US v. Oyegoke-Eniola, 2013 WL 6017401, 11/14/13 (Published) - Defendant pled guilty to mail fraud and making a false statement in an immigration document. The presentence report added several enhancements to the base offense level: 2 levels for possessing five or more stolen identification documents, 2 more for using sophisticated means, 8 more because the intended loss was between $70g and $120g, and 2 more because there were 10 or more victims. After deducting 3 levels for acceptance of responsibility, and with a criminal history category of I, the final range was 27 to 33 months. Defendant filed objections to all of the enhancements. The government responded that it lacked evidence that he had 5 or more stolen identity documents. The court apparently accepted the concession and wrote a letter to counsel saying the new range would be 21 to 27 months. At the sentencing hearing, the government called a Secret Service agent to establish the sophisticated means enhancement, but the court didn't buy it and refused to make a finding one way or another on the issue. In light of defendant's extensive history of fraudulent conduct, it varied upward and imposed 60 months. It did not, however, specify what offense level or guidelines range used to arrive at the final sentence. Then, 11 days after the sentencing hearing, the court filed an amended statement of reasons, in which it checked off that it adopted the PSR without changes, typed in the original offense level in the PSR, and typed in the original guidelines range of 27 to 33 months. On appeal, defendant challenged the enhancements, objected that statement he made after getting an agreement should have been stricken from the PSR, the sentence was substantively unreasonable, and challenged the district court's failure to address one of his objections to the PSR.
Held: (1) no plain error review because defendant had no reason to object to apparently winning 2 of his challenges to the PSR enhancements, so review is for abuse of discretion; (2) the district court erred in the amended statement of reasons by adopting the PSR and using an offense level of 18; (3) the error was not harmless, since the court never said that the final sentence would have been the same under multiple approaches, so remand for resentencing was required, obviating the need to address the substantive reasonableness argument and failure to address the PSR challenge; and (3)using defendant's statements after getting the standard Kastigar letter was problematic, even though they were used at sentencing rather than in the government's case-in-chief at trial, since the letter did not "specifically mention the court's ability to consider the defendant's disclosures in calculating the appropriate sentencing range" as the court had previously required in construing USSG 1B1.8(a) which deals with use of self-incriminating statements made in connection with a cooperation agreement in calculating the sentencing range. An application note says that the Commission's policy is that such statements should not be used to depart upward. Since the court varied rather than departed upward, and at least one court has suggested that using them to vary upward is just fine, he court left it to the district court to decide whether it wanted to use the statements, and make a record of whether it is doing so.