PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

November 14, 2013

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 12-3314

ENI OYEGOKE-ENIOLA,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(D.C. No. 6:12-CR-10057-MLB-1)

Stephen K. Christiansen (Kelley M. Marsden, with him on the briefs), Van Cott, Bagley,
Cornwall & McCarthy, Salt Lake City, Utah, for Defendant Appellant.
James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United States
Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for Plaintiff
Appellee.

Before HARTZ, BALDOCK, and EBEL, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Eni Oyegoke-Eniola challenges his sentence following his guilty plea
to charges of mail fraud, see 18 U.S.C. 1341, and making a false statement on an
immigration document, see id. 1546. Defendant asserts four errors: (1) that the district
court improperly imposed enhancements under the Sentencing Guidelines; (2) that
Defendants statements made under an immunity agreement should have been stricken
from the Presentence Investigation Report (PSR); (3) that the court imposed a
substantively unreasonable sentence; and (4) that the court failed to rule on some of
Defendants objections to the PSR. We have jurisdiction under 28 U.S.C. 1291. We
hold that Defendants first claim is meritorious with respect to two enhancements and we
therefore vacate the sentence and remand for further proceedings. We also discuss the
use of the statements made by Defendant under an immunity agreement because the issue
will arise again on remand. We need not address Defendants other claims, which may
be mooted at resentencing.
We discuss Defendants first two issues in turn, setting forth the facts necessary to
resolve each.
I.

GUIDELINES ENHANCEMENTS

We vacate Defendants sentence because the district courts calculation of his total
offense level improperly included two enhancements. The prosecution conceded that
there was no evidence to support one of the enhancements, and the court declined to
make the finding necessary for the other.

A.

Background

After Defendant pleaded guilty, the probation office prepared a PSR.

Unchallenged portions of the PSR set forth the following: Defendant is a citizen of
Nigeria who had resided in Great Britain before coming to this country. In Great Britain
he had been convicted of several felonies involving fraud and deception. He entered the
United States in 2009 on a visa by falsely stating in his visa application that he had not
been convicted of a crime. In 2011 he submitted an application for status as a permanent
resident, again falsely answering that he had no criminal convictions. The 2011 false
statement was the basis for his conviction under 18 U.S.C. 1546. Defendants mailfraud conviction under 18 U.S.C. 1341 was based on his use of the mails to engage in
an identity-theft scheme. He would purchase merchandise with credit cards issued to
other persons and have the merchandise delivered to him.
To calculate Defendants total offense level, the PSR began with a base offense level
of 7 under USSG 2B1.1(a)(1) (the guideline for theft, fraud, and similar crimes). It
then added four enhancements: (1) a 2-level increase because Defendant possessed five
or more stolen-identity documents, see id. 2B1.1(b)(11)(C)(ii); (2) a 2-level increase
because Defendants offense used sophisticated means, see id. 2B1.1(b)(10)(C); (3) an
8-level increase because the intended loss was between $70,000 and $120,000, see id.
2B1.1(b)(1)(E); and (4) a 2-level increase because there were 10 or more victims, see
id. 2B1.1(b)(2)(A)(i). The PSR then reduced the offense level by 3 because Defendant
accepted responsibility and assisted authorities, see id. 3E1.1, leading to a total offense
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level of 18. He had no criminal-history points (the convictions abroad did not count), so
the PSR gave him a criminal-history category of I. The resulting guideline sentencing
range was 27 to 33 months incarceration. The PSR also suggested that Defendant be
ordered to pay $9,480 as restitution to the company he had defrauded.
Defendant filed objections to the recommended enhancements. The government
responded that it lacked evidence that he possessed five or more stolen-identity
documents and it would not seek that enhancement. The district court then wrote the
parties a letter stating that it would appear that defendants recalculated guideline
sentence is 21-27 months, R., Vol. I at 87, which is the sentencing range that would
result from eliminating the enhancement, see USSG ch. 5, pt. A.
At the sentencing hearing, the government called a Secret Service agent to testify
about the sophisticated means employed by Defendant. After the agents testimony, the
district court expressed doubt about its sufficiency. The court said:
[I]f the agent had had more evidence about how you are able to access the
[credit card] account and get out information that was not automatically
reported immediately and that he did it, that Defendant did it, then I would
say thats sophisticated based on my knowledge of those things, but . . . I
didnt hear that.
R., Vol. III at 61. In response the government said that Defendants conduct went
beyond ordinary credit-card fraud where an individual steals a card from the mail or from
a billfold, because he went so far as to buy information regarding legitimate credit cards
and then changed billing addresses. It also argued that Defendant employed sophisticated
means when he used fictitious company names to hide his assets. Defense counsel
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countered that the evidence of fictitious names was unrelated to the offense of conviction
and could not support enhancement of Defendants sentence.
The court concluded that it would not impose the enhancement:
So Im not going to make a finding one way or another about whether there
was sophisticated means. It certainly seems to me that whether it would
meet the definition of the guidelines, which I, of course, give respectful
consideration to at all times, his conduct does seem to demonstrate more
knowledge about how computers and particularly billing type situations
operate. But that is consistent, as I understand it, with the education that he
received in England. So if that was a basis for the sophisticated
enhancement, yeah, but the guidelines dont talk about that, so I dont think
its necessary.
Id. at 7071.
The court announced that it was incorporating by reference its earlier
correspondence (specifically including its letter rejecting the enhancement for multiple
stolen-identity documents) and that it would not make a finding on the use of
sophisticated means. It then proceeded to explain how it proposed to sentence
Defendant. It discussed at length Defendants history of fraudulent conduct and its view
that an upward variance from the guidelines would be necessary to impose an appropriate
sentence that would deter him and protect the public. After this explanation the court
offered Defendant an opportunity to raise objections. None were forthcoming.
The court then stated, The Court determines that the presentence investigation
and the previously stated findings in the presentence report are accurate and orders them
to be incorporated into the following sentence. Id. at 76. The court imposed a 60-month
sentence and ordered $9,480 in restitution. Other than the reference to the PSR, it did not
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specify the offense level or guideline range used in reaching this sentence. The court
concluded the hearing by asking Defendant if he had questions (he had none) or wanted
to say something (he did not).
Eleven days after the hearing the district court filed its amended Statement of
Reasons to accompany the judgment. On the document the court had checked off the box
stating, The court adopts the presentence investigation report without change. Id.,
Vol. II at 75. Also, in the section reciting the courts determination of the advisory
guideline range, the court had typed in the total offense level as 18, id., which was the
level calculated by the PSR after including the enhancements for the use of sophisticated
means and possession of five or more stolen-identity documents, and it had typed in a
sentencing range of 27 to 33 months, which was what the PSR had calculated.
B.

Discussion
1.

Standard of Review

We first address our standard of review. The government argues that we should
review only for plain error because Defendant did not object at the sentencing hearing to
the district courts imposition of enhancements for the use of sophisticated means and
possession of multiple stolen-identity documents. But there is no need to raise an
objection when the court agrees with you. Defendant had no reason to argue that there
was insufficient evidence of sophisticated means when the court said that it would not
make a finding on the enhancement. And there was certainly no reason to say anything
about the possession of stolen-identity documents when the court had sent a letter
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adopting the Defendants view. Fed. R. Crim. P. 51 is in point. It provides: If a party

does not have an opportunity to object to a ruling or order, the absence of an objection
does not later prejudice that party. Fed. R. Crim. P. 51(b). For example, if the first time
that the sentencing court announces a condition of release is in its written judgment, the
failure of counsel to object at the sentencing hearing does not require plain-error review
of a challenge to the condition. See United States v. Mike, 632 F.3d 686, 693 (10th Cir.
2011).
We recognize that before pronouncing sentence the district court stated: The
Court determines that the presentence investigation and the previously stated findings in
the presentence report are accurate and orders them to be incorporated into the following
sentence. R., Vol. III at 76. Ordinarily, an attorney who had any objection to the PSR
would need to raise the objection at that time (if not raised earlier) to preserve it for
appeal. But the context here was not ordinary. What had occurred immediately before
this statement would signal to those present that the statement was not intended to alter
any of what the court had said previously. The court had made a lengthy statement (it
occupies six pages of the transcript) summarizing its rulings on the parties arguments
and explaining why it thought that an upward variance from the guideline sentencing
range was necessary. After making that statement, the court asked for objections.
Defense counsel said that he had none. It was quite reasonable for defense counsel to
assume that this request for objections was not just a feint by the court and that it would
not now proceed to renege on its rulings of a few moments earlier. Of course, it would
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have been better if defense counsel had clarified the courts intention. But we cannot
fault him for letting pass an apparently inconsequential slip. He properly could have
thought (and apparently did think) that the court was adopting only the parts of the PSR
that it had not just rejected. It would be hard to believe that the court was directly
contradicting what it had pronounced only moments before, without any explanation of
why it had changed its mind. Thus, we apply abuse-of-discretion review.
Under that standard, the district court erred in its Statement of Reasons when it
adopted the PSR and calculated the total offense level as 18. As the government
concedes on appeal, there was no factual support for the enhancement for possession of
five or more stolen-identity documents, and the court did not make the findings necessary
to impose the sophisticated-means enhancement.
Moreover, the error was not harmless. We have held that unless the district court
indicated at sentencing that the sentence imposed would be the same under multiple
sentencing approaches, one of which was the correct approach, we are compelled to
remand for resentencing when we find that an improper offense level or criminal history
category was applied. United States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012)
(ellipsis, brackets, and internal quotation marks omitted). The district court gave no such
indication. Bound by this precedent, we must reverse.
Because we must remand for resentencing anyway, we need not address
Defendants arguments that the sentence was substantively unreasonable and that the
district court failed to rule on his other objections to the PSR. We add, however, that the
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court should clarify on remand whether it not only varied from the guideline range but
also departed from Defendants criminal-history classification, a matter on which the
parties disagree.
II.

IMMUNITY AGREEMENT
There is, however, an additional matter that we should address because it will arise

on resentencing. It concerns the use in the PSR of Defendants statements to federal

agents.
The government cannot compel a person to testify over his invocation of the
privilege against self-incrimination unless it promises to immunize him against use of the
testimony in any criminal prosecution against him. See Kastigar v. United States, 406
U.S. 441, 45962 (1972). Such use includes use in sentencing proceedings. See Mitchell
v. United States, 526 U.S. 314, 32627 (1999). But absent compulsion, the government
and the person can enter into a contract providing for whatever scope of immunity they
agree to, and set conditions on the grant of immunity. See United States v. Fountain, 776
F.2d 878, 884 (10th Cir. 1985); United States v. Hembree, 754 F.2d 314, 317 (10th Cir.
1985) (immunity agreement breached by giving false testimony); 3 Wayne R. LaFave et
al., Criminal Procedure 8.11(e), at 296 (3d ed. 1999) (For informal immunity, unlike
statutory use/derivative-use immunity, issues relating to the scope of the immunity cannot
be answered by reference to the commensurate protection provided under the selfincrimination privilege. Here, scope may be broader or narrower than what would be

required to supplant the privilege, and the crucial question is what scope was agreed to by
the parties.).
It is undisputed that when Defendant was interviewed after his arrest, defense
counsel orally agreed with the prosecutor that Defendant would later receive a standard
Kastigar letter. R., Vol. I at 72 (internal quotation marks omitted). The letter delivered
after the interview provided that no statements made by or other information provided
by your client during the proffer or discussion will be used against him in the
governments case-in-chief. Id. at 58.
The PSR included information from the interview. Defendant moved to strike this
information from the PSR. Although he did not argue that the prosecutors Kastigar
letter departed from the terms of standard Kastigar letters used by the United States
attorneys office in that district, he contended that the bar against use of the statements in
the governments case-in-chief encompassed use at sentencing. The court disagreed and
denied the motion to strike. We agree with the district courts interpretation of the letter.
The term case-in-chief does not encompass sentencing. Blacks Law Dictionary
defines it as 1. The evidence presented at trial by a party between the time the party calls
the first witness and the time the party rests. 2. The part of a trial in which a party
presents evidence to support the claim or defense. Blacks Law Dictionary 244 (9th ed.
2009). We have been pointed to no use of the term that extends to sentencing. And we
note that Kastigar agreements quoted in appellate decisions distinguish between the casein-chief and sentencing. See, e.g., United States v. Bennett, 708 F.3d 879, 88384 (7th
10

Cir. 2013) ([N]o direct use will be made of his statements, or any information provided
by him, in the governments case-in-chief at trial, or in aggravation of his sentence . . . .
(internal quotation marks omitted)); United States v. Al-Esawi, 560 F.3d 888, 892 (8th
Cir. 2009) ([T]he government will not offer in its case-in-chief, or in connection with
any sentencing proceeding for the purpose of determining the applicable guideline range,
any oral statements made by you at the meeting . . . . (internal quotation marks
omitted)).
Nevertheless, use of the Defendants interview is problematic even if the
governments interpretation of the Kastigar letter is correct. USSG 1B1.8(a) states:
Where a defendant agrees to cooperate with the government by providing
information concerning unlawful activities of others, and as part of that
cooperation agreement the government agrees that self-incriminating
information provided pursuant to the agreement will not be used against the
defendant, then such information shall not be used in determining the
applicable guideline range, except to the extent provided in the agreement.
Applying that provision in United States v. Fortier, 180 F.3d 1217, 1224 (10th Cir.
1999), we held: The language and spirit of section 1B1.8 require the agreement to
specifically mention the courts ability to consider the defendants disclosures in
calculating the appropriate sentence range. The Kastigar letter here contains no such
specific mention. An Application Note states that [a]lthough the guideline itself affects
only the determination of the guideline range, the policy of the Commission, as a
corollary, is that information prohibited from being used to determine the applicable
guideline range shall not be used to depart upward. USSG 1B1.8, cmt. n.1. On the
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other hand, neither the guidelines nor our cases address the use of immunized statements
to vary upwards, and at least one court has suggested that 1B1.8(a) does not apply to
variances. See United States v. Patel, 457 F. Appx 549, 551 (6th Cir. 2012).
We leave to the district court in the first instance whether it can (or wishes to) use
Defendants statements for sentencing purposes. The court should, however, make a
record of whether it is doing so.
III.

CONCLUSION
We VACATE Defendants sentence and REMAND for resentencing.

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