# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 14-2822

___________________________ United States of America
lllllllllllllllllllll Plaintiff - Appellee

v.
Aaron J. Webster
lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Northern District of Iowa, Waterloo

____________ Submitted: February 9, 2015 Filed: June 12, 2015

____________ Before BYE, BRIGHT, and BENTON, Circuit Judges.

____________ BENTON, Circuit Judge. Aaron Jamal Webster pled guilty to one count of possessing an unregistered sawed-off rifle, in violat ion of 26 U.S.C. §§ 5841, 5861(d), and 5871. The district court departed (or altern atively varied) upward from the advisory Guidelines range—70 to 87 months—to the statutory maximum of 120 months’ imprisonment. Webster appeals, asserting procedural e rror. Having jurisdiction under 28 U.S.C. § 1291 , this court reverses and remands.Webster, on pretrial release for domestic assault, violated a court order not to visit his girlfriend’s residence. A fight broke out between him and her two brothers. As the brothers began to leave, Webste r retrieved the unregistered rifle from the residence and shot at their vehicle. His s hot shattered the rear window, punctured the driver’s headrest, struck the windshield, and narrowly missed the brothers.
Webster argues that the district court committed procedural error by “selecting a sentence based on clearly erroneous facts.” See Gall v. United States , 552 U.S. 38, 51 (2007). He failed to object to the distri ct court’s reliance on the challenged facts, so review is for plain error. See United States v. Taylor , 747 F.3d 516, 519 (8th Cir. 2014). Webster must thus show: (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Olano , 507 U.S. 725, 732 (1993). A plain error will not be corrected unless (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id

.
Webster claims the district court ba sed its sentence on the clearly erroneous facts of a pending domestic-assault charge. In written response to the Presentence Investigation Report (PSR), We bster objected to the part of Paragraph 28 that stated the allegations of the char ge. The government contends that Webster failed to specifically and clearly object to these allegations. See United States v. Razo-Guerra , 534 F.3d 970, 976 (8th Cir. 2008) (objections to PSR must be made with specificity and clarity). The objection reads: “The defendant denies the allegations contained within the first paragraph of paragraph 28. Specifically, the defendant denies being guilty of the pending Domestic Assault charge .” Pre-sentencing, Webster clearly and specifically objected to the allegations.

The district court based its sentence on th e objected-to facts. The court said the instant offense was “an aggravated circumst ance between he . . . and [the girlfriend]. He had abused her before.” Tr ue, the court says that the f act of abuse is “set forth in the unobjected-to portions of the [PSR], Pa ragraph 28.” The court is wrong. The

-2-unobjected-to part mentions only Webste r’s conduct on pretrial release. T he district court granted the departure/variance after reciti ng the “aggravated” nature of each particular act of the domestic assault. Th ese acts are listed only in the objected-to part of the PSR.

This was error. A PSR is not eviden ce and not a legally sufficient basis for findings on contested issues of material fact. United States v. Wise , 976 F.2d 393, 404 (8th Cir. 1992). If the PSR’s factual allegations are objected to, the government may prove relied-on and contested facts. See United States v. Hammer , 3 F.3d 266, 268, 272 (8th Cir. 1993). Then, the court must either make findings by a preponderance of the evidence or disregard those facts. See Fed. R. Crim. P. 32(i)(3)(B) . The government did not prove the allegations by a preponderance of the evidence.
The error is plain. Rule 32 and the cases just cited make clear that the district court must not consider contested facts without proof by a preponderance of the evidence. See Olano , 507 U.S. at 734 (requiring that an error be clear under current law to be corrected).

To demonstrate an effect on substantial rights, Webster must show a reasonable probability that but for the error, he woul d have received a more favorable sentence. See United States v. Pirani , 406 F.3d 543, 552 (8th Cir. 2005) (en banc). The government claims there was sufficient evidence of a domestic assault. The government points to the fight with the br others, and a text message Webster sent (after the fight) asking a friend to assault the girlfriend. The district court stated that to find the fight’s cause would require sp eculation. The government emphasizes that the PSR recites that the no-contact order was based on “probable cause to believe” that Webster had committed the domestic assault. However, probable cause is a lesser standard than prepondera nce of the evidence. See Illinois v. Wardlow , 528 U.S. 119, 123 (2000). Finally, the government conte nds that the Guidelines warranted a

-3-departure, so any error is harmless. But the district court expressly did not base its departure solely on the Guidelines. Th e court stressed the aggravated conduct of abusing the girlfriend.
Webster’s substantial rights were aff ected. Webster, 21, is a high-school graduate with a limited criminal record ofdriving infractions and violating the nocontact order. There is a reasonable proba bility that but for the unproved allegations, Webster would have received a shorter se ntence. Imposing a sentence greater than what should have been imposed seriously affects the fairness, integrity, and public reputation of Webster’s judicial proceedings. See United States v. Johnson , 416 F.3d 884, 886 (8th Cir. 2005).
As for remand, the government had notice of Webster’s factual objection to the PSR and had fair opportunity to present evidence at the hearing. Following “the traditional path” of limiting the government to one bite at the apple, the district court on remand may re-sentence, whether relati ng to the Guidelines or statutory grounds under 18 U.S.C. § 3553(a), only based on the existing record. See United States v. Robinson , 639 F.3d 489, 498 (8th Cir. 2011); United States v. Gammage , 580 F.3d 777, 779 (8th Cir. 2009) (holding that gove rnment is not offered second opportunity to present evidence where no “arcane legal pr inciples” are involved, the district court did not mislead or deflect government, and government had sufficient notice of factual objection to conviction).

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This court need not reach Webster’s argum ent that his sentence is substantively unreasonable. The sentence is reversed, and the case remanded for re-sentencing.

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