United States v. Jeffery Kuster , 409 F. App'x 45 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1470
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jeffery Scott Kuster, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 18, 2010
Filed: February 9, 2011
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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Jeffrey Scott Kuster pled guilty to conspiracy to distribute at least 500 grams
of a substance or mixture containing methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A)(viii) and 846. The district court1 sentenced Kuster to 199 months’
imprisonment. Kuster appeals, arguing that the district court erroneously relied on
unproven conduct in determining his sentence. We affirm.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
Kuster’s final presentence investigation report (PSR) stated that on January 29,
2009, Kuster absconded from the Fort Des Moines Residential Facility, where he had
been living as a condition of his pretrial release. Kuster was arrested in Las Vegas,
Nevada, on February 6, 2009, on a warrant issued after he allegedly absconded.
Based on these facts, which were set forth in paragraphs 5 and 6 of the report, two
subsequent paragraphs (numbered 22 and 23) proposed that Kuster’s advisory
sentencing guidelines range include a two-level upward adjustment for obstruction of
justice under USSG § 3C1.1, and paragraph 33 proposed that Kuster be denied a
downward adjustment for acceptance of responsibility under USSG § 3E1.1.
At sentencing, Kuster objected to paragraphs 22, 23, and 33 of the report. The
government then declined to pursue the adjustment for obstruction of justice, and did
not dispute that Kuster was entitled to a three-level reduction for acceptance of
responsibility. The district court followed that course and determined Kuster’s
advisory guidelines sentencing range to be 235 to 293 months’ imprisonment. The
court then granted the government’s motion to depart downward under the guidelines
based on Kuster’s substantial assistance, see USSG § 5K1.1, and after considering the
factors set forth in 18 U.S.C. § 3553(a), sentenced Kuster to 199 months’
imprisonment.
Kuster argues that although the district court properly declined to follow the
recommendations in paragraphs 22, 23, and 33, it improperly relied on the allegations
about his flight from the Fort Des Moines facility in selecting the appropriate
sentence. Kuster points to the following statement by the district court:
[T]his case did come before me today with a record that would have
supported an enhancement for obstruction of justice and it could have
supported not giving you acceptance of responsibility because of your
absconding. The fact that the government did not pursue those ended up
with you gaining a great deal of ground here today.
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And I understand you’re still looking at a serious sentence, but I
think it is only fair that we recognize that the government has responded
fairly significantly to the length of the sentence that you were looking at
here today and, accordingly, the court has concluded that the guideline
sentencing system adequately addresses the circumstances of this case
and that the guidelines range is a reasonable range.
Kuster contends that because he objected to paragraphs 22, 23, and 33, and the
government declined to offer proof in response, the facts underlying the proposals in
those paragraphs were unproven, and the district court erred by relying on them.
Kuster did not raise this argument before the district court, so we review for plain
error. United States v. Davis, 583 F.3d 1081, 1095 (8th Cir. 2009).
The district court did not err. When a defendant objects to factual allegations
in a PSR, the sentencing court may not rely on those facts unless the government
proves them by competent evidence. United States v. Cochrane, 608 F.3d 382, 383
(8th Cir. 2010). But when a defendant objects only to the PSR’s recommendations,
the district court may rely on the unobjected-to factual allegations on which those
recommendations are based. United States v. Bledsoe, 445 F.3d 1069, 1073 (8th Cir.
2006). Kuster objected to paragraphs 22 and 23, which proposed applying the
obstruction of justice enhancement, and paragraph 33, which proposed denying the
acceptance of responsibility reduction, but he did not object to paragraphs 5 and 6,
which contained the factual allegations on which those proposals were based.
Accordingly, the district court properly relied on those facts in fashioning a sentence
under 18 U.S.C. § 3553(a).
The judgment of the district court is affirmed.
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