United States v. Fletcher
134 F.4th 708
2d Cir.2025Background
- Herbert Fletcher, a U.S. citizen, moved to Colombia and was arrested there in 2019 for sexual exploitation of minors.
- U.S. authorities obtained evidence from Fletcher’s phone, revealing a pattern of paying for sex with minors in Colombia over six years.
- Fletcher traveled to the U.S. in 2021 and was arrested; he later pleaded guilty to one count of engaging in sex tourism involving a minor under 18 U.S.C. § 2423(c).
- The plea agreement stipulated to a Guidelines range of 57–71 months, but the final presentence report suggested higher enhancements for pattern activity and undue influence.
- The district court sentenced Fletcher to 91 months’ imprisonment and five years of supervised release, providing reasons for departing upward from the Guidelines.
- Fletcher appealed, arguing procedural error based on (1) failure to calculate the correct Guidelines range and (2) improper ex parte communication between the court and probation officer.
Issues
| Issue | Fletcher's Argument | Gov't Argument | Held |
|---|---|---|---|
| Whether the district court failed to calculate the correct Sentencing Guidelines range | Court did not resolve enhancements or calculate exact Guidelines range | Court explicitly found and stated the Guidelines range, declined enhancements | District court did calculate and state applicable Guidelines range |
| Whether ex parte/off-the-record communication with probation officer tainted sentencing | Improper ex parte communications could introduce new facts or impact fairness | Such communications permissible if no new undisclosed facts are shared; nothing improper shown | Permissible; no showing of new undisclosed facts; no error found |
Key Cases Cited
- United States v. Smith, 949 F.3d 60 (2d Cir. 2020) (Procedural reasonableness of a sentence requires calculation of Guidelines and consideration of statutory factors)
- United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008) (Objections to sentencing procedure must be timely made at sentencing for appellate preservation)
- United States v. Dussard, 967 F.3d 149 (2d Cir. 2020) (Defendant bears burden for plain error review on sentencing challenges)
- United States v. Washington, 103 F.4th 917 (2d Cir. 2024) (Judges may consider facts beyond those found by a jury at sentencing)
- United States v. Simmons, 164 F.3d 76 (2d Cir. 1998) (Sentencing judges may rely on information not admissible at trial)