US v. Rittall

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter, Associate Supreme Court Justice* and Bobby R. Baldock, Appellate Judge**. Unpublished. *The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the Unted States, sitting by designation. **Of the Tenth Circuit, sitting by designation. [15-2475]

Case: 15-2475

Document: 00117139704

Page: 1

Date Filed: 04/07/2017

Entry ID: 6082507

Not for Publication in West’s Federal Reporter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.

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BALDOCK, Circuit Judge.

Date Filed: 04/07/2017

Entry ID: 6082507

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.
medical
court

issues,
instead

primarily
imposed

a

But because of Rittall’s serious

her

Anorexia

sentence

Nervosa,

at

the

the

district

low-end

of

the

Guidelines, resulting in 63 months’ imprisonment on both counts
to be served concurrently.
complains

that

substantively

the

In this sentencing appeal, Rittall

sentence

unreasonable.

is

After

both

procedurally

careful

consideration,

and
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
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son,

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boyfriend,

Page: 3

neighbors,

and

Date Filed: 04/07/2017

individuals

she

Entry ID: 6082507

met

through

Alcoholics Anonymous and drug treatment programs she attended.
The returns included false claims about income, dependents, and
the

Earned

$435,298,

Income
and

Tax

the

Credit.

federal

The

claimed

government

and

refunds

Maine

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

totaled

paid

out

a

The IRS paid

refunds into bank accounts Rittall designated and could access.
In

August

Information

2013,

against

the

government

Rittall.

Count

filed

1

a

charged

two-count

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,

statutory maximum of 15 years’ imprisonment.

subject

to

a

Rittall waived

indictment and pleaded guilty to the Information.
Rittall’s
sentencing.
14

years

serious

health

problems

caused

delays

in

Rittall had developed Anorexia Nervosa when she was

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
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disease, a genetic condition causing benign and malignant tumors
to develop throughout her body.
presentence

conferences

and

The district court held seven

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.
feeding

tube

stomach

to

required
her

upper

attention
bowel;

after

a

it

wound

A

migrated

from

her

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.
conference,

the

district

court

At the seventh presentence

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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who

Texas,

Page: 5

the

Rittall’s

testified

numerous

to

medical

Date Filed: 04/07/2017

facility’s

conditions

Entry ID: 6082507

ability

through

to

treat

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

defendant,

on

(2)

(1)

the

the

history

nature

and

and

characteristics

circumstances

of

the

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

court

history

and

characteristics,

the

district

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.”
jail,

she

crimes.

Despite having spent a fair amount of time in

had
Next,

not
as

been
to

deterred
the

nature

from
and

committing

additional

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
medication

those
or

conditions
changes

in

were
diet

mostly
or

the

treatable

“with

defendant’s

own

cooperation,” rendering them less serious and less influential
over

the

district

sentence.
court

As

to

concluded

Rittall’s
that

Anorexia

Rittall

Nervosa,

“has

the

deliberately

attempted to manipulate her sentence through her manipulation of
her physicians, and it’s unfortunately consistent with her track
record

in

life.”

The

negative

experience

it

different

defendant

with

district
had

with

Anorexia,

court

mentioned

FMC

Carswell

but

the

court

a

previous

regarding

a

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

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

States

v.

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

explain

clearly

the

chosen

erroneous

facts,

or

sentence—including
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failing
an

to

adequately

explanation

for

any

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deviation from the Guidelines range.”
552

U.S.

38,

reasonableness

51

(2007).

for

abuse

We

Entry ID: 6082507

Gall v. United States,
review

procedural

discretion,

of

generally

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.
Cir. 2009).

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

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

whole,

decision

justified

the

that

the

sentence.”
- 8 -

§ 3553(a)
Gall,

552

factors,
U.S.

at

on

the

59–60.

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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.
Reform

Act

instructs

sentencing

courts

to

The Sentencing

“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.”
(2011).
the

But a sentencing court does not err by discussing with

defendant

prison

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

or

programs.”

the

“the

opportunities

benefits

Id. at 334.

of

for

specific

rehabilitation
treatment

or

within
training

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

needs—to select the prison term.

her

medical

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

decision

to

an

impose

important

factor

a

sentence

prison

in

the

was

district

that

she

court’s
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.
turning

to

Rittall’s

health

concerns,

the

district

Before
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

Rittall’s “extremely serious” crime.

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other

circumstances

of

The only issue putting

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downward pressure on the sentence was Rittall’s serious medical
issues and the BOP’s ability to treat her, but the district
court
care.

concluded

that

FMC

Carswell

could

provide

appropriate

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”:

extensive criminal history.
of Tapia error.”
Rittall’s

Rittall’s

761 F.3d at 175.

serious

crime

and

“There is no hint

Id. at 176.
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.”

Entry ID: 6082507

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.
sentence

below

the

Instead, the district court refused to
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

district
address

own

versus

court’s
her

many

while

concern
health

in
that

inpatient
the

BOP

concerns.

care
might

related
not

Ultimately,

be
the

to

the

able

to

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
procedural

next
error

asserts
by

the

district

effectively

court

treating

the

committed

plain

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).
acknowledges

that

the

district

court

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called

the

She

Guidelines

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Document: 00117139704

“advisory,”

but

demonstrate
Guidelines

she

the
as

Page: 13

points

to

district

mandatory

Date Filed: 04/07/2017

the

court

when

it

following

discussion

to

treated

the

nonetheless
came

to

Entry ID: 6082507

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.
the

standards

Court

has

for

recently

departures

under

reaffirmed

that

§§ 5H1.3

and

“[d]epartures

Under

5H1.4,

this

based

upon

health problems are discouraged and can only be justified if the
medical problems are present in unusual kind or degree.”
States

v.

Herman,

848

F.3d

55,

59

(1st

Cir.

2017)

United
(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
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threatened or shortened by virtue of being incarcerated’ or that
‘the Bureau of Prisons would be unable to adequately accommodate
[her] medical needs.’”
LeBlanc,

24

F.3d

at

Id. (alteration in original) (quoting
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
district

while
court

considering

in

custody).

held

whether

her
to

to

Rittall

these

vary,

same

which,

complains
high

in

that

standards

her

view,

the
while

shows

the

district court treated the Guidelines as mandatory.
We do not read the record the same way Rittall does.
she

sees

the

district

court

treating

the

Where

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.
complaint

is

that

the

In our view, the essence of Rittall’s
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
court.”

broad

limits,

the

core

functioning

of

a

sentencing

United States v. Maguire, 752 F.3d 1, 7 (1st Cir.
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2014).

Rittall

court

did

not

cannot

Page: 15

Date Filed: 04/07/2017

seriously

carefully

complain

consider

her

that

health

the

Entry ID: 6082507

district

issues—those

problems took center stage in her seven pre-sentencing hearings
and at the sentencing hearing itself.
district

court

decided

that

her

And in the end, the

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

(“[D]iscretionary

at

all.

refusals

See

to

vary

Maguire,
or

752

depart

F.3d
are

at

open

7
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
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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

outcome is the same.

abuse

of

discretion

792 F.3d at 228.

discretion, let alone plain error.

standard,

the

We discern no abuse of

The district court carefully

considered and balanced a host of competing sentencing factors,
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Case: 15-2475

and

Document: 00117139704

it

explained

its

defensible result.

Page: 17

rationale

Date Filed: 04/07/2017

on

and

way

to

reaching

a

The district court started with the advisory

guideline range of 63 to 78 months.
history

its

Entry ID: 6082507

characteristics,

It then outlined Rittall’s

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,

circumstances

the

of

district

the

court

offense

and

turned

to

the

emphasized

nature

that

and

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.
court

concluded

that

Rittall

merited

a

The district

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.
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Case: 15-2475

Document: 00117139704

Page: 18

Date Filed: 04/07/2017

Entry ID: 6082507

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 120month statutory maximum on one of the counts.
clear

and

obvious,

as

“Guideline

calculations

That error was
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
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Case: 15-2475

Document: 00117139704

Page: 19

Date Filed: 04/07/2017

Entry ID: 6082507

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’

affirm.

- 19 -

imprisonment.

We

otherwise