On July 27, 2006, this matter came before the court on remand from the Eighth Circuit Court of Appeals for the resentencing of Defendant Unis Bah. See generally United States v. Bah, 439 F.3d 423 (8th Cir. 2006). In calculating Defendant's advisory Sentencing Guidelines range, the court decided whether Defendant was subject to (1) a six-level increase pursuant to USSG § 2B1.1(b)(9); (2) a two-level increase pursuant to USSG § 2B1.1(b)(10); (3) a four-level decrease pursuant to USSG § 3B1.2; (4) a two-to-three level decrease pursuant to USSG § 3E1.1; and (5) a two-level increase pursuant to USSG § 3C1.1.

United States v. Ralph, No. 08–40051–01–SAC, 2008 WL 4911151, at *2 (D.Kan. Nov. 13, 2008) (citations omitted); see, e.g., Arturo Garcia, 590 F.3d at 315–16 (“Adopting the reasoning of ... other circuits ... [and] hold[ing] that a district court may only apply [the] cross-reference provision under U.S.S.G. § 2B1.1(c)(3) if the facts alleged in the count of conviction support the application of that provision.”); United States v. Bah, 439 F.3d 423, 427 (8th Cir.2006) ( “The Section 2B1.1(c)(3) cross-reference is applicable ‘only if the conduct alleged in the count of the indictment of which the defendant is convicted establishes the elements of another offense.’ ” (quoting United States v. Genao, 343 F.3d 578, 583 (2d Cir.2003))); United States v. Kim, 95 Fed.Appx. 857, 862 (9th Cir.2004) (“[U]nder the terms of the Section 2B1.1(c)(3) cross-reference provision, the statutory [mens rea] element had to be established by the allegations of the indictment.

"United States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006) (false statement count of conviction under 18 U.S.C. § 1001 failed to allege requisite elements for offenses under 18 U.S.C. §§ 371, 1544, or 1546); see also United States v. Kim, 95 Fed. Appx. 857, 861-62, 2004 WL 729168 (9th Cir. 2004) (false statement count of conviction under 18 U.S.C. § 1001 failed to charge requisite intent for an obstruction offense under 18 U.S.C. § 1505); United States v. Rodriguez, 493 F. Supp. 2d 833, 834 (W.D. Tex. 2007) (false statement count of conviction under 18 U.S.C. § 1001 adequately alleged the offense of shielding an alien from detention in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)); but see United States v. Ochoa, 2008 WL 3972268 at 84 (11th Cir. Aug. 28, 2008) (cited and then summarily rejected Second and Eighth Circuit decisions as not controlling and insufficient to establish plain error on district court's use of cross reference). The Eighth Circuit in Bah convincingly explains this reading is consistent with the Sentencing Commission's ame

" Adopting the reasoning of these other circuits, we hold that a district court may only apply a cross-reference provision under U.S.S.G. § 2B1.1(c)(3) if the facts alleged in the count of conviction support the application of that provision. See United States v. Genao, 343 F.3d 578, 583 (2d Cir. 2003) (holding that district court had correctly declined to apply a cross-reference provision under 2B1.1(c)(3) because the indictment did not allege the exact elements of the cross-referenced offense); see also United States v. Bah, 439 F.3d 423, 427 (8th Cir. 2006) (adopting Genao and holding that the plain language of 2B1.1(c)(3) requires that district courts may only look to "the conduct set forth in the count of conviction" to determine whether the cross-reference provision should apply); United States v. Kim, 95 Fed. Appx. 857, 861-62 (9th Cir. 2004) (providing that, in order for the cross-reference provision to apply, "the statutory element had to be established by the allegations of the indictment").Genao, 343 F.3d at 583.

Significant to our analysis is that the Government bears the burden of persuasion to demonstrate that the error was harmless, that is, that the error did not affect Spikes' substantial rights. See United States v. Gianakos, 415 F.3d 912, 923 n. 6 (8th Cir.), cert. denied, 546 U.S. 1045, 126 S.Ct. 764, 163 L.Ed.2d 593 (2005); see also United States v. Bah, 439 F.3d 423, 430 (8th Cir. 2006) ("The party benefitting from the error has the burden to prove that it was harmless." (internal marks omitted)).

We need not even venture an inference that the error had no effect on the court's selection of the sentence, cf. United States v. Nomeland, 7 F.3d 744, 749 (8th Cir. 1993); here, the district court answered that question expressly, see United States v. Thompson, 403 F.3d 533, 535-36 (8th Cir. 2005), and it did so after taking into account the potential impact of the specific error involved. Cf. United States v. Icaza, 492 F.3d 967, 971 (8th Cir. 2007) (holding that a "blanket statement" by a district judge that a sentence was "fair," where the statement was "intended to cover any and all potential guidelines calculation errors," was not sufficient to demonstrate harmless error) (quoting United States v. Bah, 439 F.3d 423, 431 (8th Cir. 2006)). We are thus persuaded that the court would have imposed the same term of imprisonment absent the procedural error, and a remand is not required. Williams, 503 U.S. at 203, 112 S.Ct. 1112. Henson does not argue that the sentence is substantively unreasonable under 18 U.S.C. § 3553(a), and we do not believe that it is.

The court recognizes that the Eighth Circuit Court of Appeals has previously held that such alternative variances sometimes will not survive appellate scrutiny. See, e.g., United States v. Bah, 439 F.3d 423, 430-32 (8th Cir. 2006). Bah is distinguishable from the present case, however, because here the court is basing its alternative variance upon a specific, identifiable alternative range and has not imposed a "blanket identical alternative sentence."

The Eighth Circuit Court of Appeals has held that "judicial fact-finding using a preponderance of the evidence standard is permitted provided that the guidelines are applied in an advisory manner." United States v. Bah, 439 F.3d 423, 426 n. 1 (8th Cir. 2006) (citing United States v. Wade, 435 F.3d 829, 831 (8th Cir. 2006)); see, e.g., Ademi, 439 F.3d at 966 (8th Cir. 2006) (affirming use of preponderance-of-the-evidence standard for factual findings underlying § 5K2.0 and § 5K2.21 upward departures).

And even if we examined the text, structure, history and purpose of the cross reference provision to confirm its ambiguity, as our precedent instructs, see United States v. Adair, 38 F.4th 341, 349 (3d Cir. 2022); United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc), we would still conclude that the provision is not genuinely ambiguous, and we would also conclude that our interpretation limiting the conduct to lying is the correct one. Nucera's situation is similar to United States v. Bah, 439 F.3d 423, 426 (8th Cir. 2006). Bah pled guilty to making false statements under 18 U.S.C. § 1001 for his involvement in a fraudulent immigration documents scheme.

Besides, with or without the enhancement, Adams's recommended range under the Sentencing Guidelines was the same, meaning that any error would be harmless. See United States v. Bah, 439 F.3d 423, 431 (8th Cir. 2006). We accordingly affirm the judgment of the district court.