United States v. Joseph Catone, Jr. , 769 F.3d 866 ( 2014 )

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.
2
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.
4
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