Plain-Error Vacatur When a Sentencing Court Repeatedly Relies on Extra-Record Aggravating Facts

Case: United States v. Palencia-Berrum (5th Cir. Aug. 26, 2026)

1. Introduction

United States v. Palencia-Berrum concerns procedural reasonableness at federal sentencing under plain-error review. Alexander Palencia-Berrum pleaded guilty (no plea agreement) to illegal reentry under 8 U.S.C. § 1326. The Presentence Report (“PSR”) described his prior convictions and a recent arrest for an alleged domestic incident whose charges were dismissed. The district court imposed a top-of-Guidelines sentence (46 months) after a six-minute hearing.

The central issue on appeal was whether the sentencing judge relied on “clearly erroneous facts”—including an allegation of “biting” the victim and a misdated prior illegal-reentry case—such that the resulting sentence must be vacated under Fed. R. Crim. P. 52(b).

2. Summary of the Opinion

The Fifth Circuit (Higginson, J., joined by King, J.) vacated and remanded for resentencing. The court held that:

• the district court committed procedural error by selecting a sentence based on clearly erroneous facts (notably, an unsupported allegation that Palencia-Berrum “bit” his wife);
• the error was “plain” under established Supreme Court and Fifth Circuit law;
• the error affected substantial rights because the mistaken narrative “played a central role” in the short sentencing colloquy and the court chose the top of the Guidelines range;
• the appellate court should exercise its discretion to correct the error because sentencing on invalid premises implicates due process and harms the fairness and integrity of judicial proceedings.

Judge Duncan dissented, arguing the record did not clearly show the “biting” detail was central and that the PSR still depicted a violent incident sufficient to justify the sentence, especially on plain-error review.

3. Analysis

3.1 Precedents Cited

• Puckett v. United States, 556 U.S. 129 (2009) and United States v. Olano, 507 U.S. 725 (1993): These supply the governing four-prong test (error; clear/obvious; affects substantial rights; and discretionary correction for errors that seriously affect fairness/integrity/public reputation). The panel uses this structure explicitly and repeatedly, including the final discretionary prong.
• Gall v. United States, 552 U.S. 38 (2007) and United States v. Johnson, 943 F.3d 735 (5th Cir. 2019): Gall identifies “selecting a sentence based on clearly erroneous facts” as “significant procedural error,” and Johnson imports that rule into Fifth Circuit sentencing review. These anchor the majority’s conclusion that the district court’s reliance on the “biting” allegation is procedural error.
• United States v. Villanueva, 408 F.3d 193 (5th Cir. 2005): Provides the definition of “clearly erroneous” factual findings as those not plausible in light of the record as a whole. It helps the court characterize “biting” as unsupported by any record evidence.
• United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov. 1981), United States v. Espinoza, 481 F.2d 553 (5th Cir. 1973), and Townsend v. Burke, 334 U.S. 736 (1948): These older due process authorities supply the normative core: defendants have a right not to be sentenced on materially untrue assumptions or “invalid premises.” The majority uses them to justify correcting the error even without an objection—because the harm is constitutional in character and reputational in consequence.
• United States v. Palmer, 456 F.3d 484 (5th Cir. 2006): Defines “plain” error as one clear under current law. It bridges the doctrinal move from “error” to “obvious error.”
• United States v. Suarez, 879 F.3d 626 (5th Cir. 2018) and United States v. Broussard, 669 F.3d 537 (5th Cir. 2012): Suarez is cited for when a sentencing error is “plain” in light of precedent; Broussard restates the “substantial rights” requirement as an outcome-affecting showing.
• United States v. Garcia-Quintanilla, 574 F.3d 295 (5th Cir. 2009): Supplies the sentencing-specific “substantial rights” standard: whether there is a reasonable probability of a lower sentence on remand. The panel applies it to infer that the top-of-range sentence likely reflected the court’s reliance on the mistaken narrative.
• United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc): This is the majority’s key “centrality” precedent. Although Escalante-Reyes addressed an improper rehabilitative rationale, it supplies a transferable method: repeated emphasis in a relatively short hearing shows the issue “loomed large,” supporting a finding that the defendant would likely have received a lower sentence absent the error.
• United States v. Ibarra, No. 24-20071, 2024 WL 5118485 (5th Cir. Dec. 16, 2024) and United States v. Guidry, 462 F.3d 373 (5th Cir. 2006): These reinforce that the Fifth Circuit “repeatedly” finds plain procedural error where the sentencing judge relies on mistaken facts. Guidry is especially analogous: mischaracterization of prior conduct and victim identity led to vacatur.
• United States v. Jimenez-Espinoza, 408 F. App'x 823 (5th Cir. 2011) (per curiam) and United States v. Garcia-Servin, 846 F. App'x 294 (5th Cir. 2021) (per curiam): These frame the boundary. Jimenez-Espinoza supports remand when unsupported facts are mentioned even briefly in a short colloquy; Garcia-Servin contrasts situations where an error is not “central.”
• United States v. Parkerson, 984 F.3d 1124 (5th Cir. 2021) and Untied States v. Harris, 702 F.3d 226 (5th Cir. 2012) (per curiam): Cited to explain that sentencing courts may consider PSR facts with “indicia of reliability,” including uncharged conduct—but crucially, the majority distinguishes this permissible practice from reliance on facts with “no record basis whatsoever.” (Notably, the opinion spells the case name as “Untied States v. Harris,” which the court itself cites.)
• United States v. Lopez-Soria, No. 24-11077, 2026 WL 280900 (5th Cir. Feb. 3, 2026): Raised in the dissent as a limiting principle—affirmance despite factual errors where the court relied on “several other weighty factors.” The majority does not adopt that view here, instead finding the error central.

3.2 Legal Reasoning

(1) Error: reliance on clearly erroneous facts

The district court stated that the dismissed domestic-assault allegations included “biting,” yet the PSR contained no such allegation and described no direct physical contact at all—only thrown objects causing bruising. The court also referenced a non-existent “2020” illegal reentry case (the prior illegal reentry conviction was from 2018/2019). Under Gall v. United States and United States v. Johnson, selecting a sentence based on such clearly erroneous facts is procedural error.

(2) Plainness: clearly established law forbids sentencing on invalid premises

The panel deems the error “clear” because Supreme Court and Fifth Circuit precedent have long prohibited reliance on materially untrue assumptions at sentencing. In addition to Gall, the majority invokes due process cases—United States v. Tobias, Townsend v. Burke—to show that the prohibition is fundamental and well settled.

(3) Substantial rights: the “central role”/“loomed large” inference

The decisive move is the court’s inference that the unsupported “biting” narrative (and the judge’s “beating up” framing) materially increased the sentence. Using United States v. Escalante-Reyes as an analytic template, the majority reasons that:

• the hearing was extremely short (six minutes);
• the judge returned to the dismissed arrest three times;
• the only substantive question posed concerned the alleged domestic incident;
• the court chose the top of the Guidelines range immediately after listing aggravators, including the erroneous account.

The majority also explains why the dismissed domestic incident was qualitatively distinct from the rest of the criminal history the judge cited (recentness, violence-related nature, not accounted for in the Guidelines calculation, and absence of conviction), strengthening the probability that the mistaken “biting” detail tipped the sentencing calculus.

(4) Discretionary correction: fairness, integrity, public reputation

The court’s discretionary prong analysis emphasizes systemic legitimacy: sentencing already allows reliance on reliable-but-uncharged PSR conduct; therefore, relying on wholly extra-record facts is especially damaging to fairness and public confidence. Citing Tobias, United States v. Espinoza, and Townsend v. Burke, the panel frames the error as a due process violation warranting correction despite forfeiture.

3.3 Impact

• Heightened appellate scrutiny where extra-record facts are emphasized: The decision reinforces that a single, unsupported aggravating detail—if repeatedly referenced in a short hearing—can satisfy the “reasonable probability of a lower sentence” showing under United States v. Garcia-Quintanilla.
• Centrality is measured pragmatically: The opinion operationalizes “central role” by counting repetitions, comparing hearing length, and assessing how immediately the sentencing choice follows the erroneous premise—building on United States v. Escalante-Reyes.
• Boundary for PSR-based sentencing: While United States v. Parkerson and Untied States v. Harris allow reliance on PSR facts with “indicia of reliability,” Palencia-Berrum draws a firm line at facts with no record basis at all. This may encourage district judges to tether oral sentencing characterizations tightly to PSR language (or to evidence presented).
• Practical consequence for litigants: The case underscores the importance of contemporaneous objections, but also confirms that forfeiture will not insulate a sentence where the judge’s justification depends materially on invented or misremembered facts.

4. Complex Concepts Simplified

• Plain error review (Rule 52(b)): When the defense did not object in the district court, the appellate court will correct an error only if it is (1) an error, (2) obvious, (3) likely changed the outcome, and (4) is so serious that leaving it uncorrected would harm the fairness or reputation of the courts.
• Procedural sentencing error: An error in the process of sentencing—such as relying on inaccurate facts—distinct from whether the sentence length is substantively “too high” or “too low.”
• Presentence Report (PSR): A probation-prepared report summarizing offense facts, criminal history, and guideline calculations. Courts often rely on PSR facts if they appear reliable and are not successfully disputed.
• “Indicia of reliability”: A minimal reliability threshold for sentencing information; Palencia-Berrum stresses that even this permissive standard cannot justify reliance on facts with no support anywhere in the record.
• Affecting “substantial rights” in sentencing: The defendant must show a reasonable probability that the sentence would have been lower without the error—often inferred from the judge’s stated reasons, emphasis, and the sentence selected within the Guidelines range.

5. Conclusion

United States v. Palencia-Berrum strengthens Fifth Circuit doctrine that sentencing courts may not—consistent with due process—select a sentence based on extra-record or clearly erroneous aggravating facts. Applying the plain-error framework of Puckett v. United States and United States v. Olano, the majority treats repeated emphasis on an unsupported factual narrative in a very short hearing as powerful evidence of outcome effect under United States v. Garcia-Quintanilla and United States v. Escalante-Reyes. The result is a clear remedial rule: when a judge’s sentencing rationale “looms large” around a materially untrue premise, vacatur and resentencing are warranted—even absent an objection.