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* [UNPUBLISHED]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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