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 violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The district

court departed (or alternatively varied) upward from the advisory Guidelines

range—70 to 87 months—to the statutory maximum of 120 months’ imprisonment. 

Webster appeals, asserting procedural error. 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, Webster retrieved the unregistered rifle from the

residence and shot at their vehicle. His shot 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 district 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 based its sentence on the clearly erroneous

facts of a pending domestic-assault charge. In written response to the Presentence

Investigation Report (PSR), Webster objected to the part of Paragraph 28 that stated

the allegations of the charge. 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 the objected-to facts. The court said the

instant offense was “an aggravated circumstance between he . . . and [the girlfriend].

He had abused her before.” True, the court says that the fact of abuse is “set forth in

the unobjected-to portions of the [PSR], Paragraph 28.” The court is wrong. The

-2-
unobjected-to part mentions only Webster’s conduct on pretrial release. The district

court granted the departure/variance after reciting the “aggravated” nature of each

particular act of the domestic assault. These acts are listed only in the objected-to part

of the PSR. 

This was error. A PSR is not evidence 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 would 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 brothers, 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 speculation. 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 preponderance of the evidence. See Illinois v. Wardlow, 528 U.S. 119,

123 (2000). Finally, the government contends 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. The court stressed the aggravated conduct of

abusing the girlfriend. 

Webster’s substantial rights were affected. Webster, 21, is a high-school

graduate with a limited criminal record of driving infractions and violating the nocontact order. There is a reasonable probability that but for the unproved allegations,

Webster would have received a shorter sentence. 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 relating 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 government is not offered second opportunity

to present evidence where no “arcane legal principles” are involved, the district court

did not mislead or deflect government, and government had sufficient notice of factual

objection to conviction).

* * * * * * * 

This court need not reach Webster’s argument that his sentence is substantively

unreasonable. The sentence is reversed, and the case remanded for re-sentencing. 

______________________________

-4-