(a) Submission by United States Attorney’s Office. Upon acceptance of the plea or
entry of a verdict of guilty, the United States Attorney’s Office must submit to the United States
Probation Office, and provide defendant with a copy of, a “Statement of Relevant Conduct.” Such
submission must include: (1) the loss and drug amounts the government believes are supportable
by the evidence; (2) facts the government believes support any agreed-upon offense level
computations in the plea agreement; and (3) facts warranting any non-agreed-upon Chapter 2 or 3
enhancements or reductions. When practicable, the government should reflect consultation with
counsel for defendant and note therein whether defendant concurs or opposes such statement.
(b) Response by Defendant. Defendant may submit to the United States Probation
Office a response or objection to the government’s submission within seven (7) days. Where
defendant elects not to respond initially, no inference is raised that defendant concurs with the
government’s proposed submission and defendant may wait until a Draft Presentence Report is
issued to lodge objections. By filing an initial response within seven (7) days, defendant does not
waive the right to later file objections to the Draft and Final PSRs.
Advisory Committee Notes
This new Rule is intended to implement the second part of the Superseding Order,
3:14mc005, by providing USPO with a statement of relevant conduct promptly upon acceptance
of the plea or entry of a verdict. This Rule does not, however, require defendant to concur in the
statement, but instead provides the defendant with an opportunity to promptly respond to the
government’s proffer without waiving their procedural rights under Fed. R. Crim. P. 32, and
without shifting the burden of proof from the government to prove sentencing enhancements.
United States v. Mitchell, 825 F.3d 422, 425-26 (8th Cir. 2016) (“Application of sentencing
enhancements must be supported by a preponderance of the evidence, and the government has the
burden to prove the factual basis for an enhancement.”).
