                  Not for Publication in West’s Federal Reporter

             United States Court of Appeals
                         For the First Circuit

No. 15-2475

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                             JOANN C. RITTALL,

                          Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF MAINE
          [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                 Before
                         Lynch, Circuit Judge,
                      Souter, Associate Justice,*
                     and Baldock, Circuit Judge.**


     Kerry A. Haberlin, with whom Rankin & Sultan was on brief,
for appellant.
     Margaret McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellee.


                                April 7, 2017




     * The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

     **   Of the Tenth Circuit, sitting by designation.
        BALDOCK, Circuit Judge.                Defendant Joann Rittall pleaded

guilty to two counts of filing false income tax returns and

using    other    people’s      identities.             Based     on    her   history      and

characteristics, the nature and circumstances of the offense,

and the need to obtain restitution for the victims, the district

court would have imposed a sentence at the high-end of the U.S.

Sentencing Guidelines range.                 But because of Rittall’s serious

medical    issues,      primarily      her     Anorexia        Nervosa,       the    district

court     instead       imposed    a   sentence           at    the     low-end      of    the

Guidelines, resulting in 63 months’ imprisonment on both counts

to be served concurrently.                In this sentencing appeal, Rittall

complains        that     the     sentence         is      both        procedurally        and

substantively       unreasonable.            After      careful        consideration,       we

affirm the district court’s sentence on Count 2 but remand with

instructions       to    resentence       on      Count    1    consistent          with   the

statutory maximum of 60 months’ imprisonment.

                                             I.
        Beginning in 2005, Rittall acquired other people’s personal

identifiers,      including       their    birth        dates     and    social     security

numbers, by offering to help them file tax returns and claims

for rent rebates under Maine’s Residents Property Tax and Refund

“Circuit    Breaker”       program.          Between       2006    and    2012,      Rittall

prepared and filed false federal and state income tax returns in

her own name and the names of at least 24 others, including her

                                          - 2 -
son,    boyfriend,         neighbors,      and     individuals        she    met     through

Alcoholics Anonymous and drug treatment programs she attended.

The returns included false claims about income, dependents, and

the    Earned    Income      Tax    Credit.        The     claimed     refunds       totaled

$435,298,       and    the   federal       government        and    Maine     paid    out   a

combined total of $238,961.85 from 2007 to 2010.                             The IRS paid

refunds into bank accounts Rittall designated and could access.

       In     August       2013,     the     government            filed     a     two-count

Information      against       Rittall.          Count   1    charged        False    Claims

Against the Government, in violation of 18 U.S.C. § 287, for

filing false federal income tax returns claiming refunds of more

than $200,000 from 2009 to 2012, subject to a statutory maximum

of five years’ imprisonment.               Count 2 charged Identity Theft, in

violation of 18 U.S.C. § 1028(a)(7) and 1028(b)(1)(D), for using

the personal identifiers of 24 people without their permission

and    obtaining       a    thing    of    value    over     $1,000,        subject    to   a

statutory maximum of 15 years’ imprisonment.                               Rittall waived

indictment and pleaded guilty to the Information.

       Rittall’s       serious       health        problems         caused       delays     in

sentencing.       Rittall had developed Anorexia Nervosa when she was

14    years    old    and    faced    multiple       serious        medical      conditions

likely stemming from her eating disorder, including tachycardia

(rapid heart rate), hyperthyroidism (overactive thyroid), and

hypokalemia (low potassium).                  She also has Von Hippel-Lindau

                                           - 3 -
disease, a genetic condition causing benign and malignant tumors

to develop throughout her body.               The district court held seven

presentence    conferences      and   delayed     sentencing        for   over   two

years after Rittall pleaded guilty, in an attempt to allow her

to seek medical help and stabilize her condition.                         But those

efforts were met with limited success and continued setbacks.                      A

feeding   tube    required     attention      after    it    migrated     from   her

stomach   to     her   upper   bowel;     a    wound    associated        with   her

intravenous feed became infected and she suffered renal failure;

she had a mass in her throat that required additional testing;

and doctors continued to treat her rapid heart rate, abdominal

pain, and chronic kidney disease.               At the seventh presentence

conference,    the     district   court    noted      that    two   of    Rittall’s

doctors suggested Rittall might be sabotaging her own health to

avoid incarceration, perhaps out of fear that the Bureau of

Prisons (“BOP”) could not adequately treat her host of medical

conditions.

      At sentencing in November 2015, the district court adopted,

without objection, the Guidelines calculation recommended in the

Third Revised Presentence Investigation Report.                      Based on an

adjusted offense level of 20 and a criminal history category V,

Rittall’s Guidelines imprisonment range was 63 to 78 months.

The   district    court    then   heard       testimony      from   the    clinical

director at Federal Medical Center (FMC) Carswell in Fort Worth,

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Texas,     who     testified           to      the   facility’s       ability         to    treat

Rittall’s      numerous          medical       conditions        through       inpatient        and

outpatient care, including medical and mental health services.

The district court then heard arguments from the government and

Rittall’s attorney, as well as comments from Rittall, before

stating the sentence.

        Focusing       on    the       factors       in   18     U.S.C.    § 3553(a),           the

district court explained that it determined Rittall’s sentence

based    mainly       on    (1)    the      history       and    characteristics           of   the

defendant,       (2)    the      nature        and   circumstances        of    the    offense,

(3) the need to obtain restitution to the victims, and (4) the

need to provide the defendant with adequate medical care.                                   As to

Rittall’s        history         and     characteristics,          the     district         court

outlined her abusive relationships, substance abuse problems,

mental health history, employment history, and criminal history.

It noted that her past crimes “reflect a very strong streak of

dishonesty.”           Despite having spent a fair amount of time in

jail,    she     had       not    been      deterred      from    committing       additional

crimes.        Next,        as    to     the    nature     and    circumstances            of   the

offense, the district court described Rittall’s scheme and how

she obtained the personal identifying information from people

she     knew     or     met       through        Alcoholics        Anonymous,         falsified

information, obtained the money, and blamed the victims when

confronted with her scheme.                     The district court emphasized that

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the scope of the fraud was wide and substantial, involving over

25 victims and receipts of nearly a quarter of a million dollars

from 2007 to 2010.         Thus, the district court next turned to the

need to obtain restitution for the victims, which included the

federal and state governments as well as the taxpayers whose

identities she fraudulently used.                And it noted the unlikelihood

that Rittall would be able to pay anything in restitution.                         The

district court concluded that, “but for the defendant’s medical

condition, I would, without any hesitation whatsoever, impose a

high end of the guideline sentence on this defendant.”

       The district court next addressed how Rittall’s physical

and mental conditions impacted her sentence.                     Although Rittall

had an “unusual set of medical conditions,” the district court

concluded      those     conditions        were     mostly      treatable      “with

medication      or     changes    in      diet     or    the     defendant’s       own

cooperation,” rendering them less serious and less influential

over   the    sentence.      As     to    Rittall’s      Anorexia     Nervosa,     the

district      court     concluded        that     Rittall      “has    deliberately

attempted to manipulate her sentence through her manipulation of

her physicians, and it’s unfortunately consistent with her track

record   in    life.”      The    district       court   mentioned      a   previous

negative      experience    it    had     with     FMC   Carswell      regarding     a

different     defendant    with   Anorexia,        but   the   court    nonetheless

concluded that Rittall “does well when she is hospitalized” and

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that she “actually bears a greater risk of physical problems

when she’s left to her own devices.”                   The district court noted

that “there is sort of an irreducible risk of someone with her

condition being at Carswell, but I think the risk at Carswell is

no greater than the risk of her remaining [at home] in Augusta.”

        The district court concluded that, if Rittall “did not have

the physical issues that she obviously does have, I would be

looking      at    a    high-range   sentence.         However,       because    of    her

physical problems, it strikes me that the correct sentence to

impose is a low-end-of-the-guideline sentence and that is the

sentence I will impose.”             The district court sentenced Rittall

to a term of 63 months’ imprisonment on both Counts 1 and 2, to

run     concurrently.          Rittall    appealed         her    sentence      on    both

procedural and substantive grounds.

                                          II.
        In   sentencing      appeals,    “we     first      determine       whether    the

sentence imposed is procedurally reasonable and then determine

whether      it    is    substantively    reasonable.”            United     States    v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).                       Procedural errors

may consist of “failing to calculate (or improperly calculating)

the   Guidelines         range,   treating      the   Guidelines       as    mandatory,

failing to consider the § 3553(a) factors, selecting a sentence

based    on    clearly      erroneous    facts,       or    failing    to    adequately

explain      the   chosen    sentence—including            an   explanation     for    any

                                         - 7 -
deviation from the Guidelines range.”                     Gall v. United States,

552   U.S.    38,    51    (2007).         We       generally    review       procedural

reasonableness       for        abuse    of      discretion,          with    subsidiary

questions of law reviewed de novo and of fact for clear error.

United States v. Carrasco-de-Jesús, 589 F.3d 22, 27 (1st Cir.

2009).       When    a    defendant       does      not   object       to    an    alleged

procedural error below, as is true here, we review for plain

error, in which case a defendant must show (1) that an error

occurred;    (2) the      error    was     clear     or   obvious;      (3) the     error

affected the defendant’s substantial rights; and (4) the error

seriously impaired the fairness, integrity, or public reputation

of the judicial proceedings.               United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001).

      We review the substantive reasonableness of a sentence for

abuse of discretion, taking into consideration the totality of

the circumstances.         United States v. Stone, 575 F.3d 83, 94 (1st

Cir. 2009).         Under the abuse-of-discretion standard, we will

affirm unless the sentence falls outside the range of reasonable

sentences.       Id.        We    focus     on      whether     the    district     court

articulated a “plausible rationale” en route to a “defensible

result,” United States v. Martin, 520 F.3d 87, 96 (1st Cir.

2008), and give due deference “to the District Court’s reasoned

and   reasonable     decision       that      the    § 3553(a)        factors,     on   the

whole,   justified        the    sentence.”          Gall,    552     U.S.    at   59–60.

                                          - 8 -
Because Rittall did not object below, the parties acknowledge an

open question in this Circuit as to whether a defendant must

object to the substantive reasonableness of a sentence to avoid

plain error review.           See United States v. Ruiz-Huertas, 792 F.3d

223, 228 (1st Cir. 2015) (noting that the applicable standard of

review    “is    somewhat      blurred,”       but    not    deciding    whether    a

defendant must “preserve a claim that the duration of a sentence

is substantively unreasonable”).

                                          A.

      Rittall’s       first    complaint       is    that    the   district     court

committed plain procedural error by relying on her need for

rehabilitation in imposing a prison sentence.                       The Sentencing

Reform    Act   instructs       sentencing       courts     to   “recogniz[e]   that

imprisonment is not an appropriate means of promoting correction

and rehabilitation.”            18 U.S.C. § 3582(a).             Sentencing courts

thus “may not impose or lengthen a prison sentence to enable an

offender to complete a treatment program or otherwise to promote

rehabilitation.”         Tapia v. United States, 564 U.S. 319, 335

(2011).    But a sentencing court does not err by discussing with

the   defendant       “the     opportunities         for    rehabilitation    within

prison    or    the    benefits     of    specific         treatment    or   training

programs.”      Id. at 334.       The “dividing line” between permissible

and impermissible references to rehabilitative needs centers on

whether the reference is “causally related to the length of the

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sentence or, conversely, was merely one of a mix of sentencing

consequences and opportunities.”                  United States v. Del Valle-

Rodriguez, 761 F.3d 171, 174 (1st Cir. 2014).

      Rittall argues that the district court violated Tapia by

relying    on     her      rehabilitative       needs—specifically           her    medical

needs—to select the prison term.                   She points to the district

court’s discussion regarding how she

      does well when she is hospitalized.      She actually
      bears a greater risk of physical problems when she’s
      left to her own devices. So when she’s hospitalized,
      she gains weight, and she is overseen, and she’s
      controlled by other people, and she doesn’t have the
      same risk that she has when she is out of the hospital
      and has an incentive, at least in the run up to this
      sentence, to manipulate the system.

Rittall    argues       an    important       factor   in   the       district      court’s

decision     to      impose    a   prison     sentence    was    that     she      would   do

better in prison than at home.

      Even      if    we    assume     Rittall    is   correct        that   a     district

court’s concerns for a defendant’s medical needs could result in

Tapia error, Rittall’s argument fails because she disregards the

context in which the district court made these comments.                             Before

turning      to      Rittall’s       health    concerns,        the     district      court

explained that, “but for the defendant’s medical condition, I

would, without any hesitation whatsoever, impose a high end of

the   guideline            sentence”    based     on     other        circumstances        of

Rittall’s “extremely serious” crime.                     The only issue putting


                                         - 10 -
downward pressure on the sentence was Rittall’s serious medical

issues and the BOP’s ability to treat her, but the district

court    concluded       that   FMC    Carswell    could     provide    appropriate

care.     The district court was not imposing a prison sentence or

basing the length of that sentence on the fact that Rittall

might do better with constant medical supervision; it imposed

the prison sentence because Rittall’s crime and history called

for the sentence and the district court was satisfied that she

would fare no worse in prison than at home.                    As in Del Valle-

Rodriguez, “the actual basis for the district court’s sentencing

determination       is   crystal      clear”:    Rittall’s    serious    crime   and

extensive criminal history.             761 F.3d at 175.       “There is no hint

of Tapia error.”         Id. at 176.

        Rittall’s    supplemental        authority     of     United    States    v.

Thornton, 846 F.3d 1110 (10th Cir. 2017), does not convince us

otherwise.     In Thornton, the Tenth Circuit found that a district

court erred (but did not plainly err) when the district court

refused to vary downward or impose a lesser sentence based, in

part, on a need for rehabilitation.                   The district court had

commented that a lower sentence was not “in the defendant’s best

interest” as he “doesn’t do well on his own.                     Never has.      And

he needs all kinds of services that he can get and will get in

prison.”      Id. at 1113.            The district court concluded, “I am

firmly convinced that defendant needs enough time in prison to

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get treatment and vocational benefits.”                     Id. at 1114–15.         While

the Tenth Circuit determined the district court committed Tapia

error by refusing to sentence below the Guidelines, the same

cannot be said here.             Instead, the district court refused to

sentence    below     the     Guidelines          because   of    Rittall’s        serious

offense, not because she needed a sufficient amount of time in

prison     to    receive    medical      treatment         and   supervision.            The

district court’s comments regarding how Rittall’s health fared

on   her   own    versus      while    in    inpatient       care      related     to    the

district    court’s      concern      that    the    BOP    might    not     be   able   to

address    her    many     health     concerns.        Ultimately,         the    district

court was satisfied that the BOP could adequately treat Rittall

and thus imposed a prison sentence in line with its view of

Rittall’s serious criminal history and current crime.                             Rittall

fails on the first prong of plain error review because we see no

error here.

                                             B.

      Rittall     next     asserts     the    district      court      committed     plain

procedural       error   by    effectively          treating     the    Guidelines       as

mandatory rather than advisory when it refused to vary below the

Guidelines range based on her physical and mental conditions.

See Gall, 552 U.S. at 51 (stating that a district court commits

procedural error by treating the Guidelines as mandatory).                               She

acknowledges      that     the   district         court     called     the    Guidelines

                                        - 12 -
“advisory,”       but   she    points     to    the    following       discussion       to

demonstrate       the      district     court         nonetheless       treated        the

Guidelines     as    mandatory     when    it     came   to    imposing       a   prison

sentence or allowing for an at-home probationary sentence:

        Here, the defendant, at least under the guidelines,
        would not be entitled to a straight probationary
        sentence, so in order to go outside the guideline,
        it’s the courts view that it could not downward depart
        under the guideline and award simply a straight
        probationary sentence.     The court has the obvious
        authority under 3553(a) to impose any sentence that is
        statutorily authorized, but to do so, it would be a
        nonguideline sentence if it were straight probation.

        Rittall     does   not   assert        the    district       court    erred     in

refusing to depart based on U.S.S.G. § 5H1.3, which allows for

departures based on the mental and emotional condition of the

defendant, or § 5H1.4, which allows for a departure based on the

physical condition of a defendant, but rather contends that the

district court erred in applying the same departure standard

while it was discussing the possibility of a variance.                               Under

the   standards      for   departures      under      §§ 5H1.3   and     5H1.4,       this

Court    has   recently       reaffirmed       that   “[d]epartures          based    upon

health problems are discouraged and can only be justified if the

medical problems are present in unusual kind or degree.”                          United

States    v.   Herman,     848   F.3d   55,     59    (1st    Cir.    2017)    (quoting

United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir. 1994)),

petition for cert. filed Feb. 14, 2017.                      To “be entitled to a

departure, a defendant must establish that her ‘life would be

                                        - 13 -
threatened or shortened by virtue of being incarcerated’ or that

‘the Bureau of Prisons would be unable to adequately accommodate

[her] medical needs.’”                 Id. (alteration in original) (quoting

LeBlanc,     24    F.3d     at    349);          see   also   United        States     v.    Díaz-

Rodríguez, No. 15-1307, 2017 WL 1137016, at *5 (1st Cir. March

17, 2017) (affirming a district court’s refusal to depart when

the district court found the defendant would receive adequate

treatment     while       in     custody).                Rittall    complains        that     the

district     court    held       her        to    these     same    high    standards        while

considering       whether        to    vary,       which,     in    her     view,     shows    the

district court treated the Guidelines as mandatory.

      We do not read the record the same way Rittall does.                                   Where

she   sees    the      district             court      treating       the       Guidelines      as

mandatory, we see the district court recognizing its authority

to vary under 18 U.S.C. § 3553(a) and simply refusing to do so.

The district court started with the “guideline sentence range of

63 to 78 months, which is advisory.”                               It then turned to the

factors set forth in 18 U.S.C. § 3553(a), including Rittall’s

serious health concerns.                In our view, the essence of Rittall’s

complaint     is     that      the      district          court     “attached        too    little

weight” to her health concerns, but “deciding how much weight

should be given to particular factors in a specific case is,

within    broad      limits,          the    core      functioning         of    a    sentencing

court.”      United States v. Maguire, 752 F.3d 1, 7 (1st Cir.

                                                 - 14 -
2014).      Rittall      cannot   seriously           complain     that    the   district

court     did    not     carefully   consider           her    health       issues—those

problems took center stage in her seven pre-sentencing hearings

and at the sentencing hearing itself.                         And in the end, the

district       court   decided    that    her     medical     issues       put   downward

pressure on her sentence to the low end of the Guidelines, but

no lower.       The district court was well within its discretion to

decide that the other 3553(a) factors—primarily the nature of

the crime, the history and characteristics of the defendant, the

need     for     restitution,      and     the        need    to     afford      adequate

deterrence—outweighed any downward pressure her unusual health

issues presented, particularly after finding that the BOP could

adequately       treat   her.      The    district        court,     aware       that    the

Guidelines were not mandatory, reasonably declined to vary below

them and did not commit plain procedural error, or, for that

matter,    any     error    at    all.          See    Maguire,      752     F.3d   at     7

(“[D]iscretionary         refusals   to     vary        or    depart       are   open     to

reasonableness review in accordance with an abuse of discretion

standard.”).

                                           C.

       Rittall’s third point of error is that the district court

imposed a substantively unreasonable sentence when it refused to

vary downward from the Guidelines range.                         She asserts this is

“one of the rare cases in which a sentence imposed within the

                                         - 15 -
Guidelines range is substantively unreasonable” because (1) the

Guidelines range did not take into account her physical and

mental    conditions,    including     her    long   battle    with    Anorexia

Nervosa and the host of other health problems she has faced;

(2) the amount of intended and actual loss, while not nominal,

was also not exorbitant and the Guidelines fully accounted for

that loss; (3) several of her previous convictions that placed

her in a category V criminal history were relatively minor, such

as operating an unregistered vehicle, operating with a suspended

license, and negotiating a worthless instrument and theft with

loss amounts of less than $7,000; and (4) she pleaded guilty to

the Information, saving the government from presenting the case

to a grand jury or a jury, yet the district court did not take

that into account and instead disqualified her from a reduction

because    she   stole   less   than   $5    of   melatonin    while   she   was

released pending sentencing.

        Because of an open question in this Circuit on the standard

of review, the parties disagree as to whether we review for

plain error or abuse of discretion, but as in Ruiz-Huertas,

“[w]e need not resolve this apparent anomaly today” because even

under    the   more   favorable   abuse      of   discretion   standard,     the

outcome is the same.       792 F.3d at 228.          We discern no abuse of

discretion, let alone plain error.            The district court carefully

considered and balanced a host of competing sentencing factors,

                                   - 16 -
and   it   explained       its     rationale      on    its     way   to     reaching    a

defensible result.             The district court started with the advisory

guideline range of 63 to 78 months.                    It then outlined Rittall’s

history     and      characteristics,            concluding        that      her   prior

convictions “reflect a very strong streak of dishonesty” and

noting that jail has not deterred her from committing additional

crimes.      Next,       the    district    court      turned    to   the    nature    and

circumstances       of    the     offense    and      emphasized      that    Rittall’s

scheme was “quite elaborate,” involving over two dozen people

over six years.           The district court also carefully considered

Rittall’s health concerns and concluded that, although serious,

the BOP could address those concerns at FMC Carswell.                          Finally,

the district court noted the victims’ reactions to Rittall’s

offense and the need to deter similar behavior.                            The district

court    concluded       that     Rittall    merited      a     significant     term    of

imprisonment, one that, but for her mental and physical issues,

would be at the high end of the Guidelines range.                            Because of

her health concerns, the district court imposed a sentence at

the low end of that range.                  This is a defensible result and

within the range of reasonable sentences.                        The district court

did not impose a substantively unreasonable sentence.

                                            D.

        Rittall’s    final       complaint       is    that     the   district     court

imposed a sentence exceeding the statutory maximum on Count 1.

                                        - 17 -
The district court sentenced Rittall to 63 months’ imprisonment

on both Count 1 and Count 2, to run concurrently, even though

Count 1 had a statutory maximum of five years’ (60 months’)

imprisonment.     Rittall did not object before the district court,

and thus, we review for plain error.

        In United States v. Almonte-Nunez, 771 F.3d 84 (1st Cir.

2014),    we   faced   an   almost   identical   situation:    the   district

court sentenced the defendant to a 150-month concurrent sentence

on two counts that had been grouped together, despite the 120-

month statutory maximum on one of the counts.                That error was

clear    and   obvious,     as   “Guideline   calculations    simply   cannot

usurp a maximum level of imprisonment established by Congress.”

Id. at 92.      Even though fixing the above-maximum sentence would

not affect the defendant’s ultimate sentence, we explained that,

“under normal circumstances, our discretion should be exercised

in favor of trimming back an excessive sentence.”             Id.

        To begin, in an appropriate case, leaving intact a
        sentence that exceeds a congressionally mandated limit
        may sully the public’s perception of the fairness of
        the proceeding.      That perception, in turn, may
        threaten respect for the courts and may impair their
        reputation.      From   the   defendant’s  standpoint,
        collateral consequences may arise as a result of an
        above-the-maximum sentence imposed on a particular
        count.   The existence and extent of these collateral
        consequences are notoriously difficult to predict, but
        they have the potential to harm the defendant in a
        myriad of ways.    It strikes us as both unwise and
        unfair to place the risk of such harm on the defendant
        where, as here, the excessive sentence is easy to
        correct.    In the last analysis, correcting such an

                                     - 18 -
     error will rarely tax judicial resources and may
     (depending on what an uncertain future brings) provide
     some small benefit to the defendant. When (as in this
     case) there are no countervailing circumstances, we
     believe that the interests of justice ordinarily will
     tip the scales in favor of relief.

Id. (citations omitted).

     Following the approach in Almonte-Nunez, we will remand for

the district court to enter a modified sentence in accordance

with the statutory maximum of 60 months’ imprisonment on Count

1.

                                   III.

     For the reasons stated above, we order the district court

to enter a modified sentence on Count 1 consistent with the

statutory   maximum   of   60   months’    imprisonment.   We   otherwise

affirm.




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