United States of America v. Dana Alan Sam

United States Court of Appeals
For the Eighth Circuit
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No. 25-1136
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United States of America
Plaintiff - Appellee
v.
Dana Alan Sam
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: October 21, 2025
Filed: March 17, 2026
[Published]
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Before SMITH, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Dana Sam pled guilty to aggravated sexual abuse by force in violation of 18
U.S.C. §§ 2241(a) and 1153. He now appeals his sentence, arguing it was based on
unproven, objected-to conduct. We agree, so we vacate Sam’s sentence and remand
for resentencing.

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I. Background
At Sam’s first sentencing hearing, the district court noted that Sam had not
objected to the presentence investigation report (PSR), and it gave him notice
pursuant to § 6A1.3 of the U.S. Sentencing Guidelines Manual that it intended to
depart upward from the 108-to-135 month Guidelines range, perhaps to life
imprisonment. In addition to detailing Sam’s instant offense conduct, the district
court suggested that other allegations in the PSR — including that Sam sexually
assaulted other women; sexually assaulted the victim in this case repeatedly; and
otherwise abused the victim and her siblings — might justify such a departure.
Given the gravity of the sentence it was contemplating, the district court
continued Sam’s sentencing to give him “the opportunity to address some of these
concerns.” Sam then filed written objections to the PSR, noting specifically that he
“denies the conduct described in” paragraphs 25, 26, 28, and 52 and “denies that the
conduct mentioned in . . . paragraph [27] was anything other than consensual.”
Paragraph 25 alleges Sam began sexually assaulting the victim in this case when she
was 13 years old, sexually assaulted her “around 200 times,” and physically abused
her. Paragraph 26 alleges Sam forced the victim’s brother to sexually assault her.
Paragraphs 27 and 28 allege Sam was investigated, but not charged, for sexually
assaulting other women. And paragraph 52 alleges Sam physically and emotionally
abused the victim and her siblings. Notably, Sam did not object to paragraphs 6, 7,
23, and 24 of the PSR, which similarly allege Sam began sexually abusing the victim
“in her early teens” and physically abused her and her siblings. After Sam objected,
the district court held a second hearing where it sentenced Sam to 240 months of
imprisonment and 10 years of supervised release.
At the start of Sam’s second sentencing hearing, the district court asked
defense counsel whether “the defense ha[d] any objection to the [PSR] that’s been
prepared and filed and the sentencing guideline provided for in the sentencing — or
in the [PSR] with the 108- to 135-month guideline range?” Sam’s counsel initially
responded, “No, Your Honor.” But later in the hearing, when the district court began

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giving reasons for an upward variance1 and mentioned conduct described in the
allegations Sam objected to — including Sam’s sexual assaults of other women,
prior sexual assaults of the victim, and physical and emotional abuse of the victim
and her siblings — defense counsel interjected, “I’m objecting to any reliance on
unproven facts.” Despite this, the district court did not rule on Sam’s objections.
Instead, it continued reciting information from the PSR that appears to be covered
by Sam’s objections. Just before the hearing ended, defense counsel again stated, “I
need to lodge an objection” to the “application of an upward variance based on what
we would allege is unproven conduct, Your Honor.” The district court responded,
“All right. Your objection is noted for the record.” But it did not rule on Sam’s
objections, and the government never presented any evidence to support the disputed
allegations.
After the hearing, the district court entered a statement of reasons, clarifying
“[t]he Court depart[ed] upward 6-levels for extreme psychological injury under
USSG §5K2.3 and extreme conduct under USSG §5K2.8” because “[t]he defendant
emotionally, physically and sexually abused the victim in this case since the victim
was 13 years old.” Sam now appeals, arguing the district court erred by relying on
unproven, objected-to conduct alleged in the PSR when fashioning his sentence.
II. Analysis
As a preliminary matter, the government and Sam disagree on whether the
applicable standard of review is abuse of discretion or plain error. See United States
v. Jones, 563 F.3d 725, 729 (8th Cir. 2009) (“If preserved for appeal we review a
procedural error under an abuse of discretion standard; if not properly preserved we
1 It is unclear from the transcript of this hearing whether the district court
intended to vary or depart from the Guidelines because it used the two terms
interchangeably. See United States v. Myers, 503 F.3d 676, 684 (8th Cir. 2007)
(“Guidelines departures and post-Booker variances are different. There may well be
cases that would not justify a departure under the Guidelines but which are
appropriate for variance.” (cleaned up)).

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review for plain error.”). Specifically, the government argues that defense counsel
failed to preserve Sam’s written objections to the PSR because she “effectively
withdrew [them] at sentencing.” We disagree.
The government contends, at the beginning of Sam’s second sentencing
hearing, the district court asked if “the defense ha[d] any objection to the [PSR]
that’s been prepared and filed and the sentencing guideline provided for in the
sentencing — or in the [PSR] with the 108- to 135-month guideline range,” and
defense counsel responded, “No, Your Honor.” This is true. But as Sam points out,
the district court’s compound question could easily have been understood to ask
whether Sam had any objection to the Guidelines range stated in the PSR, rather than
to the PSR generally. See Robert E. Larsen, Navigating the Federal Trial § 3:21,
Westlaw (database updated July 2025) (“A compound question . . . incorporates two
or more separate questions into a single question. The compound question . . . raises
two concerns: (1) the witness may be confused . . . and testify inaccurately, and (2)
the trier of fact may be unclear about which of the multiple questions the witness is
answering.”).
This notwithstanding, as soon as the district court started reciting some of the
conduct potentially covered by Sam’s objections, defense counsel “object[ed] to any
reliance on unproven facts,” and she renewed her objection and had the court note it
for the record just before Sam’s hearing concluded. In our view, this was enough to
preserve Sam’s objections. So we will review for abuse of discretion. See Jones,
563 F.3d at 729.
“A district court abuses its discretion when it makes an error of law.” Geier
v. Mo. Ethics Comm’n, 715 F.3d 674, 678 (8th Cir. 2013). Relevant here, “[a] PSR
is not evidence and not a legally sufficient basis for findings on contested issues of
material fact. If the PSR’s factual allegations are objected to, the government may
prove relied-on and contested facts. Then, the court must either make findings by a
preponderance of the evidence or disregard those facts.” United States v. Cottrell,
853 F.3d 459, 463 (8th Cir. 2017) (quoting United States v. Webster, 788 F.3d 891,

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892 (8th Cir. 2015)). Thus, a district court abuses its discretion when it relies on
unproven, objected-to conduct to support a sentence, because “the district court must
not consider contested facts without proof by a preponderance of the evidence.” Id.
(quoting Webster, 788 F.3d at 892); accord United States v. Combs, 44 F.4th 815,
817 (8th Cir. 2022).
After his first sentencing hearing, Sam filed written objections to the PSR,
stating he “denies the conduct described in” paragraphs 25, 26, 28, and 52 and
“denies that the conduct mentioned in . . . paragraph [27] was anything other than
consensual.” As detailed above, these paragraphs allege Sam sexually assaulted
other women, sexually assaulted the victim around 200 times, beginning when she
was 13 years old, and physically and emotionally abused the victim and her siblings.
Sam did not object to paragraphs 6, 7, 23, and 24 of the PSR, however, and these
paragraphs contain similar allegations that Sam began sexually abusing the victim
“in her early teens” and physically abused her and her siblings.
During Sam’s second sentencing hearing, the district court recounted Sam’s
history of sexually assaulting the victim and other women and of abusing the victim
and her siblings. At least some of this information — including that Sam had
previously been investigated for sexually assaulting other women — was only
contained in allegations Sam objected to. Consequently, the district court relied, at
least in part, on unproven, objected-to allegations from the PSR in sentencing Sam,
and it therefore abused its discretion.2
Finally, the government does not argue the district court’s error was harmless,
so we need not resolve this issue. See United States v. Greene, 513 F.3d 904, 908
(8th Cir. 2008) (“The government bears the burden of proving the district court’s
error was harmless . . . .”). Even so, “[o]n the basis of the record before us, we
cannot say with any confidence that the district court would not have sentenced the
2 We cannot discern from the transcript of Sam’s hearing how much of the
information the district court relied on in fashioning his sentence came from the
objected-to allegations.

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defendant to a lesser sentence . . . had the district court realized that” it needed to
disregard or rule on the objected-to allegations in the PSR. See, e.g., United States
v. Cullen, 432 F.3d 903, 906 (8th Cir. 2006) (quoting United States v. Haidley, 400
F.3d 642, 645 (8th Cir. 2005)).3
III. Conclusion
As a result, we vacate Sam’s sentence and remand for resentencing.
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3 We express no view on whether the unobjected-to allegations in the PSR
could have supported Sam’s sentence.

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