United States v. Webster, No. 14-2822 (8th Cir. 2015)
Annotate this CaseWebster, 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 brothers. As the brothers were leaving, Webster retrieved a rifle from the residence and shot at their vehicle, shattering the rear window, puncturing the driver’s headrest, striking the windshield, and narrowly missing the brothers. Webster pled guilty to possessing an unregistered sawed-off rifle, 26 U.S.C. 5841, 5861(d), 5871. The court departed from the advisory Guidelines range—70 to 87 months—to the statutory maximum of 120 months’ imprisonment. The Eighth Circuit reversed. Webster had denied being guilty of the pending domestic assault charge. The acts at issue were listed only in the objected-to part of the PSR. A PSR is not evidence and not a legally sufficient basis for findings on contested issues of material fact. The government did not prove the allegations by a preponderance of the evidence. While the no-contact order was based on “probable cause to believe” that Webster had committed domestic assault, probable cause is a lesser standard. There is a reasonable probability that but for the unproved allegations, Webster would have received a shorter sentence. The district court, on remand, may re-sentence only based on the existing record.
Court Description: Benton, Author, with Bright and Bye, Circuit Judges] Criminal case - Sentencing. The district court erred in basing its sentence on facts alleged in the PSR to which defendant had objected and which had not been established by a preponderance of the evidence; the error impacted defendant's substantial rights and the matter is remanded for resentencing on the basis of the existing record. [ June 11, 2015
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