Summary
This Second Circuit per curiam opinion affirms the defendant’s conviction and ninety-one-month sentence for engaging in sex tourism involving a minor female. On appeal, the defendant challenged the procedural reasonableness of his sentence, arguing that the district court failed to calculate the applicable Sentencing Guidelines range and improperly conferred ex parte with a probation officer. The appellate court held that the record clearly showed the district court calculated the Guidelines range and permitted ex parte communications with a probation officer for advice or analysis, provided no new factual information bearing on sentencing was disclosed without notice to the parties. Finding no plain error, the court affirmed the judgment of the district court.
Topics
Practice areas
Questions Presented
- Whether the district court failed to calculate the applicable Sentencing Guidelines range
- Whether the district court erred by conferring ex parte and off‑the‑record with a probation officer
Holdings
- The district court did calculate the applicable Guidelines range (57–71 months) and therefore did not err procedurally.
- A district court may confer ex parte with a probation officer so long as the officer does not disclose new factual information that bears on sentencing.
Key quotations
“We hold that a district court is permitted to confer ex parte with a probation officer to seek advice or analysis as long as the officer does not reveal new facts that bear on sentencing.”
Factual background
Herbert Fletcher, a U.S. citizen, engaged in sex tourism in Colombia, pleading guilty to 18 U.S.C. §2423(c). The district court sentenced him to 91 months’ imprisonment. The probation office prepared a presentence report and several addenda recommending enhancements. The court consulted the probation officer ex parte before and during sentencing.
Procedural history
Fletcher pleaded guilty to 18 U.S.C. §2423(c) and was sentenced to 91 months’ imprisonment. He appealed, arguing (1) the district court failed to calculate the Sentencing Guidelines range and (2) the court improperly conferred ex parte with a probation officer. The Second Circuit reviewed the appeal.