862 F.3d 486

5th Cir.

2017

UNITED STATES of America, Plaintiff-Appellee v. Jose FLORES, true name Galvin Javier Flores Cantarero, Defendant-Appellant; United States of America, Plaintiff-Appellee v. Jose Ricardo Flores, true name Calvin Xavier Flores Cantarero, also known as Galvin Flores-Cantarero, also known as Jose Ricardo, also known as Jose Flores, Defendant-Appellant

No. 16-40868 Consolidated with 16-40890

United States Court of Appeals, Fifth Circuit.

FILED July 3, 2017

862 F.3d 486

Nevertheless, the Sixth Circuit denied the requested relief, ultimately holding that the “single-source contract for incontinence products complied with statutory and regulatory requirements for an exemption to the freedom-of-choice provision.”⁸⁵

IV

The majority opinion observes that because § 1396a(a)(23) “speaks only in terms of recipients’ rights rather than providers’ rights,” “the right guaranteed by § 1396a(a)(23) is vested in Medicaid recipients rather than providers.”⁸⁶ I agree with that observation and the majority opinion‘s conclusion that providers “cannot bring a challenge pursuant to § 1396a(a)(23).”⁸⁷ However, as discussed above, a provider has other avenues to seek redress when a State terminates its status as a qualified provider for purposes of Medicaid.

* * *

The State of Louisiana may have improperly terminated PPGC‘s Medicaid provider agreements, and if so, PPGC may pursue remedies. However, the Supreme Court has held that when a State determines that a particular provider is not qualified to provide Medicaid services, a patient has no life, liberty, or property interest under 42 U.S.C. § 1396a(a)(23) that is implicated or affected.⁸⁸ Because the majority opinion has created patients’ rights that are not found in § 1396a(a)(23)‘s text and because the majority opinion fails to follow the Supreme Court‘s decision in O‘Bannon, I must dissent.

John Richard Berry, Andrew R. Gould, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.

CARL E. STEWART, Chief Judge:

Jose Ricardo Flores appeals his sentences for illegal reentry into the United States and violating a condition of his supervised release. He contends that the district court, which incorrectly believed that it lacked the authority to run the sentences concurrently, erred by imposing consecutive sentences for the offenses. For the reasons that follow, we AFFIRM.

I.

Flores pleaded guilty to one count of illegal reentry following deportation, a crime that occurred on or about September 16, 2015. At the time he illegally reentered the United States, Flores was subject to a two-year term of supervised release, which had been imposed in March 2015 on a previous illegal reentry conviction. Following the second illegal reentry, Flores was charged with violating the terms of his supervised release. The district court combined the sentencing hearing on the new illegal reentry conviction with a hearing on the revocation of Flores‘s supervised release.

At sentencing, the district court determined that Flores‘s Guidelines range was 21-27 months’ imprisonment in the reentry case and 8-14 months’ imprisonment in the revocation case. Flores requested downward variances from these ranges, asking for an 18-month term of imprisonment in the illegal reentry case and a consecutive 6-month term in the revocation matter, for a total sentence of 24 months. The district court imposed a bottom-of-the-Guidelines term of 21 months’ imprisonment in the illegal reentry case (followed by three years of supervised release) and revoked Flores‘s supervised release and sentenced him within the advisory Guidelines range to 10 months’ imprisonment. The district court stated that the sentences of imprisonment must run consecutively rather than concurrently, citing this court‘s decision in United States v. Brown, 920 F.2d 1212 (5th Cir. 1991). Based on its belief that Brown “clearly states that these sentences should be served consecutively,” the district court imposed a total sentence of 31 months.

The district court‘s reliance on Brown, however, was erroneous, as the Guidelines were amended in 2003 to give courts discretion to impose either consecutive, concurrent, or partially concurrent sentences. See United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004) (explaining that for defendants “sentenced on or after November 1, 2003, the district court would have had discretion to make its ... sentence run concurrently (or partially concurrently) with the previously imposed ... sentence for supervised revocation (although the Commission recommends that the sentence imposed be consecutive to that for the revocation)“). Flores did not object to the error. Rather, defense counsel responded: “We understand it‘s consecutive. We‘d simply note in defense of that recommendation ... that [the] revocation guidelines were always advisory. So, in effect, we‘re not asking for a consecutive sentence, even though the net effect might be the same.” Flores timely appealed both sentences, and the appeals were consolidated on the Government‘s motion.

II.

Because Flores did not object in the district court to the error he asserts on appeal, we review for plain error.¹ See United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015). To establish plain error, Flores must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he satisfies these three elements, this court will exercise its discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

As the Government concedes, the district court committed a clear or obvious error in determining that it was required to run Flores‘s sentences consecutively. See Huff, 370 F.3d at 465. But even assuming this erroneous understanding affected Flores‘s substantial rights, we decline to exercise our discretion to correct the error, because Flores has not established that “the severity of the error‘s harm demands reversal.” See United States v. Farrell, 672 F.3d 27, 36 (1st Cir. 2012) (quoting United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir. 1996)); see also Puckett, 556 U.S. at 135. This court has indicated that reversal should be granted cautiously, explaining that “the rule of forfeiture should bend slightly if necessary to prevent a grave injustice.” United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (citation omitted). Accordingly, the types of errors we will correct on plain error review are “only” those which are “particularly egregious.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).

Several factors weigh against exercising our discretion to correct the error in this case. The Sentencing Commission‘s relevant policy statements recommend that sentences involving revocation of supervised release, such as the sentence the district court imposed, run consecutively. See U.S.S.G. Ch. 7, Pt. B, Intro. Comment (“It is the policy of the Commission that the sanction imposed upon revocation is to be served consecutively to any other term of imprisonment imposed for any criminal conduct that is the basis of the revocation.“); U.S.S.G. § 7B1.3 cmt. n.4 (“[I]t is the Commission‘s recommendation that any sentence of imprisonment for a criminal offense that is imposed after revocation of probation or supervised release be run consecutively to any term of imprisonment imposed upon revocation.“). Given this fact, as well as the district court‘s decision not to sentence Flores to the minimum sentence it believed it had the discretion to impose,² it is difficult to say that a miscarriage of justice occurred. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Based on these considerations, we conclude that the district court‘s error does not rise to the level of a “grave injustice,” see Escalante-Reyes, 689 F.3d at 423, nor does it seriously affect the fairness, integrity, or public reputation of judicial proceedings, see Puckett, 556 U.S. at 135. Accordingly, Flores has failed to demonstrate that the error satisfies the fourth prong of plain error review. See id.

III.

For the foregoing reasons, the sentence of Defendant-Appellant Jose Ricardo Flores is AFFIRMED.

CARL E. STEWART

CHIEF JUDGE

Notes

Because the error Flores complains of is attributable to the district court‘s belief that the Brown decision was controlling—and not to any invitation or provocation by Flores—we reject the Government‘s assertion that the invited error doctrine applies. See (citing ).

The district court sentenced Flores to 10 months’ imprisonment in the revocation matter, when the minimum sentence under the Guidelines was 8 months’ imprisonment.

Harris, 442 F.3d at 467, 468-69 (concluding that the State had not violated the freedom-of-choice provision contained in 42 U.S.C. § 1396a(a)(23) because of the statutory exception found in 42 U.S.C. § 1396n(a)(1)(B)).

Ante at 459-60.

Ante at 459-61. But see (concluding that Planned Parenthood had stated a cause of action under § 1983 based on rights conferred by § 1396a(a)(23)); (drawing no distinction between Planned Parenthood and its patients in concluding that there is an individual right to sue arising from § 1396a(a)(23)).

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