PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ENI OYEGOKE-ENIOLA, Defendant - Appellant. No. 12-3314

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRI CT OF KANSAS (D.C. No. 6:12-CR-10057-MLB-1)

Stephen K. Christiansen (Ke lley M. Marsden, with him on the briefs), Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City , Utah, for Defenda nt – Appellant. James A. Brown, Assistant United States A ttorney, (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. FILED United States Court of Appeals Tenth Circuit 

### November 14, 2013
Elisabeth A. Shumaker Clerk of Court2 Defendant Eni Oyegoke-Enio la 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 und er the Sentencing Guidelines; (2) that Defendant’s statements made under an immu nity 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 Defendant’s objections to the PSR. We have jurisdiction under 28 U.S.C. § 1291. We hold that Defendant’s first clai m is meritorious with respect to two enhancements and we therefore vacate the sentence and remand for fu rther 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 Defendant’s ot her claims, which may be mooted at resentencing. We discuss Defendant’s first two issues in turn, setting forth the facts necessary to resolve each.
I. GUIDELINES ENHANCEMENTS We vacate Defendant’s sentence because the district court’s calculation of his total offense level improperly included two enha ncements. The prosecution conceded that there was no evidence to support one of the enhancemen ts, and the court declined to make the finding necessary for the other.3 A. Background After Defendant pleaded guilty, the pr obation office prepared a PSR. Unchallenged portions of th e PSR set forth the following: Defendant is a citizen of Nigeria who had resided in Great Britain before coming to this countr y. In Great Britain he had been convicted of several felonies in volving 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 applica tion for status as a permanent resident, again falsely answering that he ha d no criminal convictio ns. The 2011 false statement was the basis for his conviction und er 18 U.S.C. § 1546. Defendant’s 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 merc handise delivered to him. To calculate Defendant’s total offense level, the PSR began with a base offense level of 7 under USSG § 2B1.1(a)(1) (the guidelin e for theft, fraud, and similar crimes). It then added four enhancements : (1) a 2-level increase be cause Defendant possessed five or more stolen-identity documents, see id. § 2B1.1(b)(11)(C)(ii); (2) a 2-level increase because Defendant’s 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 offense4 level of 18. He had no criminal-history poin ts (the convictions abroad did not count), so the PSR gave him a criminal-h istory 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 r ecommended enhancements. The government responded that it lacked evid ence that he possessed five or more stolen-identity documents and it would not seek that enhancem ent. The district court then wrote the parties a letter stating that “it would app ear that defendant’s recalculated guideline sentence is 21-27 months,” R., Vol. I at 87, which is the sentenci ng range that would result from eliminati ng 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 De fendant. After the agent’s 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 info rmation that was not automatically reported immediately and that he did it, that Defendant did it, then I would say that’s sophisticated based on my k nowledge of those things, but . . . I didn’t hear that. R., Vol. III at 61. In response the govern ment said that Defe ndant’s 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 bu y information regarding legitimate credit cards and then changed billing addresse s. It also argued that De fendant employed sophisticated means when he used fictitious company names to hide his assets. Defense counsel5 countered that the evidence of fictitious name s was unrelated to the offense of conviction and could not support enhancement of Defendant’s sentence. The court concluded that it would not impose the enhancement: So I’m not going to make a finding on e way or another about whether there was sophisticated means. It certainl y seems to me that whether it would meet the definition of th e guidelines, which I, of course, give respectful consideration to at all times, his condu ct does seem to demonstrate more knowledge about ho w computers and particularly billing type situations operate. But that is consistent, as I un derstand it, with the education that he received in England. So if that was a basis for the sophisticated enhancement, yeah, but the guidelines do n’t talk about that, so I don’t think it’s necessary. Id. at 70–71. 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 Defendant’s history of fraudulent conduct and its view that an upward variance from the guidelines would be necessa ry to impose an appropriate sentence that would deter him and protect the public. After this explanation the court offered Defendant an opportun ity to raise objections. None were forthcoming. The court then stated, “The Court determ ines that the presentence investigation and the previously stated findings in the pres entence 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. Ot her than the reference to the PSR, it did not6 specify the offense level or guideline range us ed in reaching this sentence. The court concluded the hearing by asking Defendant if he had questi ons (he had none) or wanted to say something (he did not). Eleven days after the hearing the distri ct court filed its amended Statement of Reasons to accompany th e judgment. On the document th e court had chec ked off the box stating, “The court adopts the presentence inves tigation report without change.” Id. , Vol. II at 75. Also, in the section reciti ng the court’s 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 court’s imposition of enhancemen ts for the use of sophisticated means and possession of multiple stolen-i dentity documents. But ther e 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 so phisticated means when the co urt said that it would not make a finding on the enhancement. And ther e was certainly no reason to say anything about the possession of stolen -identity documents when the court had sent a letter7 adopting the Defendant’s 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 sent ence the district court stated: “The Court determines that the pres entence investigation and the previously stated findings in the presentence report are accurate and orders them to be incorporat ed 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 tim e (if not raised earlier) to preserve it for appeal. But the context here was not ordina ry. What had occurre d 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) summa rizing its rulings on the parties’ arguments and explaining why it thought that an up ward variance from the guideline sentencing range was necessary. After making that st atement, 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 no t just a feint by the court and that it would not now proceed to rene ge on its rulings of a few moment s earlier. Of course, it would8 have been better if defense counsel had clar ified the court’s inten tion. But we cannot fault him for letting pass an apparently incons equential slip. He properly could have thought (and apparently did th ink) that the court was adoptin g 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 pr onounced 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 e rred in its Statement of Reasons when it adopted the PSR and calculated the total o ffense level as 18. As the government concedes on appeal, there was no factual su pport for the enhancement for possession of five or more stolen-identity documents, and the court did not make the findings necessary to impose the sophisticat ed-means enhancement. Moreover, the error was not harmless. We ha ve 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 th e 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 mark s omitted). The district court gave no such indication. Bound by this pr ecedent, we must reverse. Because we must remand for resenten cing anyway, we need not address Defendant’s 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 the9 court should clarify on remand whether it not only varied from the guideline range but also departed from Defendant’s criminal-his tory 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 th e PSR of Defendant’s st atements to federal agents. The government cannot compel a person to testify over his invocation of the privilege against self-incrimination unless it pr omises to immunize him against use of the testimony in any criminal prosecution against him. See Kastigar v. United States , 406 U.S. 441, 459–62 (1972). Such use include s use in sentencing proceedings. See Mitchell v. United States , 526 U.S. 314, 326–27 (1999). But absent compulsion, the government and the person can enter into a contract prov iding 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 bre ached by giving false testim ony); 3 Wayne R. LaFave et al., Criminal Procedure § 8.11(e), at 296 (3d ed. 1999) (“For inform al immunity, unlike statutory use/derivative-use immunity, issues relating to the scope of the immunity cannot be answered by reference to the commensurate protecti on provided under the selfincrimination privilege. Here, scope may be broader or narrower than what would be10 required to supplant the privilege, and the cruc ial question is what scope was agreed to by the parties.”). It is undisputed that when Defendant wa s 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 statem ents made by or other information provided by your client during the pr offer or discussion will be used against him in the government’s case-in-chief.” Id. at 58. The PSR included information from the interview. Defenda nt moved to strike this information from the PSR. Although he did not argu e that the prosecutor’s Kastigar letter departed from the terms of standard Kastigar letters used by the United States attorney’s office in that district, he contended that the bar against use of the statements in the government’s case-in-chief encompassed us e at sentencing. The court disagreed and denied the motion to strike. We agree with the district court’s interpre tation of the letter. The term case-in-chief does not encompass sentencing . Black’s Law Dictionary defines it as “1. The evidence presented at tr ial 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 th e claim or defense.” Black’s Law Dictionary 244 (9th ed. 2009). We have been pointed to no use of the term that ex tends 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, 883–84 (7th11 Cir. 2013) (“[N]o direct use will be made of his statements, or a ny information provided by him, in the government’s case- in-chief at trial, or in aggr avation 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 th e purpose of determining th e applicable guideline range, any oral statements made by you at the meeting . . . .” (internal quotation marks omitted)). Nevertheless, use of the Defendant’s in terview is problema tic even if the government’s interpretation of the Kastigar letter is correct. USSG § 1B1.8(a) states: Where a defendant agrees to cooperat e with the government by providing information concerning unlawful activitie s of others, and as part of that cooperation agreement th e government agrees that self-incriminating information provided pursua nt to the agreement will not be used against the defendant, then such information sh all not be used in determining the applicable guideline range, except to th e 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 court’s ability to consider the defendant’s disclosures in calculating the appropriate sentence range.” The Kastigar letter here contains no such specific mention. An Applic ation Note states that “[a] lthough the guidelin e itself affects only the determination of the guideline ra nge, the policy of the Commission, as a corollary, is that informati on prohibited from being used to determine the applicable guideline range shall not be used to depart up ward.” USSG § 1B1.8, cmt. n.1. On the12 other hand, neither the guidelines nor our case s address the use of immunized statements

to vary upwards, and at least one court has sugges ted that § 1B1.8(a) does not apply to variances. See United States v. Patel , 457 F. App’x 549, 55 1 (6th Cir. 2012). We leave to the district court in the firs t instance whether it ca n (or wishes to) use Defendant’s statements for sentencing pur poses. The court should, however, make a record of whether it is doing so. III. CONCLUSION We VACATE Defendant’s sentence and REMAND for resentencing.