Michael Henderson v. United States

Petitioner pleaded guilty to a drug offense and a Presentence Investigation Report (“PSR”) was prepared, which included an enhancement for possession of a firearm. Petitioner objected and, with no opposition from the Government, the enhancement was removed. The Government never argued for the application of the enhancement and in fact adopted the resulting Guideline range in its sentencing memorandum. After the filing of the sentencing memoranda but before sentencing, the district court, in light of new Circuit Court authority, ordered additional briefing regarding whether Petitioner was eligible for “safety valve” relief under 18 U.S.C. § 3553(f). In its brief, the Government argued that several Guideline enhancements should apply (including, for the first time, the firearm enhancement), although it made no argument that it had good cause for doing so in such delinquent fashion. The district court, without making a finding of good cause, entertained the Government’s arguments and, in an order entered prior to the sentencing hearing, applied the firearm enhancement and enhanced Petitioner’s Guideline range accordingly. This Petition presents two issues: I. Whether, under Rule of Criminal Procedure 32(i)(1)(D), a district court’s order for additional briefing on safety valve eligibility – which notes that the defendant was not assessed certain Guideline enhancements in the PSR to which the Government failed to object – constitutes “good cause” so as to allow the Government to make untimely objections to the PSR.