Lead Opinion
RYAN, J. (p. 326), delivered a separate opinion concurring except as to Part II.C.
OPINION
On March 3, 2004, in a five-count indictment, a federal grand jury charged Nicholas J. Triana (hereinafter, “Triana” or “Defendant”) with various fraudulent acts: (1) Count 1 charged Triana with conspiring, under 18 U.S.C. § 371, with unindict-ed co-conspirators — his sister, Jolynn Peck (“Peck”), and his attorney, Brian Salvagni (“Salvigni”), and “others” — to defraud the Medicare and Medicaid programs and the United States District Court for the Northern District of Ohio, including the United States Probation Office; (2) Count 2 alleged that Triana committed health care fraud by “fraudulently” trying to circumvent the exclusion provision of his settlement agreement in violation of 18 U.S.C. § 1347; (3) Count 3 alleged that Triana violated the federal false statement statute, 18 U.S.C. § 1001, by allegedly failing to “notify” and/or by “concealing]” from his probation officers that he had a “de facto ownership, interest and control” of two companies — FootCare Consultants, Inc. (“Footcare”), a company providing po-diatric services to patients in nursing homes around Ohio, and Podiatry Administration, LLC (“Podiatry Admin.”), a business allegedly performing marketing and other administrаtive services for Footcare; (4) Count 4 charged Triana with one count of bank fraud under 18 U.S.C. § 1344, for causing Peck, to file a loan application for a second home containing materially incorrect information; and (5) Count 5 charged Triana with making a false statement in an application for an automobile loan in violation of 18 U.S.C. § 1014. Triana went to trial, and a jury convicted him on Counts 1 through 4.
Triana now raises three issues on appeal. First, he asserts that the district court abused its discretion in refusing to allow the jury to consider his proposed jury instruction raising an entrapment by estoppel theory of defense. Second, he argues that the district court erred as a matter of law in basing its “loss” calculation under U.S. S.G. § 2B1.1 on Footcare’s approximately $1.7 million in gross receipts from Medicare, when the fraud did
I. BACKGROUND A. Triana I
Between 1987 and 1998, Defendant-Appellant, Triana, worked as a Doctor of Podiatric Medicine in Ohio, specializing in the treatment of elderly patients housed in nursing homes throughout the state. On September 28, 1998, Triana executed a plea agreement with the government under which he pled guilty to one count of health care fraud for inflated Medicare billing, in violation of 18 U.S.C. § 1347 (hereinafter referred to as “Triana I”). Under the terms of Triana’s plea agreement, he agreed that he would not “personally, or through any entity he controls, i.e. through a direct or indirect ownership interest of five percent or more or an officer, agent, or managing employee (as defined in 42 U.S.C. § 1320a 5(b)) submit claims or cause claims to be submitted for program payment.” Triana also reached a settlement with the United States Department of Health and Human Services (“HHS”), excluding him from participation in “Medicare, Medicaid and all other federal health care programs” for a period of eight years. According to the exclusion notice he received frоm HHS, Triana could receive “no program payment ... for any items and services ... including administrative and management services,” and such restrictions on payment would occur whether he served as an employee, administrator, operator, or in any other capacity.
Pursuant to the above agreements, on January 29, 1999, the district court sentenced Triana to six months of imprisonment in Oriena House, a half-way house with work release privileges located in Akron, Ohio, to be followed by a two-year period of supervised release, pursuant to 18 U.S.C. § 3583. As a condition of Tria-na’s sentence, he was required to “notify [his] probation officer any time he had an interest of five percent or more in any entity or practice which submits claims or causes claims to be submitted to ... Medicaid or Medicare reimbursement.” In addition, Triana was required to pay a fine of $10,000.00 and restitution in the amount of $83,644.00 “to be paid at a minimum rate of 15% of defendant’s gross monthly earnings.” In addition, effective June 11, 1999, the State of Ohio Medical Board permanently revoked Triana’s podiatry license.
B. Triana’s Involvement in Footcare and Podiatry Admin.
Beсause of his exclusion from Medicare and Medicaid programs, Triana was unable to obtain a Medicare or Medicaid provider number for any entity that he owned or controlled. Nonetheless, with the help of Salvagni, his corporate attorney and friend, Triana was able to create two new companies, Footcare and Podiatry Admin., and use them in a scheme that would enable him to participate, benefit from, and control a podiatry practice that billed Medicare. Although both Footcare and Podiatry Admin, were, in actuality, operated by Triana, Triana placed Dr. Stephen Castor (“Castor”) at the helm of Footcare, and made his own sister, Peck, the owner and sole shareholder of Podiatry Admin.
In October 1998, Triana contracted to sell Castor his former podiatry practice under the name Footcare for $50,000.00,
Salvagni also assisted Triana in creating Podiatry Admin., an Ohio limited liability company. Podiatry Admin, received a high percentage of Footcare’s monthly gross profits, ostensibly in return for providing Footcare with both management and administrative services. In order to hide his control of the company, however, Triana recruited his younger sister, Peck, to serve as the owner and sole shareholder of the company. Peck was a recently-divorced, financially strapped elementary school teacher in Florida, who had no background in either health care or medicinе. At trial, Peck testified that both Triana and Salvagni had assured her that after signing the appropriate paperwork, she would be “relieved of all responsibilities” regarding Podiatry Admin., including ever having to visit the company headquarters in Ohio. In return for permitting Triana to use her name, Peck received a $500 monthly stipend from the Podiatry Admin, account.
Footcare’s podiatrists, allegedly “unaffiliated” with Triana, derived significant income from Medicare billing. The income passing from Medicare to Footcare and Podiatry Admin., was funneled to Triana in a number of ways. Because Footcare and Podiatry Admin, both maintained office space in a building owned by Triana, Podiatry Admin, credited Triana for thousands of dollars in rental expenses. Tria-na’s office building contained four separate and nearly identical suites, and although the two other renters testified that they paid roughly $6,000 per year in rent, Podiatry Admin.’s rent was inexplicably higher, totaling approximately $80,000 per year. Podiatry Admin, also charged Foot-care considerable sums for “administration” and “management” costs; such costs usually аmounted to at least 57% of Foot-care’s monthly earnings. At trial, however, Podiatry Admin.’s former President, Theresa Kripinsky (“Kripinsky”), testified that despite Podiatry Admin.’s high management fees, Podiatry Admin.’s services
C. Triana’s Monthly Probation Reports
As a condition of his conviction in Tria-na I, Triana was required to cooperate with assigned United States Probation Officers and to provide them with truthful information regarding the nature of his employment and income. Though Triana argued that he was continuously truthful in completing his probation reports, at trial, the government adduced evidence suggesting that in addition to underreporting his financial assets significantly, Triana provided the probation officers with substantially inaccurate accounts of his involvement in Footcare and Podiatry Admin. For instance, though Triana told his probation officers that he was not involved with Medicare billing in any way, at trial, various witnesses testified that Triana often inquired of Footcare staff regarding claims submitted to Medicare, as well as any Medicare monies that were received. Further, in order to keep from piquing Medicare’s suspicion about Footcare’s billing procedures, Triana consistently instructed Footcare podiatrists to bill with a lower patient code whenever possible. Most shocking, when Matthew Simpson, a fraud investigator at Nationwide Insurаnce Company, came to Footcare’s home office to perform an audit, Triana representing himself as Castor, went through the necessary audit procedures with him, ensuring that Simpson would not learn any potentially incriminating or fraudulent information.
D. The Course of Proceedings in Triana II
In July 2000, the FBI began to suspect that Triana was skirting the requirements of his sentence in Triana I, as well as his settlement agreement with HHS. Hence, on March 3, 2004, after the FBI had completed a thorough investigation, a federal grand jury returned the five-count indictment for conspiracy, health care fraud, making false statements and bank fraud, currently at issue (hereinafter referred to as “Triana II”).
At trial, Triana presented a proposed theory of defense jury instruction on entrapment by estoppel. Triana asserted that because there was ample evidence at trial to show that he had been forthcoming about his involvement in both Footcare and Podiatry Admin., he should not now be punished for his reliance on his USPOs’ implied ratification of his actions. The district court denied the jury instruction, finding both that there was no evidence in the record to support Triana’s claim that he had informed his USPOs that he had any interest in either Footcare or Podiatry Admin, and that Triana had been “indi
Triana was found guilty, and the government’s sentencing memorandum recommended numerous sentence enhancements from the Federal Sentencing Guidelines (the “Guidelines”), that, when combined, raised Triana’s offense level from a base level of 7 to at least a 33. The government urged the following enhancements: (1) a two-level enhancement under U.S. S.G. § 2B 1. l(b)(l)(7)(C) for Triana’s violation of a prior court order; (2) a two-level enhancement under U.S.S.G. § 2B2.2(b)(8)(C) for Triana’s use of sophisticated means in concealing his involvement in Footcare and Podiatry Admin.; (3) a two-level enhancement under U.S.S.G. § 3A1.1 for Triana’s knowledge that a victim of the offense, nursing home patients, was a “vulnerable victim”; (4) a two-level enhancement under U.S.S.G. §§ 3B1.3 and 3B1.3(e) for a person who both “abuses a position of trust during the course of illegal activity” and is the “leader, manager, or supervisor of criminal activity.” Although Triana objected to each of the government’s proposed enhancements, the district court overruled his objections.
The government also argued for an 18-point enhancement under U.S.S.G. § 2B1.1 for the substantial loss to Medicare caused by Triana’s fraud. The government recommended that the district court adopt the $2,922,967.90 in bills Footcare submitted to Medicare — the “intended loss” — as the loss attributable to Triana under the Guidelines. Triana objected and argued that because all of Footcare’s services were legitimate services to Medicare-eligible patients, the appropriate “loss” under U.S.S.G. § 2Bl.l(a)(l) was zero. In its discretion, the district court adopted the $1,764,199.36 Footcare received from Medicare — the “actual loss” — adding 16 points to Triana’s base offense level, instead of the government’s recommended 18.
Accordingly, the district court calculated Triana’s offense level to be a Level 1, Category III, and sentenced him to the following concurrent sentences: Count 1-60 months; Count 2-120 months; Count 3-60 months; Count 4-135 months. The district court also ordered Triana to pay $1,764,199.6 in restitution, and to serve three years on supervised release. As set forth above, Triana now appeals his conviction and his sentencing on three bases: (1) that the district court erred in failing to allow his entrapment by estoppel jury instruction; (2) that the district court erred in calculating “loss” under the U.S.S.G. § 2B1.1; and (3) that Triana must be re-sentenced in light of United States v. Booker.
II. ANALYSIS A. Jury Instruction
At trial, Triana submitted a proposed jury instruction, which raised an entrapment by estoppel defense for Counts 1 through 5.
A district court must grant an instruction on the defendant’s theory of the case if the theory has some support in the evidence and the law. United States v. Duncan,
This Court reviews a district court’s decision not to give a jury instruction for abuse of discretion. See United States v. Ursery,
Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal and the defendant believes that official to his detriment. See Cox v. Louisiana,
This Court holds that the district court did not abuse its discretion in rejecting Triana’s entrapment by estoppel defense because Triana failed to put forth evidence sufficient to satisfy the first prong of the entrapment by estoppel test. Triana concedes that no government official ever explicitly told him that his actions were legal, but he asserts that because he was forthcoming about his involvement in Footcare and Podiatry Admin., his probation officers’ failure to prohibit his activities actively amounted to an implied ratification of his actions. This Court finds Triana’s arguments to be disingenuous in light of the evidence established at trial. Because Triana was made plainly aware of the requirements of his Triana I sentence on more than one occasion, it strains this Court’s credulity that he did not know that his control of Footcare and Podiatry Admin. was illеgal. Moreover, Triana cannot now blame his probation officers for “failing to alert” him to any illegality when the evidence at trial demonstrated that he withheld any incriminating information from them.
1. Triana’s Knowledge of Illegality
Triana was informed by a number of different authorities that becoming too involved in Footcare and Podiatry Admin, would violate his sentence in Triana I. Upon being sentenced by the district court in Triana I, Triana was explicitly instructed by the terms of his plea agreement as well as by the HHS letter of exclusion that he was to be excluded from participating in any manner whatsoever with federal health care programs, including Medicare, for a period of eight years.
At trial, Salvagni testified that as Tria-na’s corporate attorney, he continuously instructed Triana that he must remain in compliance with the terms of his Triana I sentence. Salvagni stated that though he helped to create Footcare and Podiatry Admin., he informed Triana that to comply with the law, Triana could have no power or authority over either entity. Salvagni testified that he told Triana that, “he had to remain in an administrative capacity. That there was a spectrum, is the way I explained it to him on a number of occasions. There was a spectrum where if he swept the floors of [Podiatry Admin.] and did menial work that there would clearly have been, in my opinion, you know, no issue.” Nonetheless, Triana controlled both the actions of Castor with respect to Footcare, and the actions of Peck with respect to Podiatry Admin. Accordingly, he enjoyed unlimited discretion with both companies, and, in using his knowledge of the Medicare system, his physician contacts with nursing homes, and his ongoing podiatry practice, he pursued profit above all else.
Triana’s blatant disregard for the express instructions of his Triana I settlement as well as the exclusion letter of HHS resembles the actions of the defendant in United States v. Morgan, a case in which this Court considered whether a district court had erred in refusing to allow a defendant’s entrapment by estoppel defense theory. See
2. Failure to Disclose
Further, according to the testimony of one of Triana’s probation officers, Eric Corns (“Corns”), Triana consistently withheld key information about his involvement with Footcare and Podiatry Admin, from his probation officers that would have put
Pursuant to their statutory duties, probation officers, who are assigned a caseload of approximately sixty files at a time, are required to verify monthly forms completed by defendants describing their employment, their daily schedule, and their finances. According to the United States Probation Office “Chronological Record” submitted into evidence in this case, from 1998 through his dismissal from probation in 2001, Triana either fаiled to disclose or covered up information he presented to each of the probation officers to take his case.
As Corns testifiеd at trial, Triana’s probation officers did not have access to any Footcare or Podiatry Admin, records other than what Triana gave them. Hence, the only information the probation officers had on which to base a decision not to charge Triana with a violation was Triana’s consistent misrepresentation that he was only tangentially involved with both Footcare and Podiatry Admin. In addition, Corns testified that probation officers are not accountants, attorneys, or fraud investigators, and that they have no background in the complex forums of Medicare, Medicaid or other federal health insurance programs. Thus, probation officers are not trained to investigate complex health care fraud such as Triana’s. Further, Corns testified that probation officers are not trained to act as “legal advisors” to offenders in any way. Since, through his demonstrably false assertions, Triana effectively prevented the USPOs from developing a thorough knowledge of his business practices, he cannot now impose on them the obligation to have declarеd his activities verboten.
Defendant claims that his reliance on the advice of the probation officers makes his case similar to that of the defendant exonerated in United States v. Hedges,
Triana argues that just as Hedges provided Lehman with all relevant information regarding his proposed work with Sperry, in this case Triana had provided all relevant information to the probation officers. This Court disagrees. Unlike Hedges, Triana consistently altered or failed to disclose financial and work-related information that showed him to be in clear violation of his sentence. Moreover, where Hedges, who had no criminal history, had placed himself wholly in Lehman’s hands, in this case, Triana, who has once before been found guilty of fraud, made sure that he did not reveal the full extent of his business-related activities to the US-POs. Thus, where the Hedges court found it “unfair” to prosecute Hedges for his actions, in this case fairness dictates the opposite result.
As demonstrated by the foregoing analysis, Triana provided no evidence to support his proposed entrapment by estoppel jury instruction. Accordingly this Court AFFIRMS Triana’s convictions on all grounds.
B. Loss Calculation
U.S. S.G. § 2B 1.1
At trial, Janet Siriano (“Siriano”), a long-time, government-contracted benefit integrity analyst involved with both Medicare investigations of Triana, testified that from July 1999 through 2003, Footcare billed Medicare for $2,922,967.90, and received $1,764,199.36.
At sentencing, the district court, relying on United States v. Brown,
Defendant’s next assignment of error is that the district court erred as a matter of law in basing its “loss” calculation under U.S. S.G. § 2B 1.1 on Triana’s approximately $1.7 million in gross receipts from Medicare when the fraud did not cause any actual losses to the Medicare program. According to Defendant, as he stated in his objection at trial, there was nothing fraudulent about Footcare’s billings because the services in question “were all properly performed by licensed podiatrists” working for Footcare, and the patients were all Medicare-eligible and entitled to the treatment. Moreover, assuming arguendo that this Court finds that a “loss” did occur, Defendant asserts that the “loss” figure
The Court reviews a district court’s findings of fact at sentencing as to “loss” and restitution for “clear error,” and its methodology for calculating loss de novo. United States v. Rothwell,
The Court agrees with the district court’s determination that this case falls squarely within our reasoning in United States v. Broum,
On appeal, Brown adopted an argument very similar to that which Triana now asserts, contending that “HUD incurred no loss because the people who received housing were eligible, in a financial sense.”
... it is necessary to distinguish between two types of fraud. One is where the offender — a true con artist ...— does not intend to perform his undertaking, the contract or whatever; he means to pocket the entire contract price without rendering any service in return. In such a case the contract price is a reasonable estimate of what we are calling the expected loss, and we repeat that no more than a reasonable estimate is required. The other type of fraud is committed in order to obtain a contract that the defendant might otherwise not obtain, but he means to perform the contract (and is able to do so) and to pocket, as the profit from the fraud, only the differenсe between the contract price and his costs.
Id. at 558 (internal citations omitted).
Accordingly, the Court finds that the district court did not abuse its discretion in determining that Triana’s actions caused an approximately $1.7 million “loss” to Medicare. Under the terms of Triana’s Triana I sentence, he was excluded from participation in Medicare and Medicaid programs. By extension, Triana’s substantial participation in Footcare made the company ineligible for participation in
Moreover, Triana’s assertion that the Court should substitute its previous loss calculation with an estimate of his own personal gain, is not well-taken where Triana’s efforts to circumvent his settlement in Triana I demonstrate that his case does not warrant such leniency. Although this Court recognizes that there may be some cases of fraud in which the facts surrounding a defendant’s wrongdoing demand more leniency than the statutory formulas may allow, this, unlike Schneider, is not one of those cases. Triana has one previous conviction for health care fraud, and his actions in creating and subsequently hiding his involvement in both Footcare and Podiatry Admin, showcase a sophisticated plan meant to circumvent his prior punishment. Further, courts have consistently held that in calculating loss, “substitution of defendants’ gain is not the preferred method because it ordinarily underestimates the loss.” See United States v. Snyder,
Therefore, regardless of Triana’s assertion that his scheme was not akin to that of a true “con-artist,” because this Court finds that a quantifiable, actual loss can be attributed to Triana’s conduct, it will not substitute Triana’s percentage of gain for that actual loss. Accordingly, the Court hereby AFFIRMS the district court’s loss calculation.
C. Sentencing
The district court sentencing hearing was convened on the morning of January 12, 2005 when the Guidelines were still mandatory. That same day, the Supreme Court issued its opinion in United States v. Booker,
As a threshold matter, the parties dispute the standard of review applicable to their appeal regarding the methodology used in the loss calculation portion of Tria-na’s sentencing.
Defense counsel objected to the “harshness” of Triana’s sentence under the Guidelines, stating.
I think the courts have seen, and I think this is also perhaps why there is a wholesale movement away from the [Guidelines, in any event based on the Fanfan case that was just argued in the Supreme Court, is the results under the [Guidelines have proved to be far harsher than before we had the [Guidelines. So that which was supposed to promote equity in sentencing has actually resulted in unfairness in sentencing. And this would be a good example.
Triana asserts that the foregoing objection suffices to raise a constitutional objection, entitling him to de novo review of his sentence. The government disagrees.
This Court has not directly addressed the issue of what amounts to a timely constitutional objection. Other circuits have noted, however, that “there exists some question ‘whether,’ in cases not involving a Sixth Amendment violation, there must be an objection to the mandatory nature of the guidelines in order to preserve that error on appeal, or whether a general objection to the sentence imposed under the [Guidelines is sufficient to preserve a Booker challenge.” See United States v. Akpan,
The Court finds United States v. Candelario,
[a] defendant may be deemed to have made a constitutional objection if his objection invokes Apprendi. A defendant may also be deemed to have made a constitutional objection if he contends that “the issue of drug quantity should go to the jury.” Other potential constitutional оbjections include that an element of the offense was not proved, that the judge cannot determine quantity, or that quantity must be proved beyond a reasonable doubt (and not by a preponderance of the evidence). However, a defendant’s objection to the quantity of drugs that the Government attributes to him is not, on its own, a constitutional objection. Such an objection is properly characterized as either an evidentiary objection or a sufficiency of the evidence objection.
Id. at 1303 (internal citations omitted).
Applying Candelario’s reasoning to the instant case, the Court finds that Triana’s objection to the “harshness” of the Guidelines during his sentencing hearing constitutes a timely constitutional objection. First, though the Supreme Court had not yet decided Booker when Triana was sentenced, Triana’s counsel referenced the case. Despite the fact that the area of law was unsettled at the time of Triana’s sentencing, such a reference certainly put the district court on notice that Triana’s counsel objected to the constitutionality of Triana’s sentence. Second, both before and during sentencing, Triana’s counsel made several evidentiary objections, conсerning, for instance, the four-level enhancement the government suggested for Triana’s role in the Footcare/Podiatry Admin. conspiracy and claiming that the evidence adduced at trial did not amount to a showing that Triana was “in control” of the scheme. Triana’s Booker objection, however, can be viewed as distinct from these other objections because instead of taking issue with factual interpretations, it raised the broader constitutional question of whether Triana’s Guideline sentence was disproportionate to the crime, i.e. “harsher” than he deserved.
Additionally, this Court finds Triana’s objections to the district court’s sentencing calculation of the amount of loss caused by his fraudulent activity sufficient to constitute a constitutional objection. See supra Part II.A. (“Loss Calculation”); Akpan,
In cases applying preserved error review, this Court applies a de novo standard of review to determine whether the district court, viewing the Guidelines as mandatory rather than advisory, sentenced a defendant in violation of Booker. See
If on de novo review, an appellate court finds a constitutional error, it is also subject to a “harmless error” analysis under Fed.R.Crim.P. 52(a).
III. CONCLUSION AND RECOMMENDATION
Accordingly, this Court AFFIRMS Defendant’s conviction, and finds that the district court correctly held that Triana’s actions resulted in a “loss” to Medicare. Because, however, the sentence imposed by the district court violated Triana’s Sixth Amendment right to a jury trial, we hereby VACATE Triana’s sentence and REMAND the case for re-sentencing in light of this opinion and the Supreme Court’s holding in Booker.
IT IS SO ORDERED.
Notes
. The proposed jury instruction stated:
Defendant Nicholas J. Triana, Jr., claims that he is not guilty of the willful or deliberate wrongdoing as charged in Counts I through V of the indictment because he acted on the basis of authorization from the Government.
If before taking any action, Defendant Nicholas J. Triana, Jr., acted in good faith, and the Government:
First: Through an authorized Government official, empowered to render the erroneous advice to the Defendant;
Second: Who was made aware of all relevant historical facts;
Third: Affirmatively told the Defendant that his conduct was permissible;
Fourth: And That the Defendant relief [sic.] on this false information; andFifth: The Defendant's reliance was reasonable.
. Though the language of Triana’s proposed jury instruction set forth an entrapment by estoppel defense on counts 1 through 5, Defendant-Appellee’s brief state that “the requested instruction applied only to Counts 1-3." See Defendant-Appellee’s Brief at 55. The Brief goes on to state that this Court must now find that the faulty jury instructions on Triana’s defense to counts 1 through 3 also infected count 4 because in successfully opposing Triana’s pre-trial motion to sever counts 4 and 5, the government argued that count 4 was “inextricably intertwined” with the charges in counts 1 through 3.
. Relying on authority from various other circuits, Triana proposes that his threshold evidentiary burden is extremely low, and that he is entitled to his requested jury instruction if there is any supporting evidence whatsoever, regardless of whether that evidence is tenuous. See United States v, Ruiz,
. The language present in the Plea Agreement, the Judgment and Order, and the HHS exclusion letter was as follows.
The defendant understands that following the exclusion, he cannot personally, or through any entity he controls (i.e., through a direct or indirect ownership interest of five percent (5%) or more or an officer, agent, or managing employee ... submit claims or cause claims to be submitted for program payment). He further understands that violations of the conditions ofthe exclusion may result in criminal prosecution and the imposition of civil monetary penalties.
. I n October 2000, because Triana moved from Port Clinton, Ohio tо Strongville, Ohio, his case was transferred to probation officer Dodds. Further, on August 1, 2001, Triana’s case was again transferred from probation officer Dodds to Urda.
. The Guidelines were amended, effective November 1, 2001, and § 2F 1. 1 of the Guidelines was deleted as part of that amendment. Under the revised version of the Guidelines, "loss” in fraud cases is calculated under a revised version of § 2B 1.1. Some cases cited in this Opinion, however, were decided prior to those amendments, and, therefore, referenced § 2F 1. 1, as opposed to § 2B 1.1. § 2B 1.1 is the Federal Sentencing Guideline for larceny, embezzlement, and theft, and the commentary to § 2B.1.1 emphasizes the amount taken from the victim as the primary measure of loss: "The value of the property stolen plays an important role in determining sentences for theft and other offenses involving stolen property because it is an indicator of both the harm to the victim and the gain to the defendant.” U.S.S.G. § 2B.1.1, Background, ¶ 1.
. According to the Guidelines, the greater the loss, the greater the corresponding enhancement level:
Loss (Apply the Greatest) Increase in Level
(I) More than $1,000,000 add 16.
(J) More than $2,500,000 add 18.
U.S.S.G. § 2B1.1.
. Because the base offense lеvel in fraud cases often does not identify the seriousness of the offense, the Guidelines are intended to offer a series of ways to enhance a fraud sentence, allowing what the Seventh Circuit in United States v. Schneider,
. This information was encapsulated in Government Exhibit # 26, which Siriano authenticated and, upon instruction of the court, signed in the presence of the jury.
. Moreover, this Court is also persuaded by the district court’s reasoning in United States v. Nastasi,
During sentencing, the government asked the district court to calculate loss pursuant to application note 8(d) of U.S.S.G. § 2F1.1, which dealt with "Diversion of Government Program Benefits.” Nastasi,
. In cases receiving "preserved error” review, a reviewing court looks at the case de novo to determine whether there is error. If error is found, it is generally subject to a "harmless error” analysis. See FED. R. CRIM. P. 52(a).
. "[Bjefore an appellate court can correct an error not raised at trial, there must be (1) an
. As in this case, in U.S. v. Nanez,
. Fed.R.Crim.P. 52(a) reads: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” (emphasis added).
Concurrence Opinion
concurring.
I concur in my brother’s opinion, except with respect to part II.C. The government concedes that, even under plain error review, this case should be remanded for resentencing pursuant to United States v. Booker,