               Case: 12-16471     Date Filed: 10/21/2013    Page: 1 of 4


                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 12-16471
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 1:12-cr-20330-MGC-7


UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                        versus

RAUL A. FERRAO,

                                                                 Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (October 21, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Raul Ferrao appeals his 60-month sentence after pleading guilty to one count

of conspiring to traffic in and use unauthorized access devices (i.e., credit cards), in
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violation of 18 U.S.C. § 1029(b)(2). He contends, in part, that the district court

erred in calculating his applicable guideline range because it increased his offense

level by 24 levels based on two specific offense characteristics—amount of loss

and number of victims, see United States Sentencing Guidelines (USSG)

§§ 2B1.1(b)(1)(J) and (b)(2)(C)—in the absence of supporting evidence or

individualized findings regarding the scope of his criminal activity. Because, as

the government concedes, the court’s findings regarding these enhancements

lacked evidentiary support, we vacate and remand for resentencing.

      “[O]nce a defendant objects to a fact contained in the [Presentence

Investigation Report (PSI)], the government bears the burden of proving that

disputed fact by a preponderance of the evidence.” United States v. Martinez, 584

F.3d 1022, 1027 (11th Cir. 2009). “[A]bsent a stipulation or agreement between

the parties, an attorney’s factual assertions at a sentencing hearing do not constitute

evidence that a district court can rely on.” United States v. Washington, 714 F.3d

1358, 1361 (11th Cir. 2013). Ultimately, “[i]t is the district court’s duty to ensure

that the Government carries this burden by presenting reliable and specific

evidence.” Martinez, 584 F.3d at 1027 (quotation marks omitted). And if a court

breaches this duty by imposing a sentencing enhancement without demanding that

the government present sufficient evidence to support a disputed, underlying fact,

we generally will vacate and remand. See id. at 1029; see also Washington, 714


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F.3d at 1362–63 (vacating the defendant’s sentence because the district court

imposed a sentencing enhancement based on the government’s unsupported

representations).

      As the government concedes, the district court in this case erred in its fact

finding regarding the loss amount attributable to Ferrao and the number of victims

insofar as the findings lacked evidentiary support. Ferrao objected to the PSI’s

determination of the loss amount and number of victims—both before and during

sentencing—for lack of evidence. While at sentencing the government said it

would be “happy to provide the Court with all of the receipts” documenting the

“total extent of the fraud,” the district court never asked for such evidence and the

government never provided it. This, despite Ferrao’s objections. The court

ultimately relied on the government’s unsubstantiated representations, however,

and because we have expressly deemed that such representations are not evidence,

the court clearly erred in doing so. See Washington, 714 F.3d at 1361.

      We agree with the government’s concession that this error was not harmless.

Without the erroneous enhancements, Ferrao’s guideline range would have been

zero to six months in prison. With the enhancements, his applicable guideline

range was 135 to 168 months in prison, resulting in a 60 month guideline sentence

because Ferrao’s statutorily authorized maximum sentence was 60 months. See

USSG § 5G1.1(a); 18 U.S.C. §§ 1029(b)(2), (c)(1)(A)(i). We conclude that this


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discrepancy yields grave doubt that Ferrao’s sentence would have remained the

same without the error, warranting vacatur and remand. See United States v.

Pacchioli, 718 F.3d 1294, 1305 (11th Cir. 2013) (explaining that we will reverse

“if [the errors] have a ‘substantial influence’ on the outcome of a case or leave

‘grave doubt’ as to whether they affected the outcome of a case” (citation

omitted)).

      Finally, the 24-level enhancement for amount of loss and number of victims

under USSG §§ 2B1.1(b)(1)(J) and (b)(2)(c) is set aside and the case is remanded

for resentencing without that enhancement. See Washington, 714 F.3d at 1362

(“Nothing prevented the government—which was aware of [the defendant’s]

objection—from putting on evidence concerning the number of victims at the

sentencing hearing, and a party who bears the burden on a contested sentencing

issue will generally not get to try again on remand if its evidence is found to be

insufficient on appeal.”).

      VACATED AND REMANDED.




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