F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 15 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 98-3335
ERIC CHRISTOPHER KEIFER, also
known as Sheldon Winters,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 97-CR-10100-WEB)
Michael G. Christensen, Assistant United States Attorney (Jackie N. Williams,
United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff -
Appellee.
Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the brief), Wichita, Kansas, for Defendant -
Appellant.
Before KELLY, MCKAY, and MURPHY, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Eric Christopher Keifer pleaded guilty to six counts of
bank fraud, see 18 U.S.C. § 1344(1), and one count of using a false social security
number, 42 U.S.C. § 408(a)(7)(B), and was sentenced to forty-one months, with
credit for time served on other convictions, resulting in sentence of approximately
twenty-three months. He was also sentenced to five years of supervised release
and ordered to pay restitution of $29,771. He appeals his sentence; the
government concedes error, but the parties disagree about the scope of any
remand. Mr. Keifer also argues that the district court incorrectly counted a prior
Virginia conviction as criminal history, rather than as relevant conduct under the
Sentencing Guidelines. Our jurisdiction arises under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm in part and remand for resentencing.
Background
The presentence report (PSR) reflected Mr. Kiefer’s history of theft and
fraudulent conduct in several states. Mr. Keifer was convicted in North Dakota
federal court for transportation of falsely made and altered securities (involving
an amount of $17,737.13) and in Virginia state court for fraud involving credit
cards (involving an amount of $1,181.50). In determining the offense level, the
district court relied upon a relevant conduct loss of $185,511.48, necessitating a
seven-level increase for a loss of more than $120,000. See USSG
§ 2F1.1(b)(1)(H) (specific offense characteristics). In calculating the loss, the
district court relied upon $130,238.80 associated with pending Pennsylvania fraud
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and forgery charges. Mr. Keifer objected to the inclusion of this amount as
speculative because he had not been convicted of the Pennsylvania charges and
was unaware of the evidentiary support for them.
The Pennsylvania charges involved one “Jay Aaron Carter” or “Dr. Jay
Carter, M.D.” and the government had not proven that Mr. Keifer was one and the
same. Mr. Keifer argued that the proper loss amount was $52,649.88 (amounts
associated with the North Dakota and Virginia convictions, plus $33,731.25
associated with the present Kansas plea), resulting in a five-level increase in
offense level. See USSG 2F1.1(b)(1)(F). The government did not respond to this
objection. The district court overruled the objection based solely on the PSR.
Mr. Keifer also objects to the imposition of two criminal history points
based upon his Virginia conviction for forging a public document. Specifically,
the “offense conduct involv[ed] him attempting to obtain a Virginia driver’s
license in the name of Aaron J. Carter, using the date of birth of 06/24/71. He
also used the social security number of XXX-XX-XXXX.” R. PSR at 12, ¶ 45. Keifer
argued that this conviction should have been counted as relevant conduct under
USSG §1B1.3(a)(2), since it was groupable under §3D1.2(d). The government
did not respond to this objection. The district court overruled it.
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Discussion
A. Scope of Remand
Review of a district court’s determination of a USSG § 2F1.1 loss is for
clear error, but the factors which the district court may consider in determining
the loss are reviewed de novo. United States v. Yarnell, 129 F.3d 1127, 1136
(10th Cir. 1997) (citation omitted). Under well established Tenth Circuit
precedent, the government has the burden of proving sentence enhancements and
increases. Id; see also United States v. Rice, 52 F.3d 843, 848 (10th Cir. 1995).
“An enhancement under U.S.S.G. § 2F1.1(b)(1) ‘is a sentencing increase . . ., so
the government bears the burden of proof.’” Yarnell, 129 F.3d at 1136.
In order to satisfy this burden, the government must prove by a
preponderance of the evidence that the enhancement is justified.
At sentencing, the district court may rely on facts stated in
the presentence report unless the defendant objected to
them. When a defendant objects to a fact in a presentence
report, the government must prove that fact at a sentencing
hearing by a preponderance of the evidence.
United States v. Shinault, 147 F.3d 1266, 1277-78 (10th Cir. 1998) (citation
omitted). The presentence report itself is insufficient to prove the fact and “the
district court may not satisfy its obligation [to find the facts] by simply adopting
the presentence report as its finding.” United States v. Farnsworth, 92 F.3d 1001,
1011 (10th Cir. 1996).
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Here, the government failed to introduce any evidence at the sentencing
hearing regarding the Pennsylvania charges, despite Mr. Keifer’s objection.
Moreover, the district court specifically overruled the objection “based on the
presentence report and the source it cites,” without further evidence. 2 R. doc. 44
at 20. The government “agrees that the record is inadequate to allow the sentence
to stand” and that remand for resentencing is necessary. Aplee. Br. at 8.
The next issue is the scope of the remand. According to Mr. Keifer, having
once failed to meet its burden of proof, the government should be precluded from
introducing new evidence at resentencing regarding the Pennsylvania charges. To
allow the government a second attempt to prove the relevant conduct “would
place appellant in a worse position simply by dint of his exercising his right to
appeal the sentence.” Aplt. Br. at 12. The government argues that the district
court should consider the matter de novo.
Resentencing on remand is typically de novo, but an appellate court may
limit the district court’s discretion pursuant to the mandate rule. United States v.
Webb, 98 F.3d 585, 587 (10th Cir. 1996). “The mandate rule is a
‘discretion-guiding rule’ that ‘generally requires trial court conformity with the
articulated appellate remand.’” United States v. Hicks, 146 F.3d 1198, 1200 (10th
Cir. 1998) (citation omitted).
United States v. Moore, 83 F.3d 1231 (10th Cir. 1996) clearly specifies the
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scope of a remand for resentencing.
As this court has held, when a defendant’s sentence is
vacated on appeal and remanded for new sentencing, the
lower court must begin anew with de novo proceedings.
United States v. Ortiz, 25 F.3d 934, 935 (10th Cir. 1994).
The court went on to clarify that the de novo resentencing
“permits the receipt of any relevant evidence the court
could have heard at the first sentencing hearing. Id.
(emphasis added); United States v. Warner, 43 F.3d 1335,
1340 (10th Cir. 1994). As a consequence, the court on
remand has the discretion to entertain evidence that could
have been presented at the original sentencing even on
issues that were not the specific subject of the remand.
Id. at 1234. See also United States v. Green, 175 F.3d 822, 836 (10th Cir. 1999)
(ordering de novo remand for resentencing of case in which the prosecution failed
to meet its statutorily mandated burden to establish prior convictions). But see
United States v. Torres, 182 F.3d 1156, 1164 (10th Cir. 1999) (noting that since
government failed to meet its burden of proof, “resentencing does not invite an
open season for the government to make the record that it failed to make in the
first instance.”). To the extent Torres conflicts with earlier precedent including
United States v. Smith, 930 F.2d 1450, 1456 (10th Cir. 1991), we “follow earlier,
settled precedent over a subsequent deviation therefrom.” Morrison Knudsen
Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1240 (10th Cir. 1999) (citation
omitted). In Torres, the panel was simply exercising discretion and we see no
reason to depart from the general rule in this case. The matter of the Pennsylvania
charges should be considered de novo.
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B. Criminal History and Relevant Conduct
A district court’s legal interpretation of the sentencing guidelines is
reviewed de novo, while its factual findings are reviewed for clear error. United
States v. Cuthbertson, 138 F.3d 1325, 1326 (10th Cir. 1998). “The determination
of whether a conviction is groupable with other convictions is a question of law,
reviewable de novo, whereas determination of whether prior conduct is relevant
conduct is a pure question of fact for the district court to determine.” Id.
Mr. Keifer argues that the district court erred in adding two criminal history
points for a Virginia conviction for forging a public document. In calculating a
defendant’s criminal history under the Guidelines, points are added based upon
prior sentences. “The term ‘prior sentence’ means any sentence previously
imposed upon adjudication of guilt, whether by guilty plea, trial or plea of nolo
contendere, for conduct not part of the instant offense.” U.S.S.G. §4A1.2(a)(1)
(emphasis added). “Conduct that is part of the instant offense means conduct that
is relevant conduct to the instant offense under the provisions of §1B1.3
(Relevant Conduct).” Id., comment. (n.1). Therefore, a conviction will not be
treated as a prior sentence (and no criminal history points can be added) so long
as the underlying conduct meets the definition of relevant conduct.
Mr. Keifer claims that his Virginia conviction constitutes relevant conduct
as defined in §1B1.3(a)(2).
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In order for an offense to be included within the scope of
§1B1.3(a)(2), three prerequisites must be met. First, there
must be a finding that the offense in question involved
conduct described in §§1B1.3(a)(1)(A) and (B). Second,
the offense must be the type of offense that, if the
defendant had been convicted of both offenses, would
require grouping with the offense of conviction for
sentencing purposes under U.S.S.G. §3D1.2(d). Third, the
offense must have been “part of the same course of
conduct or common scheme or plan.” U.S.S.G.
§1B1.3(a)(2).
United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996).
The district court was not persuaded. “Because the conviction for
fraudulently obtaining a driver’s license did not involve the same type of
monetary harm as the defendant’s other conduct, the court concludes that it is
properly considered as part of his criminal history rather than relevant conduct.”
1 R. at 3. “To determine whether a prior offense is conduct related to the instant
offense, courts generally examine several factors, including the similarity,
temporal proximity, and regularity of the instant offense and the prior sentence.”
Torres, 182 F.3d at 1160. Here, the district court found that the Virginia
conviction did not involve monetary harm and was therefore not similar to the
Kansas bank fraud. See United States v. Lindsay, 184 F.3d 1138, 1142-43 (10th
Cir. 1999) (holding that differences in nature and measure of harm can preclude
grouping). Mr. Kiefer did not link the Virginia alias to the offenses involved in
this case and therefore we cannot conclude that the district court’s finding is
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clearly erroneous. Although not specifically noted, this factual finding was
sufficient to keep Mr. Keifer from meeting the prerequisites of the §1B1.3(a)(2)
test.
Thus, the district court inclusion of the Virginia conviction in the criminal
history calculation is AFFIRMED, and the matter is REMANDED to the district
court with instructions to resentence Mr. Keifer consistent with this opinion. Mr.
Keifer’s motion for voluntary dismissal of his appeal is DENIED.
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