PSR Objections in Federal Sentencing: The Eleventh Circuit Says the Government Gets One Chance to Prove Its Facts

If you are waiting on a presentence investigation report in a federal fraud case, the number in that report will drive your sentence more than anything said in the courtroom. On October 13, 2026, the Eleventh Circuit issued a published opinion that tells you what that report is worth once you dispute it: nothing, unless the government proves it. And if the government stays silent and the judge relies on the report anyway, the government does not get a second try.

Once a specific PSR objection is made and renewed, the report alone no longer proves the disputed fact. The government has to.

Key Takeaways

• A specific factual objection to the PSR, renewed at the hearing, shifts the burden to the government to prove that fact by a preponderance.
• Under Fed. R. Crim. P. 32(i)(3)(B), the court must rule on every disputed PSR fact or find that it will not affect the sentence.
• The Eleventh Circuit vacated a 15-year enhancement under 18 U.S.C. 924(e) because the prosecutor offered no evidence after a specific objection.
• When the government had its chance and offered nothing, the Eleventh Circuit will generally not let it try again on remand.
• For Southern District of Florida fraud defendants, the rule reaches the 2B1.1 loss figure, which often decides the guideline range under 18 U.S.C. 1347.

What the Eleventh Circuit Decided

The case, No. 21-14252, came up from the Southern District of Florida. The defendant pleaded guilty to unlawful firearm possession. His PSR said he qualified for the Armed Career Criminal Act, which raises the sentence from a ten-year maximum to a fifteen-year mandatory minimum under 18 U.S.C. 924(e). Defense counsel objected to the draft report because it did not identify which convictions counted. The final report listed them. Counsel then filed supplemental objections stating that the government had not proved those convictions by a preponderance of the evidence, and repeated that objection, in those words, at the sentencing hearing.

The district judge asked the prosecutor whether there was anything to be said about the predicate offenses. The prosecutor said nothing. No certified judgments, no testimony, no documents. The court applied the enhancement anyway and adopted the facts in the report.

The judge asked whether there was anything to be said about the predicate offenses. The government offered no certified judgments, no testimony and no documents.

The panel vacated the sentence. The government bears the burden of proving a sentence enhancement, the court wrote, and the district court has a duty to make sure the government carries it. The only place the convictions appeared in the record was the PSR, and the defendant had objected to the PSR. The panel then went a step further. Relying on its 2013 precedent at 714 F.3d 1358, 1362, it remanded with instructions to resentence without the enhancement. A party that bears the burden on a contested sentencing issue, and had the chance to put on evidence, generally does not get to try again.

Why This Matters in a Federal Fraud Case

This was a firearm case. The rule is not limited to firearm cases. The opinion rests on general authority: when a defendant challenges one of the factual bases of a sentence, the government must establish the disputed fact by a preponderance. That is the same rule that governs loss, number of victims, sophisticated means, role in the offense and every other enhancement a fraud PSR carries.

In healthcare fraud and wire fraud prosecutions under 18 U.S.C. 1347, 18 U.S.C. 1343 and the conspiracy statute, 18 U.S.C. 1349, the loss table in section 2B1.1 of the Sentencing Guidelines Manual is often the largest single driver of the range. Probation officers frequently take the loss figure from the case agent's summary or the government's charging theory. Billed amounts become losses. Every claim during a date range becomes fraudulent. If the defense lets that figure stand, or attacks it only in general terms, the court is entitled to adopt it.

The loss figure in a fraud PSR often starts as a case agent's spreadsheet. Billed amounts become losses unless someone makes the government prove otherwise.

What the government is building at sentencing is usually a spreadsheet. The prosecutor expects the PSR to carry that spreadsheet into the judgment without a witness ever explaining it. This decision gives the defense a way to force the explanation, or force the consequence of not giving one.

What a Specific Objection Looks Like

The win came from precision. Counsel did not say the PSR was wrong. Counsel said, in writing and then on the record, that the government had not proved these particular facts by a preponderance. That is what Rule 32(f) contemplates when it requires objections within 14 days of receiving the report, and what Rule 32(i)(3)(B) enforces when it requires the court to rule on each disputed portion. Section 6A1.3 of the Guidelines adds that the parties must have an adequate opportunity to present information on any disputed factor.

In a fraud case, a specific objection names the dollar figure, the paragraph, and the reason. It says which claims the government has not shown were false, which payments were for services rendered, which period predates the client's involvement, and which figure counts billed amounts rather than amounts paid. A loss amount dispute stated that way puts the burden where it belongs. A general objection to the defendant's role or to the total does not.

Then the objection has to be renewed at the hearing. If counsel withdraws it, narrows it without saying so, or lets the court treat it as resolved by argument alone, the record may not support relief on appeal.

Critical Mistakes People Make Early

Most sentencing exposure in a fraud case is set long before the PSR interview. Clients talk to agents without counsel and supply the narrative that becomes the loss theory. They produce billing records without a privilege review or a plan for how the records will be read. They assume that because no one has been charged, no one is building a number. And they wait until after the indictment, or after the plea, to hire a federal criminal defense attorney.

Each of those choices makes the government's figure harder to contest later. Statements to agents become admissions in the offense conduct section. Documents produced without context become the denominator for an extrapolation. By the time the report is drafted, the facts the defense would have objected to may already be facts the client conceded.

A Strategic Defense Approach, Before and After the PSR

Federal investigation defense starts with the loss figure, not the verdict. Whether the client has a target letter from the U.S. Attorney's Office, a grand jury subpoena, or FBI agents at the door, counsel should be building the alternative number from the first week: which claims, which payments, which months, which people. That work shapes any pre-charge negotiation with the AUSA, the decision whether to proffer, and the plea agreement's stipulations.

If the case goes to sentencing, the PSR objections should be drafted as if the appeal depends on them, because it may. Object to each disputed figure separately. Say that the government has not proved it. Ask the court to require evidence. If the government offers none, the record is now set for the relief this decision describes. If the government does offer evidence, the defense has a witness to cross-examine instead of a paragraph to argue with. Either way, the arguments under 18 U.S.C. 3553(a) are stronger when the guideline range underneath them has been tested.

"A stipulated loss figure is an admission, and no objection can undo it."— Aaron M. Cohen, AMC Defense Law

A white collar defense attorney should also read the plea agreement with this decision in mind. A stipulated loss figure is an admission, and no objection can undo it. If the client has not agreed to a number, the agreement should not say he has.

Why Timing Matters Right Now

The amended loss table in section 2B1.1 takes effect November 1, 2026, and fraud defendants in the Southern District of Florida and the Middle District of Florida with sentencings near that date are deciding now which manual applies. Whatever the answer, a defendant whose PSR arrives in the next several weeks has 14 days to object. That deadline does not move because the guideline did. Use it to make every factual objection specific, written, and renewed.

For anyone already sentenced on an unproved enhancement in the Eleventh Circuit, the question is whether the issue was preserved and whether an appeal under 18 U.S.C. 3742 is still available. Those windows are short.

Common Questions

Facing a Federal Fraud Sentencing in Florida?

AMC Defense Law represents people under federal investigation and facing federal charges in the Southern and Middle Districts of Florida and in federal courts nationwide. If you have received a target letter, a grand jury subpoena, or a presentence report you believe overstates the loss, a confidential consultation is the place to start. We review the record, identify what the government has and has not proved, and plan the next step with you.

Aaron M. Cohen, AMC Defense Law, Boca Raton.

Call 561.542.5494 or request a confidential consultation. If you or your loved ones have been arrested or are under federal investigation, call Aaron M. Cohen, 24 hours a day to get help.