United States v. Jonathan Berrier, 28 F.4th 883

Jonathan Berrier pleaded guilty (Sept. 25, 2020) to enticing a 13‑year‑old in violation of 18 U.S.C. § 2422(b); government dismissed a related travel count.
The initial PSR (Nov. 18, 2020) contained victim statements (FaceTime exposure, nude photos); Berrier objected to specific factual allegations.
A revised PSR (Dec. 9, 2020), delivered to defense on Dec. 13, added Paragraph 13 alleging multiple trips from North Carolina to Arkansas in Feb.–Mar. 2018 with repeated intercourse; the Probation Office recommended a § 4B1.5 five‑level enhancement.
The government filed a Motion for Upward Variance on the sentencing day relying on exhibits summarized in the revised PSR (recorded forensic interviews not in the appellate record); defense lacked time to review and counsel mistakenly said the substance hadn’t changed.
The district court admitted the exhibits, made no explicit findings on disputed PSR facts, and granted a 50% upward variance to 180 months (above the 120‑month advisory/mandatory minimum).
On appeal the Eighth Circuit found Rule 32(g) violations and that the court relied on contested PSR facts without required findings or proof of reliability; it vacated and remanded for resentencing, allowing the government discretion to reoffer proof.

Issue	Government's Argument	Berrier's Argument	Held
1) Timeliness under Fed. R. Crim. P. 32(g)	Late revised PSR was harmless; hearing could proceed	Rule 32(g) violated; prejudiced defense—remand required	Court: Rule 32(g) violation was plain error and remand for resentencing is required (prejudice likely)
2) Use of contested PSR facts without findings	Court may rely on PSR and exhibits; defense had opportunity	Court must make explicit findings or disregard contested PSR facts	Court: When defendant objects, district court must make findings by preponderance or disregard; here court failed to do so
3) Reliance on hearsay/video interviews at sentencing	Hearsay interviews admissible; Probation summary sufficed	Government failed to prove "sufficient indicia of reliability" by preponderance	Court: Hearsay may be used only if proven reliable; government did not carry that burden here; remand allows government to attempt proper proof
4) Substantive reasonableness / double counting	Upward variance justified by broader conduct; guidelines need not fully account for harm	Variance improperly based on conduct already producing statutory mandatory minimum; sentence substantively unreasonable	Court: Did not find per se substantive error; but because variance relied on contested facts, cannot determine whether same sentence would be imposed—vacated and remanded

United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009) (plain‑error standard for unpreserved sentencing claims)
United States v. Wise, 976 F.2d 393 (8th Cir. 1992) (PSR is not evidence and cannot suffice for contested material facts)
United States v. Webster, 788 F.3d 891 (8th Cir. 2015) (court must make findings on contested PSR facts or disregard them)
United States v. Holt, 969 F.2d 685 (8th Cir. 1992) (adopting PSR alone is insufficient for factual findings)
United States v. Sheridan, 859 F.3d 579 (8th Cir. 2017) (sentencing hearsay admissible if it has sufficient indicia of reliability)
United States v. Bastian, 603 F.3d 460 (8th Cir. 2010) (video interviews of minors may be admissible at sentencing with proper reliability showing)
United States v. Fiorito, 640 F.3d 338 (8th Cir. 2011) (district court may vary based on facts reflected in guidelines where guidelines do not fully account for them)
United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (no need for "extraordinary" circumstances to justify an outside‑Guidelines sentence)
United States v. Thorne, 896 F.3d 861 (8th Cir. 2018) (caution against double‑counting guideline considerations)
Tapia v. United States, 564 U.S. 319 (2011) (discussing permissible consideration of rehabilitation when sentencing)