United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1015

___________ United States of America, * * Appellee, * * v. * * Eleni H. Mayer, * * Appellant. *

___________ Appeals from the United States No. 97-1016 District Court for the

___________ Southern District of Iowa. United States of America, * * Appellee, * * v. * * Kerry A. Mayer, * * Appellant. *

___________ Submitted: October 23, 1997 Filed: December 1, 1997

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Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Eleni H. Ma

yer and Kerry A. Mayer, both of whom pled guilty to one count of conspiracy to commit mail fr aud, a violation of 18 U.S.C. § 371, challenge the district court’s order of restitution. In addition, Eleni Mayer appeals the district court’s twolevel sentence enhancement for her role in the conspiracy. We affirm in part, reverse in part, and remand for a recalculation of the restitution order.
I.
Elen iMayer and her husband, Kerry, operated Fidelity Nursing Services, Inc

. (Fidelity). Fidelity provided home health care services, including skilled and unskilled nu rsing, for numerous patients, most of whom were eligible for Medicare. IAS D Health Services Corporation (IASD ) acted as fiscal intermediary between Fidelity and the Medicare program. Fidelity submitted all of its Medicare claims through IASD , which re imbursed Fidelity for approved claims. Fidelity also submitted yearly cos t reports to IASD for a final year-end reimbursement. IASD commenced an audit o f Fi delity after Fidelity’s 1994 report reflected a massive increase in costs. During the course of the audit it was revealed that the Mayers had submitted fa lse invoices totaling $253,812.75 and claimed a $222,000 expense for computer equipment that was never purchased.
After their indictme nt on numerous counts of fraud and conspiracy, the Mayers agreed to plead guilty to con spiracy to commit mail fraud. The district court accepted the plea and sentenced Eleni Mayer to twenty-one months’ imprisonment, two years of supervi sed release, and $496,642.75 in restitution. Kerry Mayer was sentenced to-3-

twelve months and one day of imprisonment, two years of supervised release, and was ordered to pay an identical amount of restitution jointly and severally with his wife.
II.
Eleni M ayer first challenges the district court’s imposition of a two-leve l sentencing adjus tment pursuant to U.S.S.G. § 3B1.1(c) for her managerial role in the criminal activity. “We review a district court’s factual findings relied on to enhanc e a defendant’s sentence for cle ar error.” United States v. Black , 88 F.3d 678, 681 (8th Cir. 1996).
The go vernment contends the two-level increase is not reviewable becaus e Eleni’s twenty-one month sentence would still be within the guideline range she seeks. Before review of the dis trict court’s enhancement may be denied, however, it must be “clear that the sentencing court would have imposed the same sentence regardless of whethe r the appellant’s argument for a lower guideline range ultimately prevailed. ” Unite d States v. Simpkins , 953 F.2d 443, 446 (8th Cir. 1992). We conclude tha t because the record as a whole does not suggest with suffic ient certainty that the district court would have imposed the same sentence under the lower range, we may review Eleni’s sentence. See United States v. Kloor , 961 F.2d 1393, 1394 (8th Cir. 1992) (per curiam). Federal Rule of Criminal Procedure 32(c)(1) requires that the district court must either ma ke specific findings as to each controverted component of a Presentenc e Investiga tionReport (PSR) or make a determination that no finding is necessary because th e matter will not be considered during sentencing. See United States v

. Flores , 9 F.3d 54, 55 (8th Cir. 1993). We have consistently hel d that when a defendant objec ts to portions of the PSR, the district court must base its findings on evidenc e rather tha n on the disputed PSR information. See United States v. Hudson , No. 97

- 2182, slip op. at 2 (8th Cir. Nov. 5, 1997) (per curiam). Eleni objected to theWe note that, pursuant to the plea agreement, the government agreed to stand 1 silent on the defendants’ role i n the offense, abuse of position of trust, and obstruction of justice. Accordingly, the district court was presented with nothing beyond th e stipulated facts with respect to Eleni’s role in the offense. -4- allegatio ns involving her role in the enterprise contained in paragraphs 28-32 of he r PSR, characterizing them as unreliable and largely untrue. The district court did not file Rule 32 findings regarding the se objections, instead announcing its findings on the record during the sentenc ing hearing by stating that “[Eleni] was in a greater role than an ordinary person. She was a manager in this criminal activity. It could not have been done if she had not been in charge.”
Eleni cont ends that the stipulated facts, as incorporated in the her ple a agreement, fail to support the district court’s two-level enhancement. The application

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n o tes to section 3B1.1 provide: “To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other par ticipants.” U.S.S.G. § 3B1.1, comment. (n.2). We have construed th e definitio n of leadership or organizational role broadly. See United States v. Horne , 4 F.3d579, 590 (8th Cir. 1993). Our decision in United States v. McFarlane , 64 F.3 d 1235 (8th Cir. 1995), has further clarified the issue. In McFarlane we held tha t mandatory upward adjustment s, such as the district court’s enhancement here, require the management or supervision of other participants. See Id. at 1239. While control of other participants is an important factor, section 3B1.1 focuses on the “relativ e r e sponsibility within a criminal organization.” United States v. Bush , 79 F.3d 64, 67 (7th Cir. 1996). Eleni stipulated that (1) she was the “Administrator of Fid elity Nursing Services, In c.”; (2) she “submitted and caused to be submitted” the fraudulent reports; (3) she, along with Kerry and Evangel os Stathoulopoulos, her nephew, “submitted and caused to be submitted” false invoices; and (4) she wrote two checks to her nephew , purportedly for computer expenses, which he subsequently endorsed and wereEleni argues that the stipulation fails to illustrate her exer cise of control over her 2 husb and. We believe, however, Eleni’s interaction with Stathoulopoulos should also be c onsidered in our review. While the charges against Stathoulopoulos wer e dismissed, he is co nsidered a “participant” for section 3B1.1 purposes. See U.S.S.G. § 3B1.1, comment. (n.2) (“A ‘participant’ is a per son who is criminally responsible for the com mission of the offense, but need not have been convicted.”). See also United States v. Braun , 60 F.3d 451, 453 (8th Cir. 1995) (defendant’s employees, while not charged with any criminal activity, were properly considered “participants”). -5- eve ntually redeposited in Fidelity’s checking account. Although Eleni contends tha t these stipulated facts are insufficient to show requisite control of her counterparts, we cannot agree. “[ E]ven if a defendant did not exercise control, an enhancement under

2 § 3B1.1 ‘may apply so long as the cr iminal activity involves more than one participant and the defendant played a coordinating or organizing role.’” Id. (quoting Unite d States v. Granado , 72 F.3d 1287, 1289 (7th Cir. 1995)). We are satisfied that th e stipulation, when considered a s a whole, demonstrates Eleni’s coordinating role in the ent erprise. Most telling is Eleni’s fraudulent transaction with her nephew, in which , acting as Fidelity’s administrator, she at tempted to deceive IASD auditors and defraud the Medicare program. Given her husband’s admitted minor role, moreover, it is highly do ubtfulthat such a complex scheme could have succeeded without Eleni’s clos e supervision. Accordingly, we hold that the district court did not err in imposing a twolevel enhancement.
III.
BothEleni and Kerry challenge the district court’s calculation of restitution as erroneo us. The government, after apparently determining that it could only prov e losses due to the false invoices and the payment to Stathoulopoulos, stipulated that the total amount of loss for sentencing guideline purposes was $475,812.75. The Mayers argue, and the government concurs, that the district court erroneously included a n addit ional $20,800 to which they did not stipulate. The “outer limits” of a restitution-6-

order are established by the specific conduct underlying the offense of conviction

. United States v. Welsand , 23 F.3d 205, 207 (8th Cir. 1994) (citing Hughey v. United States , 495 U.S. 411 (1990)). We agree that the loss stipulated in the Mayers’ ple a agreement delineates the outer limits of their liability. The Mayers are therefor e entitled to a remand for recalculation of the amount of restitution due.
Eleni Mayer’s sentence is affirmed. The restitution order is vacated, and th e case is remanded to the district court for a recalculation of the amount of restitution. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.