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UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. CHARLES THOMAS ALLEN, II, et al., Defendants-Appellants/Cross-Appellees. |
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 05-00039—Jennifer B. Coffman, Chief District Judge.
Argued: December 5, 2007
Decided and Filed: February 5, 2008
Before: RYAN, BATCHELDER, and GRIFFIN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellants Charles Allen, Eric Borsuk, Warren Lipka, and Spencer Reinhard (collectively “defendants”) appeal from the district court’s imposition of 87-month prison sentences. All four defendants claim an identical error in the sentence calculation and the government cross-appeals, claiming an identical error in all four sentences. Because we resolve these claims identically for all four defendants, we have consolidated all eight appeals into this single opinion. Defendant Allen claims two additional errors, peculiar to his sentence, and we address those two claims individually, within this same opinion. The convictions, which followed from guilty pleas without written plea agreements, are not at issue.
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Accordingly, we AFFIRM the district court’s conclusions that the government did not breach the cooperation agreement it had with Allen; that Allen was not a “minor participant” in the offense; and that the use of the “stun pen” justified an enhancement for use of a dangerous weapon. Because we find, however, that the district court erred in its calculation of loss for purposes of determining the offense level — and, therefore, the advisory guideline ranges — for each of the defendants, we VACATE the sentences and REMAND for resentencing consistent with this opinion.