United States v. Feldman
647 F.3d 450
| 2d Cir. | 2011Background
- Feldman, a former psychiatrist, defrauded Medicare via the JFC Center and later ran a liver/kidney transplant scheme from the Philippines using liver4you.org.
- He pled guilty to health care fraud (18 U.S.C. § 1347) and five counts of wire fraud (18 U.S.C. § 1343) related to the liver4you.org scheme and other Medicare fraud.
- At sentencing, the district court applied multiple enhancements: mass-marketing, loss amount, conscious or reckless risk of death, and obstruction of justice, producing a Guidelines range of 151–188 months and a sentence of 188 months.
- Feldman appealed, challenging procedural errors in sentencing and arguing the sentence was substantively unreasonable.
- The Second Circuit affirmed, holding that the district court did not improperly apply the enhancements or impose an unreasonable sentence, and that the district court’s record did not render the sentence outside the permissible range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the four challenged sentencing enhancements were harmless or reversible | Feldman: enhancements potentially erroneous but district court would still reach same sentence | Government: the district court stated it would impose the same sentence regardless, so errors should be treated harmless | Not harmless; record did not show the same sentence absent all four enhancements |
| Mass-marketing enhancement under § 2B1.1(b)(2)(A)(ii) | Feldman: liver4you.org was not solicitation; not mass-marketing | Government: public website solicited many potential victims and thus fits mass-marketing | Upheld; the website’s public solicitation qualifies as mass-marketing |
| Loss amount aggregation under § 2B1.1(b)(1) for multiple frauds | Feldman: JFC Center loss and Second Chance in Life losses should not be aggregated as same course of conduct | Government: losses from related acts form same course of conduct and were properly included | Upheld; losses were part of the same course of conduct and properly included |
| Enhancement for conscious or reckless risk of death or serious bodily injury under § 2B1.1(b)(13)(A) | Feldman: no actual medical service provided that increased risk; argument focused on facilitating rather than providing medical services | Government: deceptive promises to arrange transplants created substantial risk of death or serious injury | Upheld; district court did not clearly err in finding conscious or reckless risk |
| Obstruction of justice enhancement under § 3C1.1 | Feldman: obstruction not tied to ongoing investigation of instant offense | Government: Feldman’s fugitive status and pre- and post-offense conduct obstructed justice | Upheld; enhancement properly applied due to fleeing and pre-prosecution conduct |
Key Cases Cited
- United States v. Sanchez, 517 F.3d 651 (2d Cir.2008) (harmless-error review requires unambiguous showing of same sentence)
- United States v. Jass, 569 F.3d 47 (2d Cir.2009) (harmless error when district court states it would impose same sentence despite error)
- United States v. Parker, 577 F.3d 143 (2d Cir.2009) (harmless error where minimums dictate sentence)
- United States v. Gall, 552 U.S. 38 (Supreme Court 2007) (sentence within Guidelines range; review for reasonableness)
- United States v. Moon, 513 F.3d 527 (6th Cir.2008) (illustrative of upholding enhancements where misconduct endangered patient health)
- United States v. Deming, 269 F.3d 107 (7th Cir.2001) (mass-marketing includes online solicitations)