Undisputed PSR Adoption at Resentencing Defeats Plain-Error Attacks on Guidelines Factfinding and Criminal History

Introduction

In United States v. Mychael Saunders (3d Cir. Apr. 23, 2026) (not precedential), the Court of Appeals for the Third Circuit affirmed a 360-month sentence imposed on resentencing after Saunders successfully challenged an underlying conviction connected to a series of armed robberies in Philadelphia.

Saunders had been convicted of Hobbs Act conspiracy, Hobbs Act robbery and attempted robbery, and two counts under 18 U.S.C. § 924(c)(1) for firearm possession in furtherance of a crime of violence. After resentencing, the Probation Office calculated a Guidelines range of 248–295 months. The Government sought an upward variance, emphasizing the violence of the robberies (including a shooting) and Saunders’s eighteen Bureau of Prisons disciplinary infractions, some involving violence. Saunders sought time served, citing youth at the time of the crimes, rehabilitation, health issues, family support, and acceptance of responsibility.

The central appellate issues were procedural: whether the district court could adopt Guidelines calculations grounded in facts described in the presentence report (PSR) without making additional explicit findings, and whether Saunders could raise new factual disputes for the first time on appeal.

Summary of the Opinion

The Third Circuit rejected four challenges and affirmed. It held, in substance, that:

• Because Saunders did not object below, review of multiple claims was for plain error.
• The district court did not plainly err by adopting undisputed PSR facts when calculating the offense level (including conduct relating to multiple robberies referenced as overt acts) and criminal history (including a juvenile sentence).
• The record showed the district court meaningfully considered mitigating evidence; thus there was no procedural unreasonableness.
• The upward variance to 360 months was not substantively unreasonable given the seriousness of the crimes and Saunders’s disciplinary history.

Analysis

Precedents Cited

Sentencing review framework: abuse of discretion; deference to district courts

• United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc): The court relied on Tomko for the overarching standard—sentencing decisions are reviewed for abuse of discretion, and appellate courts must give “due deference” to the district court’s weighing of § 3553(a) factors.
• Gall v. United States, 552 U.S. 38 (2007): Quoted through Tomko to reinforce deferential review and the principle that appellate courts do not reweigh § 3553(a) factors de novo.

Plain-error doctrine for unpreserved issues

• United States v. Couch, 291 F.3d 251 (3d Cir. 2002) and United States v. Tai, 750 F.3d 309 (3d Cir. 2014): Used to define plain-error review when a defendant fails to preserve an objection at sentencing.
• United States v. Dobson, 419 F.3d 231 (3d Cir. 2005) (citing United States v. Olano, 507 U.S. 725 (1993)): The panel invoked Dobson/Olano to emphasize that “plain” means “clear” or “obvious,” a demanding threshold Saunders could not meet.

Reliance on undisputed PSR facts as sentencing findings

• United States v. Watkins, 54 F.3d 163 (3d Cir. 1995): Central to the court’s rejection of Saunders’s Guidelines factfinding challenges; it reiterates that a sentencing court may rely on PSR facts when their accuracy is not challenged.
• Fed. R. Crim. P. 32(i)(3)(A): The opinion treated this rule as directly authorizing the district court to accept undisputed PSR portions “as a finding of fact.”

Requirement to address colorable sentencing arguments

• United States v. Gunter, 462 F.3d 237 (3d Cir. 2006): Cited for the obligation to consider the relevant § 3553(a) factors.
• United States v. Flores-Mejia, 759 F.3d 253 (3d Cir. 2014) (en banc): Used to frame what “meaningful consideration” requires—acknowledging and responding to properly presented, colorable arguments with a factual basis.
• United States v. Lofink, 564 F.3d 232 (3d Cir. 2009): Employed to explain that district courts need not explicitly comment on every factor if the record makes clear they were considered.

Record limitation on appeal

• In re Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts, 913 F.2d 89 (3d Cir. 1990): Cited to reject Saunders’s attempt to introduce (or promise) new evidence on appeal regarding the nature of a juvenile “boot camp” sentence.

Substantive reasonableness and the defendant’s burden

• United States v. Cooper, 437 F.3d 324 (3d Cir. 2006): Along with Tomko, used for the principle that the defendant must show no reasonable court would impose the same sentence for the stated reasons.
• United States v. Levinson, 543 F.3d 190 (3d Cir. 2008): Cited to confirm that an adequate explanation, showing meaningful consideration of § 3553(a), supports affirmance.

Legal Reasoning

1) Offense level and “object offenses” in a conspiracy: U.S.S.G. § 1B1.2(d)

Saunders argued that robberies described as overt acts (rather than separate substantive counts) could not be used to drive the offense level without an explicit, independent judicial finding that he committed each robbery—invoking the idea embedded in U.S.S.G. § 1B1.2(d) and its commentary (note 4) that, when a general conspiracy verdict does not specify object offenses, the court should apply subsection (d) only if it would convict as a trier of fact.

The panel did not definitively decide the outer boundaries of § 1B1.2(d) factfinding at resentencing. Instead, it resolved the claim through plain-error analysis: the PSR’s account was undisputed, the district court confirmed no objections, and it adopted the PSR’s facts and conclusions. Given Watkins and Rule 32(i)(3)(A), any claimed deficiency (lack of additional explicit findings) was not “clear” or “obvious.” That meant no relief under Dobson/Olano.

2) Criminal history points for a juvenile sentence: U.S.S.G. § 4A1.2(d)(2)(A)

Saunders similarly challenged the addition of two criminal history points stemming from a juvenile sentence to “boot camp,” contending (for the first time on appeal) that he was not actually “confined” and therefore the sentence should not count as “confinement” under U.S.S.G. § 4A1.2(d)(2)(A).

The Third Circuit rejected this for two independent reasons:

1. Undisputed PSR reliance is permissible: because Saunders repeatedly failed to object to the PSR’s characterization of the juvenile sentence across proceedings, the district court’s adoption of the PSR was not plain error under Watkins and Rule 32(i)(3)(A).
2. Appellate review is limited to the record: Saunders’s offer to procure a sworn statement from a former boot camp employee was outside the existing record; under In re Capital Cities/ABC, Inc.'s Application for Access to Sealed Transcripts, the court would not consider new evidence on appeal.

3) Procedural reasonableness: consideration of mitigation

Saunders argued the district court failed to consider mitigation relating to (i) a sexual assault in BOP custody, (ii) acceptance of responsibility, and (iii) poor health. Applying Gunter, Flores-Mejia, Tomko, and Lofink, the panel focused on whether the district court meaningfully considered and responded to the arguments—not whether it weighed them as Saunders preferred.

The record showed explicit discussion of these points (including retaliation concerns related to reporting the assault, health, remorse, and claimed personal change). The district court then explained why aggravating factors—particularly the “incredibly serious” violent robberies and Saunders’s “horrible conduct while in prison” evidenced by eighteen infractions—justified an upward variance. On that basis, the panel found no procedural error, much less plain error.

4) Substantive reasonableness: upward variance affirmed

Under Tomko, Gall, and Cooper, Saunders needed to show that no reasonable sentencing court would impose the same sentence for the reasons given. The panel emphasized the sentencing judge’s superior position to assess the record and credibility and concluded the explanation was sufficient under Levinson. Because the judge considered the mitigation and still found danger to the community and seriousness of offense outweighed it, the variance to 360 months was within the range of reasonable outcomes.

Impact

Although labeled “NOT PRECEDENTIAL,” the decision is a clear application of several practical rules that will predictably shape sentencing litigation in the Third Circuit:

• Objection discipline at sentencing matters: when PSR facts (including relevant conduct and prior sentences) are not disputed, a district court may adopt them, and later appellate attacks will likely fail under plain-error review.
• Rule 32(i)(3)(A) is consequential: undisputed PSR facts function as the court’s factual findings; defendants who want additional findings (or who contest PSR characterizations like “confinement”) must create a record in the district court.
• Resentencing does not automatically reopen all factual disputes: Saunders’s repeated failure to raise issues earlier reinforced the court’s unwillingness to treat resentencing as an occasion for fresh, unpreserved factual litigation.
• Mitigation must be addressed, not accepted: the opinion underscores that “meaningful consideration” does not require the court to give mitigation the weight the defendant prefers; it requires a reasoned response grounded in § 3553(a).
• New evidence belongs in the trial court: attempts to introduce new factual material on appeal—especially to contradict an adopted PSR—are generally ineffective.

Complex Concepts Simplified

• Plain error: A demanding appellate standard applied when an argument was not preserved in the district court. The defendant must show a clear/obvious mistake that likely affected the outcome and seriously undermines the fairness or integrity of proceedings.
• Presentence Report (PSR): A probation-prepared report summarizing offense conduct, relevant conduct, criminal history, and Guidelines calculations. If parties do not object, the judge can treat those facts as found.
• Procedural vs. substantive reasonableness:
  • Procedural: whether the court followed the correct steps—correct Guidelines calculation, consideration of § 3553(a), and adequate explanation.
  • Substantive: whether the final sentence length is reasonable given the totality of the circumstances and the court’s stated reasons.
• Variance: A sentence above or below the Guidelines range based on § 3553(a) factors (distinct from a Guidelines “departure,” which is based on Guidelines provisions).
• U.S.S.G. § 1B1.2(d): In certain conspiracy cases, allows treating a conspiracy as involving multiple object offenses for Guidelines purposes, subject to safeguards when the verdict does not specify which object offenses were proven.
• U.S.S.G. § 4A1.2(d)(2)(A): Governs when juvenile sentences count for criminal history points, including sentences to “confinement” of at least 60 days (as defined and applied through PSR facts and objections practice).

Conclusion

United States v. Mychael Saunders reinforces a pragmatic sentencing principle: when a defendant does not dispute PSR factual assertions and Guidelines inputs at sentencing, a district court may adopt them under Fed. R. Crim. P. 32(i)(3)(A), and later appellate challenges—especially those seeking additional explicit findings or introducing new evidence—are unlikely to succeed under plain-error review.

The opinion also illustrates the Third Circuit’s consistent deference to district courts’ § 3553(a) balancing under Tomko and Gall: meaningful consideration of mitigation is required, but the court retains discretion to conclude that violent offense conduct and post-conviction prison misconduct justify a substantial upward variance.