United States v. Joseph Catone, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4663

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH CATONE, JR., a/k/a Joe,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00030-RLV-DSC-1)

Argued: May 14, 2014 Decided: October 15, 2014

Before TRAXLER, Chief Judge, and KEENAN and FLOYD, Circuit
Judges.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Chief Judge
Traxler and Judge Keenan joined.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

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FLOYD, Circuit Judge:

A jury convicted Joseph Catone, Jr., of one count of making

a false statement in connection with his receipt of federal

workers’ compensation benefits, in violation of 18 U.S.C.

§ 1920. The district court imposed a sixteen-month term of

imprisonment and ordered Catone to pay restitution in the amount

of $106,411.83. Catone now appeals his conviction, his sentence

of imprisonment, and the district court’s restitution order.

For the reasons that follow, we affirm Catone’s conviction but

vacate his sentence and the restitution order and remand for

further proceedings.

I.

Catone began working for the United States Postal Service

in 1977. On August 2, 2006, he submitted a claim for federal

workers’ compensation benefits under the Federal Employees’

Compensation Act based on injuries arising from extended periods

of driving. The Office of Workers’ Compensation Programs (OWCP)

awarded to Catone benefits regarding his claim of temporary

aggravation of obstructive sleep apnea, which he began receiving

in March 2007.

To verify his continued eligibility for benefits, Catone

submitted a “CA-1032” form to OWCP each year. The form

instructed Catone to disclose whether, in the past fifteen

3
months, he (1) “work[ed] for any employer”; (2) was “self-

employed or involved in any business enterprise”; (3) earned

“monetary or in-kind compensation” for “volunteer work”; or

(4) was “unemployed for all periods.” Catone submitted CA-1032

forms in April 2008 and 2009, and each time he answered “no” to

the first three questions and “yes” to the fourth question.

From March 2007 to September 2009, Catone received $121,729.80

in benefits from OWCP.

Catone was indicted in May 2011 on three criminal charges

stemming from his receipt of federal workers’ compensation

benefits. The first two counts charged Catone with making false

statements in connection with his receipt of benefits, in

violation of 18 U.S.C. § 1920, and the third count charged him

with violating 18 U.S.C. § 1001(a)(2), which makes it unlawful

to “knowingly and willfully . . . make[] any materially false,

fictitious, or fraudulent statement” to a federal official. The

indictment alleged that Catone failed to disclose that he was

employed by, and received income from, Angelo’s Maintenance for

custodial work that he performed at Hayes Performing Arts Center

(the Center) during the period that he obtained federal

benefits. As relevant to the third count, the indictment

alleged that Catone knowingly made false statements during an

interview with federal agents when he reported that he had not

earned any income while receiving compensation benefits.

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Instead, during that interview, he informed federal

investigators that his wife was employed by Angelo’s Maintenance

as a custodian and that he occasionally assisted her with

performing custodial tasks while she cleaned the Center.

At trial, the government elicited testimony from three

former employees of the Center, whose testimony collectively

established that Catone often assisted his wife in cleaning the

Center; that Catone was not employed or paid by the Center; and

that the Center contracted with Angelo’s Maintenance to provide

cleaning services. The government also proffered testimony from

an employee at the bank where Catone and his wife maintained a

joint checking account. According to his testimony, the

Catones’ account included three checks written directly to

Catone from Angelo’s Maintenance. Two of the checks predated

Catone’s receipt of workers’ compensation benefits and the third

check, which Catone received while also receiving workers’

compensation benefits, was for $635. The jury convicted Catone

on count one, which alleged a violation of § 1920 based upon the

CA-1032 form that Catone submitted in April 2008, and acquitted

him on the two remaining counts.

A presentence investigation report (PSR) prepared by a

probation officer concluded that Catone’s conviction under

§ 1920 carried a statutory maximum sentence of five years’

imprisonment. The probation officer further found that Catone

5
was responsible for a loss amount of $128,124.75, which

constitutes the entire amount of benefits Catone received from

OWCP. Based on the loss-amount calculation, the PSR added ten

levels to Catone’s offense level pursuant to U.S.S.G.

§ 2B1.1(b)(1)(F), which provides for such an enhancement when

the loss amount is greater than $120,000 but not greater than

$200,000. The PSR calculated Catone’s total offense level as

16, which, combined with a criminal history category of I,

yielded an advisory Guidelines range of twenty-one to twenty-

seven months’ imprisonment. Finally, the PSR also recommended

that Catone pay restitution in the amount of $106,411.83, which

constitutes the entire amount of a forfeiture imposed by the

Department of Labor in an administrative proceeding.

Prior to his sentencing, Catone filed several objections to

the PSR, two of which are relevant here. First, he objected to

the PSR’s conclusion that his sentence carried a statutory

maximum of five years’ imprisonment, claiming that his

conviction was for a misdemeanor with a one-year maximum because

the jury never determined that the amount of benefits falsely

obtained exceeded $1000. Second, Catone objected to the loss-

amount calculation. In his view, the loss amount should have

been based on the difference between the amount of benefits that

he actually received and the amount that he would have received

but for the false statement. The district court rejected

6
Catone’s objections, sentenced Catone to a sixteen-month term of

imprisonment, and imposed restitution in the amount of

$106,411.83.

II.

We first address Catone’s challenge to his conviction.

Catone argues that his conviction under § 1920 should be vacated

because the government failed to disclose, in violation of Brady

v. Maryland, 373 U.S. 83 (1963), evidence that undermined the

government’s theory that Catone willfully concealed the work he

performed for Angelo’s Maintenance. Because Catone did not

raise this issue below, we review the claim for plain error.

See United States v. Vinyard, 266 F.3d 320, 324 (4th Cir. 2001).

To establish plain error, Catone must show (1) that the court

erred, (2) that the error is clear and obvious, and (3) that the

error affected his substantial rights, meaning that it “affected

the outcome of the district court proceedings.” United States

v. Olano, 507 U.S. 725, 732-34 (1993). Even when this burden is

met, we retain discretion whether to recognize the error and

will deny relief unless the district court’s error “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 736 (brackets omitted) (internal quotation

marks omitted).

7
 Catone bases his Brady claim on a “CA-7” form that he

submitted to the Department of Labor in March 2007, which

disclosed that he had performed a total of 14.6 hours of work

for Angelo’s Maintenance at a rate of $12.00 per hour. In his

view, the CA-7 form undermined the government’s theory that he

had been willfully concealing from the OWCP the work that he

performed for Angelo’s Maintenance. Catone thus argues that the

government’s failure to produce the form as part of discovery

constitutes a Brady violation that should be noticed on plain-

error review.

To prevail on a Brady claim, a defendant must show that

(1) the evidence is either exculpatory or impeaching, (2) the

government suppressed the evidence, and (3) the evidence was

material to the defense. United States v. McLean, 715 F.3d 129,

142 (4th Cir. 2013). No Brady violation exists when the

evidence is “available to the defense from other sources” or

through a “diligent investigation by the defense.” United

States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011) (internal

quotation marks omitted). Accordingly, “[p]ublicly available

information which the defendant could have discovered through

reasonable diligence cannot be the basis for a Brady violation.”

United States v. Willis, 277 F.3d 1026, 1034 (8th Cir. 2002)

(internal quotation marks omitted). Evidence is “material” only

8
if it is “likely to have changed the verdict.” United States v.

Bartko, 728 F.3d 327, 338 (4th Cir. 2013).

Catone’s Brady violation claim fails for numerous reasons.

First, to establish a Brady violation, the exculpatory material

must be known to the government but not to the defendant. See

United States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004)

(“[I]nformation actually known by the defendant falls outside

the ambit of the Brady rule.”). As Catone is the individual who

completed the CA-7 form and submitted it to the Department of

Labor, the document was already known to him. Second, the CA-7

form is a publicly available document and could have been

uncovered by a diligent investigation. As a senior claims

examiner at the Department of Labor testified, Catone could have

obtained a copy of his entire claims file by simply submitting a

written request to the Department of Labor. See United States

v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (observing that

“where the exculpatory information is not only available to the

defendant but also lies in a source where a reasonable defendant

would have looked, a defendant is not entitled to the benefit of

the Brady doctrine”). Third, Catone is unable to show that had

the CA-7 form been disclosed, it would have likely changed the

verdict. Instead of undermining the government’s theory of

intent, the CA-7 form demonstrates that Catone—in a separate

benefits claim—knew that he was required to disclose his

9
employment with Angelo’s Maintenance but nevertheless failed to

do so with respect to the benefits he received in connection

with the underlying charges. Catone has failed to establish

plain error with respect to his Brady claim.

III.

Catone next challenges the imposition of his sixteen-month

felony sentence, claiming that his conviction under § 1920

resulted in a misdemeanor rather than a felony conviction.

Because Catone properly raised this issue during his sentencing

hearing, we review his claim de novo. See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

Section 1920 of the criminal code makes it unlawful to

“knowingly and willfully . . . make[] . . . a false, fictitious,

or fraudulent statement or representation . . . in connection

with the application for or receipt of compensation or other

benefit or payment” under a federal program. 18 U.S.C. § 1920.

The statute further provides that any individual convicted of

violating § 1920

shall be punished by a fine under this title, or by
imprisonment for not more than 5 years, or both; but
if the amount of the benefits falsely obtained does
not exceed $1,000, such person shall be punished by a
fine under this title, or by imprisonment for not more
than 1 year, or both.

10
Id. Although the jury found that Catone knowingly and willfully

made a false statement in connection with his receipt of federal

workers’ compensation benefits, it made no finding that the

offense led to more than $1000 in “falsely obtained” benefits.

Construing the “amount of the benefits falsely obtained” as an

element necessary to sustain a felony conviction under § 1920,

Catone argues that the district court violated his Sixth

Amendment right to trial by a jury by imposing a felony

sentence. The government counters that Catone’s felony

conviction does not violate the Sixth Amendment prohibition

against judicial fact finding because the language and structure

of § 1920 indicate that the amount of benefits falsely obtained

is not an essential element for felony liability. In any event,

the government claims that any Sixth Amendment error is

harmless.

A.

Whether a particular fact must be submitted to the jury and

found beyond a reasonable doubt turns on whether the fact

constitutes an element of the charged offense. See United

States v. O’Brien, 560 U.S. 218, 224 (2010) (“Elements of a

crime must be charged in an indictment and proved to a jury

beyond a reasonable doubt.”). Although this Court has not

previously addressed whether the amount of benefits falsely

obtained is an element of a § 1920 offense, we have found that

11
the government must prove loss amount as an element of a felony

conviction under 18 U.S.C. § 641—the statute dealing with theft

of federal property—which employs analogous language, and a

nearly identical structure, as § 1920. See United States v.

Wilson, 284 F.2d 407, 408 (4th Cir. 1960). In Wilson, we

observed that, in effect, § 641 “creates two separate crimes

with different penalties.” Id. “In order to sustain the

imposition of the higher penalty,” we concluded, “it [i]s

incumbent upon the Government to prove a value in excess of” the

stated amount—then, $100. Id. Thus, because punishment for a

§ 641 offense varies depending on the value of the stolen

property, we reasoned that value is a substantive element of the

aggravated offense.

Our analysis in Wilson is consistent with, and supported

by, the Supreme Court’s recent Sixth Amendment jurisprudence.

In Apprendi v. New Jersey, the Supreme Court held that, “[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to the jury, and proved beyond a reasonable doubt.”

530 U.S. 466, 490 (2000). The Court subsequently extended the

reasoning of Apprendi to mandatory minimum sentences, explaining

that when a finding of fact “aggravates the legally prescribed

range of allowable sentences, it constitutes an element of a

separate, aggravated offense that must be found by the jury,

12
regardless of what sentence the defendant might have received if

a different range had been applicable.” Alleyne v. United

States, 133 S. Ct. 2151, 2162 (2013); id. at 2155 (“Any fact

that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a reasonable

doubt.”). Under Apprendi and its progeny, therefore, any fact

that increases either the statutory maximum or mandatory minimum

constitutes “an element of a distinct and aggravated crime” that

must be found by the jury beyond a reasonable doubt. Id. at

2162-63.

Section 1920 establishes two levels of sentencing depending

on the amount of benefits that a defendant “falsely obtained.”

Absent a finding that a defendant received more than $1000 in

falsely obtained benefits, the maximum sentence for a § 1920

offense is one year of imprisonment. If a defendant is found to

have received more than $1000 in falsely obtained benefits, the

statutory maximum increases to five years’ imprisonment.

Because a finding that the amount of falsely obtained benefits

exceeds $1000 increases the maximum punishment to which a

defendant is exposed, it constitutes a substantive element for a

felony offense that must be submitted to the jury and proven

beyond a reasonable doubt. See Alleyne, 133 S. Ct. at 2162-63

(“The essential point is that the aggravating fact produced a

higher range, which, in turn, conclusively indicates that the

13
fact is an element of a distinct and aggravated crime. It must,

therefore, be submitted to the jury and found beyond a

reasonable doubt.”).

Our conclusion that the amount of benefits falsely obtained

is a substantive element for a felony conviction under § 1920 is

consistent with the Eleventh Circuit’s interpretation of § 1920.

See United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004)

(“Under Apprendi, for a defendant to be subject to a 5-year

rather than a 1-year maximum sentence under § 1920, the jury

must determine that the amount of benefits she ‘falsely

obtained’ exceeds $1,000.”). We acknowledge that some of our

sister circuits have reached the opposite conclusion, opining

that loss amount should be treated as a sentencing consideration

rather than an essential element of the offense. See United

States v. Webber, 536 F.3d 584, 595 (7th Cir. 2008) (intimating

in dictum that “the language and structure of [§ 1920]” indicate

that “the amount of benefits falsely obtained is not a

substantive element of the offense but a statutorily mandated

punitive sentencing factor”); United States v. Henry, 164 F.3d

1304, 1307-08 (10th Cir. 1999); United States v. Grillo, 160

F.3d 149, 150 (2d Cir. 1998) (per curiam). The Supreme Court,

however, has expressly repudiated the notion that “there is a

constitutionally significant difference between a fact that is

an ‘element’ of the offense and one that is a ‘sentencing

14
factor.’” S. Union Co. v. United States, 132 S. Ct. 2344, 2356

(2012); see also Apprendi, 530 U.S. at 494 (“[T]he relevant

inquiry is one not of form, but of effect—does the required

finding expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict?”). Thus, because we

believe that the Eleventh Circuit’s approach in Hurn comports

with the Supreme Court’s recent Sixth Amendment cases associated

with Apprendi, as well as this Circuit’s decision in Wilson, we

decline to follow the few decisions in other circuits that view

loss amount as a punitive sentencing factor.

B.

The government concedes that Catone’s felony conviction is

not supported by a jury finding that the offense led to more

than $1000 in falsely obtained benefits, but it argues that the

error is harmless. As with all nonstructural constitutional

errors, an Apprendi error does not mandate reversal if the

government can establish that the error is harmless. United

States v. Brown, __ F.3d __, 2014 WL 2937091, at *4 (4th Cir.

July 1, 2014). An Apprendi error is harmless “where a reviewing

court concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence,

such that the jury verdict would have been the same absent the

error.” Neder v. United States, 527 U.S. 1, 17 (1999); United

States v. Strickland, 245 F.3d 368, 380 (4th Cir. 2001)

15
(observing that Neder “articulat[es] the particular test for

when an omitted instruction on an element of an offense is

harmless”).

The government contends that, in this case, the Apprendi

error is harmless because there is overwhelming evidence

establishing that Catone received more than $100,000 in federal

workers’ compensation benefits. In its view, to obtain a felony

conviction under § 1920, the jury need only find that the

defendant received more than $1000 in benefits without

distinguishing between benefits flowing from a defendant’s false

statement and those legally obtained.

But the plain language of the statute indicates just the

opposite: whether a conviction under § 1920 results in a felony

or a misdemeanor turns on whether “the amount of the benefits

falsely obtained” exceeds $1000. Had Congress intended for the

degree of punishment to be based on the total amount of benefits

that a defendant received, as the government contends, Congress

could have so provided by omitting the word “falsely” from the

statute, so as to deliver a felony conviction when “the amount

of benefits obtained” exceeds $1000. Instead, Congress chose to

make the degree of punishment for § 1920 offenses hinge upon the

amount of “benefits falsely obtained.” 18 U.S.C. § 1920

(emphasis added); see United States v. Tupone, 442 F.3d 145, 158

n.9 (3d Cir. 2006) (Stapleton, J., dissenting) (“Congress chose

16
. . . to limit punishment in accordance with the amount of

‘benefits falsely obtained.’”); Hurn, 368 F.3d at 1362

(observing that the plain language of § 1920 requires the

government to prove a causal link between the defendant’s false

statement and the receipt of more than $1000 in benefits); see

also Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985) (“[W]e must give

effect to every word that Congress used in the statute.”).

Consistent with the plain language of § 1920, we believe that

Congress intended to impose harsher punishment based upon the

amount of benefits received as a result of a defendant’s false

statements rather than the total amount of benefits obtained.

To hold otherwise would punish a defendant for obtaining

benefits that he lawfully was entitled to receive.

Although it is uncontested that Catone received more than

$100,000 in federal workers’ compensation benefits, the evidence

regarding the portion of benefits Catone falsely obtained is far

from overwhelming and uncontroverted. Evidence adduced at trial

shows that Catone received a single check—in the amount of $635—

from Angelo’s Maintenance during the period he received federal

workers’ compensation benefits. And the government’s own

witness testified that an individual may continue to receive

benefits despite earning small amounts of income. Notably, the

government fails to point to any probative evidence that could

reasonably support a finding that Catone received more than

17
$1000 in benefits as a result of his false statement. We

therefore are unable to find that the Apprendi error is

harmless.

Because the jury made no finding that the amount of

benefits falsely obtained exceeded $1000, and we are unable to

locate “overwhelming evidence” in the record to support such a

conclusion, Neder, 527 U.S. at 17, Catone’s felony conviction

cannot stand. Accordingly, we vacate Catone’s felony conviction

and direct the district court to impose a misdemeanor sentence

on remand.

IV.

Last, Catone challenges the district court’s application of

a ten-level sentencing enhancement to his base offense level

under Section 2B1.1(b)(1)(F) of the Guidelines, as well as the

district court’s restitution order. We review the district

court’s application of the Guidelines de novo and its factual

findings for clear error. United States v. Quinn, 359 F.3d 666,

679 (4th Cir. 2004). We review the district court’s restitution

award for an abuse of discretion. United States v. Grant, 715

F.3d 552, 556-57 (4th Cir. 2013).

Section 2B1.1(a) of the Guidelines provides the base

offense level for crimes involving fraud or deceit. That

Section also calls for various increases to a defendant’s base

18
offense level depending on the specific loss amount at issue.

U.S.S.G. § 2B1.1(b). The government must prove the amount of

loss by a preponderance of evidence. United States v. Pierce,

409 F.3d 228, 234 (4th Cir. 2005). The district court, though

it need not reach a precise figure as to loss, must make a

“reasonable estimate” of loss based on the “available

information” in the record. U.S.S.G. § 2B1.1 cmt. n.3(C); see

also United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).

As a general rule, the Guidelines instruct that “loss is

the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1

cmt. n.3(A). A different rule applies, however, for government-

benefits offenses like Catone’s. We have held that, when a

defendant obtains both proper and improper benefits, the amount

of loss is calculated based on “the difference between the

amount of benefits [the defendant] actually received and the

amount he would have received had he truthfully and accurately

completed the [CA-]1032 forms.” United States v. Dawkins, 202

F.3d 711, 715 (4th Cir. 2000).

After our decision in Dawkins, the Sentencing Commission

adopted the following commentary to § 2B1.1:

Government Benefits.—In a case involving government
benefits (e.g., grants, loans, entitlement program
payments), loss shall be considered to be not less
than the value of benefits obtained by unintended
recipients or diverted to unintended uses, as the case
may be. For example, if the defendant was the
intended recipient of food stamps having a value of

19
 $100 but fraudulently received food stamps having a
value of $150, loss is $50.

U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). Consistent with our case law,

Comment Note 3(F)(ii) distinguishes a defendant’s loss amount

from the total amount of benefits obtained. It further

instructs that, when a defendant is the intended recipient of

some amount of government benefits, the proper loss calculation

is based on the amount of benefits received as a result of the

defendant’s fraudulent representation.

At sentencing, both Catone and the government agreed that

the framework established by Dawkins controlled. And both

parties asserted that the Dawkins analysis could be made based

on the facts in the existing record. Citing Dawkins, the

government contended that, if Catone had truthfully and

accurately completed his CA-1032 forms, “he would not have

received any benefits” at all. J.A. 343. Thus, the government

asserted that the loss amount was $128,124.75, the entire amount

of the benefits he received. Id. at 342-43. In support, the

government cited “the jury’s guilty verdict and the evidence

presented at trial.” Id. at 343.

In contrast, Catone asserted that the loss amount under

Dawkins was less than $1,000. Id. at 307-08. Like the

government, he also cited evidence presented at trial: namely,

the testimony of two federal employees, who stated that Catone’s

20
benefits likely would have been reduced – but not completely

terminated – had he properly disclosed his work as a custodian

on the CA-1032 forms. Id. at 51-52, 78-79. Indeed, one of the

government’s witnesses testified that it was possible that small

amounts of reported outside income would not reduce the benefit

amount at all. Id. at 78. According to these employees, the

precise amount of any reduction would be calculated under a so-

called “Shadrick Formula” published by the U.S. Department of

Labor. Id. at 51-52. Catone asserts that under the Shadrick

Formula – which he contends is consistent with Dawkins – his

benefits would have been reduced by less than $1,000.

The district court ultimately accepted the government’s

position, but did not perform the calculation required by

Dawkins and the Guidelines. J.A. 281. Rather, it simply

adopted the PSR’s conclusion that the loss amount equaled the

entire amount of benefits that Catone received. Id. The PSR in

turn is devoid of any analysis under Dawkins or Comment Note

3(F)(ii) of the Guidelines. Id. at 324.

As the government concedes on appeal, the district court

failed to apply the analysis required under Dawkins, and its

loss-amount calculation therefore was erroneous. Accordingly,

we must vacate Catone’s sentence and remand for resentencing.

As Catone argues, however, the record is devoid of any

evidence that could reasonably support a finding of loss in

21
excess of $5,000, as is required for any offense-level

enhancement under the Guidelines. See U.S.S.G. § 2B1.1(b)(1)(A)

(no increase in offense level for loss of $5,000 or less). The

evidence presented at trial established that disability benefits

are calculated under the Shadrick Formula, that the Shadrick

Formula would also be used to calculate any reduction in

benefits resulting from Catone’s outside income, and that it was

possible that Catone’s benefits might not have been reduced at

all. The government, however, failed to present any evidence at

trial or at sentencing showing how the Shadrick Formula would be

applied in this case, nor did it present any other evidence

otherwise establishing the amount of benefits Catone would have

been entitled to receive had he truthfully reported his outside

income. While a sentencing court need only make a “reasonable

estimate” of loss based on the “available information” in the

record, U.S.S.G. § 2B1.1 cmt. n.3(C), an estimate that is

unsupported by any evidence cannot be reasonable.

The government bears the burden of proving the loss amount,

see Dawkins, 202 F.3d at 714, yet it failed to present the

evidence necessary for the district court to make that

determination. Because there is no evidence in the record that

could support a loss amount exceeding $5,000, we direct the

district court on remand to resentence Catone under U.S.S.G. §

22
2B1.1(b)(1)(A), without any offense-level enhancements for loss

amount. *

Finally, because the district court erred in calculating

Catone’s loss amount, we also must vacate the district court’s

award of restitution in the amount of $106,411.83, which

represents the amount of a forfeiture imposed by the Department

of Labor. As we explained in Dawkins, the restitution amount in

a government-benefits case depends on the loss amount calculated

under the Guidelines. See Dawkins, 202 F.3d at 715. In light

of the district court’s erroneous loss-amount calculation, we

vacate the restitution order and remand for recalculation

consistent with this opinion.

V.

For the reasons provided above, we affirm Catone’s

conviction, vacate his sentence, and remand for further

proceedings consistent with this opinion.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

*
Because we have determined that Catone’s sentence was
“imposed as a result of an incorrect application of the
sentencing guidelines,” we have broad authority to “remand the
case for further sentencing proceedings with such instructions
as [we] consider[] appropriate.” 18 U.S.C. § 3742(f)(1).

23