United States v. Ismail Shalash

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 20, 2018
• Docket: 17-6413
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0632n.06

Case No. 17-6413

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED UNITED STATES OF AMERICA, ) Dec 20, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ISMAIL SHALASH, ) KENTUCKY ) Defendant-Appellant. ) ) )

Before: SILER, MOORE, and ROGERS, Circuit Judges.

SILER, Circuit Judge. Ismail Shalash dealt heroin as part of a conspiracy in northern

Kentucky. He pleaded guilty, without a plea agreement, to conspiring to distribute heroin in

violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced him to 84 months’

imprisonment, slightly below the advisory Guidelines range. Shalash appeals his sentence,

claiming the district court erred by: (1) accepting the probation officer’s incorrect calculation of

his criminal history score; (2) holding Shalash accountable for 1.5 kilograms of heroin he

voluntarily surrendered to Drug Enforcement Agency agents; and (3) relying on information in

Shalash’s competency evaluation. Because the government concedes that the district court plainly

erred in calculating Shalash’s criminal history score, we remand for resentencing on that issue. Case No. 17-6413, United States v. Shalash

But because the district court properly considered the heroin Shalash turned over and Shalash’s

competency evaluation, we affirm the district court on those issues.

Facts and Procedural History

Shalash obtained heroin from his dealer and then supplied it to Ryan Jacobs, another drug

dealer, as part of a drug conspiracy. The conspiracy ended when police arrested Jacobs in 2015.

Drug Enforcement Agency (“DEA”) agents interviewed Shalash the next day, and he admitted his

role in distributing the drugs. A week after his interview, Shalash voluntarily surrendered

1.5 kilograms of heroin to the DEA.

The district court granted Shalash’s motion for a competency evaluation. Upon

considering the report from a forensic psychologist, the district court concluded that Shalash was

competent for trial. Shalash pleaded guilty to Count II of the Superseding Indictment. His plea

did not address how much heroin he distributed.

The United States Probation Office prepared a Presentence Investigation Report (PSIR).

Such reports consider “relevant conduct” under United States Sentencing Guideline § 1B1.3 in

calculating a defendant’s base offense level. Shalash conceded that 148.1 grams of heroin he

obtained before October 2015 fell under the relevant conduct provision, but he maintained that the

1.5 kilograms he voluntarily turned over to the DEA on October 5, 2015 did not apply. He argued

that because he had signed a confidential-informant application, he was working for the DEA when

he turned in the drugs. Plus, Shalash argued, the additional heroin fell outside the temporal

boundaries of the conspiracy because he acquired the drugs from a different source after the

conspiracy ended. In short, according to Shalash, the district court could not view the additional

heroin as relevant conduct because after police arrested Jacobs (thus ending the conspiracy) and

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after his interview with the DEA, Shalash bought 1.5 additional kilos of heroin and then turned it

in.

The PSIR rejected Shalash’s position. It determined that Shalash possessed the

1.5 kilograms during the conspiracy, making it relevant conduct. The difference mattered: Had

the district court considered only the 148.1 grams of heroin that Shalash admitted were relevant,

his base offense level would have been 24. But offenses involving the distribution of one to three

kilograms of heroin increase the base offense level to 30. USSG § 2D1.1(c)(5). With an

acceptance of responsibility reduction under USSG § 3E1.1(a), Shalash’s total base offense level

was 27.

The PSIR assigned a total criminal history score of four. Under USSG ch. 5 pt. A, a

criminal history score of four establishes a criminal history category of III. The Probation Office

reached that score by assigning one point for each prior case for which Shalash had been sentenced

in state court. But in three of those cases, Shalash was sentenced on the same day: February 4,

2011. And under USSG § 4A1.2, sentences imposed on the same day are treated as a single

sentence when there is no intervening arrest. USSG §4A1.2(a)(2). No arrest separated at least

two of Shalash’s crimes. Shalash never objected to his criminal history score. He raises his

miscalculation argument for the first time on appeal.

With a criminal history category III and a base offense level of 27, Shalash faced a

Guidelines range of 87 to 108 months. The district court sentenced Shalash to 84 months’

imprisonment and three years of supervised release. Shalash did not object to the sentence beyond

the 1.5 kilograms as relevant conduct. In determining Shalash’s sentence, the district court

(1) accepted the PSIR’s criminal history score, (2) accepted the PSIR’s finding that the

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1.5 kilograms of heroin constituted relevant conduct, and (3) relied, in part, on Shalash’s

competency report.

On whether the additional drug amount fell under the relevant conduct provision, the

district court found that Shalash’s explanation—that he obtained the heroin after the conspiracy

ended—was false. Instead, the district court determined that Shalash acquired and possessed the

heroin before Jacobs’s arrest and only later gave it to the DEA. Testimony from two DEA agents

supported that conclusion. Agent Anderson Muse testified that despite Shalash’s interest in

becoming a confidential informant, he never fully completed the process. The agents told Shalash

that if he wanted to set up a controlled buy with his supplier, he would have to contact the DEA

first. But for a full week, they heard nothing from Shalash. And then, balled up with tape and

sitting in a crock pot, 1.5 kilograms of heroin arrived in the DEA’s office.

Shalash had not mentioned the additional heroin during his interview the week earlier. So

the agents questioned Shalash about the origin of the drugs. He said that he had obtained the drugs

from two Hispanic males at an IHOP restaurant in Ohio after his first interview. But nothing

corroborated Shalash’s story. And, as Agent Muse testified, Shalash could not recall what type of

car the suppliers were in or what time of day he went to the IHOP. In short, Shalash provided “no

clue who the people were or where [the heroin] came from.” R. 179, PageID #545.

At some point, agents contacted a Hispanic male who appeared at the location where

Shalash allegedly obtained the heroin. However, that man “had no clue what was going on with

anything,” and he “ha[d] nothing to do with [the] dope.” Id. Agents also determined that the drugs

Shalash turned in happened to be the same tan heroin that had been distributed in the Jacobs-

Shalash conspiracy.

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DEA agents then interviewed Jacobs ten days after Shalash turned over the heroin. Jacobs

told agents that Shalash had been in possession of two kilograms of heroin during the conspiracy.

He knew this, he claimed, because he had personally seen Shalash with the heroin. In other words,

Jacobs told agents that Shalash showed him a large quantity of heroin before Jacobs’s September

28, 2015 arrest—that is, during the conspiracy. Jacobs did not testify at the sentencing hearing.

Nor did Shalash.

Ultimately the district court determined that Shalash’s story was fiction.. Thus, the court

accepted the PSIR’s relevant-conduct recommendation and set Shalash’s base offense level at 30,

which was adjusted downward to 27 for acceptance of responsibility.

The district court also considered Shalash’s competency report at sentencing. Shalash

voluntarily consented to the exam after being informed that the report would be given to the court

and the prosecution. At sentencing, the district judge stated, “the information in the competency

evaluation, the Court evaluated that too. I may have varied a little bit more, but for the fact that

there’s some information in that evaluation which I think doesn’t weigh favorably for [Shalash].”

R. 188, PageID #592. The court did not identify what information it had relied on, but the

evaluation contained critical descriptions of Shalash. For example, the report stated that Shalash

was hyperactive, agitated, and impulsive, and his mood labile—factors that tend to lead people to

exercise poor judgment and a lack of self-control. The report also characterized Shalash as

extremely manipulative, self-confident, and narcissistic and stated that he “may react to minor

events with erratic, hostile behavior.” Shalash did not object to the district court’s use of the

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Discussion

A. Criminal History Calculation

First, Shalash argues that the district court committed plain error when calculating his

criminal history score. The United States agrees, and so do we.

“Under the advisory Guidelines, we review a criminal defendant’s sentence for

reasonableness.” United States v. Amerson, 886 F.3d 568, 573 (6th Cir. 2018). In reviewing the

calculation of a Guideline range, we review the district court’s legal conclusions de novo and its

factual findings for clear error. See United States v. Taylor, 648 F.3d 417, 431 (6th Cir. 2011).

Plain-error review applies to the calculation of Shalash’s criminal history score because he did not

object at the district court. See United States v. Tanner, 837 F.3d 596, 601 (6th Cir. 2016).

“Failure to calculate the Guidelines range correctly generally results in plain error.” Id. at

601. Here, the parties agree that the error in miscalculating Shalash’s criminal history score was

plain. Shalash’s Guidelines range should have been 78 to 97 months. See USSG ch. 5 pt. A.

Instead, the PSIR set his Guidelines range at 87 to 108 months. (R. 179, PageID #473). We

remand for resentencing on this issue.

B. Relevant Conduct

Next, Shalash argues that the district court improperly determined that the 1.5 kilograms

of heroin he turned over to the DEA constituted relevant conduct for a sentencing enhancement

under USSG § 1B1.3. The parties dispute the proper standard of review. The government argues

that clear error review applies because a “district court’s determination of the quantity of drugs

used to compute a defendant’s sentence is a finding of fact that should be upheld unless clearly

erroneous.” United States v. Johnson, 732 F.3d 577, 581 (6th Cir. 2013). But Shalash argues that

the cases on which the government relies are approximation cases—instances in which the district

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court estimated the amount of drugs attributable to the defendant. Here, the parties agree as to the

amount of drugs in dispute: 1.5 kilograms. The only issue for the district court was determining

when Shalash acquired the heroin. And Shalash argues that because “a district court’s relevant-

conduct determination involves the application of law to facts,” de novo review applies. Amerson,

886 F.3d at 573. We need not determine which standard applies. Under either, we find no error.

A sentencing court may consider acts “that occurred during the commission of the offense

of conviction.” USSG § 1B1.3(a)(1). Relevant conduct may include uncharged or dismissed

conduct. See United States v. Haj-Hamed, 549 F.3d 1020, 1026 (6th Cir. 2008). “The government

bears the burden of proving, by a preponderance of the evidence, that another offense constituted

relevant conduct.” Amerson, 886 F.3d at 573.

The Guidelines allow courts to “consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information has

sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3. “The sentencing

court’s use of hearsay information has traditionally been almost unlimited.” United States v.

Silverman, 976 F.2d 1502, 1509 (6th Cir. 1992) (en banc). But “there must be some evidence of

reliability.” United States v. Gibbs, 182 F.3d 408, 441 (6th Cir. 1999). “The minimum-indicia-

of-reliability standard is a ‘relatively low hurdle’ that asks only that ‘some evidentiary basis

beyond mere allegation in an indictment be presented to support consideration of such conduct as

relevant to sentencing.’” United States v. Johnson, 732 F.3d 577, 583 (6th Cir. 2013) (quoting

United States v. Moncivais, 492 F.3d 652, 659 (6th Cir. 2007)).

Shalash argues that the government failed to establish by a preponderance of the evidence

that the 1.5 kilograms fell under the relevant conduct provision. Shalash maintains that he obtained

the heroin after the conspiracy ended, and therefore it cannot count as relevant conduct because it

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did not occur during the commission of the convicted offense. As for the government’s evidence,

Shalash argues it lacks the minimum indicia of reliability needed for the district court’s

consideration. In particular, Shalash takes aim at the DEA agents’ testimony about what Jacobs

said in his October 15 interview. Of course, at trial, this could implicate hearsay issues. But at

sentencing, the hearsay concern wanes; as long as there are minimum indicia of reliability, the

district court can consider the evidence. See Johnson, 732 F.3d at 583.

True, as Shalash points out, Jacobs did not testify. Nor did he make a sworn statement.

Other courts have found those factors relevant in the reliability analysis. See United States v.

Fennell, 65 F.3d 812 (10th Cir. 1995). But Shalash’s reliance on Fennell is not sufficient.

Information at sentencing need not always be sworn. And the declarant need not always testify at

the sentencing hearing. See Silverman, 976 F.2d at 1509. In Fennell, the court found a lack of

reliability because an unsworn, out-of-court statement delivered via telephone from the

defendant’s former girlfriend was the only evidence in the record; nothing corroborated her story.

65 F.3d at 813-14. Not so here. Jacobs told agents that he personally observed Shalash with a

large amount of heroin that Shalash was “sitting on” before the conspiracy ended. As it turned

out, Shalash did have a large quantity of heroin. This reinforces Jacobs’s statement. In addition,

DEA agents interviewed Jacobs in person—not over the phone as in Fennell, where officers “did

not have an opportunity to observe her demeanor during the interview and therefore could not form

any opinion as to her veracity.” 65 F.3d at 813. Here, DEA agents could evaluate Jacobs’s body

language, demeanor, and reliability. And he provided specific and accurate details such as the

type of car in which the drugs were stored and the location where he saw the drugs, further

buttressing his credibility.

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Then, there is testimony from the DEA agents. Muse and Special Agent Modesitt testified

that they told Shalash that if he were to meet with his supplier he must contact the DEA. He never

did. Instead, he just showed up a week later with a crock pot of heroin. And, after hearing

Shalash’s story, agents figured something was amiss. Consider what Shalash recounted: After his

initial interview, he decided, on his own, to purchase 1.5 kilograms from two unknown Hispanic

males at an Ohio IHOP. He could not remember when the transaction occurred or what type of

car the suppliers drove. Nor did he have any documentary evidence backing up his claim. Then,

after his rendezvous in Ohio, Shalash delivered the heroin to the DEA. Agents were skeptical.

Eventually, the DEA tracked down a man supposedly involved, and it became clear he had

nothing to do with the drugs. As Muse put it, Shalash gave “no clue who the people were or where

[the heroin] came from.” R. 188, PageID #545. And upon inspection, the heroin appeared to be

the same type of heroin distributed during the conspiracy. Jacobs’s statement bolsters the position

that Shalash possessed a large amount of heroin before the conspiracy ended. Shalash does not

provide sufficient evidence to conclude that the testimony from Muse and Modesitt lacks

reliability.

In sum, Shalash’s story did not add up. The district court called it a “ruse.” In doing so,

the district court did not err. The evidence that the district court relied on—the DEA agents’

testimony and information from Jacobs—cleared the “low hurdle” of reliability required for

evidence to be considered at sentencing. See Johnson, 732 F.3d at 583. And, taken together, the

evidence shows by a preponderance that Shalash acquired the heroin during the conspiracy. See

Amerson, 886 F.3d at 573. That makes it relevant conduct under USSG § 1B1.3. We affirm the

district court on this issue.

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C. Competency Evaluation

Finally, Shalash argues that the district court improperly considered the competency report,

rendering his sentence substantively unreasonable.1 As an initial matter, the parties disagree

whether the district court’s consideration of the competency report raises procedural or substantive

sentencing concerns. This affects the standard of review because Shalash did not object at

sentencing. Although, in general, “a defendant must show the district court abused its discretion

in imposing its sentence,” United States v. Tyes, 729 F. App’x 440, 441 (6th Cir. 2018) (emphasis

removed), we apply plain-error review in cases where the defendant fails to object to a procedural

sentencing error. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc);

United States v. Lumbard, 706 F.3d 716, 725 (6th Cir. 2013). But abuse-of-discretion review

remains intact when a defendant does not object to a substantive sentencing error. See United

States v. Taylor, 800 F.3d 701, 713-14 (6th Cir. 2015); United States v. Houston, 529 F.3d 743,

755 (6th Cir. 2008). What’s more, a presumption of reasonableness attaches to substantive

sentencing challenges; the presumption falls away in procedural challenges. See United States v.

Cabrera, 811 F.3d 801, 808 (6th Cir. 2016).

“Whether consideration of an impermissible factor is categorized under the procedural or

substantive reasonableness prong is not fully settled within our Circuit.” Cabrera, 811 F.3d at 808

(quoting United States v. Espericueta-Perez, 528 F. App’x 572, 578 n.5 (6th Cir. 2013)). In

Cabrera, we highlighted the intra-circuit uncertainty surrounding impermissible factors before

deciding it was “more properly considered a procedural, not substantive, error.” Id. at 809. But

1 He does not argue, however, that the district court inadequately explained its reliance on the report.

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we need not grapple with the procedural-substantive debate because under either standard, the

district court committed no error.

In fashioning a sentence, district judges may not rely “on a factor that is neither enumerated

in nor consistent with the Sentencing Guidelines or 18 U.S.C. § 3553(a).” Cabrera, 811 F.3d at

808. Typically, however, “[n]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a court of the United

States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C.

§ 3661. Courts may “conduct an inquiry broad in scope, largely unlimited either as to the kind of

information [they] may consider, or the source from which it may come.” Pepper v. United States,

562 U.S. 476, 489 (2011) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)). Information

“need only relate to one of the § 3553(a) factors.” United States v. Cunningham, 669 F.3d 723,

735 (6th Cir. 2012). “[E]videntiary inclusiveness is the order of the day at sentencing, a frame of

reference as likely to facilitate leniency as to impede it.” United States v. Graham-Wright,

715 F.3d 598, 601 (6th Cir. 2013).

A report generated from a defense-requested, voluntarily taken competency exam falls

within the broad range of factors a court may consider at sentencing. See id. at 601-03. In Graham-

Wright, the defendant challenged his sentence as procedurally and substantively unreasonable

because at sentencing the district court considered information in the defendant’s competency

exam. Id. at 600. The report—in which a psychiatrist diagnosed the defendant as a pedophile—

did not affect the defendant’s Guidelines range. Id. at 601. But the district court used the report

in denying the defendant’s request for a downward variance. Id. On appeal, we ruled that because

(1) the report was reliable, (2) the defendant requested the exam, and (3) the defendant voluntarily

consented to the exam, the district court properly considered the report. Id. at 601-03. In

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sentencing, after all, reliability is the central question, and the report was “real information from a

real psychiatrist after a voluntary examination.” Id. at 604. We held that the “district court

permissibly considered the results from the examination in refusing to grant [the defendant’s]

request for a downward variance.” Id. at 604.

As in Graham-Wright, it is so here. Shalash requested the examination and voluntarily

consented to it. It did not affect his Guidelines range, and the results were to be shared with the

court and prosecution. If anything, the defendant in Graham-Wright had a stronger case than the

one here. After all, the defendant in Graham-Wright objected to the use of the report at sentencing;

Shalash did not. 715 F.3d at 601. And Shalash never asked for a defense-only report done by a

private doctor as the Graham-Wright defendant did. See id. at 602.

True, as Shalash argues, Graham-Wright also engaged in a harmless-error analysis. See

id. at 604. We noted that “[e]ven if, for the sake of argument, the district court was incorrect, any

error did not prejudice [the defendant].” Id. And it is also true, as Shalash contends, that here the

district court acknowledged that the competency report affected the sentence. So unlike in

Graham-Wright, Shalash’s competency report decreased the amount of a downward variance that

the district judge was willing to grant.

Ultimately, though, this is a distinction without a difference. Graham-Wright’s discussion

of the harmlessness of the error amounted to an alternative reason for upholding the district court.

But this does not limit the holding: At sentencing, a district court may consider a report from a

defense-requested, voluntarily taken examination done by a forensic psychologist. See id. 603-04.

Conclusion

Accordingly, we remand for resentencing on the criminal history score issue but affirm

in all other respects.

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KAREN NELSON MOORE, Circuit Judge, concurring in Parts A and B and

dissenting from Part C. Title 18 U.S.C. § 3553(c) requires that the district court, in sentencing

defendants “shall state in open court the reasons for its imposition of the particular sentence.”

18 U.S.C. § 3553(c). Defendants who are sentenced both within and outside the Guidelines range

are entitled to adequate explanations of the chosen sentence. See United States v. Cabrera,

811 F.3d 801, 813 (6th Cir. 2016) (citing United States v. Wallace, 597 F.3d 794, 806–07 (6th Cir.

2010); United States v. Blackie, 548 F.3d 395, 401–02 (6th Cir. 2008)). When a defendant fails to

object to the district court’s explanation at the time of sentencing, we review the court’s

explanation for plain error. Blackie, 548 F.3d at 398. There is plain error where a district court

fails to render an adequate explanation for its sentence. Cabrera, 811 F.3d at 812–13.

An adequate explanation of the sentence is necessary “to allow for meaningful appellate

review.” Gall v. United States, 552 U.S. 38, 50 (2007) (citing Rita v. United States, 551 U.S. 338,

357-58 (2007)). Therefore the district court “should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita, 551 U.S. at 356 (citing United States v. Taylor, 487 U.S. 326,

336–37 (1988)). Without adequate exposition on the part of the district court, the appellate court

is disadvantaged in approaching its own task of reviewing for error. Therefore, a failure to comply

with § 3553(c)’s expositional requirement generally implies a violation of a “substantial right.”

Wallace, 597 F.3d at 807.

Adequate explanations of sentencing decisions at the district court level are also required

“to promote the perception of fair sentencing.” Gall, 552 U.S. at 50 (citing Rita, 551 U.S. at 357–

58). “Judicial decisions are reasoned decisions. Confidence in a judge’s use of reason underlies

the public’s trust in the judicial institution. A public statement of those reasons helps provide the

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public with the assurance that creates that trust.” Rita, 551 U.S. at 356. “Finally, the treatment of

a § 3553(c) violation as plain error . . . help[s] maintain its requirements as mandatory, and not

some formality that can be ignored without consequence.” Blackie, 548 F.3d at 403 (citing United

States v. Lewis, 424 F.3d 239, 249 (2d Cir. 2005)).

After explaining several factors it considered in deciding Shalash’s sentence and declaring

that sentence, the district court stated, almost as an afterthought: “I forgot to mention, the

information in the competency evaluation, the Court evaluated that too. I may have varied a little

bit more, but for the fact that there’s some information in that evaluation which I think doesn’t

weigh favorably for you.” (R. 188, Transcript of Sentencing at 61, Page ID #592). The

competency evaluation in question is nine pages long and includes a diverse array of personal

information about Shalash that a court could potentially find unfavorable: his failure to complete

college because he found it “boring,” his “contentious” divorce and failure to reside with his young

child, his IQ in the “Low Average range,” the results of a personality inventory test that suggested

Shalash was “hyperactive, agitated, impulsive . . . self-confident and narcissistic,” etc. (R. 149,

Forensic Report at 3–5, Page ID #369–71). The district court failed to specify which “information”

persuaded it to deny a more substantial downward variance.

In doing so the district court deprived Shalash of the ability to challenge the reasonableness

of his sentence on appeal and undermined the perception of fairness in sentencing. Blackie,

548 F.3d at 402; Gall, 552 U.S. at 50. First, the current state of the record precludes Shalash from

effectively attacking the reasonableness of his sentence on appeal—these grounds for the sentence

are simply too indefinite. See Cabrera, 811 F.3d at 813 (quoting Lewis, 424 F.3d at 247

(explaining that Ҥ 3553(c) bestows on defendants the right to argue more effectively whether . . .

a sentence is reasonable”) (internal quotations and brackets removed)). In explaining its

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determination that the district court did not err by considering the competency report, the majority

assumes that the “information” the district court referred to was the results of the personality

inventory. Another rational reviewer might believe that the “information” was Shalash’s history

of gambling addiction. Where the explanation is so sparse that it accommodates such different

conclusions, it is inadequate. The majority is correct that established law indicates that the district

court was permitted to refer to the competency report in determining the sentence. See United

States v. Graham-Wright, 715 F.3d 598 (6th Cir. 2013). However, permission to rely on the

competency report is not carte blanche to forego § 3553(c)’s requirement of an adequate

explanation. Second, both the public and Shalash have an interest in knowing what the district

court considered when it chose a specific term of incarceration. See Wallace, 597 F.3d at 807

(“[F]ailure to comply with § 3553(c) also affects the fairness, integrity, or public reputation of

judicial proceedings.”) (internal quotations omitted). That interest is impeded by the district

court’s inadequate explanation.

We have previously raised the inadequacy of the district court’s sentencing explanation

sua sponte and accordingly remanded. See Cabrera, 811 F.3d at 811. Here, such a course would

be particularly appropriate because the government’s concession of the miscalculation of Shalash’s

guidelines range already requires remand to the district court for resentencing. I would remand

for the district court to clarify and explain its use of the competency report in sentencing.

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