used

methamphetamine with Santiago. Persons interviewed said

that Santiago delivered between one and five pounds of

methamphetamine per week over an eighteen to twenty-three

month period. Santiago did not file written objections to any

facts recited in the PSR. 

At Santiago’s sentencing hearing on November 1, 2005, the

district court explicitly expressed serious doubts as to the

accuracy of the drug-quantity estimates in the PSR.2 The district court also acknowledged that “I have some concern about

how the total amount of drugs was arrived at. Nevertheless,

I’m convinced that there’s a sizable amount.” Notwithstanding the district court’s observations, Santiago did not object

to the drug-quantity calculations at the sentencing hearing.

The district court then sentenced Santiago to 300 months

imprisonment with ten years supervised release. On appeal,

Santiago argues that the district court did not properly calcu1An attributable quantity of fifteen kilograms or more of methamphetamine results in the highest base offense level possible under the Sentencing Guidelines. See U.S.S.G. § 2D1.1(c)(1). 

2The district court stated: 

While clearly we often have to make estimates about the amount

of drugs involved, the estimates here are just beyond, I think, reasonableness, just accepting what various individuals [who] have

been involved have indicated, much of which, I would think,

would be an opportunity for these individuals to try to whitewash

their own involvement. 

17706 UNITED STATES v. SANTIAGO
late the drug quantity attributable to him, and that this was

reversible error. 

[1] When a party does not lodge a specific objection in the

district court, yet asserts error on appeal, we review under our

familiar plain error standard: 

Before an appellate court can correct an error not

raised at trial, there must be (1) error, (2) that is

plain, and (3) that affects substantial rights. If all

three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. 

United States v. Maciel-Vasquez, 458 F.3d 994, 996 n.3 (9th

Cir. 2006) (internal quotation omitted). Because Santiago did

not object to the drug-quantity calculations in the PSR before

sentencing or at the sentencing hearing, the government

argues that we may review only for plain error. Santiago

urges that because the district court expressed concerns about

the PSR’s quantity calculations, no objection by counsel was

necessary, and that we are not limited to plain error review.3

We reject Santiago’s argument and conclude that absent specific objection by the defendant, the plain error standard controls even when the district court expresses concern about a

PSR. 

[2] “A specific objection provides the district court with an

opportunity to address the error in the first instance and

allows this court to engage in more meaningful review.”

United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004); see

United States v. Carter, 219 F.3d 863, 866-67 (9th Cir. 2000)

3

If not limited to plain error review, then we review the district court’s

factual determination for clear error. United States v. Knows His Gun, 438

F.3d 913, 917 n.2 (9th Cir. 2006). 

UNITED STATES v. SANTIAGO 17707
(“[R]esolving a defendant’s factual objections to the PSR on

the record ensures meaningful appellate review of the sentence.”). Though the district court may have had concerns

about the PSR, when counsel for Santiago did not object, the

district court was entitled to conclude, without further analysis, that its concerns were unjustified. See Fed. R. Crim. P.

32(i)(3)(A) (“At sentencing, the court . . . may accept any

undisputed portion of the presentence report as a finding of

fact . . . .”). 

[3] Other circuits addressing similar issues have reached

the same conclusion. See Bostic, 371 F.3d at 871-72 (reviewing a sentence for plain error when the defendant filed a

downward-departure motion before the sentencing hearing,

the district court asked for the opinion of government counsel,

and the government failed to object); United States v. Hansley, 54 F.3d 709, 715 (11th Cir. 1995) (applying the plain

error standard of review when the district court asked for

objections to the PSR’s drug-quantity attribution and the

defendant provided none). 

[4] We thus hold that our review is limited to review for

plain error when counsel has not objected to any part of the

PSR, whether or not the district court has expressed concerns,

doubts, or qualifications regarding the PSR’s drug-quantity

calculation. In an adversarial system, it is counsel’s duty to

object to any part of a PSR that a party asserts to be erroneous.4

[5] Santiago nevertheless argues that the district court

plainly “erred in failing to set forth . . . the factual basis for

determining Santiago’s individual conduct and responsibility

4Our conclusion is reinforced by the guidance of a respected procedural

treatise, which states that the rule requiring an objection to avoid review

for only plain error “is essential to the orderly administration of civil justice” because it alerts the trial court to possible errors and allows the

opportunity to correct them in the first instance, saving the parties and the

public the expense of an appeal. 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2472 (2d ed. 1995). 

17708 UNITED STATES v. SANTIAGO
relative to other co-conspirators.” However, when a defendant

fails to object to the facts set forth in the PSR, the district

court is not required to make any factual findings. See United

States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000)

(“Charlesworth did not contest any of the information in the

PSR; therefore, there was no need for the court to make any

findings.”); see also United States v. Ameline, 409 F.3d 1073,

1085 (9th Cir. 2005) (“Of course, the district court may rely

on undisputed statements in the PSR at sentencing.”). Stated

another way, by indicating concern, the district court was at

most inviting an objection; when no objection was made, the

district court had no disputed fact to resolve. 

[6] Here, the PSR calculated the drug quantity individually

attributable to Santiago5 and Santiago did not dispute it.

Because, absent objection, the district court did not err in relying on the PSR, and because the PSR calculated the drug

quantity individually attributable to Santiago, there was no

plain error.6

AFFIRMED.

5The PSR estimated that Santiago delivered between 17 and 104.3 kilograms of methamphetamine and concluded, “[Santiago] is responsible for

delivering in excess of 15 kilograms of methamphetamine.” 

6Santiago relies on the memorandum opinion of the District Court for

the District of Columbia in United States v. Haynes, 906 F. Supp. 5, 9

(D.D.C. 1995), for the proposition that the district court may not merely

adopt drug quantity calculations in a PSR, but rather must explicitly determine the amount of drugs for which the defendant is responsible. Haynes

in turn relied upon the decision of the D.C. Circuit in United States v.

Saro, 24 F.3d 283 (D.C. Cir. 1994). Saro stated that the failure to explicitly determine the amount of drugs for which the defendant is responsible,

standing alone, is not plain error. Id. at 288 (“Without more, this lack of

explicitness would not constitute plain error . . . .”). Santiago’s unduly

broad reading of D.C. Circuit law is thus unpersuasive. 

UNITED STATES v. SANTIAGO 17709