                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                Nos. 14-3744 and 14-3777
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                 RONZELL MITCHELL,
                                          Appellant No. 14-3744

                                STEPHANIE MITCHELL,
                                           Appellant No. 14-3777
                                    ____________

                            On Appeal from the District Court
                              for the District of New Jersey
                              (D.C. No.1-13-cr-00538-001)
                              (D.C. No. 1-13-cr-00537-001)
                    District Court Judge: Honorable Renee M. Bumb
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 19, 2016

              Before: FISHER, CHAGARES and COWEN, Circuit Judges.

                                (Filed: January 25, 2016)
                                      ____________

                                        OPINION*
                                      ____________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

       Ronzell and Stephanie Mitchell each pleaded guilty, pursuant to plea agreements,

and were sentenced based on a one-count information charging them with conspiracy to

commit mail fraud in violation of 18 U.S.C. § 1349. The Mitchells separately filed pro se

appeals of their sentences, which were consolidated.1 They appeal their sentences and

assert that the Government and the District Court violated their due process rights. We

will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       The Mitchells’ convictions stem from a scheme to defraud the Department of

Education (“DOE”). This scheme was implemented by the Mitchells and others who

enrolled fictitious persons in online education programs in order to obtain federal student

loans. Once the student loans were secured, the enrollee would withdraw and a member

of the scheme would collect the loan refund from a specified address. The Mitchells were

connected to two such addresses.


       1
        The appellants are now represented by counsel and the pro se notices of appeals
have been withdrawn.
                                           2
       After receiving proposed plea agreements from the Government, the Mitchells

participated in proffer sessions and entered proffer agreements. Subsequently, the

Mitchells signed the plea agreements. The plea agreements included a stipulation that the

Mitchells were subject to a total offense level of 16 under the United States Sentencing

Guidelines based on information and evidence obtained as of the date of the agreements

(“the stipulation”). The stipulation did not include an enhancement for the number of

victims. The Mitchells entered guilty pleas shortly after signing the plea agreements.

       After the pleas, an initial pre-sentence report (“PSR”) was completed by a

probation officer. Based on proffered information provided by the Government’s case

agent, the PSR included a victim total of 361, requiring a six-level enhancement. A

revised PSR included the same calculation. All parties objected to the victim calculation,

and the Mitchells moved for a hearing based on their objections.

       Thereafter, a second revised PSR was completed, which eliminated the proffered

information. The second revised PSR reduced the number of victims to 23, requiring a

two-level enhancement for 10 or more victims under § 2B1.1(b)(2) of the Guidelines.2

After the second revised PSR was filed, the Government responded in opposition to the

Mitchells’ motions requesting a hearing. The Mitchells also filed sentencing memoranda.

Each party cited United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009), a case that

       2
         Section 2B1.1(b)(2) requires a two-level enhancement for theft offenses that
involve 10 or more victims. U.S. Sentencing Guidelines Manual § 2B1.1(b)(2) (U.S.
Sentencing Comm’n 2014). “Victim” includes any individual whose means of
identification was used unlawfully without authority.” Id. at cmt. n.4(E).
                                             3
defined “victims” as those persons who had suffered an “actual” financial loss. However,

the Government stated in its brief that Kennedy’s definition is no longer applicable.3 The

Government thus confirmed that the second revised PSR was consistent with the facts but

argued that an enhancement was not applicable based on the stipulation.

       The District Court granted the Mitchells’ motions for a hearing and ordered the

Government to provide a witness to testify about the number of victims. At the hearing,

the Government produced Debbie Mayer, a DOE representative. The Government

elicited testimony from Mayer that at the time of the Mitchells’ proffers, the Government

could not prove with specificity that there were 10 or more victims. The District Court

then questioned Mayer, who testified that the two addresses connected to the Mitchells

encompassed 23 enrollees. Mayer relied on a spreadsheet that was completed prior to the

proffers. Based on this evidence, the District Court found that the enhancement applied.

       After the parties submitted another set of sentencing memoranda, the District

Court held sentencing hearings. The District Court found, in pertinent part, that: (1) the

pre-proffer spreadsheet included 10 or more victims but that the Government did not

enter its agreements in bad faith; (2) the calculation of the number of victims was not

based on proffered information; and (3) a two-level enhancement thus applied and the

Mitchells were subject to a higher guideline range. The District Court then granted a two-

level reduction based on the Government’s § 5K1.1 motions, recognizing the Mitchells’

       The definition of “victim” was amended and does not require actual loss.
       3

U.S.S.G. § 2B1.1(b)(2), cmt. n.4(E).
                                         4
cooperation. Based on these findings, Stephanie was sentenced to prison for 12 months

and 1 day (a variance), and Ronzell was sentenced to 28 months’ incarceration.

                                            II.

      The District Court had jurisdiction over this criminal action under 18 U.S.C.

§ 3231. We have appellate jurisdiction over the Mitchells’ challenges to their sentences

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the District Court’s factual

determinations regarding the proffer agreements for clear error and exercise plenary

review over the Mitchells’ assertions that the Government breached the plea agreements.4

                                            III.

      In this appeal, the Mitchells argue that two entities violated their due process

rights (A) the Government and (B) the District Court. We will discuss each in turn.

                                            A.

      The Mitchells argue that the Government either entered the proffer agreements in

bad faith or violated the plea agreements it made with them.

      1.     Entering the Proffer Agreements

      Section 1B1.8 of the Guidelines restricts the use of self-incriminating information

provided to the Government pursuant to a cooperation or proffer agreement in

determining the applicable Guidelines range. However, this restriction does not extend to



      4
        United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc); United States
v. Larkin, 629 F.3d 177, 185 (3d Cir. 2010).
                                             5
information known to the Government prior to entering the agreement.5 The District

Court found that the spreadsheet used by Mayer, the Government’s witness, was

available prior to the Mitchells’ proffers. Having reviewed the record, including Mayer’s

testimony stating the same, this Court finds no error in that determination.

       The Mitchells also cite United States v. Taylor, 277 F.3d 721 (5th Cir. 2001), and

argue that the Government has failed to meet its burden of proving that the information in

the PSR was not based on protected information. The Government met this burden as it

provided a sworn witness, Mayer, who testified that the information in the PSR was

derived from the pre-proffer spreadsheet.6 Accordingly, the District Court did not err.

       Finally, Mayer indicated that at the time of the proffers the Government could not

prove with specificity that the Mitchells were connected to 10 or more victims. The

Government also acknowledged this throughout the sentencing proceedings. The District

Court’s finding that the Government did not act in bad faith was thus not clear error.

       2.     The Government’s Post-Proffer Conduct

       Allegations that a plea agreement was violated are analyzed under contract law

standards.7 This analysis requires this Court to determine “whether the government’s

conduct falls within the range of expectations reasonably understood by” the Mitchells

       5
         United States v. Baird, 218 F.3d 221, 231 (3d Cir. 2000). This restriction applies
both to government attorneys and probation officers who prepare PSRs. Id. at 228.
       6
         Compare with, Taylor, 277 F.3d at 726-27 (finding that the Government failed to
show that the PSR did not contain proffered information because the Government did not
provide any sworn testimony to support its assertions).
       7
         Larkin, 629 F.3d at 186.
                                             6
when they entered the agreements.8 We proceed by (1) considering the pertinent content

of the agreements and the Government’s alleged improper conduct; (2) determining

whether that conduct violated the Government’s obligations; and (3) applying an

appropriate remedy if a violation did occur.9

       The proffer agreements stated that the Mitchells’ proffered statements could not be

used for purposes of sentencing, subject to certain exceptions. One of those exceptions

was that the Government could disclose information to the probation officer or to the

District Court to determine where the Mitchells should fall within their applicable

Guidelines ranges. The agreements also included an exception for derivative

investigations and evidence gained from those investigations. However, the parties

stipulated in the plea agreements that neither party would seek a departure or variance

from a total offense level of 16. On the other hand, those agreements stated that the

District Court was not bound by the stipulation.

       The parties agree that the Government implicitly agreed to not seek a § 2B1.1

enhancement. The Mitchells contest, however, the Government’s case agent’s provision

of proffered information to the probation officer. Further, they assert that the Government

should have told the District Court that it could not seek out or create new evidence to

support an enhancement—including providing a witness. They also argue that the

Government should not have confirmed that the PSR was factually correct.

       8
           Id.
       9
           Id.
                                                7
       The Government did not violate the Mitchells’ agreements. The proffered

information provided by the case agent was removed in the second revised PSR. The

Mitchells were sentenced based on that PSR. Further, even when the Government is

restricted from arguing for an enhancement, it is still obligated to pass along unprotected

information to the probation officer.10 The Government fulfilled that obligation. The

Mitchells could not have reasonably understood their agreements to require less.

       We have also recognized that the Government does not have to endorse a plea

agreement’s terms enthusiastically but must strictly adhere to the terms of the stricken

bargain.11 This is coupled with the requirement that the Government (1) respond to court

orders, even if doing so requires an assessment of the law that may not support a

stipulation; but also (2) consistently argue for a sentence within the stipulation.12 Here,

the Government underwent a limited examination of Mayer that merely verified its

assertion that it was unable to prove with specificity, at the time of the proffers, that there

were 10 or more victims. The Government also consistently argued that the stipulation

should apply and an enhancement should not. Finally, the Government was required to

provide a correct definition of “victim” under applicable law. Thus, the Government’s

actions were what would be expected with a reasonable understanding of the agreements.




       10
          Id. at 188.
       11
          United States v. Davenport, 775 F.3d 605, 609 (3d Cir. 2015)
       12
          Larkin, 629 F.3d at 189, 192.
                                            8
                                             B.

       The Mitchells argue that the District Court violated their due process rights by

conducting a searching inquiry into the stipulation’s accuracy. “[A] sentencing court is

not bound by factual stipulations in a plea agreement and has discretion to make factual

findings based on other relevant information.”13 Thus, if a PSR recommendation differs

from a stipulation, the court may investigate and call witnesses to support its Guidelines

findings where it is concerned about a stipulation’s accuracy.14

       The District Court was allowed to request further information from the

Government because of the contrast between the stipulation and the PSR’s enhancement.

The District Court noted its concerns with the stipulation, allowed briefing by the parties,

and held a hearing at the Mitchells’ request. The District Court ordered the Government

to provide a witness at that hearing to ensure a correct Guidelines calculation. The

Mitchells also acknowledged in the plea agreements, and at their plea hearings, that the

District Court was not bound by the stipulation. These actions allowed the District Court

to fulfill its duty at step one of the sentencing process.15 Consequently, the Mitchells’ due

process rights were not violated.


       13
          United States v. Maurer, 639 F.3d 72, 81 (3d Cir. 2011) (internal quotation
marks and citation omitted).
       14
          United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004); see also Larkin, 629
F.3d at 189-91 (recognizing the tension created when a district court requests information
from the Government because of differences between the PSR and a stipulation).
       15
          United States v. Kluger, 722 F.3d 549, 556 (3d Cir. 2013) (step one requires that
the District Court correctly calculate the advisory Guidelines range).
                                              9
                                     IV.

For the reasons set forth above, we will affirm the order of the District Court.




                                      10
