                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1262
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Sharon Otey, also known as Sharon     *
Nephilim,                             *       [UNPUBLISHED]
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: November 16, 2007
                                Filed: January 11, 2008
                                 ___________

Before MELLOY, BRIGHT, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Sharon Otey raises one issue on appeal: whether the district court erred in
determining the loss amount attributable to her. We conclude that the Government
failed to introduce evidence that would support the loss amount found by the district
court. We therefore vacate Otey’s sentence and remand for re-sentencing based on
the existing record.
                                            I

       On August 18, 2006, Otey pled guilty to charges of health care fraud (in
violation of 18 U.S.C. §§ 1347 and 2) and misuse of a social security number (in
violation of 42 U.S.C. § 408(A) and 18 U.S.C. § 2). As part of her plea agreement,
she stipulated to a minimum loss amount of $46,592; the Government, however,
reserved the right to establish a loss amount not to exceed $400,000. At the
sentencing hearing, the district court, over Otey’s objections, determined the loss
amount was $313,196.75. Based on this loss amount, her substantive offenses and
criminal history, the advisory Guidelines range was forty-one to fifty-one months.
The district court sentenced Otey to forty-four months (three years and eight months)
and $313,196.75 in restitution. Otey argues that the district court incorrectly
calculated the proper Guidelines range because it was based, in part, on a loss amount
that lacked a sufficient evidentiary basis.1

                                           II

       We review loss calculations for “clear error and reverse only if ‘we are left with
a definite and firm conviction that the district court erred.’” United States v. Liveoak,
377 F.3d 859, 866 (8th Cir. 2004) (citation omitted). The district court must “make
a reasonable estimate of the loss.” U.S.S.G. § 2B1.1. When the defendant objects to
the amount of loss, the Government must prove the amount of loss by a preponderance
of the evidence. See United States v. Sample, 213 F.3d 1029, 1034 (8th Cir. 2000).



      1
        Otey argues that based on the Government’s evidence the correct Guidelines
range was thirty-three to forty-one months. Although the Federal Sentencing
Guidelines are now advisory, district courts must still properly calculate the correct
Guidelines range before proceeding forward with sentencing. See Gall v. United
States, 532 U.S. ___, No. 06-7949 (Dec. 10, 2007) (slip op. at 11). As we write solely
for the parties, we dispense with a further recitation of the facts or procedural history.

                                           -2-
Loss itemized in a pre-sentence report is not evidence. See United States v. Erhart,
415 F.3d 965, 971 (8th Cir. 2005).

                                          III

       Otey concedes that the Government submitted evidence to establish a loss
amount of $87,626. She maintains, however, that the Government failed to submit
sufficient evidence establishing that the Missouri Medicaid Program (“Missouri
Medicaid”) incurred a loss of $225,570.75 for reimbursing claims made by Complete
Care of American and International (“Complete Care”) while Otey was employed
there as a registered nurse. After reviewing the record, we agree. Although there is
some evidence regarding Missouri Medicaid’s losses at Complete Care, the amount
it establishes – $2,775– pales in comparison to the $225,570.75 found by the district
court and claimed by the Government.

       This evidentiary deficiency aside, the Government insists that Otey did not
object to the accuracy of the loss amount, but only whether it was “attributable to her”,
i.e., whether she was legally responsible for whatever amount the Government
alleged. The record does not support the Government’s position. First, Otey filed
objections to the pre-sentence report contesting whether the total loss amount was
attributable to her. Second, Otey objected to the Government’s proposed loss amount
during the sentencing hearing. Accordingly, we reject the Government’s narrow
reading of Otey’s use of “attributable” in her filed objections to the pre-sentence
report. Cf. United States v. Sorrells, 432 F.3d 836, 838 (8th Cir. 2005) (concluding
that confusing factual objections to information contained in a pre-sentence report was
sufficient to place the Government and district court on notice that defendant was
challenging the factual allegations in the pre-sentence report).




                                          -3-
                                           IV

       We have the option of remanding for either a full re-sentencing or one based
solely on the existing record. Compare United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992) (a remand without limiting instructions permits the district court to
“hear any relevant evidence on [an] issue that it could have heard at the first hearing”)
(internal citation and parentheticals omitted) with United States v. Poor Bear, 359 F.3d
1038, 1043-44 (8th Cir. 2004) (remanding to re-sentence defendant on the existing
record because the government violated clearly settled legal principles at the first
hearing). In this case, we believe the Government had sufficient notice of Otey’s
factual objection to the loss amount that it should not be afforded a second opportunity
to present additional evidence on this issue. Accordingly, we vacate Otey’s sentence
and remand for re-sentencing based on the existing record.
                         ______________________________




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