23-6693 United States v. Fletcher

United States Court of Appeals For the Second Circuit

August Term 2024

Argued: April 7, 2025 Decided: April 21, 2025

No. 23-6693

UNITED STATES OF AMERICA,

Appellee,

v.

HERBERT FLETCHER,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of New York No. 21-cr-227, Edward R. Korman, Judge.

Before: LEVAL, WESLEY, and SULLIVAN, Circuit Judges.

Herbert Fletcher appeals from a judgment of conviction of the United States District Court for the Eastern District of New York (Korman, J.) following his guilty plea to engaging in sex tourism involving a minor female. The district court sentenced Fletcher to ninety-one months’ imprisonment, to be followed by five years’ supervised release. On appeal, Fletcher argues that his sentence was procedurally unreasonable because the district court (1) failed to calculate the applicable United States Sentencing Guidelines (“Guidelines”) range and (2) conferred ex parte and off-the-record with a United States Probation Officer both before and during sentencing. We are not persuaded. First, the record makes clear that the district court calculated the applicable Guidelines range. Second, 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. If the officer provides new factual information, the district court may not rely on those facts unless they are disclosed to the parties and each side has had a reasonable opportunity to comment. Because nothing in the record suggests that new factual information was provided here, we conclude that the district court did not err in conferring with the probation officer before and during sentencing. Accordingly, we AFFIRM the judgment of the district court.

AFFIRMED.

HENRY E. MAZUREK (Ilana Haramati, Jason I. Ser, on the brief), Meister Seelig & Fein PLLC, New York, NY, for Defendant-Appellant.

RACHEL A. BENNEK (Dylan A. Stern, on the brief), Assistant United States Attorneys, for Carolyn Pokorny, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

PER CURIAM:

Herbert Fletcher appeals from a judgment of conviction of the United States

District Court for the Eastern District of New York (Korman, J.) following his

guilty plea to engaging in sex tourism involving a minor female, in violation of

(c). The district court sentenced Fletcher to ninety-one months’

imprisonment, to be followed by five years’ supervised release. On appeal,

2 Fletcher argues that his sentence was procedurally unreasonable because the

district court (1) failed to calculate the applicable United States Sentencing

Guidelines (“Guidelines”) range and (2) conferred ex parte and off-the-record with

a United States Probation Officer both before and during sentencing. We are not

persuaded. First, the record makes clear that the district court calculated the

applicable Guidelines range. Second, 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. If the officer provides

new factual information, the district court may not rely on those facts unless they

are disclosed to the parties and each side has had a reasonable opportunity to

comment. Because nothing in the record suggests that new factual information

was provided here, we conclude that the district court did not err in conferring

with the probation officer before and during sentencing. Accordingly, we

AFFIRM the judgment of the district court.

I. BACKGROUND

Fletcher is a United States citizen who permanently moved to Colombia in

2017. On October 9, 2019, he was arrested in Colombia on charges related to the

sexual exploitation of minors but was subsequently released in February 2020. At

3 the time of his arrest, the Colombian National Police seized Fletcher’s phone,

which they later provided to U.S. law-enforcement agents. After obtaining a

warrant, the agents searched Fletcher’s phone, which generated thousands of

pages of messages and revealed a long and extensive history of Fletcher paying to

have sexual relations with girls under the age of eighteen in Colombia. One such

victim was Jane Doe, who described having sex with Fletcher in Medellín on

numerous occasions in exchange for money. At the time of these sexual

encounters, Jane Doe was sixteen years old, and Fletcher was approximately

thirty-eight years old. At least four other victims advised law-enforcement officers

that they had engaged in sexual relations with Fletcher while they were minors,

and the alleged conduct spanned the course of six years.

On April 4, 2021, Fletcher traveled to the United States and was arrested

upon arrival at Miami International Airport. On April 26, 2021, he was charged in

a two-count indictment with conspiracy to engage in sex tourism in violation of

(e) and sex tourism in violation of

(c). Section 2423(c)

makes it a crime for a U.S. citizen to “travel[] in foreign commerce or reside[],

either temporarily or permanently, in a foreign country, and engage[] in any illicit

sexual conduct with another person.” On November 1, 2022, Fletcher pleaded

4 guilty to the section 2423(c) count pursuant to a written plea agreement with the

government. That plea agreement stipulated to a Guidelines range of 57 to 71

months’ imprisonment, which was based on a total offense level of 25 and criminal

history category of I.

In advance of sentencing, the United States Probation Office (“Probation”)

issued a presentence investigation report (“PSR”), which included the same

offense-level calculations as the plea agreement but found that Fletcher fell within

criminal history category II. Then, on May 23, 2023, Probation filed an addendum

to the PSR, which revised Fletcher’s criminal history to category I and

recommended that the district court impose a two-level enhancement pursuant to

U.S.S.G. § 2G1.3(b)(2)(B) in light of Fletcher’s exercise of undue influence over a

minor victim. On the morning of sentencing on May 31, 2023, Probation submitted

a second addendum that again included the two-level enhancement and also

recommended a five-level enhancement pursuant to U.S.S.G. § 4B1.5(b)(1) because

Fletcher engaged in a pattern of activity involving prohibited sexual conduct.

Probation therefore calculated a new total offense level of 32 and a Guidelines

range of 121 to 151 months’ imprisonment.

5 Fletcher appeared for sentencing that afternoon, at which time two victims

testified. One recounted how “it ha[d] been very difficult for [her] to move on

with [her] life” and that Fletcher’s conduct “caused [her] a lot of harm in [her]

mental health,” leading to “depression episodes and anxiety.” Fletcher App’x at

186. The other victim explained that she had not “been able to have a normal life,”

“to work normally or study normally,” or to have “one night in peace” because

she “always live[s] in fear” and is “always paranoid.” Id. at 189–90. At sentencing,

the parties also discussed whether the district court should apply the two

enhancements recommended by Probation. According to Fletcher, the district

court never resolved those sentencing disputes and never calculated the

Guidelines range before sentencing him to ninety-one months’ imprisonment and

five years’ supervised release. Fletcher timely appealed, challenging the

procedural reasonableness of his sentence.

II. LEGAL STANDARDS

“A sentence is procedurally unreasonable if the district court fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails adequately to

6 explain the chosen sentence.” United States v. Smith,

, 66 (2d Cir. 2020)

(internal quotation marks omitted). However, if a defendant does not raise an

objection on these procedural grounds at the time of sentencing, our review is

confined to plain error. See United States v. Verkhoglyad,

(2d Cir.

2008). To establish plain error, a defendant must show “(1) there is an error; (2)

the error is clear or obvious, rather than subject to reasonable dispute; (3) the error

affected the [defendant’s] substantial rights; and (4) the error seriously affects the

fairness, integrity[,] or public reputation of judicial proceedings.” United States v.

Moore,

, 90 (2d Cir. 2020) (internal quotation marks omitted). The

defendant bears the burden of establishing each of these elements. See United

States v. Dussard,

, 156 (2d Cir. 2020). We have warned that “reversal

for plain error should be used sparingly, solely in those circumstances in which a

miscarriage of justice would otherwise result.” United States v. Villafuerte,

(2d Cir. 2007) (internal quotation marks omitted).

III. DISCUSSION

A. The district court calculated the applicable Guidelines range.

Fletcher first argues that the district court committed procedural error by

failing to calculate the applicable Guidelines range. But this argument is belied by

the record below. At the sentencing hearing, the district court declined to apply 7 the two enhancements recommended by Probation and made clear that it

“agree[d] with the [d]efendant that the [G]uideline[s] [range] was 57 to 71

months.” Fletcher App’x at 197–98; see also id. at 199 (noting that the district court

was “ruling in [Fletcher’s] favor on this issue of saying that [the Guidelines range

is] 57 to 71” months). Likewise, when imposing Fletcher’s sentence, the district

court began its analysis with the 57-to-71-month Guidelines range to which both

the government and Fletcher stipulated in the written plea agreement. See id. at

240. The district court then varied upward due to the “prolific” and “revolting”

nature of Fletcher’s conduct and the need for general deterrence, which the district

court identified as “the most significant . . . factor.” Id. at 241. The district court

confirmed these findings in its written statement of reasons, which identified the

total offense level as 25, the criminal history category as I, and the Guidelines range

as 57 to 71 months’ imprisonment. The statement of reasons reiterated that the

district court imposed an above-Guidelines sentence due to, among other things,

Fletcher’s “prolific pattern of soliciting sex from minors,” its impact on the victims,

and the deterrent value. Sealed App’x at 8.

Despite this record, Fletcher makes much of the fact that the district court

mentioned once in passing that he received a “significant reduction” because the

8 stipulated Guidelines range did not include either of the enhancements

recommended by Probation. Fletcher App’x at 241. However, the district court

repeatedly made clear that it was “not considering” the higher Guidelines range

that Probation had calculated. Id. at 242; see also id. at 251 (“I said I didn’t consider

it.”). For these reasons, we conclude that the district court complied with the

procedural requirement of determining the applicable Guidelines range.

B. The district court did not err in conferring with the probation officer ex parte and off-the-record.

Fletcher next argues that the district court erred by conferring ex parte and

off-the-record with Deputy Chief Probation Officer Mark Gjelaj both before and

during the sentencing proceeding. Because Fletcher did not raise this objection at

the time of sentencing, our review is confined to plain error. 1 Our first step is

therefore to determine whether there was any error. See Moore, 975 F.3d at 90.

Because we have not yet addressed whether a district court may confer ex

parte and off-the-record with a probation officer in relation to sentencing, we begin

1Citing our decision in United States v. Velasquez,

(2d Cir. 1998), Fletcher asserts that he adequately preserved this argument by filing a written objection two days after sentencing. However, our subsequent case law makes clear that to preserve a procedural challenge on appeal, a defendant must object “at the time of sentencing.” Verkhoglyad,

. Indeed, Federal Rule of Criminal Procedure 51(b) explains that “[a] party may preserve a claim of error by informing the court – when the court ruling or order is made or sought – of . . . the party’s objection to the court’s action.” Fed. R. Crim. P. 51(b) (emphasis added). 9 with first principles. “It is well-settled that factfinding used to guide judicial

discretion in selecting a punishment within limits fixed by law does not implicate

the Sixth Amendment, even though such findings of fact may lead judges to select

sentences that are more severe than the ones they would have selected without

those facts.” United States v. Washington,

, 923 (2d Cir. 2024) (internal

quotation marks omitted). In other words, “a judge selecting a sentence within a

statutorily authorized range is not limited – at least by the Sixth Amendment – to

considering facts found by a jury or admitted by the defendant.”

Likewise, we

have held that the Federal Rules of Evidence do not apply at sentencing, see United

States v. Fell,

(2d Cir. 2004), and that “sentencing judges are not

restricted to information that would be admissible at trial,” United States v.

Simmons,

(2d Cir. 1998) (internal quotation marks omitted).

Nevertheless, the Due Process Clause of the Fifth Amendment and Federal

Rule of Criminal Procedure 32 impose some limits on the information that a

district court may consider at sentencing. For example, a district court may not

rely on erroneous information. See United States v. Doe,

, 18–19 (2d Cir.

2019). Likewise, Rule 32(i)(1)(B) requires that a sentencing court “give to the

defendant and an attorney for the government a written summary of – or

10 summarize in camera – any information excluded from the presentence report . . .

on which the court will rely in sentencing, and give them a reasonable opportunity

to comment on that information.” We have therefore explained that a defendant

must be “on notice of all relevant information that could be used in determining

his sentence and [have] an opportunity to make appropriate objections.” United

States v. Romano,

(2d Cir. 1987); see also United States v. Berrios-

Miranda,

(1st Cir. 2019) (“[A] defendant must be provided with a

meaningful opportunity to comment on the factual information on which his or

her sentence is based.” (internal quotation marks omitted)); United States v.

Baldrich,

(9th Cir. 2006) (“Rule 32 . . . require[s] the disclosure

of all relevant factual information to the defendant.”).

Turning to the role of probation officers, we have long recognized that they

occupy a unique position in our criminal justice system “as an arm of the court.”

Dorman v. Higgins,

(2d Cir. 1987). Indeed, we have described

probation officers as “confidential advisers” who are “the court’s eyes and ears”

and “neutral information gatherer[s] with loyalties to no one but the court.” United

States v. Young,

, 668–69 (2d Cir. 2018) (internal quotation marks

omitted). Rule 32 itself contemplates that a probation officer may make

11 confidential recommendations to the district court. See Fed. R. Crim. P. 32(e)(3).

For these reasons, our sister circuits have explained that “a sentencing court’s

communications with [a] probation officer are fundamentally different from its

communications with third parties.” United States v. Bramley,

(1st Cir.

2017); see also United States v. Johnson,

, 49–50 (4th Cir. 1991) (“[A]

probation officer continues to be a neutral, information-gathering agent of the

court, not an agent of the prosecution.”).

In light of these principles, we hold that a district court is permitted to confer

ex parte and off-the-record with a probation officer to seek advice or analysis as

long as the officer reveals no new facts that bear on sentencing. See Bramley,

. If the officer provides new factual information, the district court may

not rely on those facts unless they are first disclosed to the parties and each side

has had a reasonable opportunity to comment. See Fed. R. Crim. P. 32(i)(1)(B).

Applying this holding to the facts of this case, we conclude that Fletcher has

failed to establish that Officer Gjelaj conveyed any new factual information upon

which the district court relied at sentencing. We note that on plain-error review,

the defendant carries the burden of establishing each of the elements. See Dussard,

967 F.3d at 156. Fletcher cannot do so here because he relies on mere speculation.

12 For example, he asserts that the frequency and length of the district court’s

discussions with Officer Gjelaj “strongly suggest that these consultations were a

means for the court to address its sentencing questions, presumably factual and

legal in nature.” Fletcher Br. at 47 (emphases added). Fletcher likewise argues

that the timing of Probation’s recommendation of a five-level enhancement

pursuant to U.S.S.G. § 4B1.5(b)(1) – on the day of the sentencing hearing – supports

an inference that Officer Gjelaj must have disclosed new factual information in

support of that recommendation. But this ignores the facts set forth in the PSR,

which already supported application of the enhancement. See PSR ¶ 15

(“[M]ultiple victims have reported to law enforcement engaging in sex with

Fletcher when they were minors, evidencing Fletcher’s long pattern of soliciting

commercial sex from minors.”).

Fletcher’s arguments are also belied by the district court’s explanation that

it “relied only on the facts in the PSR, PSR Addendum, the parties’ submissions,

and the arguments and statements made in open court.” Fletcher App’x at 168.

As in Bramley, “[t]he fact that the judge took pains to enumerate the materials upon

which he was basing his decision . . . argues against an assumption that the

probation officer gave him new, undisclosed information.”

. At the

13 end of the day, “[o]n this empty record, there is simply no basis for concluding

that the conversations” between the district court and Officer Gjelaj “involved new

facts or raised new matters.”

Had Fletcher objected below, the district court

might have elaborated on its communications with Officer Gjelaj. But given

Fletcher’s failure to object and the absence of any evidence contradicting the

district court’s representation that it “relied only on the facts” presented to the

parties, Fletcher App’x at 168, we will not engage in rank speculation and simply

assume that the district court acted improperly here. Accordingly, we conclude

that Fletcher has failed to establish that the district court erred – let alone plainly

erred – by conferring with Officer Gjelaj regarding his sentencing.

IV. CONCLUSION

For all the foregoing reasons, we AFFIRM the judgment of the district court.

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