Permissible Ex Parte Consultations with Probation Officers in Sentencing: United States v. Fletcher

1. Introduction

United States v. Fletcher, 23-6693 (2d Cir. Apr. 21, 2025) addresses two core procedural challenges arising at a federal sentencing: (1) whether the district court properly calculated the applicable Sentencing Guidelines range, and (2) whether the court erred by conferring ex parte and off-the-record with its probation officer before and during sentencing.

Defendant‐appellant Herbert Fletcher pleaded guilty under 18 U.S.C. § 2423(c) (sex tourism involving a minor). The district court imposed a 91-month term of imprisonment (above the agreed 57–71 month range) and five years of supervised release. On appeal, Fletcher claimed procedural unreasonableness: that the court both failed to compute the correct guidelines range and impermissibly consulted ex parte with the probation officer.

2. Summary of the Judgment

The Second Circuit unanimously affirmed. It held:

Guidelines Calculation: The record unambiguously demonstrates that the district court adopted the 57–71 month range stipulated in the plea agreement and expressly declined to apply probation’s late-filed enhancements.
Ex Parte Consultation: A district judge may confer privately with a court‐appointed probation officer to obtain advice or analysis, provided no new factual information bearing on sentencing is introduced without first disclosing it to the parties under Federal Rule of Criminal Procedure 32(i)(1)(B).

3. Analysis

3.1 Precedents Cited

United States v. Smith, 949 F.3d 60 (2d Cir. 2020): Procedural reasonableness requires proper Guidelines calculation and consideration of § 3553(a) factors.
United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008): Unpreserved procedural objections at sentencing are reviewed only for plain error.
United States v. Moore, 975 F.3d 84 (2d Cir. 2020): Elements of plain‐error review in sentencing context.
United States v. Fell, 360 F.3d 135 (2d Cir. 2004) & United States v. Simmons, 164 F.3d 76 (2d Cir. 1998): Federal Rules of Evidence do not apply at sentencing, but sentencing facts must be disclosed under Rule 32.
United States v. Romano, 825 F.2d 725 (2d Cir. 1987): Due process requires notice and opportunity to challenge factual information used at sentencing.
United States v. Dorman, 821 F.2d 133 (2d Cir. 1987) & United States v. Young, 910 F.3d 665 (2d Cir. 2018): Probation officers act as neutral, confidential advisers—“the court’s eyes and ears.”
United States v. Bramley, 847 F.3d 1 (1st Cir. 2017) & United States v. Johnson, 935 F.2d 47 (4th Cir. 1991): Recognized that ex parte communications with probation officers are fundamentally different from ex parte communications with government advocates.

3.2 Legal Reasoning

The panel began by reaffirming that sentencing courts must calculate and announce the Guidelines range, consider § 3553(a) factors, and explain variances from the Guidelines. Here, the district judge unambiguously adopted the 57–71 month range and then varied upward based on the gravity of Fletcher’s pattern of exploiting minors, the victims’ traumatic testimony, and general deterrence.

Turning to ex parte consultations, the court recognized three guiding principles:

Sixth Amendment Freedom: Judicial factfinding at sentencing within statutory maximums does not trigger the jury‐trial guarantee.
Non‐Applicability of Rules of Evidence: Judges may consider otherwise inadmissible information, subject to due process and Rule 32’s disclosure requirements.
Unique Role of Probation Officers: As “an arm of the court,” probation officers may confidentially advise the judge. Ex parte communication is permissible so long as no new, undisclosed sentencing facts are introduced without giving the parties notice and a fair opportunity to respond.

Because nothing in the record suggested that the probation officer imparted new facts—indeed the judge expressly stated reliance only on disclosed materials—the court held that no plain error had occurred.

3.3 Impact

Clarifies Probation Officer Role: District courts may confidently seek private legal and analytical guidance from probation officers, streamlining sentencing preparation and hearings.
Safeguards Due Process: Emphasizes strict adherence to Rule 32(i)(1)(B) when factual supplements arise after the PSR.
Guides Appellate Review: Reinforces plain‐error standards for unpreserved procedural objections, encouraging counsel to object at sentencing or face significant appellate hurdles.
Broader Sentencing Practice: Courts in other circuits will likely adopt this balanced rule, recognizing probation officers as trusted judicial advisors while upholding fairness to parties.

4. Complex Concepts Simplified

Ex Parte Communication: A conversation to which one or more parties are not present. Normally prohibited between judge and prosecutor or victim, but tolerated here with probation officers under tight limits.
Plain‐Error Review: An appellate standard requiring (1) a clear error, (2) affecting substantial rights, and (3) seriously undermining judicial integrity—used when a party did not object below.
Rule 32(i)(1)(B): Requires disclosure to both sides—and an opportunity to comment—of any information not contained in the PSR that the court intends to rely on for sentencing.
Guidelines “Range” vs. “Stipulated Range”: The Guidelines range is the by-the-book calculation based on offense level and criminal history. Parties may stipulate to a particular range in a plea agreement, which the court usually adopts absent error.

5. Conclusion

United States v. Fletcher establishes a clear, practical rule: district courts may conduct private, off-the-record consultations with probation officers to obtain analysis or legal advice, so long as no new factual information bearing on sentencing is introduced without first disclosing it to the parties under Rule 32. This decision strikes a balance between judicial efficiency and the parties’ procedural rights, and it underscores the special, neutral role that probation officers play in the sentencing process.

The ruling also reaffirms fundamental procedural obligations: courts must calculate and announce the correct Guidelines range, address § 3553(a) factors, and afford defendants notice of—and an opportunity to contest—any facts used to increase their sentence. Fletcher thus clarifies sentencing practice in the Second Circuit and offers persuasive guidance nationwide on both ex parte communications and plain‐error review in criminal appeals.