United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 97-1015

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United States of America, *

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Appellee, *

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v. *

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Eleni H. Mayer, *

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Appellant. *

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 Appeals from the United States

 No. 97-1016 District Court for the

 ___________ Southern District of Iowa.

United States of America, *

*

Appellee, *

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v. *

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Kerry A. Mayer, *

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Appellant. *

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 Submitted: October 23, 1997

 Filed: December 1, 1997

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

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WOLLMAN, Circuit Judge.

Eleni H. Mayer and Kerry A. Mayer, both of whom pled guilty to one count of

conspiracy to commit mail fraud, 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.

Eleni Mayer and her husband, Kerry, operated Fidelity Nursing Services, Inc.

(Fidelity). Fidelity provided home health care services, including skilled and unskilled

nursing, for numerous patients, most of whom were eligible for Medicare. IASD

Health Services Corporation (IASD) acted as fiscal intermediary between Fidelity and

the Medicare program. Fidelity submitted all of its Medicare claims through IASD,

which reimbursed Fidelity for approved claims. Fidelity also submitted yearly cost

reports to IASD for a final year-end reimbursement. IASD commenced an audit of

Fidelity 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 false invoices totaling

$253,812.75 and claimed a $222,000 expense for computer equipment that was never

purchased.

After their indictment on numerous counts of fraud and conspiracy, the Mayers

agreed to plead guilty to conspiracy to commit mail fraud. The district court accepted

the plea and sentenced Eleni Mayer to twenty-one months’ imprisonment, two years

of supervised release, and $496,642.75 in restitution. Kerry Mayer was sentenced to
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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 Mayer first challenges the district court’s imposition of a two-level

sentencing adjustment 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 enhance

a defendant’s sentence for clear error.” United States v. Black, 88 F.3d 678, 681 (8th

Cir. 1996).

The government contends the two-level increase is not reviewable because

Eleni’s twenty-one month sentence would still be within the guideline range she seeks.

Before review of the district court’s enhancement may be denied, however, it must be

“clear that the sentencing court would have imposed the same sentence regardless of

whether the appellant’s argument for a lower guideline range ultimately prevailed.”

United States v. Simpkins, 953 F.2d 443, 446 (8th Cir. 1992). We conclude that

because the record as a whole does not suggest with sufficient 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 make specific findings as to each controverted component of a Presentence

Investigation Report (PSR) or make a determination that no finding is necessary

because the matter will not be considered during sentencing. See United States v.

Flores, 9 F.3d 54, 55 (8th Cir. 1993). We have consistently held that when a defendant

objects to portions of the PSR, the district court must base its findings on evidence

rather than 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 the
We note that, pursuant to the plea agreement, the government agreed to stand 1

silent on the defendants’ role in the offense, abuse of position of trust, and obstruction

of justice. Accordingly, the district court was presented with nothing beyond the

stipulated facts with respect to Eleni’s role in the offense.

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allegations involving her role in the enterprise contained in paragraphs 28-32 of her

PSR, characterizing them as unreliable and largely untrue. The district court did not

file Rule 32 findings regarding these objections, instead announcing its findings on the

record during the sentencing 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 contends that the stipulated facts, as incorporated in the her plea

agreement, fail to support the district court’s two-level enhancement. The application 1

notes 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 participants.” U.S.S.G. § 3B1.1, comment. (n.2). We have construed the

definition of leadership or organizational role broadly. See United States v. Horne, 4

F.3d 579, 590 (8th Cir. 1993). Our decision in United States v. McFarlane, 64 F.3d

1235 (8th Cir. 1995), has further clarified the issue. In McFarlane we held that

mandatory upward adjustments, 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 “relative

responsibility 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 Fidelity Nursing Services,

Inc.”; (2) she “submitted and caused to be submitted” the fraudulent reports; (3) she,

along with Kerry and Evangelos 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 were
Eleni argues that the stipulation fails to illustrate her exercise of control over her 2

husband. We believe, however, Eleni’s interaction with Stathoulopoulos should also

be considered in our review. While the charges against Stathoulopoulos were

dismissed, he is considered a “participant” for section 3B1.1 purposes. See U.S.S.G.

§ 3B1.1, comment. (n.2) (“A ‘participant’ is a person who is criminally responsible for

the commission 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”).

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eventually redeposited in Fidelity’s checking account. Although Eleni contends that

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 criminal activity involves more than one participant

and the defendant played a coordinating or organizing role.’” Id. (quoting United

States v. Granado, 72 F.3d 1287, 1289 (7th Cir. 1995)). We are satisfied that the

stipulation, when considered as a whole, demonstrates Eleni’s coordinating role in the

enterprise. Most telling is Eleni’s fraudulent transaction with her nephew, in which,

acting as Fidelity’s administrator, she attempted to deceive IASD auditors and defraud

the Medicare program. Given her husband’s admitted minor role, moreover, it is highly

doubtful that such a complex scheme could have succeeded without Eleni’s close

supervision. Accordingly, we hold that the district court did not err in imposing a twolevel enhancement.

III.

Both Eleni and Kerry challenge the district court’s calculation of restitution as

erroneous. The government, after apparently determining that it could only prove

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 an

additional $20,800 to which they did not stipulate. The “outer limits” of a restitution
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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’ plea

agreement delineates the outer limits of their liability. The Mayers are therefore

entitled to a remand for recalculation of the amount of restitution due.

Eleni Mayer’s sentence is affirmed. The restitution order is vacated, and the

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.