Rule 32(i)(1)(A) Requires Follow-Up When a Defendant Denies Reviewing the PSR, and Allocution Preserves the Claim

1. Introduction

United States v. Threatt addresses a recurrent but often under-litigated sentencing safeguard: Federal Rule of Criminal Procedure 32(i)(1)(A), which requires the district court to “verify” that the defendant and counsel have read and discussed the presentence investigation report (“PSR”).

The defendant, DeAngelo Keiyawn Threatt, pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The PSR recommended significant enhancements—one tied to alleged later conduct (a pistol-whipping) and another tied to the arrest struggle—driving the advisory range to the statutory maximum (180 months). At sentencing, counsel affirmed having had an “opportunity” to review and discuss the PSR with Threatt, but during allocution Threatt stated counsel “never went over” the PSR with him. The district court declined to address the complaint and imposed the statutory maximum.

The appeal presented two key issues: (1) whether Threatt preserved a Rule 32(i)(1)(A) claim by raising the problem during allocution, and (2) whether the district court satisfied Rule 32’s “verify” requirement when the defendant directly contradicted counsel’s earlier assurance.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

The opinion is built from three lines of authority: (a) Rule 32 verification cases, (b) preservation/standards-of-review cases, and (c) due process and harmless-error doctrine at sentencing.

A. Rule 32 “verification” in the Tenth Circuit

• United States v. Tindall and United States v. Cereceres-Zavala: Cited for the general proposition that the court reviews compliance with the Federal Rules of Criminal Procedure de novo. Threatt uses these as the entry point for evaluating whether Rule 32(i)(1)(A) was met.
• United States v. Archer and United States v. Rangel-Arreola: Cited for the principle that resentencing follows a Rule 32 violation only if there is prejudice (i.e., the error is not harmless). Rangel-Arreola also supplies the long-standing Tenth Circuit approach that a district court need not personally question the defendant and may draw “reasonable inferences” from counsel and the record.
• United States v. Victoria: Quoted (via Rangel-Arreola) for the “reasonable inference” approach—courts may infer compliance from “court documents, the defendant’s statements, and counsel’s statements.”
• United States v. Romero and United States v. Frisby: Support the common scenario in which counsel’s affirmative answer to whether there was an opportunity to review/discuss the PSR suffices—unless something makes that inference unreasonable. Threatt clarifies the “unless”: a defendant’s direct denial.

B. Preservation and the function of allocution

• Holguin-Hernandez v. United States: The centerpiece for preservation. The court relies on the Supreme Court’s explanation that Rule 51 eliminates the need for formal “exceptions” and that a party preserves an issue so long as the error is “brought to the court’s attention,” without “particular language” or timing requirements. Threatt uses Holguin-Hernandez to reject a rigid objection ritual at sentencing.
• Green v. United States: Cited for the historical and functional importance of allocution, underscoring why a defendant’s statements at allocution matter and may be the only channel to alert the court to a breakdown in PSR review.
• United States v. Jarvi and United States v. Torres-Palma: Used to emphasize that denial of allocution is per se prejudicial at initial sentencing, reinforcing allocution’s structural role in sentencing procedure (even though the issue here was different: what allocution revealed).
• United States v. Jimenez and United States v. Bustamante-Conchas: Cited for the broad scope of allocution—defendants may raise “any matter of their choosing”—supporting the conclusion that Threatt’s allocution statement effectively alerted the district court to a Rule 32 verification problem.

C. The circuit split the Tenth Circuit declines to follow

• United States v. Holt (and its cited support: United States v. Tarpley, United States v. Tate, United States v. Burleson): The government urged adoption of the Sixth Circuit’s rule that a defendant must object to “proceeding” despite not reviewing the PSR, and that allocution alone does not preserve the issue. The Tenth Circuit explicitly declined, viewing that approach as inconsistent with Holguin-Hernandez and the text of Rule 52(b) (plain error applies when the error “was not brought to the court’s attention”).
• United States v. Mark (citing United States v. Cherry and United States v. Grajeda): Offered by Threatt as persuasive authority that an allocution statement can preserve a Rule 32 challenge.
• United States v. Tam and United States v. Soltero: Cited to show that other circuits have treated Rule 32 compliance as subject to harmlessness review without requiring the same preservation formality.
• United States v. Scott: Noted as a First Circuit case where the government conceded preservation, illustrating that preservation disputes are not uniform across circuits.

D. Due process and harmless-error framework

• United States v. Rone, United States v. Tucker, Townsend v. Burke, and United States ex rel. Welch v. Lane: These cases connect Rule 32’s PSR-review requirement to the due process right to be sentenced on accurate information.
• United States v. Woodmore and United States v. Gieswein: Anchor the court’s statement that resentencing is required for a procedural sentencing error unless the error is harmless, and that the government bears the burden to prove harmlessness by a preponderance.
• United States v. Olano, Bank of Nova Scotia v. United States, United States v. Lane, and Kotteakos v. United States: Provide the general harmless-error principle: an error is prejudicial if it affected the outcome of proceedings. The opinion also uses Olano to distinguish burdens under harmless-error review (government) versus plain-error review (defendant).
• United States v. Freeman and United States v. Holly: Cited to reinforce that the government bears the burden of proving harmlessness.

3.2 Legal Reasoning

A. Preservation: “Brought to the court’s attention” includes allocution

The court’s preservation analysis turns on a practical and textual reading of Rules 51 and 52(b) as interpreted by Holguin-Hernandez v. United States. Threatt’s allocution statement—“my counsel never went over my [PSR] with me”—directly flagged a Rule 32(i)(1)(A) compliance problem. Because allocution is a formal part of sentencing designed to allow defendants to speak for themselves (Green v. United States; United States v. Jimenez), the court treated it as an especially plausible moment for such an alert, particularly when counsel’s earlier statement suggested the opposite.

The opinion’s doctrinal move is to reject the idea that preservation requires a defendant to add a second, formulaic “objection to proceeding.” The Tenth Circuit frames that requirement (as in United States v. Holt) as inconsistent with (1) the abolition of formal “exceptions,” and (2) Rule 52(b)’s focus on whether the issue was brought to the court’s attention at all.

B. Merits: counsel’s “opportunity” answer cannot “verify” compliance after an express denial

On the merits, the opinion does not discard the Tenth Circuit’s inference-based verification practice from United States v. Rangel-Arreola and United States v. Romero. Instead, it adds a limiting principle:

The district court’s refusal to address “complaints…aimed at…defense counsel” missed Rule 32’s point: verifying PSR review is not simply about whether the plea paperwork disclosed the maximum sentence. It is about ensuring the sentencing decision is grounded in accurate, vetted information.

The panel also highlighted a concrete warning sign that made the inference even less reasonable: Threatt insisted he worked at Sonic, while the PSR stated Sonic records showed he “was never employed.” That contradiction suggested he had not internalized or reviewed the PSR’s contents.

C. Harmlessness: inability to contest material PSR facts is prejudicial, and the government did not carry its burden

Having found a Rule 32 violation, the court applied harmless-error review. It reiterated that the government bears the burden to show harmlessness (citing United States v. Woodmore, United States v. Gieswein, United States v. Freeman).

Threatt identified specific ways PSR non-review could matter: (1) the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (noting the post-2025 amendment renumbering to § 2K2.1(b)(7)(B)), (2) the six-level enhancement under U.S.G.G. § 3A1.2(c)(1), and (3) credibility harm from the Sonic employment discrepancy. The government’s response—that Threatt was “on notice” of some allegations—did not establish that the Rule 32 failure had no effect on the sentence, particularly where the contested factual assertions were potentially material to guideline calculations and sentencing presentation.

Importantly, the panel “express[ed] no opinion” on the merits of Threatt’s proposed factual objections. The point was procedural and structural: if the defendant plausibly lost a meaningful opportunity to identify and litigate material inaccuracies, and the government cannot show harmlessness, resentencing is required.

3.3 Impact

• Stronger Rule 32 enforcement when the record is conflicted. In the Tenth Circuit, counsel’s routine assurance will no longer suffice if the defendant later (even during allocution) claims the PSR was not reviewed. District courts should expect that an express denial triggers a duty to ask follow-up questions and make a clear record.
• Preservation via allocution reduces forfeiture risk. Defendants who personally alert the court during allocution to the lack of PSR review have a stronger argument for harmless-error review rather than plain-error review. This narrows the practical reach of more stringent approaches like United States v. Holt within the Tenth Circuit.
• Resentencing becomes more likely where enhancements rest on contestable factual narratives. Because guideline enhancements can hinge on PSR fact statements (including addenda and external reports), a failure to ensure PSR review can readily become prejudicial—especially where the court adopts the PSR “in full.”
• Likely procedural adjustments in sentencing practice. The opinion itself suggests a workable prophylactic: a recess to permit review, followed by a decision to proceed or continue to allow investigation and objections. Expect more on-the-record verification steps and potential continuances when a defendant raises this issue.

4. Complex Concepts Simplified

• PSR (Presentence Investigation Report). A probation-prepared report used at sentencing that includes offense details, criminal history, guideline calculations, and personal background. It often drives the guideline range and influences the judge’s sentencing decision.
• Rule 32(i)(1)(A) “verify.” The judge must ensure (not merely assume) that the defendant and lawyer actually read and discussed the PSR and addenda. Usually the judge can infer compliance from counsel’s statements—unless the defendant’s statements make that inference unreliable.
• Allocution. The defendant’s chance to speak directly to the judge before sentencing. Threatt treats allocution as a legitimate moment to “bring to the court’s attention” procedural failures like lack of PSR review.
• Plain error vs. harmless error. If an issue was not brought to the court’s attention, appellate courts often apply “plain error,” which is harder for defendants to win. If it was brought to the court’s attention, “harmless error” applies, and the government must show the error did not matter.
• Guideline enhancements (U.S.S.G.). Specific factual findings can increase the offense level (and the advisory range). If the defendant did not review the PSR, he may miss the chance to challenge enhancement-triggering facts.

5. Conclusion

United States v. Threatt establishes a clear procedural rule for the Tenth Circuit: when a defendant expressly states that counsel did not review and discuss the PSR with him, Rule 32(i)(1)(A) requires the district court to follow up and verify compliance; reliance on counsel’s generic assurance of an “opportunity” to review is insufficient. The decision also clarifies that raising the issue during allocution can preserve the claim, leading to harmless-error review with the burden on the government.

The broader significance lies in reinforcing sentencing accuracy as a due process concern: PSR review is not a formality, and when the record signals it may not have occurred, courts must pause and ensure the defendant had a genuine chance to identify and contest material factual assertions before sentence is imposed.