                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3536
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Kenneth Edward Godat

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                              Submitted: April 19, 2012
                                Filed: August 8, 2012
                                   ____________

Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       Kenneth Edward Godat waived indictment and was charged by information
with structuring financial transactions for the purpose of evading currency-transaction
reporting requirements in violation of 31 U.S.C. § 5324(a)(3) and with evading taxes
in violation of 26 U.S.C. § 7201. Both charges stem from Godat’s having
fraudulently taken money from a victim whom he convinced to invest in an entirely
fictional business that he claimed to operate. Godat had the victim withdraw cash in
amounts just small enough to circumvent statutory reporting requirements, and he did
not report as taxable income the money he was receiving from her and using for his
own benefit.

      Godat pled guilty to both charges pursuant to a negotiated plea agreement in
which the Government agreed to recommend a sentence at the low end of the
applicable guidelines range and to recommend that his sentences on the two counts
run concurrently. The district court,1 varying upwards from Godat’s guidelines range,
sentenced him to sixty months’ imprisonment for his illegal structuring charge and
ten months’ imprisonment for his tax evasion charge and ordered that the sentences
run consecutively. The district court also ordered restitution in the full amount of the
underlying fraud.

       Godat appeals his sentence, arguing that the district court erred in considering
factual allegations in a confidential sentencing recommendation prepared by the
probation office, that Federal Rule of Criminal Procedure 32(e)(3) and Western
District of Missouri Local Rule 99.8(h), which allow for the confidentiality of a
probation officer’s sentencing recommendation, violate the Fifth and Sixth
Amendments, and that the district court violated his Fifth Amendment right to remain
silent when it criticized his attorney for advising him not to cooperate with the
probation office in preparing his presentence investigation report.

      Godat first argues that the district court violated his Fifth Amendment right to
due process and his Sixth Amendment right to confrontation by considering and
relying on factual allegations contained in a confidential sentencing recommendation
prepared by the probation office that Godat was not allowed to see or challenge. The
Due Process Clause of the Fifth Amendment is implicated when a sentencing court


      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

                                          -2-
considers evidence that the defendant “had no meaningful opportunity to rebut,” and
only then when that consideration results in “a sentence based on material
misinformation.” Kohley v. United States, 784 F.2d 332, 334 (8th Cir. 1986) (per
curiam). The Confrontation Clause of the Sixth Amendment is implicated when
consideration by the sentencing court of evidence that the defendant was not given
an opportunity to rebut results in a defendant being “sentenced on the basis of
‘misinformation of constitutional magnitude.’” United States v. Wise, 976 F.2d 393,
402 (8th Cir. 1992) (en banc) (quoting United States v. Tucker, 404 U.S. 443, 447
(1972)).

       At sentencing, the district court questioned Godat about how he had disposed
of the money he had fraudulently obtained, asking specifically about Godat’s use of
some of the money to pay child support, to buy a motorcycle, and to buy two sports
cars. The district court stated that it was “curious” whether Godat could surrender
such assets “to come up with any money to pay” the victim and noted that its
knowledge of these items came from the confidential sentencing recommendation
prepared by the probation office. The information in question was not in the
presentence investigation report.

      Godat’s due process and confrontation arguments fail because the district court
did not consider any undisclosed factual allegations in determining Godat’s sentence.
When challenged on the issue of reliance on the information contained in the
confidential recommendation, the district court explicitly stated that it was not relying
on any facts from the confidential recommendation in reaching its sentencing
decision:

      No. No. I’m relying on everything I took out of this presentence
      investigation. I worked this morning citing every paragraph where he
      stole an additional $64,000. That’s just in his criminal history, but it
      gives me a history of what he’s done for the last fifteen years. And I’m
      saying the guidelines are inadequate to take that into consideration.

                                          -3-
The district court further explained that its references at sentencing to information in
the confidential recommendation were solely for the purpose of “looking for any way
to recover any of this [money] . . . to see if there is any way at all to get any recovery
for this poor woman he fleeced.” The record is thus unambiguous that Godat’s
sentence did not result from the consideration of facts from the confidential
recommendation. Even if the district court had considered these facts in determining
Godat’s sentence, Godat’s claims still would require that the district court considered
some piece of misinformation, and the allegations regarding Godat’s use of the
victim’s funds were disclosed to him at sentencing, where he confirmed their
accuracy. For these reasons, we reject Godat’s Fifth and Sixth Amendment claims.

       Furthermore, because the application of Federal Rule of Criminal Procedure
32(e)(3) and Western District of Missouri Local Rule 99.8(h) had no effect on
Godat’s sentence or substantial rights, we decline to reach his challenge to the facial
constitutionality of these rules. See Fed. R. Crim. P. 52(a).

       Godat next argues that the district court violated his Fifth Amendment right to
remain silent when it criticized his attorney for advising him not to cooperate with the
probation office in preparing his presentence investigation report. After the district
court pronounced Godat’s sentence, his counsel objected again to the district court’s
alleged reliance on information from the confidential sentencing recommendation.
In response to that objection, the district court stated:

      [P]art of the problem there, the problem that we have getting the facts
      before the Court is because you and other defense attorneys advise your
      client not to discuss the offense, not to discuss your personal history, not
      to discuss your financial history, and not to discuss anything else. So
      you put us in a bind and now you stand up here and object that you don’t
      have all the information.
      ...



                                           -4-
      [P]art of representing your clients to the best of your ability is getting
      them the best possibility to get the correct information before the
      probation office, and you don’t do that . . . [a]nd I question whether
      that’s the best way to help your client . . . .

Godat argues that this statement shows that the district court held his silence against
him, in violation of his Fifth Amendment rights. Because Godat raises this argument
for the first time on appeal, we review solely for plain error, and we will reverse only
if Godat can show that the district court committed a clear and obvious error that
affected his substantial rights and seriously affected the fairness, integrity, or public
reputation of the judicial process. See United States v. Ali, 616 F.3d 745, 751-52 (8th
Cir. 2010).

       Godat cannot show that his substantial rights were affected by the district
court’s view of his lack of cooperation. As discussed above, the district court had
already announced Godat’s sentence and provided in detail its reasons for the chosen
sentence, not alluding in any way to Godat’s lack of cooperation with the probation
office’s investigation. In light of this record, we see no plain error that might require
reversal of Godat’s sentence.

      For the foregoing reasons, we affirm Godat’s sentence.2
                      ______________________________




      2
       Although the Government moved to dismiss Godat’s appeal on the basis of the
appeal waiver in his plea agreement, we have “elect[ed] to bypass the possibility of
a waiver and address the appeal on the merits.” United States v. Rickert, --- F.3d ---,
2012 WL 2923992, at *3 n.2 (8th Cir. July 19, 2012).

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