United States Court of Appeals 

For the First Circuit 

Nos. 16-1434, 16-1561 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MICHAEL DAVID SCOTT, 

Defendant, Appellant. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Kayatta, Circuit Judges. 

Lisa Aidlin for appellant. 

David B. Goodhand, Attorney, U.S. Department of Justice, 

Criminal Division, Appellate Section, with whom William D. 

Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S. 

Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A. 

Blanco, Acting Assistant Attorney General, U.S. Department of 

Justice, and Trevor N. McFadden, Acting Principal Deputy Assistant 

Attorney General, U.S. Department of Justice, were on brief, for 

appellee. 

December 8, 2017 
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KAYATTA, Circuit Judge. Michael David Scott claims, 

among other things, that the district court acted improperly in 

rejecting a plea agreement he had negotiated with the government, 

in not allowing him to negotiate and submit a new agreement, and 

in sentencing him before he read the presentence report ("PSR"). 

Finding no combination of error and prejudice sufficient to set 

aside Scott's sentence, we affirm. 

I. Background 

In August 2010, the government charged Scott with wire 

and bank fraud in violation of 18 U.S.C §§ 1343–44 and unlawful 

monetary transactions in violation of 18 U.S.C. § 1957, all as 

described in our opinion issued today affirming Scott's conviction 

on those charges. See United States v. Scott, No. 15-2405. While 

those charges were pending, the government secured Scott's 

indictment on additional wire fraud charges arising out of acts 

committed after his first indictment. Scott was arrested and 

detained pending trial. 

In May 2015, Scott pled guilty in the first case, without 

a plea agreement. In November 2015, the district court sentenced 

him to 135 months' imprisonment in that case. Two months later, 

Scott and the government entered into a plea agreement in this 

second case pursuant to Federal Rule of Criminal 

Procedure 11(c)(1)(C). If accepted by the court, the agreement 

would have bound the court to sentence Scott to six months' 
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imprisonment on the new wire fraud charges, to be served 

concurrently with the term of imprisonment from the prior case, 

plus six additional months to be served consecutively to Scott's 

other sentences in accord with 18 U.S.C. § 3147, which mandates 

that an individual convicted of a crime committed while on release 

pending trial serve an additional sentence. The agreement also 

called for $49,000 in restitution, an amount that did not include 

attorneys' fees and interest for the victims, and likewise did not 

include losses related to certain uncharged conduct. The district 

court conducted a change-of-plea hearing and conditionally 

accepted the plea agreement, but noted that it would reserve final 

acceptance or rejection until it had considered the PSR. 

Sentencing was set for March 25, 2016.

On March 23, a group of victims filed a sentencing 

memorandum, urging the district court to reject the proposed plea 

agreement and impose, at a minimum, a consecutive prison term of 

at least twelve months and a restitution award that included 

attorneys' fees and interest. The next day, the district court 

docketed a notice stating: "Having considered the presentence 

report and the Victim's sentencing memorandum . . . the Court 

hereby notifies the parties . . . of its intention to reject the 

. . . plea . . . . The Court concludes that any consecutive 

sentence of incarceration of less than 12 months . . . is 

insufficient." The next day, counsel for Scott told the district 
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court at the sentencing hearing that he had conferred with the 

government and prepared "a revised agreement to submit to you with 

what we interpreted as the considerations within your order." 

Neither counsel disclosed the terms of the proposed submission, 

and the district court rejected the effort, saying: 

[A]s I understand [Rule 11], . . . the 

defendant has a choice when the judicial 

officer rejects a (C) plea: He can withdraw 

his plea and go to trial. . . . Or he can 

choose not to withdraw his plea and go forward 

with the sentencing as of that moment. There 

is no new plea to be negotiated. 

The record reflects that Scott and his attorney then had a private 

conversation, following which Scott's attorney, in Scott's 

presence, told the court that Scott intended to maintain his guilty 

plea and move forward with sentencing. The district court then 

proceeded with the sentencing, ultimately imposing a sentence of 

forty-one months' imprisonment, with twenty-nine months attributed 

to the wire fraud charge to be served concurrently with Scott's 

135-month sentence and twelve months attributed to section 3147 to 

be served consecutively to both of Scott's other sentences. In 

short, as a practical matter, this sentence meant that Scott would 

likely serve six additional months of prison time beyond the amount 

to which he and the government had conditionally agreed. The court 

also ordered Scott to pay a total of $265,535 in restitution to 

various victims identified by their initials in the PSR.
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At the conclusion of the sentencing hearing, the 

following exchange occurred: 

MR. GLEASON [counsel for Scott]: Judge, 

[Scott] wants to wish to express to the Court 

that he did not see the Presentence Report and 

that he was not aware of initials and people 

being owed money on initials as being an issue 

for purposes of the restitution. 

DEFENDANT: Yes. 

THE COURT: Does Probation wish to respond to 

that? 

MS. ROFFO [representative from the probation 

office]: Your Honor, the Presentence Report 

was disclosed to counsel, and counsel is to 

share it with his client. 

THE COURT: Mr. Gleason, you got the 

Presentence Report, correct? 

MR. GLEASON: Yes, we did, your Honor. 

THE COURT: All right. Anything further, Mr. 

Wild? 

MR. WILD [Assistant U.S. Attorney]: Only on 

the question that's usually asked, your Honor, 

by the Court, is whether counsel and the 

defendant have discussed it, and I'm assuming 

they have. 

THE COURT: You discussed the Presentence 

Report with your client? 

MR. GLEASON: I have, your Honor, I discussed 

it. I discussed it with the original and that 

it was the additional facts which were 

presented relative to this charge. 

THE COURT: Thank you. We're adjourned. 

II. Discussion 

Scott contends that the district court committed six 

specific errors: it improperly rejected his plea agreement based 

on an erroneous understanding of the relevant law; it impermissibly 

prevented him from securing and submitting a new plea agreement 

after his first was rejected; it impermissibly participated in 
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plea discussions; it wrongly denied him a continuance; it imposed 

a sentence even though he had not read the PSR; and it failed to 

provide adequate notice of certain information upon which it 

relied. Additionally, Scott argues that the cumulative effect of 

these errors was sufficient to deny him a full and fair sentencing 

hearing, in violation of his due process rights. We address each 

argument separately. 

A. 

We consider first Scott's contention that the district 

court's rejection of the plea agreement was substantively improper 

because, in his view, the district court relied on an incorrect 

interpretation of relevant law. Specifically, he submits that the 

victims' sentencing memorandum erroneously claimed that the 

portion of the sentence to run as a consecutive add-on under 18 

U.S.C. § 3147 had to last a minimum of twelve months, and that the 

district court relied on this incorrect interpretation of 

section 3147 in rejecting the plea agreement.1

 1 In the section of his opening brief dealing with this issue, 

Scott also makes a three-sentence argument that the district court 

and U.S. Probation Office erred in adopting the amount of 

restitution from the victims themselves without a sufficient 

evidentiary basis. The perfunctory nature of this argument waives 

it. See Puerto Rico Tel. Co., Inc. v. San Juan Cable LLC, 874 

F.3d 767, 770 (1st Cir. 2017). And in any event, this argument 

would likely fail, as Scott makes no claim even now that the 

amounts in question were inaccurate. 
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Scott did not present this argument to the district 

court, so we review his claim for plain error. See United States 

v. Uribe-Londoño, 409 F.3d 1, 3 (1st Cir. 2005). In order to 

succeed on plain error review, Scott must show: "(1) that an error 

occurred (2) which was clear or obvious and which not only 

(3) affected the defendant's substantial rights, but also 

(4) seriously impaired the fairness, integrity, or public 

reputation of judicial proceedings." Id. at 4 (quoting United 

States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005)). 

Mere speculation that a court may have erroneously 

viewed its hands as tied by section 3147 serves poorly as a claim 

that error even occurred, much less that such error is plain. The 

district court said nothing to suggest that it felt bound by law 

to extend the agreed-upon six-month consecutive sentence to twelve 

months. As we have noted, we "presume that federal judges know 

the law." United States v. Vega-Salgado, 769 F.3d 100, 104 (1st 

Cir. 2014). The fact that section 3147, correctly applied, allows 

the sentence imposed buttresses this conclusion. We take the 

district court at its word that in rejecting the plea agreement, 

it had simply concluded, well within its discretion, that only a 

twelve-month consecutive sentence would be sufficient. In this, 

there was no error, plain or otherwise. 
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B. 

We turn next to Scott's argument that the district court 

erred by not withholding sentencing until he had a chance to 

finalize a new plea agreement. Following the rejection of the 

plea agreement, Scott's counsel represented to the court that he 

and the government had reached a revised agreement. The district 

court, however, stated that it could not accept such an agreement, 

because in its view, once a district court rejects a plea 

agreement, the defendant has only two choices: maintain a guilty 

plea unconditionally and proceed to sentencing, or withdraw the 

plea and proceed to trial. The district court stated on the record 

that under its view of Federal Rule of Criminal Procedure 11(c), 

"[t]here is no new plea to be negotiated." Scott argues on appeal 

that the district court was incorrect and that he should have been 

permitted to negotiate a new plea agreement.

The question of whether the government and a defendant 

may negotiate and submit a new plea agreement after one is rejected 

by the court appears to be a matter of first impression in this 

circuit. Rule 11(c)(5) specifies that in rejecting a plea 

agreement made pursuant to Rule 11(c)(1)(A) or (C), a district 

court must inform the parties of the rejection, advise the 

defendant that the court is not required to follow the agreement, 

give the defendant an opportunity to withdraw the plea, and advise 

the defendant that "if the plea is not withdrawn, the court may 
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dispose of the case less favorably toward the defendant than the 

plea agreement contemplated." Nothing in Rule 11 requires (or 

even suggests) that a defendant only gets one bite at the 

negotiation apple. And as Scott points out, other circuits have 

implied that renegotiation is permissible in the face of a rejected 

plea. See United States v. Kraus, 137 F.3d 447, 449 (7th Cir. 

1998); United States v. Mukai, 26 F.3d 953, 956–57 (9th Cir. 1994); 

United States v. Olesen, 920 F.2d 538, 543 (8th Cir. 1990). 

We are at a loss to see any good reason why a defendant 

could not negotiate a new plea agreement with the government and 

submit it to the district court in the wake of that court's 

rejection of a Rule 11(c)(1)(C) agreement. Even on appeal, the 

government makes no claim that such an option is foreclosed. It 

may be true, as the government argues, that to renegotiate and 

submit a new plea agreement, a defendant must necessarily withdraw 

his or her existing plea, which Scott did not choose to do. But 

Scott and his attorney could have easily interpreted the district 

court as stating that it would consider no additional submissions 

even if he withdrew his plea. 

Whether the district court therefore erred in its 

comments, we need not finally decide. Assuming such an error 

occurred, it was harmless. As noted above, the district court 

determined that only a twelve-month consecutive sentence would be 

sufficient. This was, as the district court stated, the bare 
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minimum it would accept. And as it turned out, it was exactly the 

sentence that the district court imposed. 

Scott argues that, had he been permitted to negotiate 

and submit a new agreement, he might have done better. But even 

though his counsel apparently discussed with the government a new 

agreement to be offered to the court, he can give us no reason to 

think that the government would have agreed to recommend a 

consecutive sentence below twelve months after the district court 

rejected six months. Nor does he give us any reason to believe 

that the district court would have accepted such a recommendation 

given that it had already rejected the government's agreement to 

a six-month sentence. Thus, any error committed here placed Scott 

in no worse a position than he would have been in had he been given 

the opportunity to negotiate a new plea. In short, by any measure, 

the assumed error on this point was harmless. 

C. 

Scott next claims that the district court improperly 

inserted itself into plea negotiations when it notified the parties 

that it believed anything less than a twelve-month sentence to be 

insufficient. Scott did not raise this issue in the district 

court, so we once again review for plain error. 

A district court necessarily walks a fine line in 

rejecting a plea agreement. On the one hand, it may perceive a 
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need to explain why it is rejecting the agreement.2 On the other 

hand, it may need to avoid suggesting the particular terms upon 

which the parties need agree to secure approval. See Kraus, 137 

F.3d at 453–55; see also United States v. Miles, 10 F.3d 1135, 

1139–40 (5th Cir. 1993). To safely walk this line in this case, 

the district court might have simply explained that it rejected 

the agreement because the six-month duration of the consecutive 

portion of the sentence was too lenient, and because the 

restitution award did not cover attorneys' fees and interest. 

Arguably, the district court crossed the line here when it further 

explained that nothing less than twelve months' imprisonment, 

served consecutively to Scott's other sentences, would be 

sufficient. 

As we have observed, though, Scott did not argue to the 

district court that it had crossed such a line, nor did he lodge 

 2 We have not decided whether such an explanation is required, 

while those circuits that have done so have given conflicting 

directions. Compare Kraus, 137 F.3d at 453 (holding that a 

district court must offer its reasons for rejecting a plea 

agreement and collecting cases) and United States v. Moore, 916 

F.2d 1131, 1136 (6th Cir. 1990) (same) with United States v. Lee, 

265 F. App'x 763, 766 (11th Cir. 2008) (stating that a district 

court need not offer reasons for its rejection of a plea) (citing 

United States v. Bean, 564 F.2d 700, 702 n.3 (5th Cir. 1977)) and 

United States v. Moore, 637 F.2d 1194, 1196 (8th Cir. 1981) (same). 

See also United States v. Foy, 28 F.3d 464, 472 (5th Cir. 1994) 

(holding that the district court need not state on the record its 

reasons for rejecting a plea agreement provided that "the record 

as a whole renders the basis of the decision reasonably apparent 

to the reviewing court"). 
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any objection on that basis. So on plain error review, he must 

show, among other things, that there was clear and obvious error, 

and that it affected his substantial rights. He falls short on 

both counts. The circuits have not clearly spoken as to how much 

information a district court must offer a defendant when rejecting 

a guilty plea (and how much information is too much), and the issue 

is undecided in this circuit. This strongly suggests that, the 

error, if any, was not clear and obvious. Nor did any error affect 

Scott's substantial rights. While Scott could conceivably find 

prejudice if he had a credible argument that, absent the court's 

comments, he would have gone to trial and thus had the possibility 

of an acquittal, see United States v. Bierd, 217 F.3d 15, 19 (1st 

Cir. 2000), he does not now seek to avoid his plea and go to trial; 

he merely requests resentencing. 

Contrary to Scott's contention, the district court's 

comments do not create the appearance of impropriety, another 

concern underlying the prohibition on judicial involvement in plea 

negotiations. See id. ("[T]he interests of justice are best served 

if the judge remains aloof from all discussions preliminary to the 

determination of guilt or innocence so that his impartiality and 

objectivity shall not be open to any question or suspicion when it 

becomes his duty to impose sentence.") (quoting United States v. 

Werker, 535 F.2d 198, 203 (2d Cir. 1976)). The district court's 

suggestion that nothing less than a twelve-month sentence would be 
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sufficient did not occur "preliminary to the determination of 

guilt." Id. Rather, it came after a guilty plea had been tendered. 

And it was not based on rank speculation, but upon information 

gleaned from the PSR and victims' sentencing memorandum, exactly 

the type of information that should inform a district court's 

sentencing decisions. 

Moreover, the six-month difference between the parties 

agreed-upon six-month consecutive sentence and the twelve months 

ultimately imposed is, in the context of the ten-year maximum 

sentence permissible under section 3147, so fine as to render it 

inconceivable that the judge's mention of the twelve-month figure 

reduced Scott's ability to secure a non-binding plea that would 

have caused the district court to impose a shorter sentence. To 

conclude otherwise would require us to hypothesize that had the 

district court not made the statement it did, but merely rejected 

the sentence as too lenient, it would have accepted an agreement 

providing for some consecutive sentence between six and twelve 

months. Such hypothesizing carries too little weight for plain 

error review, which by its nature places a "heavy burden" on the 

party seeking reversal. See United States v. Latorre-Cacho, 874 

F.3d 299, 303 (1st Cir. 2017) (quoting United States v. Prieto, 

812 F.3d 6, 17 (1st Cir. 2016)). 
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D. 

Scott's attorney brought to the district court's 

attention Scott's claim that he had not seen the PSR and was not 

aware of the restitution information it contained. The government 

also conceded at oral argument on appeal that the issue was 

preserved. We review preserved claims of Rule 32 violations de 

novo, and will remand if there is error that is not harmless. See 

United States v. González-Vélez, 587 F.3d 494, 508–09 (1st Cir. 

2009). 

Federal Rules of Criminal Procedure 32(c) and (d) 

require that the U.S. Probation Office conduct an investigation 

and prepare a PSR. The PSR is to contain a variety of information 

concerning the application of the sentencing guidelines given the 

offense and the offender, including "information sufficient for a 

restitution order" if the applicable "law provides for 

restitution." Fed. R. Crim. P. 32(d)(2)(D). Rule 32(i)(1)(A) 

requires the district court to verify at the sentencing hearing 

"that the defendant and the defendant's attorney have read and 

discussed the presentence report and any addendum to the report." 

We have said in the past that the "better practice" in 

complying with Rule 32 is for district courts "to address the 

defendant directly in order to establish that he or she has had 

the opportunity to read the PSR and to discuss it with his/her 

counsel." United States v. DeLeon, 704 F.3d 189, 196 (1st Cir. 
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2013) (brackets omitted) (quoting United States v. Manrique, 959 

F.2d 1155, 1157–58 (1st Cir. 1992)). The district court did not 

do so here. As a result, we cannot say that it is clear that Scott 

was familiar with the substance of the final PSR. Cf. id. ("[I]f 

it is abundantly clear from the sentencing hearing that both 

defendant and his counsel are familiar with the report, a new 

sentencing hearing will not be mandated, even if the court failed 

to directly inquire whether the defendant had an opportunity to 

review the report.") (quoting Manrique, 959 F.2d at 1157). 

That being said, the record is clear that any error was 

harmless. The only potential prejudice Scott identifies relates 

to the restitution award. Scott argues that the PSR contained 

three uncharged relevant matters that added an additional $142,500 

to the restitution amount, and that because he had not reviewed 

the PSR, he had no opportunity to challenge this portion of the 

sentence. The problem for Scott is that, even now, he has not 

identified any deficiency in these readily verifiable 

calculations. Furthermore, he has made no legal argument that 

this uncharged conduct could not serve as the basis for a 

restitution award. Put simply, Scott has made no argument to this 

court that the result would have been any different had he read 

the PSR in full. So, if there was error in how the district court 

treated Scott's statement regarding the PSR, it was harmless. 
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E. 

The day before the sentencing hearing, Scott moved for 

a continuance on the ground that his counsel had a conflict due to 

a trial in another court. The district court denied the request. 

As it turned out, Scott's counsel appeared at the hearing, seemed 

prepared, and made no claim otherwise. We reverse a district 

court's denial of a motion to continue only for "'manifest abuse 

of discretion' where the district court 'indulged a serious error 

of law or suffered a meaningful lapse of judgment, resulting in 

substantial prejudice to the movant.'" West v. United States, 631 

F.3d 563, 568 (1st Cir. 2011) (emphasis added) (quoting United 

States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995)). Given the 

very strong presumption against reversal on this basis, we will 

not reverse here, where there was no manifest error of law and no 

obvious prejudice in denying the continuance. 

In an attempt to argue otherwise, Scott notes that 

shortly after denying the request to continue based on counsel's 

scheduling conflict, the district court also announced that it 

would reject the plea agreement. Scott's argument seems to be 

that his counsel needed more time to consider and take steps in 

response to that news. Scott, though, never moved for a 

continuance for that reason. Nor did his counsel claim that more 

time was needed. To the contrary, he said he would "like to go 
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forward." No rule or precedent requires a court in such a 

situation to continue a hearing sua sponte. 

F. 

Scott also argues that he had insufficient notice of the 

victims' sentencing memorandum, and of the fact that the district 

court would rely upon it in sentencing him.3 Though "[a] district 

court has broad discretion in the information it may receive and 

consider" in determining a sentence, "a defendant has a due process 

right to be sentenced upon information which is not false or 

materially incorrect." United States v. Curran, 926 F.2d 59, 61 

(1st Cir. 1991). To protect this right, "a defendant must be 

provided with a meaningful opportunity to comment on the factual 

information on which his or her sentence is based." United States 

v. Rivera-Rodríguez, 489 F.3d 48, 53–54 (1st Cir. 2007) (quoting 

United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). If a 

court considers information outside the PSR, such as the victims' 

 3 At various points throughout his brief, Scott suggests that 

the district court also erred in failing to provide him notice 

that it would rely upon the victims' sentencing memorandum in 

rejecting the plea agreement. He does not develop this argument, 

however, and thus waives it. See United States v. Corbett, 870 

F.3d 21, 33–34 (1st Cir. 2017) (deeming an argument waived where 

a party failed "to meaningfully develop [it] or support it with 

any authority"). In any event, the argument would likely fail; 

Scott cites no authority, and we are aware of none, supporting the 

proposition that Rule 11 or due process more generally require 

that a district court notify a defendant, prior to the rejection 

of a plea agreement, that it may consider certain information in 

reaching that decision. 
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sentencing memorandum at issue here, it "should disclose to the 

defendant as much as was relied upon, in a timely manner, so as to 

afford the defendant a fair opportunity to examine and challenge 

it." Curran, 926 F.2d at 63. 

The victims' sentencing memorandum was filed two days 

before the hearing, with the court's notice that it was planning 

to reject the plea agreement appearing on the docket just the day 

before. Certainly that may have allowed too little time within 

which to "examine and challenge" any asserted facts. Scott, 

though, made no request for any such additional time on that basis, 

nor claimed that he saw any such need. Nor was this surprising; 

the memorandum contained no facts that Scott disputes even now. 

Rather, the only facts tendered consisted of a general description 

of Scott's criminal activity as it related to the victims, of their 

losses, including attorneys' fees, and of details relating to 

settlement discussions.

In any event, Scott's acquiescence below leaves him to 

argue, again, that it was plain error for the district court not 

to have sua sponte continued the sentencing because the victims 

filed their memorandum. And again, Scott cites no authority that 

mandates such a sua sponte continuance. With no authority 

suggesting such a continuance was required, there was no "clear or 

obvious" error, and thus Scott cannot succeed on plain error 

review. 
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G. 

Scott's final claim is that the preceding errors or 

assumed errors, even if insignificant individually, nonetheless 

had a strong enough cumulative effect as to render his sentencing 

hearing violative of due process. We disagree. 

It is true that "[i]ndividual errors, insufficient in 

themselves to necessitate [reversal], may in the aggregate have a 

more debilitating effect." United States v. Sepulveda, 15 F.3d 

1161, 1195–96 (1st Cir. 1993). As the preceding discussion makes 

clear, however, many of the errors asserted by Scott were not, in 

fact, errors. Furthermore, the harmlessness of any potential 

errors all stemmed from the same fact; namely, that the record is 

clear that the district court imposed the lowest sentence it 

believed sufficient for the offense, and that sentence was well 

below what the court in its discretion could have imposed. At 

bottom, Scott has simply made no showing that the district court 

committed any errors that either individually or cumulatively 

could have adversely affected the sentence that he received. 

III. Conclusion 

For the foregoing reasons, we affirm the judgment of the 

district court.