United States v. Kravchuk

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 9 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-5067

IVAN STEPANOVICH KRAVCHUK,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 01-CR-106-C)

Kevin C. Danielson, Assistant United States Attorney (David E. O’Meilia, United
States Attorney and Neal B. Kirkpatrick, Assistant United States Attorney with
him on the brief), Northern District of Oklahoma, for Plaintiff-Appellee.

Art Fleak, Attorney at Law, Tulsa, Oklahoma, for Defendant-Appellant.

Before EBEL, BALDOCK and KELLY, Circuit Judges.

EBEL, Circuit Judge.
 Defendant-Appellant, Ivan Stepanovich Kravchuk, was tried in federal

court for violation of 18 U.S.C. § 2113(b) 1 by theft from an automatic teller

machine (ATM). During closing arguments, he moved for a new trial on the basis

of prosecutorial misconduct. His motion was denied, and he was convicted.

After conviction, Kravchuk again moved for a mistrial and his motion was again

denied. The district court sentenced Kravchuk to pay $34,699.51 in victim

restitution, to serve twenty-seven months in prison, and three years on supervised

release, three months of which was to be on home detention. The length of his

prison term also reflected enhancement of his sentence for use of a minor in a

crime under U.S.S.G. § 3B1.4 because, although Kravchuk was eighteen at the

time of the crime, his co-participants were minors.

On appeal, Kravchuk challenges the district court’s refusal to grant him a

new trial on the basis of alleged prosecutorial misconduct and alleged

irregularities in admitting evidence regarding prior crimes under Federal Rule of

Evidence 404(b). 2 He also challenges the district court’s determination of victim

1
Title 18 U.S.C. § 2113(b) reads: “Whoever takes and carries away, with
intent to steal or purloin, any property or money or any other thing of value
exceeding $1,000 belonging to, or in the care, custody, control, management, or
possession of any bank, credit union, or any savings and loan association, shall be
fined under this title or imprisoned not more than ten years, or both.”
2
Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
(continued...)

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restitution, its enhancement of his sentence for use of a minor in the commission

of his crime, its failure to put its reasoning for his sentence on the record, and its

failure to reduce its findings to writing regarding facts he challenged in his

presentence report.

Because none of Kravchuk’s objections regarding the conduct of the trial

have merit, we uphold the district court’s denial of a new trial and AFFIRM

Kravchuk’s conviction. We approve the district court’s determination of victim

restitution, and join our sister circuits in finding that the Sentencing Guidelines’

enhancement under U.S.S.G. § 3B1.4 for the use of a minor may be applied to

defendants between the ages of eighteen and twenty-one. We agree, however,

that the district court failed to put on the record its reasoning for Kravchuk’s

sentence, including any upward departure for the three months of home

confinement, which is to be used as a substitute only for imprisonment. U.S.S.G.

§5D1.3(e)(2). 3 It also failed to reduce its findings to writing regarding the facts

challenged in Kravchuk’s presentence report. We therefore REMAND for the

2
(...continued)
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.”
3
The text of U.S.S.G. §5D1.3(e)(2) reads: “Home detention may be
imposed as a condition of supervised release, but only as a substitute for
imprisonment.”

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district court to provide a more complete explanation of Kravchuk’s sentence,

including any upward departure it made for the home confinement, and for it to

reduce its factual findings regarding the contested parts of Kravchuk’s

presentence report to writing.

BACKGROUND

Eighteen-year-old Ivan Stepanovich Kravchuk had a long criminal record as

a juvenile. In January or February of 2001, Kravchuk and a gang of young co-

participants removed an ATM machine from a local mall in Tulsa, Oklahoma,

and, in June of 2001, they attempted to remove an ATM machine from a

convenience store in South Tulsa County, but were thwarted by the size of the

machine and the fact that it was bolted to the floor. Early in the morning of July

24, 2001, Kravchuk and the same group of co-participants also burgled the

automatic teller machine (ATM) and removed the contents of the store’s safe at

the Minute Stop convenience store in Broken Arrow, Oklahoma. Kravchuk was

indicted on a federal theft charge for the crimes in Broken Arrow on October 2,

2001, and convicted by a jury on February 5, 2002. Kravchuk’s co-participants

in all of the ATM burglaries testified against him during his federal trial.

One of the young co-participants also unexpectedly testified during trial

that Kravchuk had threatened to kill them if they ever spoke of the various crimes

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they had committed with him. This revelation surprised both parties and the

defense moved for a mistrial on the basis of unfair prejudice, but its motion was

denied by the district court.

Evidence of the first burglaries Kravchuk had committed involving ATMs

was admitted at trial under Federal Rule of Evidence 404(b). Kravchuk testified

on his own behalf, and the prosecutor accused him in closing arguments of having

“lied, lied, and lied” about the degree of his involvement in the case. The jury

found Kravchuk guilty.

At sentencing, the district court made three important decisions. First, it

enhanced Kravchuk’s sentence by two levels for “use of a minor” in the

commission of a crime under U.S.S.G. § 3B1.4. 4 Second, it determined, based on

testimony presented at trial, that Kravchuk should pay $34,699.51 in restitution

for losses from the theft at Broken Arrow. According to the Presentence Report,

the restitution amount of $34,699.51 included $14,280 payable to Stillwater

National Bank (the owner of the ATM), $9,000 payable to the Minute Stop

Convenience Store in Broken Arrow, Oklahoma, and $11,419.51 payable to The

Hartford, the convenience store’s insurer. The district court did not, however,

4
The text of U.S.S.G. § 3B1.4 reads: “If the defendant used or attempted
to use a person less than eighteen years of age to commit the offense or assist in
avoiding detection of, or apprehension for, the offense, increase [his base offense
level] by 2 levels.”

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reduce its factual findings to writing regarding how much Kravchuk was to pay

the owner of the convenience store for the contents of his store’s safe when

Kravchuk disputed the presentence report. Third, it determined that Kravchuk

should serve twenty-seven months in prison and a three-year term of supervised

release following his imprisonment, at least the first three months of which were

to be spent in home confinement. It did not give its reasons for the length of the

term of supervised release or for the three months of home confinement.

We review Kravchuk’s objections to each of the district court’s decisions,

but remand only on his arguments regarding the district court’s failure to provide

the basis of its decision on his supervised release, including any upward departure

it made in requiring Kravchuk to serve three months in home confinement, and

for its failure to reduce to writing its findings regarding the contested parts of

Kravchuk’s presentence report.

DISCUSSION

The district court exercised jurisdiction over this criminal case under 18

U.S.C. § 3231. We hear this appeal of Kravchuk’s conviction and sentence

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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 I. PROSECUTORIAL MISCONDUCT

When defense counsel contemporaneously objects to a prosecutor’s

comment at trial and moves for a mistrial, we review a district court’s decision to

deny his motion for abuse of discretion. United States v. Villa-Chaparro, 115

F.3d 797, 803 (10th Cir. 1997).

We apply a two-part test in reviewing claims of prosecutorial misconduct.

First, we decide whether the conduct was improper. United States v. Gordon, 173

F.3d 761, 769 (10th Cir. 1999). Second, we decide whether the conduct, if

improper, warrants reversal. Id. Generally “a criminal conviction is not to be

lightly overturned on the basis of a prosecutor’s comments standing alone, for the

statements or conduct must be viewed in context; only by so doing can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.”

United States v. Young, 470 U.S. 1, 11 (1985); see also Tillman v. Cook, 215

F.3d 1116, 1129 (10th Cir. 2000).

Kravchuk proffers two arguments regarding alleged prosecutorial

misconduct. First, he argues that the district court erred in denying his motions

for a mistrial and new trial when the prosecutor stated in closing that Kravchuk

had “lied and lied and lied.” Second, he argues that it constituted prosecutorial

misconduct for the prosecutor not to have known ahead of time that a witness

would reveal that Kravchuk had threatened his co-participants. On this second

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argument, however, Kravchuk does no more than mention that the argument

exists, and cites no law on point. We cannot make a party’s arguments for him,

Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995), so we limit

our discussion here to Kravchuk’s argument that the prosecutor’s own statement

in closing argument constituted misconduct meriting mistrial and grant of the

motion for a new trial. 5

In making the statement about Kravchuk lying, the prosecutor may have

been responding to the credibility battle that defense counsel had been waging for

the vote of the jury. In his closing argument, defense counsel repeatedly

suggested that three of Kravchuk’s co-conspirators who testified against him had

been motivated to lie in order to get a better deal from the government.

Regarding one of the co-participants, defense counsel insinuated that “he may not

be telling the truth because he doesn’t want [to be punished]. Well, then, you

don’t know who’s telling the truth.” Tr. at 316-17. Defense counsel later

commented that “we have no guarantee that anybody is telling the truth in life,

especially in the courtroom when you have some very important things involved

here.” Id. at 322. Finally, defense counsel charged that one of the questions for

5
We will, however, in the next section treat Kravchuk’s argument for a
mistrial or for a new trial on the basis of the co-participant’s surprise testimony,
as opposed to the prosecutor’s knowledge of whether the witness would make that
statement.

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the jury was whether each witness had “any particular reason not to tell the

truth[.] Well, they did. They’re all in trouble.” Id. at 323.

The prosecutor began his rebuttal by urging the jury to consider all of the

witnesses’ demeanors and who else might have had an incentive to lie. In the

prosecutor’s words: “Do you really think that Mr. Joyce was the leader [?] [A]nd

that fellow who sat there stone-faced on that stand and lied and lied and lied

. . . .” Id. at 326. This was the point at which defense counsel objected.

In the presence of the jury, the district court overruled defense counsel’s

motion for mistrial, explaining that “[i]t will be the jury that makes the

determination as to the credibility of the witnesses.” Id. at 326. The district court

then emphasized in its final instructions that the jury’s mission was to determine

the credibility of witnesses for itself and that it could not consider any statement

by a lawyer to be testimony. It told the jury: “You should decide whether you

believe what each witness had to say, and how important the testimony was. In

making that decision you may believe or disbelieve any witness, in whole or in

part.” Doc. 31 at 21. Regarding witnesses with prior convictions or plea

agreements, the district court specifically instructed the jury that, when such

witnesses testify for the government, “[y]ou must consider and determine whether

such testimony has been affected by the benefit received.” Id. at 23. Finally,

regarding the impeachment of witnesses, the district court instructed the jury that

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“[i]f you believe that any witness has been so impeached, then it is your exclusive

province to give the testimony of that witness such credibility or weight, if any, as

you may think it deserves.” Id. at 24 (emphasis added).

We find that, although the prosecutor’s statement may have been improper,

it was not reversible error. Although the Tenth Circuit has characterized as

“unnecessary” and “unwarranted” a closing argument in which a prosecutor called

a defendant a “liar,” United States v. Nichols, 21 F.3d 1016, 1019 (10th Cir.

1994), it is not per se prosecutorial misconduct to refer to testimony as a lie, see,

e.g., United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir. 1999).

Here the district court’s instructions cured any potential defect caused by

the prosecutor’s comments. For example, in United States v. Broomfield, 201

F.3d 1270, 1276 (10th Cir. 2000), we held that a district court had mitigated the

impact of the prosecutor improperly vouching for witnesses when it “repeatedly

instructed the jurors that they were the sole and exclusive judges” of witness

credibility and that “the statements and arguments of counsel are not to be

considered evidence in this case.” Id. at 1277.

Moreover, the district court had already found, and we agree on review,

that because the evidence presented at trial of Kravchuk’s participation in the

burglary was “overwhelming,” the prosecutor’s statement in closing argument

about Kravchuk being a liar was at most harmless error. See United States v.

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Kornegay, 885 F.2d 713, 718-19 (10th Cir. 1989) (finding that harmless error

analysis applies to cases of alleged prosecutorial misconduct); United States v.

Record, 873 F.2d 1363, 1376-77 (10th Cir. 1989) (same).

Accordingly, the prosecutor’s statements, although arguably improper, do

not merit reversal. The district court did not abuse its discretion in denying

Kravchuk’s motion for a new trial.

II. THE SURPRISE TESTIMONY OF KRAVCHUK’S CO-PARTICIPANT

We review a district court’s decision not to grant a mistrial or new trial for

abuse of discretion. United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir.

2002); United States v. Austin, 231 F.3d 1278, 1281 (10th Cir. 2000). A mistrial

may only be granted where a defendant’s right to a fair and impartial trial has

been impaired. Caballero, 277 F.3d at 1242.

At trial, a witness against Kravchuk spontaneously revealed that the

defendant had threatened that “if we open our mouths he would kill us.” Tr. at

81. The defense moved for a mistrial on the basis of prejudice. But the district

court found that Kravchuk was not entitled to a new trial for two reasons. First,

the witness’s statement had been spontaneous so it would have been impossible

for the prosecution to have warned the defense that it was coming in advance

under Federal Rule of Evidence 404(b). Second, in the context of the rest of the

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evidence presented at trial, the witness’s statement had not caused prejudice so as

to violate Kravchuk’s substantive rights.

On appeal, Kravchuk admits that the prosecutor did not know what the

witness would say, but nonetheless argues against both of the district court’s

findings. He continues to assert that (1) he, as the defendant, should have been

given warning about the statement because it related to a prior bad act under Rule

404(b); 6 and (2) the statement was so prejudicial as to have tainted the entire trial

in violation of Rule 403. 7 We disagree.

Kravchuk’s argument under Rule 404(b) fails for two reasons. First, the

district court correctly read the notice requirement in Fed. R. Evid. 404(b) as

being triggered only when the government intends to solicit testimony of prior

bad acts. Fed. R. Evid. 404(b) (“[The government must provide] reasonable

notice in advance of trial, or during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any . . . evidence it intends to

introduce at trial.”); see also United States v. Vega, 188 F.3d 1150, 1154 (9th Cir.

1999) (“To make [a determination under Rule 404(b)], we must look at two

things: (1) did the government intend to introduce this evidence at trial; and (2) if

6
The full text of Rule 404(b) is reproduced supra at n.2.
7
Rule 403 reads: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.”

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so, did it provide reasonable notice.”). In Kravchuk’s case, the government did

not know about the witness’s testimony so as to warn the defendant, and therefore

Rule 404(b)’s notice provision cannot apply. Second, Rule 404(b) applies only to

prior bad acts extrinsic to the crime charged. United States v. Arney, 248 F.3d

984, 992 (10th Cir. 2001). The act that the witness described here was part and

parcel of the events for which Kravchuk was on trial.

Kravchuk’s argument under Rule 403 that the testimony was unfairly

prejudicial and so should be grounds for a mistrial also fails for two reasons.

First, Rule 403 is not the correct standard for evaluating whether a defendant

should be granted a mistrial. Under Tenth Circuit precedent, a mistrial should

only be granted when a defendant’s fundamental right to a fair and impartial trial

has been impaired. Cabellero, 277 F.3d at 1242. Evidentiary rulings under Rule

403 may be merely harmless error, see, e.g., United States v. Thomas, 86 F.3d

647, 655 (7th Cir. 1996), and therefore do not necessarily reach fundamental

rights. And nothing about the witness’s unplanned comment changed the basic

nature of Kravchuk’s trial. As the district court found, the cumulative evidence

presented at trial of the defendant’s participation in the robbery was

“overwhelming.” Second, even if Rule 403 applied, there was no error in the

district court’s conclusion that the evidence was relevant to the case and not

unfairly prejudicial. The witnesses’s statement gave important insight into

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Kravchuk’s actions in directing the commission of the crime and in keeping

control over his co-participants.

Accordingly, we will not reverse the district court’s refusal to grant a

mistrial or new trial.

III. EVIDENCE OF KRAVCHUK’S PRIOR CRIMES

We review a district court’s decision to admit evidence under Fed. R. Evid.

404(b) for abuse of discretion. United States v. Grissom, 44 F.3d 1507, 1513

(10th Cir. 1995). Under Rule 404(b), evidence of prior bad acts may be admitted

for “proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.”

Kravchuk’s co-participants testified at his trial about committing two prior

crimes with him involving ATMs in addition to the theft in Broken Arrow upon

which the federal charges were based. In one incident, they successfully removed

an ATM from a shopping mall in Tulsa; in another incident, they attempted to

remove an ATM from a store in South Tulsa County, but were thwarted by the

size of the machine and the fact that it was bolted to the floor. Both events

occurred within seven months of the crime for which Kravchuk was charged in

federal court.

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 On appeal, Kravchuk argues that the district court improperly allowed

evidence of his prior crimes involving ATMs to be presented at trial. He alleges

that the prior crimes were too remote in time to be relevant, and that they were

not offered for a proper purpose under the rule. See Fed. R. Evid. 404(b).

We find, however, that the evidence was properly admitted under Rule

404(b) for proof of Kravchuk’s plan. Kravchuk was on trial for the burglary of

ATMs. The prior bad acts had also involved the burglary or attempted burglary of

ATM machines. Moreover, the prior bad acts involved the same group of co-

participants who aided Kravchuk in the crime charged. Finally, the two prior bad

acts occurred within seven months of the time of the federal crime – close enough

in proximity to show that Kravchuk had not necessarily changed his modus

operandi. These similarities show that Kravchuk had plainly developed a plan

and stable team of co-participants to burglarize ATM machines. Accordingly, the

district court’s decision to admit the evidence of prior bad acts was not an abuse

of discretion.

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 IV. CALCULATION OF VICTIM RESTITUTION

In evaluating the district court’s award of victim restitution, we review its

factual findings for clear error. Grissom, 44 F.3d at 1514. We review its

calculation and ultimate award of restitution for abuse of discretion, recognizing

that the calculation of an award is not an exact science. Id.; United States v.

Teehee, 893 F.2d 271, 274 (10th Cir. 1990). Defendants are entitled to notice of

an estimate of victim restitution amounts prior to sentencing under 18 U.S.C. §§

3664(a), (d)(5). 8

At his sentencing on April 29, 2002, the district court ordered Kravchuk to

pay $34,699.51 in restitution. According to the Presentence Report, that amount

included $14,280 payable to Stillwater National Bank (the owner of the ATM),

$9,000 payable to the Minute Stop Convenience Store in Broken Arrow,

8
Title 18 U.S.C. § 3664(a) reads: “For orders of restitution . . . the court
shall order the probation officer to obtain and include in its presentence report . . .
information sufficient for the court to exercise its discretion in fashioning a
restitution order. The report shall include, to the extent practicable, a complete
accounting of the losses to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic circumstances of each
defendant. If the number or identity of victims cannot be reasonably ascertained,
or other circumstances exist that make this requirement clearly impracticable, the
probation officer shall so inform the court.”

The notice provision of 18 U.S.C. § 3664(d)(5) reads: “If the victim’s
losses are not ascertainable by the date that is 10 days prior to sentencing, the
attorney for the Government or the probation officer shall so inform the
court . . . .”

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Oklahoma, and $11,419.51 payable to The Hartford, the convenience store’s

insurer. In testimony at trial, the owner of the convenience store claimed that

Kravchuk and his co-participants had taken $16,500 out of the store’s safe. On

April 1, 2002, Kravchuk objected to the inclusion of the $16,500 in his

Presentence Report, and the Probation Office revised the figure down to $9,000,

based on the statements of Kravchuk’s co-participants in the theft and information

gathered during the investigation. The district court adopted the Probation

Office’s revised figure of $9,000 in its final sentence.

On appeal, Kravchuk first argues that the district court did not follow

proper procedure in entering its judgment for the award. He asserts that the

government failed to notify the court pursuant to 18 U.S.C. § 3664(d)(5), and by

extension him, that a victim’s losses were not ascertainable 10 days prior to

sentencing. He next argues that there was no evidentiary basis in the record for

the district court’s adoption of the $9,000 figure.

We find Kravchuk’s argument regarding procedure to be without merit

based on the filings in the record. First, 18 U.S.C. § 3664(d)(5) was not

implicated in Kravchuk’s case because, although there was a dispute about the

appropriate amount of money at stake, at no point before sentencing did either

party conclude that a victim’s loss from the burglary was not ascertainable.

Second, even if 18 U.S.C. § 3664(d)(5) had applied, its 10-day notice provision

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would have been satisfied. Kravchuk filed his objection on April 1, 2002, twenty-

eight days before his sentencing on April 29, 2002, that the only disputed dollar

amount for victim restitution in the presentence report was too high. The

Probation Office did revise the figure downward in response.

We find that Kravchuk’s next argument that there was no evidentiary basis

for the district court’s adoption of the $9,000 figure also fails based on the

record. We recognize that the determination of restitution is not an exact science

and that the calculation of a loss need not be precise. Grissom, 44 F.3d at 1514-

15; Teehee, 893 F.2d at 274.

The district court explained from the bench that its estimate of the loss was

based both on the testimony presented at trial and the investigation that the

Probation Office had done in preparing the presentence report. 9 Kravchuk solely

disputed the amount of restitution payable to the owner of the convenience store.

The owner of the store had testified he had two weeks’ worth of receipts in his

safe, totaling $16,500 in cash, but Kravchuk argued that this amount was

opportunistically inflated. After Kravchuk’s objection, the Probation Office

revised the figure down to $9,000 based on, among other things, the testimony of

Kravchuk’s co-participants at trial about the amount of money each of them had

9
In oral argument, the parties affirmed that the district court had access to
the transcript of the testimony at trial to refresh its recollection if necessary.

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kept from the crime. On the basis of this evidence, the district court agreed that

nine thousand dollars was a reasonable estimate of what Kravchuk may have

taken from the safe.

Accordingly, the district court did not clearly err in its factual findings, and

did not abuse its discretion in the calculation of the award. We will not reverse

its decision regarding victim restitution.

V. ENHANCEMENT FOR “USE OF A MINOR” IN THE
COMMISSION OF A CRIME

We review the district court’s legal interpretation of the Sentencing

Guidelines de novo. United States v. Suitor, 253 F.3d 1206, 1209 (10th Cir.

2001).

The Violent Crime Control and Law Enforcement Act of 1994 directed the

United States Sentencing Commission to promulgate sentence enhancements for a

“defendant 21 years of age or older . . . if the defendant involved a minor [less

than 18 years old] in the commission of the offense.” Pub. L. 103-322, § 140008,

108 Stat. 1796 (1994). The Sentencing Guideline that the Commission developed,

however, made no mention of what age a defendant needed to be for the guideline

to apply. It simply stated that “[i]f the defendant used or attempted to use a

person less than eighteen years of age to commit the offense or assist in avoiding

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detection of, or apprehension for, the offense, [a court should enhance his

sentence] by 2 levels.” U.S.S.G. § 3B1.4.

Kravchuk argues that, pursuant to the directive of the congressional statute,

no defendant under the age of twenty-one should have his sentence enhanced for

“use of a minor” during the commission of a crime. The Sixth Circuit agreed

with this interpretation in United States v. Butler, 207 F.3d 839, 849–50 (6th Cir.

2000) (Jones, J., concurring and writing for the court in adopting this

interpretation). The reasoning of that decision would be applicable to Kravchuk

because he was eighteen at the time of the offense and the people with whom he

committed the crimes were minors.

But two other Circuits have examined the issue and have found that the

guideline should not be invalidated on this basis. They note that Congress

certainly intended the enhancement to apply to those over twenty-one, but that

Congress’s directive made no mention of any special policy for those under

twenty-one. United States v. Murphy, 254 F.3d 511, 512-13 (4th Cir. 2001);

United States v. Ramsey, 237 F.3d 853, 856–57 (7th Cir. 2001). The

congressional directive then does not conflict with the plain language of the

guideline, and the guideline is therefore valid. Murphy, 254 F.3d at 512-13;

Ramsey, 237 F.3d at 857.

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 Moreover, as the Seventh Circuit noted in Ramsey, Congress had 180 days

to review guidelines before they went into effect and choose not to modify or

otherwise to disapprove of the amendment extending liability for the use of

minors to defendants under the age of twenty-one. Id. at 858.

We have not specifically addressed the issue of whether the sentencing

enhancement under U.S.S.G. §3B1.4 for use of a minor should be applied to

defendants aged eighteen to twenty. Our case law, however, gives great

deference to the plain language of guidelines. We interpret them as though they

were statutes, meaning that we follow their “clear, unambiguous language if there

is no manifestation of contrary intent.” United States v. Gacnik, 50 F.3d 848, 852

(10th Cir. 1995); United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989).

There is no direct conflict in the wording of the guideline with Congress’s

directive that it apply to defendants age twenty-one and over. Accordingly, we

follow the reasoning of the Fourth and Seventh Circuits in holding that U.S.S.G.

§3B1.4 is valid as applied to defendants aged eighteen to twenty. We uphold the

district court’s application of the guideline to Kravchuk on this basis.

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 VI. THE FAILURE TO STATE REASONS FOR KRAVCHUK’S TERM
AND CONDITIONS OF SUPERVISED RELEASE

We review a district court’s decisions on supervised release for abuse of

discretion. United States v. Pugliese, 960 F.2d 913, 915 (10th Cir. 1992).

A sentence for supervised release should be, at minimum, remanded if a

district court fails to give its reasons for imposing the sentence on the record. See

United States v. Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000). When the district

court has not given its reasons for the imposition of a sentence on the record, we

“decline to enter the ‘zone of appellate speculation’ in reviewing for abuse of

discretion.” Id.

Kravchuk was sentenced to twenty-seven months imprisonment plus three

years of supervised release, at least the first three months of which he was to

serve in home confinement. The maximum term of imprisonment for Kravchuk’s

sentence under the guidelines otherwise was twenty-seven months.

A district court must impose a term of supervised release on a defendant

when his term of imprisonment is for more than one year. U.S.S.G. §5D1.1(a). 10

The appropriate term of supervised release for Class C felonies, such as

10
The text of U.S.S.G. §5D1.1(a) reads: “The court shall order a term of
supervised release to follow imprisonment when a sentence of imprisonment of
more than one year is imposed, or when required by statute.”

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Kravchuk’s crime, is two to three years. U.S.S.G. §5D1.2(a)(2). 11 Nevertheless,

the condition of home confinement is only to be substituted for imprisonment.

U.S.S.G. §5D1.3(e)(2). 12 Kravchuk argues on appeal both that the district court

should not have increased his sentence of imprisonment (or the equivalent)

beyond the guideline maximum in requiring three months of home confinement,

and that the district court failed to record its reasons on the record for the term

and conditions of any of the three years of supervised release it gave him.

The government concedes that the three months of home detention was

improper in the absence of an explicit departure upward from the guideline, and

we agree. Accordingly, we remand for resentencing on the matter of post-

incarceration home detention. 13

The government also concedes that the district court failed to provide its

reasons for the terms and conditions of the remainder of Kravchuk’s supervised

release on the record. It argues, however, that our precedent in Zanghi can be

distinguished from Kravchuk’s case because we could speculate about what the

11
The text of U.S.S.G. §5D1.2(a)(2) reads: “[I]f a term of supervised
release is ordered, the length of the term shall be . . . at least two years but not
more than three years for a defendant convicted of a Class C or D felony.”
12
See the text of U.S.S.G. §5D1.3(e)(2), reproduced supra at n.3.
13
We note that the three months of home detention might be justified if the
district court decided to impose an upward departure under the Guidelines, but the
record on appeal contains no such existing determination by the district court.

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district court intended when it imposed the sentence. But this very argument

violates the principal of Zanghi. We will not enter the “zone of appellate

speculation,” and postulate about what the district court’s reasons were for the

imposition of the sentence when it did not provide them to us on the record.

Zanghi, 209 F.3d at 1205.

Accordingly, we REMAND for the district court to state its reasons on the

record for imposing the three months to be served in home confinement, and to

make explicit its upward departure from the guidelines in imposing this condition.

In the alternative, the district court must resentence Kravchuk in accordance with

the guidelines. Id.

VII. THE FAILURE TO MAKE PARTICULARIZED FINDINGS
REGARDING THE CONTESTED PARTS OF KRAVCHUK’S
PRESENTENCE REPORT AND TO REDUCE THEM TO WRITING

We review a district court’s compliance with the Federal Rules of Criminal

Procedure de novo. United States v. Roman-Zarate, 115 F.3d 778, 781 (10th Cir.

1997).

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 Our case law interprets Federal Rule of Criminal Procedure 32(c)(1) 14 to

mandate not only that findings regarding the contested parts of presentence

reports be made on the record, but that they be reduced to writing. See, e.g.,

United States v. Henning, 77 F.3d 346, 349 (10th Cir. 1996) (citing United States

v. Pedraza, 27 F.3d 1515, 1530-31 (10th Cir. 1994)). The government does not

contest that the district court failed to reduce its findings regarding the contested

amount of victim restitution in Kravchuk’s presentence report to writing, but

argues that the issue is moot in Kravchuk’s case.

The district court found that Kravchuk owed $9,000 to the convenience

store in Broken Arrow for the cash he took from the store’s safe. Kravchuk

objected at sentencing, and objects again on appeal, that this amount should have

been less than $9,000. Because there was evidence in the record to support the

district court’s factual determination of the $9,000, we upheld the substance of its

14
Rule 32(c)(1) read: “At the sentencing hearing, the court must afford
counsel for the defendant and for the Government an opportunity to comment on
the probation officer’s determinations and on other matters relating to the
appropriate sentence, and must rule on any unresolved objections to the
presentence report. The court may, in its discretion, permit the parties to
introduce testimony or other evidence on the objections. For each matter
controverted, the court must make either a finding on the allegation or a
determination that no finding is necessary because the controverted matter will
not be taken into account in, or will not affect, sentencing. A written record of
these findings and determinations must be appended to any copy of the
presentence report made available to the Bureau of Prisons.” Rule 32(c)(1) has
been reformatted and the current version of the Rule appears in several
subsections of Fed.R.Crim.P. 32(i).

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finding. We now address, however, the consequences of its failure to reduce the

reasons for its finding regarding the $9,000 to writing.

The government asserts that this issue is moot in Kravchuk’s case because,

even if the district court had accepted Kravchuk’s figure for this component of

the restitution as $6,720 instead of $9,000, the total sum of his restitution would

still have exceeded the threshold of $30,000 for the category length of his

sentence. U.S.S.G. § 2B1.1. 15 We disagree that this fact renders Kravchuk’s

argument moot. It was not only the term of Kravchuk’s supervised release that

was at issue in the district court’s determination of the appropriate number, but

most immediately the amount of restitution that he must pay to his victims under

18 U.S.C. § 3663(a)(1)(A) 16 and U.S.S.G. § 5E1.1(a)(1). 17 It certainly would be

significant to Kravchuk to be able to pay $2,280 less to those victims depending

on how the court reached its conclusion.

15
Under U.S.S.G. § 2B1.1, theft with a value over $30,000, but less than
$70,000, increases the offense level for calculating a defendant’s sentence by six
points.
16
18 U.S.C. § 3663(a)(1)(A) reads: “The court, when sentencing a
defendant . . . may order, in addition to or . . . in lieu of any other penalty
authorized by law, that the defendant make restitution to any victim of [the]
offense . . . .”
17
U.S.S.G. § 5E1.1(a)(1) reads: “In the case of an identifiable victim, the
court shall . . . enter a restitution order for the full amount of the victim’s
loss . . . .”

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 Accordingly, we REMAND to the district court for it to reduce to writing

its factual findings regarding Kravchuk’s objections to his presentence report.

CONCLUSION

For the reasons stated above, we AFFIRM Kravchuk’s conviction. We

REMAND, however, to the district court for it to provide an explanation for

imposing the term and conditions of supervised release on Kravchuk, including

any upward departure it may have chosen to make for the three months of home

confinement, or for it to resentence him in accordance with the guidelines. We

additionally REMAND for the district court to reduce to writing its factual

findings regarding the $9,000 in restitution to which Kravchuk objected in his

presentence report.

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