United States v. Nicholas J. Triana, Jr.

America, UNITED STATES

Plaintiff-Appellee, TRIANA, Jr., Defendant-

Nicholas J.

Appellant. 05-3173.

No. Appeals, Court Circuit.

Sixth July

Submitted: 2, 2006.

Decided Filed: Nov.

(“Salvigni”), and “others”—to defraud and the programs and Medicaid Medicare States District Court United Ohio, including District Northern (2) Office; Count States Probation United health alleged 2 that Triana committed by “fraudulently” trying to cir- care fraud his set- provision cumvent the exclusion of of 18 agreement in violation tlement (3) 1347; that alleged § 3 U.S.C. Count Triana violated the federal false statement statute, § by allegedly fail- 18 U.S.C. “notify” by “concealing]” ing to and/or a probation that he had from his officers ownership, control” “de interest and facto Consultants, companies of two —FootCare (“Footcare”), po- a company providing Inc. nursing in patients services to diatric Ohio, around Adminis- homes Admin.”), tration, (“Podiatry a busi- LLC allegedly performing marketing and ness Footcare; administrative for other services (4) count charged 4 Triana one Count with Strafer, BRIEF: G. Richard Office ON § under for of bank fraud 18 U.S.C. Florida, Strafer, Miami, for of G. Richard Peck, for causing application to file a loan Khula, Bruce Appellant. A. materially incor- containing a second home Ohio, Attorney, Cleveland, Appellee. for information; (5) charged rect Count RYAN, MARTIN and Circuit Beforе: making a in an Triana with false statement MARBLEY, Judges; Judge.* District in application for an automobile loan viola- § tion of 18 U.S.C. 1014. Triana went to RYAN, 326), (p. separate J. delivered a jury and a convicted him on Counts Part concurring except as to II.C. opinion ap- Triana now raises issues on three OPINION First, he the district peal. asserts MARBLEY, Judge. District refusing its in court abused discretion 3, 2004, jury proposed indict- his On March in a five-count allow consider ment, grand jury charged jury raising entrapment a Nich- instruction federal Second, (hereinafter, theory he estoppel “Triana” or of olas J. defense. “Defendant”) acts: the district court erred as argues with various fraudulent (1) conspir- calcula- charged basing Triana with matter of law its “loss” Count § Footcare’s § under 18 U.S.C. with unindict- tion under U.S. S.G. 2B1.1 on ing, sister, Jolynn gross Peck re- co-conspirators approximately ed million $1.7 —his (“Peck”), attorney, Salvagni Medicare, Brian the fraud did ceipts when * Ohio, Algenon Marbley, sitting by designation. United The Honorable L. Judge Southern District States District for the as an any employee, actual losses to the Medi- whether he served admin- not cause istrator, Third, argues operator, capаcity. other program. care resentenced the aftermath he should be agreements, Pursuant to the above on Booker, 548 U.S. States United 29, 1999, January the district court sen- (2005). 738, 747, 160 L.Ed.2d 621 125 S.Ct. Triana to imprison- tenced six months of below, although For the reasons set forth House, half-way ment Oriena house AFFIRM both Triana’s conviction and we privileges with work release located in Ak- calculation, court’s we “loss” ron, Ohio, two-year to be followed sentence, and RE- VACATE release, period supervised pursuant MAND his case to the district court § 18 U.S.C. 3583. As a condition of Tria- resentencing light in of United States v. sentence, required “notify na’s he was progeny. Booker its any probation officer time he had an [his] percent any interest of five or more in I. BACKGROUND entity practice or which submits claims or causes claims to be submitted to ... Med- A. Triana I icaid or Medicare reimbursement.” In ad- 1998, Defendant-Ap- Between 1987 and dition, required pay Triana was a of fine Triana, of pellant, worked as Doctor $10,000.00and restitution in the amount of Ohio, in in specializing Podiatric Medicine $83,644.00 paid “to be at a minimum rate elderly in patients the treatment of housed gross monthly of 15% оf defendant’s earn- nursing throughout homes the state. On addition, 11, 1999, ings.” In effective June September Triana executed a of Medical perma- the State Ohio Board un- plea agreement with the nently podiatry revoked Triana’s license. pled guilty which he to one count of der fraud for inflated Medicare health care B. Involvement in Footcare § of billing, violation 18 U.S.C. Podiatry Admin. (hereinafter I”). referred to as “Triana of his exclusion from Medicare Because plea agree- of Triana’s Under terms programs, and Medicaid Triana was unable ment, agreed “per- he that he would not provider to obtain a Medicare or Medicaid controls, sonally, through any entity or he any entity number for that he owned or ownership i.e. a direct or indirect Nonetheless, help of controlled. with percent interest of five or more or corporate attorney Salvagni, his (as officer, agent, managing employee friend, Triana able to create two new 5(b)) § in 42 defined U.S.C. 1320a submit Admin., companies, Podiatry Footcare and for claims or cause claims to be submitted and use them a scheme would progrаm payment.” Triana also reached a from, participate, him benefit enable Depart- settlement with the United States that billed podiatry practice and control a ment of Health and Human Services Although Medicare. both Footcare and (“HHS”), excluding participation him from Admin, were, Podiatry actuality, operat- “Medicare, Medicaid and all other feder- Triana, placed Stephen Dr. ed programs” period al health care for a of (“Castor”) Footcare, of Castor at the helm eight years. According to the exclusion sister, Peck, owner and made his own HHS, notice he received from Triana could and sole shareholder of Admin. program payment receive “no ... for ... Triana contracted including items and services adminis- In October services,” podiatry practice his former management trative and sell Castor $50,000.00, Footcare for payment such restrictions on would occur under the name monthly Footcare’s high percentage of and a payment down consisting of a $500 $49,500. ostensibly pro- in return for gross profits, the balance note for promissory manаgement both Castor, bellhop viding Cleveland Footcare with a former Marriott, graduate In order to was a recent and administrative services. Airport working however, had been company, who podiatry school hide his control Peck, in the early sister, pay since younger Triana without Triana recruited podia- as a establishing himself hopes of and sole shareholder to serve as the owner podiatry eventually opening trist and recently- company. Peck was of the Salvagni testified Though in Ohio. practice divorced, elementary financially strapped Triana and between agreement Florida, no who had school teacher contract, Ca- was a standard-form Castor care or medi- background in either health testimony at trial made clear stor’s that both At Peck testified cine. him deal to allow arranged the Triana had Salvagni had assured her that Triana and operation while to maintain control paperwork, signing appropriate after figurehead. as a having serve Castor responsibili- be “relieved of all she would First, agreement, terms of the despite the Admin., inсluding regarding Podiatry ties” hands. Castor never money changed no having company to visit the head- ever payment re- Triana the down paid $500 permitting in Ohio. In return for quarters Triana told agreement, and quired name, a Peck received Triana to use her pay to would not have Castor that he Podiatry monthly stipend from the $500 $49,500 money promis- on the any Triana Admin, account. on eventual default sory note. Castor’s “unaffil- podiatrists, allegedly Footcare’s therefore, would, Triana to permit

the note Triana, in- significant iated” derived with mo- appropriate at the practice reclaim his income billing. come from Medicare Second, significantly Triana limited ment. Footcare and passing from Medicare to to oversee the business. power Castor’s Admin., in to Triana Podiatry was funneled onward, Footcare hired at least From 1998 ways. a of Because Footcare and took on hun- number thirty podiatrists new Admin, maintained office nursing Podiatry home clients. Ca- both dreds of new contract, Triana, a in Po- space building stor never once authorized owned Admin, looking at at all times restricted from for thou- diatry wаs credited Triana Third, Footcare’s Triana ensured expenses. books. in Tria- sands of dollars rental to salary was limited 30% Castor’s building separate contained four na’s office plus a receipts net from work he billed suites, nearly although identical Thus, despite fee. 5% administrative they other renters testified that the two “purchased” that after Castor fact $6,000 rent, year in Po- paid roughly per company, grew exponentially, Footcare inexplicably high- diatry Admin.’s rent was upwards eventually achieving gross income $80,000 er, per totaling approximately $650,000 salary Admin, in Castor’s charged Foot- year. Podiatry also $70,000 By consistently per year. under for “administra- care considerable sums income, Triana was able limiting Castor’s costs; “management” tion” and such costs money to his to funnel the rest of the of Foot- usually amounted to at least 57% Admin., company, Podiatry under second earnings. At howev- monthly care’s guise “management costs.” President, er, Podiatry Admin.’s former (“Kripinsky”), testified Kripinsky Theresa creating

Salvagni also assisted Triana Podiatry high Admin.’s man- Admin., liability despite Podiatry an Ohio limited Admin, fees, Podiatry Admin.’s services agement compаny. Podiatry received inquired regarding limited ten of Footcare staff actually quite to Footcare were instance, Podiatry Medicare, Ad- though scope. For claims submitted to as well as perform to its charged Footcare any min. Medicare monies that were received. billing, reality, Northcoast Further, Medicare keep piquing order to (“North Coast”), Billing Service Medical suspicion Medicare’s about Footcare’s bill- Admin., all of Podiatry submitted ing procedures, consistently Triana in- Kripinsky to Medicare. Footcare’s claims podiatrists structed Footcare to bill with a consistently instruct- that Triana testified patient possible. lower code whenever Admin, Podiatry checks to ed her to issue shocking, Simpson, Most when Matthew personal expenses. care of his While take investigator fraud at Nationwide Insurance President, Podiatry Admin.’s serving as Company, came to Footcare’s home office Admin, Kripinsky Podiatry used checks audit, perform representing payments as well make Triana’s restitution Castor, himself as went the neces- on his two monthly mortgage payments as him, sary procedures еnsuring audit with Further, Podiatry Kripinsky used condos. Simpson poten- would not learn Admin, a number of Tria- funds settle tially incriminating or fraudulent informa- from various stores such as na’s bills tion. Club, 1 Im- Kaufman’s and Pier Sam’s occasion, Kri- Triana also asked ports. On Proceedings D. The Course of for blank checks from the pinsky in Triana II Admin, pur- to use for his own account In FBI July began suspect trial, Kripinsky At claimed that poses. skirting requirements that Triana was quit upset she was that be- she because I, of his sentence as well as his salary personal his and his various tween Hence, agreement settlement with HHS. expenses, approximately Triana consumed 3, 2004, FBI on March after the had com- Podiatry funds. 45% of all of Admin.’s pleted thorough investigation, a a federal grand jury returned the five-count indict- Monthly Triana’s Probation C. fraud, conspiracy, ment for health care Reports fraud, making and bank false statements in Tria- As a condition of his conviction (hereinafter currently at referred to issue I, na cooperate required Triana was II”). as “Triana Probation Of- assigned with United States trial, presented proposed At Triana truthful provide ficers and to them with theory jury of defense instruсtion on en- regarding the nature of his information Triana asserted trapment by estoppel. Though and income. Triana employment at ample that because there was evidence continuously truthful argued that he was forthcoming that had been trial to show he reports, in at tri- completing probation in both Footcare about his involvement al, sug- government adduced evidence Admin., Podiatry he should not now be underreporting in gesting that addition to on his punished for his reliance USPOs’ significantly, his financial assets implied ratification of his actions. The officers with sub- provided probation instruction, jury court denied the district in- stantially accounts of his inaccurate in finding both there was no evidence Podiatry in Ad- volvement Footcare support Triana’s claim instance, record though min. For Triana told his he had he had informed his USPOs that probation officers that he was not involved Podiatry in or any way, in interest either Footcare billing with Medicare Admin, “indi- Triana of- and that Triana had been various witnesses testified that objected argued that lines. Triana receiving funds from Medicare rectly” I. in Triana all of Footcare’s services were being since sentenced because legitimate Medicare-eligible pa- services ‍​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌‌​​​​​​‌‌​​​​‌‌​​​​‌‌‌​​‍to guilty, govern- and the Triana was found tients, appropriate “loss” under recom- sentencing memorandum ment’s 2Bl.l(a)(l) § In was zero. its U.S.S.G. sentence enhancements mended numerous discretion, adopted the district court Sentencing the Federal Guidelines from $1,764,199.36 Footcare received (the that, combined, “Guidelines”), when adding 16 Medicare—the “actual offense level from a base raised Triana’s loss”— level, in- points to Triana’s base offense of 7 to at least a 33. The level government’s stead of the recommended (1) a urged following enhancements: under S.G. two-level enhancement U.S. l(b)(l)(7)(C) § Triana’s violation 2B 1. Accordingly, the district court calculated (2) order; a two-level prior of a offense level to be a Level Triana’s under U.S.S.G. enhancement III, Category and sentenced him to the 2B2.2(b)(8)(C) sophis- § for Triana’s use of 1- following concurrent sentences: Count concealing his involve- ticated means months; months; 2-120 Count Count (3) Admin.; inment Footcare and months; 3-60 Count 4-135 months. The enhancement under U.S.S.G. two-level pay district court also ordered Triana to knowledge § that a vic- 3A1.1 for $1,764,199.6 restitution, and to serve offense, nursing patients, home tim of the years supervised three on release. As set (4) victim”; a “vulnerable a two-level above, appeals forth Triana now his convic- §§ 3B1.3 and enhancement under U.S.S.G. (1) sentencing tion and his on three bases: 3B1.3(e) person for a who both “abuses failing that the district court erred position during trust the course of ille- entrapment by jury in- estoppel allow his “leader, activity” manager, gal and is the (2) struction; that the district court erred Al- supervisor activity.” of criminal calculating “loss” under the U.S.S.G. objected gov- though Triana to each (3) 2B1.1; § must be re- enhancements, proposed ernment’s light sentenced objections. district court overruled his Booker. for an 18- government argued also § 2B1.1 enhancement under U.S.S.G.

point II. ANALYSIS to Medicare caused the substantial loss Jury A. Instruction rec- by government Triana’s fraud. The proposed At submitted adopt ommended that the district court the instruction, $2,922,967.90 jury entrap- which raised an Footcare submitted to bills 1 estoppel loss”—as the loss ment defense for Counts Medicare—the “intended through 5.1 his proposed attributable to Triana under the Guide- Triana’s based Through proposed jury First: Government 1. The instruction stated: an authorized official, Jr., Triana, empowered to render the erroneous J. claims Defendant Nicholas Defendant; guilty willful or deliber- advice to the that he is not wrongdoing charged ate as in Counts I Second: Who was made aware of all rele- through facts; V because he of the indictment vant historical acted basis of authorization from the on the Affirmatively Third: told the Defendant that Government. permissible; his conduct was action, any taking Defendant If before [sic.] Fourth: And That the Defendant relief Jr., faith, Triana, good J. acted in Nicholas information; on this false and the Government:

315 1988). was An instruction which lacks eviden his assertion that there on instruction tiary support upon speculation or is show that because he based evidence to ample given. his in- should not be United States v. consistently forthcoming about - (6th Cir.1994). Lindo, 353, Footcare and 18 F.3d 356 both volvement Admin., proposed adequately for his The instruction must punished he should not be the law to probation applicable officers to inform issues and reliance on his submit Brown, jury. v. 946 viоlations. The dis- F.2d any potential him of (6th Cir.1991).3 1191, 1194 theory untena- found Triana’s trict court ble, requested present and refused to This Court reviews a district jury. theory of defense instruction jury give court’s decision not to instruc explained that there was The district court tion for abuse discretion. See United ... that the Government evidence “[n]o (6th 1129, Ursery, States v. 109 1136 F.3d affirmatively thereof informed agent an also, Colon, Cir.1997); see United States v. legal,” conduct was the Defendant that his (6th Cir.2001). F.3d 373 268 When an- Triana relied on such or that review, conducting such this Court re Further, the district nouncement. (1) if it verses the trial court finds that: g[iven] “repeatedly [Tria- noted that it had proposed substantially is instruction provide any evi- opportunity na] (2) correct; proposed instruction is not support [entrapment-by-es- this dence to substantially covered other delivered him to require and did not toppel] defense” (3) charges; give the failure to present such take the stand order theo impaired instruction the defendant’s assignment Triana’s first of er- evidence. ry of the case. v. New See United States court’s decision not ror is that the district (6th Cir.1993) comb, 6 F.3d 1132 an his defense instruction was adopt (citаtions omitted); Morgan, see also him to a new entitling of discretion abuse 566; v. New- F.3d at see United States 4.2 trial on Counts (6th Cir.1993) comb, 6 F.3d theory (assuming, arguendo, an grant

A district court must theory requested defendant’s instruction was le on the defendant’s instruction sound, noting that if the theory support gally if has some the case for its legal relies on error as the basis the evidence and the law. United States (6th instruction, Duncan, give F.2d 1117-18 Cir. refusal Relying authority from various other cir was reason- 3. on Fifth: The Defendant's reliance cuits, proposes threshold evi that his able. low, dentiary extremely he burden is jury requested instruction if is entitled to his Though language proposed of Triana’s whatsoever, any supporting there is evidence entrapment by jury forth an instruction set regardless that evidence is tenu of whether 5, through estoppel on counts 1 De- defense v, Ruiz, 1151, F.3d ous. See United States 59 fendant-Appellee’s that “the re- brief state States, (11th 1995); v. United 1154 Cir. Perez applied only quested instruction to Counts 1- 12, Cir.1961); (5th United 297 F.2d 15-16 Defendant-Appellee’s Brief at 55. 3." See 187, Pedroza, (2d v. 750 F.2d 204-05 States goes Court must The Brief on to state that this 1984) added). Morgan, (emphasis In Cir. faulty jury now find that the instructions on however, held that when аn in this Court through to counts 1 3 also Triana’s defense evidentiary support,” or is "lacks struction successfully op- 4 infected count because in giv “speculation,” not be based on it should pre-trial posing motion to sever Triana’s 557, Cir.2000). (6th en. See 216 F.3d 566 5, government argued that counts 4 and Therefore, argument that his tenuous Triana’s “inextricably 4 intertwined” with count was enough establish a basis for his evidence is charges in counts 1 3. requested is without merit. instruction 316 that making for the neces- This Court holds responsible

court is reject instruction). in court did not abuse its discretion Al- sary alterations by ing entrapment estoppel Triana’s de jury instruction “should not be though a put Triana failed to forth fense because evidentiary or is support if it lacks given satisfy sufficient the first evidence suspicion speculation,” upon based mere by test. prong entrapment estoppel James, 674, v. United States 819 F.2d 675 government that no offi Triana concedes (citation (6th Cir.1987) omitted), long so as explicitly him that his actions cial ever told evidence, supporting weak there is even legal, were but he asserts because he reversible error in trial court commits “[a] forthcoming wаs about his involvement given criminal it fails to an ease when Admin., Podiatry proba Footcare and theory of a of de- adequate presentation prohibit tion officers’ failure to his activi Plummer, v. States 789 United fense.” actively implied ties amounted to an ratifi Cir.1986). (6th 435, F.2d 438 cation of his This finds actions. Court disingenuous in arguments to be Entrapment by estoppel applies light of the evidence established at trial. when an official tells defendant cer plainly Triana was made aware of Because and the defendant legal tain conduct is I of his Triana requirements sentence that official to his detriment. See believes occasion, it on more than one strains this Louisiana, 559, v. Cox 379 U.S. 85 S.Ct. credulity that he did not know that Court’s (1965) (to L.Ed.2d 487 find defen Podiatry his control of Footcare and Ad violating a statute when dant liable Moreover, illegal. min. was Triana cannot relied on the Chief of Police’s defendant probation now blame his officers for “fail that his actions would be incorrect advice him ing any illegality to alert” when the to sanction an indefensi lawful “would be evidence at trial demonstrated that he State”); see by the entrapment ble sort of any incriminating withheld information also, Ohio, Raley v. 360 U.S. 79 S.Ct. from them. (1959). a thresh 3 L.Ed.2d 1344 As must requirement, Knowledge Illegality old show that 1. Triana’s evidentiary upon basis exists which the by Triana was informed a number of Morgan, instruction can be issued. in- becoming different authorities that too prove F.3d at 566. In order to the defense Admin, volved Footcare and entrapment by estoppel, a defendant I. would violate his sentence (1) agent must show that: Upon being by sentenced the district court charged announced that- the conduct was I, Triana Triana was explicitly instruct- (2) legal; the defendant relied on the agreement plea ed the terms of his as (3) announcement; agent’s the defendant’s well as the HHS letter of exclusion (4) reasonable; given reliance participating he was to be excluded from reliance, prosecution would be any manner whatsoever with federal defendant’s Levin, unfair. Medicare, programs, including F.2d care health (6th Cir.1992). years.4 By for a period eight accepting Agree- language present ownership in the Plea a direct or indirect interest of Order, ment, officer, Judgment (5%) and the HHS percent five or more or an exclusion letter was as follows. agent, managing employee or ... submit claims to be submitted for following claims or cause that The defendant understands exclusion, program payment). personally, He further under- the he cannot or (i.e., through any entity the conditions of he controls stands that violations of gun, gun. in a of differ- machine and a machine number tered foregoing terms circumstances, Triana and Morgan ent Id. claimed that he was entitled to contexts legal and con- obligations, his clearly entrapment jury knew an instruction estoppel them. attempted to circumvent tinuously police him to because officers had led be- his Id. legal. lieve that actions were Evi- that as Tria- Salvagni At testified dence set forth at trial showed that on continuously attorney, he corporate na’s occasion, officers, police than one more in that must remain instructed Triana he Morgan’s pos- in finding over firearms I Triana compliance the terms of his with session, expressly had told him that it was he Salvagni though that stated sentence. guns, for him to illegal have Podiatry helped Footcare and to creаte them, he could he though not sell had to Admin., comply that to he informed Triana way to of them. See dispose find a id. law, power Triana have no could with police Morgan asserted that because Salvagni authority entity. over either specific officers never told him a deadline that, “he had that he told Triana testified firearms, to dispose he had by which capacity. in an administrative remain give he intended to and because had I spectrum, way That there was is parents eventually,' he guns to his him on of occa- explained it to a number entrapment by entitled to a defense of if he spectrum was a where sions. There Court, estoppel. Id. at 560-61. This how- swept [Podiatry Admin.] the floors of ever, decision, upheld the ‍​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌‌​​​​​​‌‌​​​​‌‌​​​​‌‌‌​​‍court’s district clearly did menial work there would police officers had explaining because been, know, no my opinion, you have told on more than Nonetheless, expressly Morgan one controlled Triana issue.” per that his se occasion actions were ille- respect to both of Castor with the actions they had gal, ap- he could now claim Footcare, with аnd the actions of Peck (emphasis of his behavior. Id. add- respect Podiatry Accordingly, proved Admin. ed). case, Morgan, In this much like he unlimited with both enjoyed discretion and, using knowledge of admits that officials companies, his system, expressly con- told him his actions physician the Medicare his never were homes, And, nursing ongoing tacts and his like Triana was at all legal. Morgan, with pursued profit requirements he above of of both podiatry practice, apprised times all The Court finds else. his sentence the law. now illogical to Triana to claim it allow for the ex- disregard Triana’s blatant in the clear “ignorance” face of instruction press of Triana I settle- instructions his HHS, court, probation district his from the letter of ment as well as exclusion officers, attorney. own his the actions of the defen- HHS resembles Morgan, a case dant in United States 2. Failure to Disclose a dis- considered whether which this Court Further, testimony according to allow a refusing trict had erred officers, probation Eric one entrapment by estoppel de- defendant’s (“Corns”), consistently with- In Corns at 557. theory. fense See F.3d his involvement key held informatiоn about appealed his Morgan, Morgan defendant Admin, Footcare and jury being fel- with three-count conviction have firearm, unregis- put officers that would probation on in of a possession may prose- penalties. criminal the exclusion result in imposition monetary civil cution and the illegality ports clearly them on notice of the of his ac- was far outside the realm of reality. failing tions. In to disclose all relevant USPOs,

information to the Triana could trial, As testified at pro- Corns Triana’s reasonably rely on them to inform him bation officers did not have access to in breach of his Triana I Admin, when he was Podiatry Footcare or records other settlement. Hence, gave than what Triana them. only probation information the officers had duties, statutory pro- Pursuant to their on which to base a charge decision not to officers, assigned bation who are a case- Triana with a violation was Triana’s consis- time, sixty load of files at a approximately misrepresentation tent only that he was verify monthly required are forms com- tangentially involved with both Footcare pleted by describing thеir defendants em- Podiatry addition, Admin. In Corns schedule, daily ployment, their and their that probation testified officers are not According finances. to the United States accountants, attorneys, or investiga- fraud “Chronological Probation Office Record” tors, they and that background have no case, submitted into evidence this Medicare, complex forums of Medicaid from probation his dismissal or pro- other federal health insurance Triana either failed to disclose Thus, grams. probation officers are not up presented covered information he investigate trained to complex health care probation each of the officers to take his Further, fraud such as Triana’s. Corns consistently reported case.5 Triana probation testified that officers are not working he was for a doctor’s office as an trained to act “legal as advisors” to offend- trial, “administrative assistant.” At how- Since, any way. ers in through his demon- ever, Castor and others testified that Tria- assertions, strably false effectively company na’s role in did not comport prevented the USPOs from developing a аddition, with his title. In Triana also thorough knowledge of prac- his business consistently reported monthly income of tices, he impose cannot now on them the $950.00, approximately excluding his rental obligation to have declared his activities $7,000, approximately income of which he verboten. mostly stated was for property used ex- Defendant claims that his reliance on truth, however,

penses. In use of Triana’s probation advice officers makes Admin, approximately Podiatry 45% of fi- his case similar to that of the defendant personal put “monthly nances for use exonerated United States v. Hedges, 912 income” at a level far above that which he (11th Cir.1990). F.2d 1405-06 This Moreover, reported. though Triana con- Court In disagrees. Hedges, the Eleventh sistently supervisor “Penny listed his as Circuit found that the district court had Tuley,” Tuley Ms. testified as erred in refusing give entrapment by Admin, manager, office she estoppel instruction to the defendant who supervisor was never Triana’s and was in had on given relied advice to him subject fact to his direction at all times. “standards of conduct officer.” See id. at sought depth to hide the of his 1397. When defendant Hedges, a former participation in Footcare and Podiatry Force, Ad- Colonel in the Air min., and the information Triana’s re- looking military duty, to retire from Further, 1, 2001, I n October because Triana August moved Dodds. on Clinton, Ohio, Strongville, again from Port probation Ohio to case was transferred from probation his case was transferred to officer officer Dodds to Urda. Lehman, just Hedges pro- argues Triana as Captain sought he advice with all vided Lehman relevant informa- of Conduct Counselor the Standards his regarding proposed tion work with advising about personnel charged with Sperry, provided this case Triana had at 1398- matters. Id. conflict of interest probation all relevant information to the a defense Hedges sought work as 99. disagrees. officers. This Court Unlike (“Sper- Sperry Corporation for consultant Hedges, consistently altered or military con- ry”), of the bidders on one to disclose financial and failed work-relat- Hedges responsi- tract for which had been him to be in ed information that showed Id. at serving as a ble while Colonel. Moreover, of clear violation his sentence. that he would Hedges Sperry told 1399. Hedges, who had no criminal where histo- until them accept employment with ry, placed wholly had himself Lehman’s it with all comply Lehman told him would hands, case, Triana, in this who has once laws, and, Sperry after conflict of interest fraud, found guilty before been made agreement, passed he had him a draft sent full sure that he did not reveal the extent agreement it to Lehman. Id. The along activities to the of his business-related US- employ- salary no or terms of contained Thus, Hedges POs. where the found to ment, though Lehman edited it and prosecute Hedges to for it “unfair” his concerns, he conflict of satisfy any interest actions, in this case fairness dictates the Hedges he should wait never told opposite result. pro- began leave until his terminal before foregoing analy- As demonstrated the Id. negotiations Sperry. with ceeding with sis, support provided no evidence jury At found that the 1399-1400. by estoppel proposed entrapment jury his Sper- had with Hedges negotiated because this Court AF- Accordingly instruction. termi- ry officially placed on before he was on FIRMS convictions all leave, conflict military nal had he violated grounds. appeal, laws. Id. at 1400. On interest Circuit, on however, relying the Eleventh B. Loss Calculation the fairness” rather than “principles of state,” the § mental found that the “defendant’s S.G. 2B 1.16 is Guide U.S. refusing determining to al- district court had erred used courts in “loss” line estoppel de- Hedges entrapment by low for fraud cases.7 The Guideline enhances to correlate to the Hedges’ and reversed conviction. a defendant’s sentence fense fraud. of loss See Id. amount caused at 1406. amended, No- for theft other offenses involv- 6. were effective sentences The Guidelines 1, 2001, property ing § it is an indicator Guide- stolen because 2F 1. 1 of the vember gain harm victim and the part of both the to the deleted as of that amendment. lines was 2B.1.1, Guidelines, § Back- the defendant.” U.S.S.G. the revised version of the Under ¶ ground, 1. under a in fraud cases is calculated "loss” § cited of 2B Some cases revised version 1.1. Guidelines, however, prior greater Opinion, According decided were 7. in this amendments, therefore, and, loss, corresponding greater refer- enhance- to those § 2B 1.1. opposed § as ment level: enced 2F Sentencing § the Federal Guideline 2B 1.1 is Greatest) (Apply Increase in Level Loss theft, embezzlement, larceny, emphasizes § commentary 2B.1.1 $1,000,000 (I) (J) add 16. add 18. than More primary as the taken from victim amount $2,500,000 than More property "The value of the measure loss: determining § 2B1.1. important U.S.S.G. plays an role in stolen 2Bl.l(b)(l).8 § Application U.S.S.G. Note Medicare legitimate podiatric were ser- 2 provides §to 2B1.1 guidance for the vices for qualified recipients, Medicare application determination of loss. The Medicare had suffered no loss for which greater note states that “loss is the of Defendant could be held liable. 2B1.1, § actual loss or intended loss.” Id. court, sentencing, At relying (n.2) (2002). “[Ajctual cmt. loss” is “the Brown, on United States 151 F.3d 476 reasonably pecuniary foreseeable harm (6th Cir.1998) and United States v. Nasta- offense,” that resulted from the and “in- si, (E.D.N.Y. 2002 WL 1267995 Apr.17, pecuniary tended loss” is “the harm that 2002), found that Triana’s argument above impossible unlikely would have been point,” the because given “missefd] (n.2(A)(I) 2B1.1, § occur.” Id. cmt. exclusion, under the Medicare would not (ii)). In situations where the losses occa- pay money any entity with which Triana by easy sioned financial frauds are associated, the “evidence showed that quantify, the only district court need make Medicare paid would not have [Footcare] loss, given reasonable estimate of the but for the fraud.” The district court then 2B1.1, § available information. Id. cmt. held Triana accountable only for (n.2(C)). Such estimates “need not be de- $1,764,199.36 in actual by losses suffered precision.” termined with United States v. $2,922,967.90 Medicare —not the in intend- Miller, (4th Cir.2003). 316 F.3d ed requiring an offense in- level losses— trial, At (“Siriano”), Janet Siriano crease of 16. long-time, government-contracted benefit assignment Defendant’s next of error is integrity analyst involved with both Medi- that the district court erred as a matter of investigations Triana, care testified that in basing law its “loss” calculation under July Footcare § 2B U.S. S.G. 1.1 on approxi- $2,922,967.90, billed Medicare for and re- mately in gross million receipts from $1.7 $1,764,199.36.9 ceived upon Based Siri- Medicare when the fraud did not cause estimates, government’s ano’s sentenc- actual losses to program. the Medicare ing suggested memorandum that under Defendant, According to as he stated his Guidelines, because the intended loss objection at there was nothing fraud- million, was over get should $2.5 ulent about billings Footcare’s because the 18-point enhancement. The in question services “were all properly per- also noted that should the district court by podiatrists” formed licensed working find that approximately million $1.7 Footcare, patients actual and the loss was the were all appropriate more loss, Medicare-eligible measure of Medicare’s it and entitled to apply should the treat- a 16-point Moreover, enhancement. Id. at ment. assuming arguendo 383. De- objected fendant to both occur, enhancements as- this Court finds a “loss” did serting that because the services billed to Defendant asserts that figure the “loss” 8. Because the base offense ineligible level in fraud defendant was for the fraudulent identify cases often does not the seriousness for, security applied social benefits he offense, of the the Guidelines are intended to sentence should not be enhanced the "in- ways offer series of to enhance a fraud loss). tended” sentence, allowing what the Seventh Circuit Schneider, in United States v. 930 F.2d 9. encapsulated This information was in Gov- (7th Cir.1991), punish- has called "bonus ernment Exhibit # which Siriаno authen- points proven ment for different levels of loss and, court, upon ticated instruction of the $2,000." beginning with See United States v. signed presence jury. in the Khan, (finding 969 F.2d 218 that because waiting off to the amount of dividuals list out order. have been reduced should by Tria- money actually improperly taken At sentencing, pursuant Id. to the Guide- than 5% permitted lines, na excess of less the district court tried calculate exclusion. under ‍​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌‌​​​​​​‌‌​​​​‌‌​​​​‌‌‌​​‍the the actual intended losses suffered figure Id. at loss HUD. actual The Court reviews a district “represented Brown’s the money PSR findings sentencing at as to court’s fact which, conviction, time of [his] HUD error,” “clear “loss” and restitution for already expended had on those individuals loss de methodology calculating its for improperly who had received Section 8 Rothwell, States v. 387 F.3d novo. United Brown,” and the benefits intended (6th also, Cir.2004); see 582 United figure loss “covered individuals (6th those who DeSantis, v. 237 F.3d 611 States voucher, a Cir.2001). received certificate but Guidelines, [had] the dis Under the actually yet] [had the of who not received Section trict court is to determine amount evidence, by of the ...” Id. district preponderance loss a 8 bеnefits The findings not to and the district court’s are adopted the actual and intended fig- loss they clearly are erro PSR, be overturned unless that explaining ures from the all it Guthrie, 144 F.3d neous. States v. United find had to is the “diversion of funds.” Id. (6th Cir.1998); see also United 1011 appeal, argument adopted On Brown Bracciale, F.3d 1003 States v. 374 very similar to that which Triana now as- (11th Cir.2004) (nothing that district “the serts, contending that “HUD incurred no merely ‘speculate’ court cannot as people loss because the who received hous- loss).” However, proper amount of were in a financial ing eligible, sense.” by those as determined the “whether facts In upholding 151 F.3d at the 489. district application the of a district court warrant calculation, however, this court’s Court ex- particular guideline provision purely is plained by choosing people that out of by legal question is reviewed de novo order, attempted Brown had “diverted or Gamer, v. 940 this court.” United States recipients divert from the contem- to funds (6th Cir.1991). 172, 174 F.2d plated application regulations.” the agrees district Court with the Further, F.3d at 489. this Court noted this falls court’s determination that case recipi- “it is that the action that irrelevant reasoning our squarely within United financially eligible, given were ents Broum, (6th States v. 151 F.3d 476 Cir. they certainly that not ‘next in fact were 1998). Brown, In Brown was defendant (emphasis ...” add- line’ for benefits Id. relating provision of fraud to convicted ed). case, Similarly, argu- this housing of “Section 8 benefits” from recipient that fact that ment each Department Housing United States eligible podiatric services was to Footcare (“HUD”). Development at 479. Urban Id. meant Medicare benefits receive program, As the administrator of the loss, Medicare had not incurred fails supposed Brown place applicants important fact that Triana’s consider the a waiting on list and then benefits ineligible in Footcare made it participation from in a persons waiting select list funds Instead, for the Medicare receipt particular order. Brown ac Id. whatsoever, it regardless of the services cepted consideration from bribes other and, return, individuals, in- provided.10 chose those Nastasi, (E.D.N.Y. Moreover, persuaded by WL this is also Court Nastasi, 17, 2002). reasoning Apr. In four defendants the district court’s relies on United States v. Defendant out rendering any service in In return. Schneider, (7th Cir.1991) 930 F.2d 555 such case the contract price is a rea- assert that should the Court determine sonable estimate of what calling we are occur, that a loss did indeed it should at loss, expected repeat we that no encompass least recalculate loss to more than a reasonable estimate is re- only percentage million plus $1.7 quired. type The other of fraud is com- awarded to Footcare Medicare that Tri- mitted in order obtain a contract that himself; words, ana took for in other Tria- the defendant might otherwise ob- Schneider, improper gain. na’s In defen- tain, but perform he means to the con- dants, wife, husband and submitted bids (and so) tract is pocket, able to do and to for a government construction contract profit fraud, as the only which included fraudulent information. difference between the contract price Id. at 556. In calculating the victims’ loss and his costs. fraud, from defendants’ the district court (internal Id. at 558 omitted). citations used by the “amount bid” each defendant. Id. at 557. Circuit, Accordingly, the Court however, finds that The Seventh the district court appeal, reversed on did not explaining that abuse its discre in determining estimate of the loss bore no tion relation to the that Triana’s actions reality, suggesting economic approximately that: caused an million “loss” $1.7 to Medicare. Under the ... terms of necessary it is to Triana’s distinguish be- Triana I sentence, types he was tween two of fraud. One is excluded from where participation in the offender —a true con artist ...— Medicare and Medicaid perform programs. By extension, does not intend to his undertak- Triana’s sub ing, whatever; the contract or he stantial participation means in Footcare made the pocket to price the entire contract company ineligible with- participation for Companies,” and the "Nastasi They which were *3. asserted that because the Nastasi defendants, purportedly owned pled Companies actually provided services to "in- guilty conspiracy to to commit health care qualified dividuals for Medicare or Medicaid by concealing fraud ownership benefits,” the true no loss had occurred to Medicare. defendant, Companies by Nastasi the titular Id. appellate The district court and the * ("Nastasi”). Mr. Nastasi Id. at 1. Like Tria- rejected arguments, noting defendants’ na, prior Nastasi had a federal conviction for recipients’ that "the 'intended of those bene- fraud, health care and HHS had excluded not, argue, fits are as the defendants individu- participating him from in the Medicare and Medicaid, qualified als for Medicare or but programs years. Medicaid for 25 Id. With in, qualified instead are entities participate to exclusion, however, knowledge full of his and receive pro- reimbursement from those participated Nastasi in a scheme grams.” that, Id. explained The Nastasi court relatives, listing which he and straw-peo- his "[bjecause Companies the Nastasi should ple as ap- owners on the Medicare/Medicaid have participation been excluded from in the plications, actually operated owned and programs, Medicare and they Medicaid were (the Companies”), number of entities "Nastasi recipients’ not programs, 'intended under the subsequently which $57 billed over million to programs and thus the ‘benefits’of those were ” illеgally. Medicare and Medicaid Id. case, Similarly, 'diverted.’ Id. in Triana’s he, association, Footcare, During because sentencing, asked should have pursuant participation court to calculate been excluded loss to 8(d) 2F1.1, application § eight years, note of U.S.S.G. Medicare and Medicaid for regardless which dealt with of podiatrists "Diversion of Government whether Footcare Nastasi, Program provided proper Benefits.” had qualified 2002 WL treatment to defendants, elderly patients, at *2. The however Medicare improperly he had claimed that such calculation $1.7 would be in- diverted over million in benefits to Foot- appropriate under the circumstances. Id. at care. quantifiable, finds that a actual loss can be as well. There- Medicaid Medicare Broum, conduct, it fore, defendant’s efforts attributed to Triana’s will while as allegedly “eligible” gain to HUD funds to Triana’s percentage divert substitute that he had caused did not mean applicants Accordingly, that actual loss. the Court HUD, attempt Triana’s no losses hereby court’s loss AFFIRMS district Footcare caused funds to divert Medicarе calculation. regardless whether to Medicare loss legitimate podiatrists hired Footcare Sentencing C. legitimate Medicare

provided services hearing sentencing district court beneficiaries. January morning on the convened Moreover, Triana’s assertion that 12, the Guidelines still when were previous its should substitute the Court day, Supreme That same mandatory. an estimate of calculation with loss his opinion its States v. Court issued United gain, not well-taken where personal is own Booker, (2005), holding 125 S.Ct. efforts circumvent settle advisory, that the are not man- Guidelines I that his in Triana demonstrate ment datory. during the Incidental discussion Al leniency. such does not warrant case sentencing hearing indicates that neither recognizes there though this Court parties nor the court was district of fraud which may be some cases aware Booker had at the been decided wrongdo surrounding a defendant’s facts According- time that it sentenced Triana. leniency than the statu more ing demand ly, that if argues the Court declines this, allow, unlike tory may formulas 1 to overturn his conviction on counts Schneider, of those cases. Tria is one 4, sentence, must vacate it for previous conviction health has one na him States pursuant re-sentence to United fraud, in creating and his actions care v. Booker. hiding his involvement subsequently Admin, show both Footcare matter, parties As a dis- threshold the to meant circum sophisticated plan case a to pute applicable standard of review the Further, prior punishment. vent his methodology regarding their the appeal consistently held that in calcu have courts of Tria- portion used the loss calculation loss, “substitution defendants’ lating that his sentencing.11 argues na’s preferred method because gain is not under a sentencing should be reviewed ordinarily loss.” it underestimates tri- at “preserved error” standard because Snyder, 291 F.3d States v. See United al, objected to the expressly his counsel also, (11th Cir.2002); 1291, see 1295 Unit See constitutionality of Guidelines. (4th Chatterji v. 46 F.3d 1336 ed States 296, 2531, 542 124 S.Ct. 159 L.Ed.2d U.S. Haddock, Cir.1995); 12 (2004). that government counters 403 (10th Cir.1993). 950, 960 F.3d timely not raise ex- because Triana did Booker, under press sentencing challenges Therefore, regardless of asser- review court’s this Court must not akin to that of that his scheme was tion at “con-artist,” ruling “plain error.”12 See S.Ct. this a true because Court See FED. R. analysis. receiving "preserved re- "harmless error” cases error” In 11. 52(a). view, CRIM. P. at the case de reviewing court looks is If novo determine whether there error. "[Bjefore appellate can correct an an found, subject generally it to a error is is trial, (1) at must be an error not raised there concedes, however, 747. The ry guidelines nature of the in order to that a “plain even under error” standard of preserve that appeal, error on or whether review, Triana’s sentence should be vacat- general objection im- sentence ed Though govern- and remanded. posed under the is [Guidelines sufficient ment’s concession diminishes impor- preserve a Booker challenge.” See adopts tance of whether the Court “plain Akpan, 360, 376, United States v. 407 F.3d review, “preserved error” or error” be- (citing n. 53 United v. Sayre, States yet cause the Sixth Circuit has address (8th Cir.2005)). F.3d 599-600 the issue of what “preserva- constitutes The Court finds United States v. Cande objection tion” of a Booker lario, (11th 240 F.3d 1303-04 Cir. analysis follows.13 2001) to be instructive on the issue of the objected Defense counsel to the “harsh- requisites for a objection, constitutional al ness” of Triana’s sentence under though it is a pre-Booker decision. In Guidelines, stating. Candelario, the Eleventh Circuit focused I think seen, the courts have I and think on the distinction between constitutional perhaps why this is also there is a objections and objec non-constitutional away wholesale movement from the tions for a appealing defendant his convic [Guidelines, event based on the tion and conspiracy sentence for to traffic just Fanfan case that argued in the cocaine, crack and possession of crack co Court, Supreme is the results under the caine Apprendi under Jersey, v. New proved have [Guidelines to be far U.S. 120 S.Ct. 147 L.Ed.2d 435 harsher than before we had the [Guide- (2000) (holding “any fact than [other lines. supposed So which was prior conviction] increases the penalty promote equity in sentencing has actual- beyond for a crime prescribed ‍​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌‌​​​​​​‌‌​​​​‌‌​​​​‌‌‌​​‍statuto ly resulted in unfairness in sentencing. ry maximum must jury, be submitted to a good And this would be a example. doubt”). proved beyond a reasonable Triana asserts that foregoing objection See 240 F.3d at 1300. The Candelario suffices to objection, raise a constitutional court noted that “not every objection is a him entitling to de novo review of his objection,” constitutional explaining: government sentence. The disagrees. This directly may [a] Court has not defendant addressed be deemed to have the issue of what amounts made a timely objection to a constitutional if his objection. constitutional objection Other invokes Apprendi. circuits A defen- noted, however, have may that “there dant exists also be deemed to have made ‘whether,’ question some in cases not in- a objection constitutional if he contends volving violation, a Sixth Amendment that “the issue of drug quantity should objection there must be an to the mandato- go jury.” to the potential Other consti- error, (2) (3) plain, that case, Nanez, is that affects 13. As in this in U.S. v. 168 Fed. (6th rights. Cir.2006), Appx. substantial If all three 79 parties conditions are the dis met, puted appellate apply an whether the Court may "pre court should a then exercise its "plain served error” error, or error” standard of discretion to only notice a forfeited but review. Because the аppropri Court found it (4) fairness, if seriously the error affects the ate to vacate defendant’s sentence even under integrity, public reputation or judicial pro- of review, stringent plain the more error it did States, ceedings.” Johnson v. United 520 U.S. not address the issue of whether defendant's (1997); 117 S.Ct. 137 L.Ed.2d 718 sentencing objections preserved his Sixth 52(b) see FED. R. CRIM. P. Amendment claim. Id. n. 3.

325 tencing calculation of the amount of loss that an ele- objections include tutional by activity his fraudulent sufficient proved, was not caused the offense ment of objection. a constitutional quantity, determine to constitute judge cannot the (“Loss Calculation”); proved beyond a supra must be See Part II.A. quantity (and 360; by prepon- not Akpan, doubt 407 F.3d United States v. reasonable evidence). However, (5th Kirkham, Fed.Appx. 61 Cir. derance 2005). objection quantity to the of judice, case sub Apr.11, defendant’s Like the attributes drugs that the Government Akpan both and Kirkham are cases not, own, a constitutional him on its respective is their appealed which defendants objection properly is objection. Such an care fraud convictions. Id. Both health evidentiary charаcterized as either the Fifth found Eighth Circuits the evidence sufficiency or a objection objection that a defendant’s to the district objection. sentencing court’s calculation of omitted). amount of loss caused his fraudulent (internal citations Id. at 1303 sentencing hear activity during raised his reasoning Candelario’s Applying objec ing, effectively preserved Booker case, finds that the Court to the instant at 376 appeal. Akpan, tion for F.3d objection to the “harshness” Triana’s (“we objec are satisfied that [defendant’s] sentencing hear during his the Guidelines adequately apprised tions ob timely constitutional ing constitutes raising was a Sixth [defendant] First, Supreme Court jection. though the objection to the loss calcula Amendment when yet decided Booker had ...”); Kirkham, Fed.Appx. at 76- tion sentenced, Triana’s counsel referenced (“we government con hold-and fact that the area of Despite the the case. objections made defendants cedes-that Triana’s at the time of law was unsettled sentencing hearings [regarding at their certainly put sentencing, such a reference court’s loss were suffi calсulations] district on notice that the district court Amendment cient to invoke their Sixth objected constitutionality counsel necessary preserve extent rights to the Second, both before Triana’s sentence. objections”). Accordingly, Booker their Triana’s counsel during sentencing, case, objections where Triana raised this evidentiary objections, con made several by the dis applied loss calculation instance, four-level en cerning, for during pre-sentencing, trict court both suggested hancement the joins Fifth and sentencing, this Court Footcare/Podiatry Ad Triana’s role ob holding that these Eighth Circuits claiming that the evi conspiracy min. effectively preserved his Booker jections not amount to a adduced at trial did dence supra Part II.B. objection appeal. See “in control” of the showing that Triana was (“Loss Calculation”). objection, how scheme. Triana’s Booker ever, viewed as distinct from these can be error re- applying preserved In cases taking objections because instead other view, novo standard applies this a de Court it raised interpretations, issue with factual to determine whether of review question of constitutional the broader court, mandatory viewing the Guidelines as Triana’s sentence was whether Guideline a defen- advisory, than sentenced rather crime, “harsh i.e. disproportionate 125 S.Ct. of Booker. See dant violation er” than he deserved. infir- Although the constitutional at 747. settled at was not mity Tri of the Guidelines

Additionally, this Court finds sentenced, par- both the time Triana objections to the district court’s sen- ana’s Booker, RYAN, Judge, concurring. Circuit light agree ties by adopting the Guide- erred district court except I in my opinion, concur brother’s mandatory. lines as respect part with II.C. The that, re- plain concedes even under error review, an appellate If on de novo view, this case should be remanded for error, it is also court finds a constitutional resentencing pursuant to United States v. analysis un subject error” to a “harmless Booker, 738, 220, 125 S.Ct. U.S. 52(a).14 Supreme The der Fed.R.Crim.P. (2005), agree. There- L.Ed.2d 621 we that a constitutional explained Court has fore, necessary I not think it is do error, error, Booker must be such as a objections Triana’s address whether “affeet[ing] substantial disregarded as not sentencing preserved his claim that beyond “harmless rights,” if that error is finding, district court’s fact which resulted Chapman v. Cali reasonable doubt.” See in an sentence under the manda- enhanced 824, fornia, 87 S.Ct. 386 U.S. tory guidelines, violated Triana’s constitu- (1967). foregoing stan L.Ed.2d 705 rights tional under the Amendment. Sixth met, however, where it is only dard is “beyond a reasonable doubt hat the clear complained

error of did not contribute (emphasis Id. add

the verdict obtained.”

ed). case, In it is clear that the application

district of the Guide court’s significantly. his sentence

lines enhanced Accordingly, this Court VACATES Tria ASSOCIATES, INC., In re 5900 Debtor. case for na’s sentence and REMANDS his to Booker and its resentencing pursuant Dery, Trustee, Fred J. Plaintiff- according to the sen progeny, and also Appellant, tencing goals outlined 18 U.S.C. 3553(a). § Casualty Surety

Cumberland & Co., Defendant-Appellee. III. AND CONCLUSION RECOMMENDATION No. 05-1838. De- Accordingly, ‍​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌‌​​​​​​‌‌​​​​‌‌​​​​‌‌‌​​‍this Court AFFIRMS Appeals, United States Court of conviction, finds that

fendant’s Sixth Circuit. correctly district court held that Triana’s May 2006. Submitted: to Medicare. actions resulted a “loss” Because, however, imposed the sentence Decided and Filed: Nov. by the district court violated Triana’s jury right Sixth Amendment we

hereby VACATE Triana’s sentence re-sentencing

REMAND case for

light opinion Supreme of this and the holding

Court’s Booker.

IT IS SO ORDERED. error, 52(a) "Any disregard- de- rights Fed.R.Crim.P. reads: affect shall be substantial fect, added). irregularity (emphasis or variance which does not ed.”

Case Details

Case Name: United States v. Nicholas J. Triana, Jr.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 2, 2006

Citation: 468 F.3d 308

Docket Number: 05-3173

Court Abbreviation: 6th Cir.