United States v. Jonathan Berrier ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3736
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jonathan Stacy Berrier
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: December 13, 2021
Filed: March 11, 2022
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Before LOKEN, ARNOLD, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
In June 2018, an indictment charged Jonathan Stacy Berrier with enticing a
minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and with
traveling in interstate commerce to engage in illicit sexual conduct with a minor in
violation of § 2423(b). On September 25, 2020, after the government produced
incriminating cell phone communications from Berrier, a North Carolina resident, to
T.H., the 13-year-old victim living in Arkansas, Berrier pleaded guilty to the
enticement charge. The government agreed to dismiss the other count. In the plea
agreement, he stipulated to a base offense level of 28, a two-level increase for use of
a computer, a two-level increase for commission of a sex act, and a two-level
reduction for acceptance of responsibility. This appeal concerns the sentencing
proceedings that followed. At the end, the district court granted the government’s
motion for a fifty percent upward variance from Berrier’s advisory guidelines
sentencing range of 120 months, the mandatory minimum sentence provided in
§ 2422(b). Berrier appeals. We remand for resentencing.
I. The Sentencing Proceedings
The Probation Office published Berrier’s Presentence Investigation Report
(PSR) on November 18, 2020. In Paragraph 12 of the Offense Conduct section, the
PSR reported that T.H. said in a July 2017 interview with FBI special agents that
Berrier “showed her his penis five or six times on FaceTime” and, at his request, she
sent Berrier “two nude pictures of herself (one of her breasts and one of her vagina).”
Berrier timely objected that he did not show T.H. his penis on FaceTime and did not
receive a nude picture of her vagina. (Berrier had orally objected to these allegations
at the September 25 change-of-plea hearing.) Paragraph 32 of the PSR recommended
a five-level increase under USSG § 4B1.5(b) because Berrier engaged in “a pattern
of activity involving prohibited sexual conduct.” Berrier objected to Paragraph 32
on two grounds -- because this enhancement was not included in the plea agreement
stipulations, and because Berrier “denies that he has engaged ‘in a pattern of activity
involving prohibited sexual conduct.’”
On December 3, the government e-mailed the Probation Officer a response to
Berrier’s objections that included “additional factual basis” with respect to his fact
objections. The e-mail stated that the parties “did not contemplate” a five-level
increase under § 4B1.5(b), but opined that these additional materials reflect “more
than one sexual exploitation” of T.H. by Berrier.
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On December 9, five days before the sentencing hearing, the Probation Officer
published a revised PSR. Of significance here, the revised PSR (i) retained Paragraph
12 and (ii) based on materials submitted by the government on December 3, added
Paragraph 13. The lengthy Paragraph 13 stated that T.H. “provided a handwritten
timeline to law enforcement” detailing Berrier’s two trips from North Carolina to
Arkansas in February and March 2018 during which they repeatedly engaged in
sexual intercourse. The revised PSR also retained the recommendation in
Paragraph 32 (now renumbered Paragraph 33) for a five-level § 4B1.5(b) increase.
In the Objections section, the revised PSR noted that Berrier objected to Paragraphs
12, 13, and 33, stating with respect to Paragraph 13 that “the defendant denies he
engaged in a pattern of activity involving prohibited sexual conduct.” The Probation
Officer’s response stated:
There was more than one sexual exploitation of [T.H.], and the
Government provided a written summary of what they consider to be a
factual basis for those encounters. . . . [T]he Government has indicated
they are prepared to submit exhibits at sentencing.
On December 14, the day of the remote sentencing hearing, the government
filed a Motion for Upward Variance based primarily on fact allegations in Paragraph
13 of the revised PSR that Berrier had traveled from North Carolina to Arkansas in
February and March 2018 to engage in sexual intercourse with T.H. multiple times.
At the start of the hearing, the district court asked defense counsel if he “had a chance
to take a look at” the revised PSR. Counsel responded that the December 9 revised
PSR was delivered late on December 13, the day before sentencing. “There was an
addendum to it that addressed our objections,” counsel stated. “The substance of it
did not change.” That was a serious misstatement. Paragraph 13, new to the revised
PSR, provided the primary factual basis for the government’s newly filed Motion for
Upward Variance, based on a Forensic Interviewer’s recorded interview with T.H. on
May 18, 2018.
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The district court next asked Berrier, attending by phone from a West
Tennessee holding facility, if he had looked at the PSR. Berrier replied, “The one I
have . . . was sent November 18th.” Berrier obviously did not have a chance to
review the December 9 revised PSR with counsel before the sentencing hearing. The
district court noted that defense counsel would become a judge at the end of the
month but expressed concern that Berrier was “somewhat reluctant to proceed
without being able to talk to his lawyer.” Berrier responded, “I have a right to appeal
if it goes over what we agreed to in the plea agreement . . . . I think we should
proceed.” The hearing continued.
The district court next addressed Berrier’s objections to the PSR. Defense
counsel noted Berrier’s objection to facts stated in Paragraph 12. The government
responded, “Paragraph 12 . . . [is] not a statement of fact of what actually happened
but it’s the minor’s statement to the investigators telling them, ‘This is what happened
to me.’” Without ruling on the factual accuracy of Paragraph 12, the district court
noted Berrier’s objection and ruled, “I’m going to leave the language in there that this
is what the minor says happened.” Defense counsel did not object.
Turning to the objection to Paragraphs 13 and 33, defense counsel again
objected to the five-level § 4B1.5(b) increase. Without ruling on Berrier’s objection
to the facts stated in Paragraph 13, the district court ruled: “[T]he government has
stated that it did not anticipate that enhancement. And so I’m going to . . . sustain the
objection to the enhancement, but we’re going to take up the issue of the upward
variance later in the hearing.” Again, defense counsel did not object.
The district court then took up the government’s motion for an upward variance
to a sentence of 180 months imprisonment, fifty percent more than the advisory
guidelines range sentence of 120 months, the statutory mandatory minimum sentence.
Government counsel asked if the court had received the exhibits sent “earlier this
morning.” The court checked and confirmed: “At 12:14, I received an e-mail with
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four exhibits [and] five attachments, but I have not looked at these.” The government
stated that defense counsel “has had access to them, so I don’t think he objects to
their inclusion, and then the two audio copies of the interviews.”1 Government
counsel added the exhibits would take hours to review, and “I think really the essence
of the arguments are going to be packaged in the presentence report and in our
responses to Mr. Berrier’s objections.” Defense counsel agreed “the exhibits
basically are the evidence used by [the Probation Officer], and she summarized those
in the presentence report.” The district court then received the exhibits into evidence,
without objection; confirmed that the guidelines range is 120 months; and granted the
motion for upward variance without reviewing the exhibits.
In arguing in support of its motion for upward variance, the government relied
almost exclusively on the exhibits it submitted as summarized in the revised PSR:
[Berrier] learned how old [T.H.] was early on and continued this
relationship with her for months at a time, had very sexually explicit
conversations with her.
[Berrier] came from North Carolina to Arkansas on three
occasions. In February, he came here and engaged in a sex act with her.
Then he came back in March and engaged in multiple sex acts with her
over a significant period of time, over her week of spring break.
* * * * *
As discussed in our objections to the PSR, the Court can see the
sexually explicit nature of the conversation[s]. It corroborates the
statements [T.H.] made, while not explicitly, implicitly implying that
what she said was true.
1
The recorded government interviews of T.H., by far the most important
exhibits in reviewing the grant of the motion for upward variance, are not in the
record on appeal.
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In granting the motion and imposing a 180-month sentence, the district court
explained, “It’s the conduct itself.” “[W]hen an adult has a sexual relationship with
a 13 year old, that’s a baby, that’s a child . . . a heavy penalty has to be paid for that.”
“It’s rape. When you have sex with a girl that little, there is no justification for it at
all.” The court made no findings as to whether the objected-to fact statements in
Paragraphs 12 and 13 of the revised PSR are accurate.
II. Discussion
On appeal, Berrier, represented by new counsel, correctly argues that Federal
Rule of Criminal Procedure 32(g) was violated when the Probation Officer did not
submit the revised PSR and unresolved objections to Berrier and his attorney “[a]t
least 7 days before sentencing.” He argues this violation requires a remand for
resentencing. As he made no timely objection at sentencing, we review this issue for
plain error. United States v. Lovelace, 565 F.3d 1080, 1090 (8th Cir. 2009). The
error here is plain because there is no dispute that these documents did not reach
Berrier or his attorney in time. The more difficult issue is whether Berrier was
prejudiced by these errors.
It is well established, at least in this Circuit, that the PSR is not evidence, nor
is it a legally sufficient basis for findings on contested issues of material fact. United
States v. Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc). When the defendant
objects to fact allegations in the PSR, as in this case, “the court must either make
findings by a preponderance of the evidence or disregard those facts.” United States
v. Webster, 788 F.3d 891, 892 (8th Cir. 2015). “Adopting the PSR is simply not
enough.” United States v. Holt, 969 F.2d 685, 688 (8th Cir. 1992). Here, as the
hearing continued, the government and the district court failed to comply with these
fundamental principles of fairness in sentencing. At the government’s urging, the
district court received recorded forensic interviews of T.H. into evidence as simply
“this is what the minor says happened.” But then the government’s repeated
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arguments in support of a substantial upward variance -- in its Motion for Upward
Variance, at sentencing, and in its brief on appeal -- assumed the truthfulness of facts
reflected in those interviews.
Without question, in resolving disputed issues of fact at sentencing, the district
court may rely on relevant hearsay “so long as that evidence possesses ‘sufficient
indicia of reliability to support its probable accuracy.’” United States v. Sheridan,
859 F.3d 579, 583 (8th Cir. 2017), quoting USSG § 6A1.3(a). This rule applies to the
admission at sentencing of video interviews of minor females alleging sexual abuse
or exploitation. See United States v. Bastian, 603 F.3d 460, 466-67 (8th Cir. 2010).
But it requires the government to prove “sufficient indicia of reliability” by a
preponderance of the evidence. Here, the Probation Officer relied on what the
government provided. Neither T.H., nor the forensic interviewer, nor the FBI special
agent who reportedly received inconsistent statements from T.H. in a fall 2017
interview, nor any of T.H.’s relatives who were alleged by the government to have
corroborating information, testified as to the “probable accuracy” of statements that
Berrier repeatedly and emphatically denied. Defense counsel mistakenly advised the
district court that the substance of the PSR “did not change” when the factually
critical paragraph 13 was added to the revised PSR, and did not press for explicit
findings on Berrier’s fact objections to Paragraphs 12 and 13. But these mistakes are
likely attributable to the government’s failure to timely deliver the revised PSR in
violation of Rule 32(g), and then in not filing its Motion for Upward Variance until
the sentencing hearing was well underway. Thus, although the district court’s
decision to proceed with the sentencing hearing with Berrier’s approval despite the
Rule 32(g) violation was not, standing alone, prejudicial, what happened after that
decision may well have substantially affected Berrier’s rights. In any event, Berrier’s
objections to the PSR adequately preserved these other problems for appeal.
In explaining its decision to grant an upward variance, the district court
emphasized that Berrier had “sex with a girl that little,” a fact Berrier admitted at the
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change-of-plea hearing, establishing a factual basis for the plea. The court made no
mention of Berrier’s multiple trips to Arkansas to engage in repeated sexual
intercourse or his months of sexually inappropriate electronic communications with
T.H., the fact allegations underlying the government’s motion. Berrier argues his
sentence is substantively unreasonable because the district court improperly relied on
a factor already accounted for in his 120-month guidelines sentence, the minimum 10-
year sentence prescribed in 18 U.S.C. § 2422(b). But that does not establish
sentencing prejudice. The general rule is that “a district court may impose an upward
variance based on facts already included in the advisory sentencing guidelines where
the advisory guidelines do not fully account for those facts.” United States v. Fiorito,
640 F.3d 338, 352 (8th Cir. 2011).2
The remaining problem is that without critical fact allegations in the revised
PSR relied upon by the government, and denied by Berrier, all the district court had
to rely on for a very substantial upward variance was a single admitted act of “sexual
activity” that made Berrier subject to a minimum 10-year sentence. In these
circumstances, we have no reasonable basis to conclude whether the district court
would have imposed the same sentence after a sentencing hearing at which those
allegations were either set aside as unproved, or were found to be probably accurate
after a proper evidentiary inquiry. Whatever findings may result from that inquiry,
the district court would still have substantial discretion to vary upward.
Assuming contested facts in his favor, Berrier argues his conduct was not
different from the “ordinary case” and therefore the district court abused its discretion
in varying upward. But we do not require “‘extraordinary’ circumstances to justify
a sentence outside the Guidelines.” United States v. Feemster, 572 F.3d 455, 462 (8th
2
However, we have “counsel[ed] courts to take care in doing so.” United States
v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018). In United States v. Newman, 782 F.
App’x 506, 508 (8th Cir. 2019), we affirmed as not substantively unreasonable a 180-
month sentence for a § 2422(b) offense, a 60-month upward variance.
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Cir. 2009) (en banc). We reject Berrier’s additional argument that the district court
committed plain error by imposing a sentence to promote his rehabilitation. “A court
commits no error by discussing the opportunities for rehabilitation within prison or
the benefits of specific treatment.” Tapia v. United States, 564 U.S. 319, 334 (2011).
For these reasons, we conclude that a remand for resentencing is the proper
disposition of this appeal. Accordingly, we vacate the judgment of the district court
and remand for resentencing. We leave to the court’s discretion whether to afford the
government a second opportunity to properly support the revised PSR’s contested fact
allegations.
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