*1 the factual bases for his quate protect detention before Appellant’s right proce- its ICC makes decision'—either with dural process. due respect assigned his behavior level or candidacy
his regulations for release. The IV. merely provide, may pres- inmate be “[t]he The district court’s order summary ent for the review advancement/release judgment is affirmed Appellant’s as to security staffing allows.” J.A. (empha- RLUIPA claim and reversed as to his supplied). sis The fact that the ICC is not procedural process due claim. We affirm required provide a factual basis for its holding court’s with respect to decision further “possibility increases the Appellant’s RLUIPA claim because he has of an deprivation” Ap- erroneous failed to beliefs, show that his religious pellant has objection” sup- no “basis for rather than his to participate choice in a port grievance his against the ICC’s deci- riot, proximate are the cause of his contin- Wilkinson, sion. U.S. ued solitary confinement. We reverse the S.Ct. 2384. district court’s order Appellant’s proce- Appellee argues nonetheless that its re- process dural due claim because Appellant process view pro- “meets the flexible due has liberty demonstrated a interest cess Wilkinson be- approved standard” avoiding solitary Appellee confinement and cause, compared to inmates confined proven has not as a matter of law it Supermax Ohio’s facility, “Appellant’s cus- provided Appellant meaningful review. tody frequently”— is reviewed much more We remand this proceed- case for further is, every days opposed as to once a ings consistent with opinion. this year. Appellee’s However, Br. 39. PART, AFFIRMED IN REVERSED Appellant’s view of uncontested evidence PART, IN AND REMANDED FOR demonstrating inadequacy of the De- FURTHER PROCEEDINGS partment’s review, confinement argu- ment falls flat.
iii.
The third Mathews factor —state inter-
est—accounts Department’s need
to maintain security order and in South prisons. Carolina’s But as the Supreme America, UNITED STATES Hewitt, Court noted in Wilkinson Plaintiff-Appellee
prison’s interest eclipse Appel- does not lant’s right well-established to receive no- tice of grounds ongoing his confine- Gallegos LOZANO, San Juanita ment and to present his rebuttal to those Defendant-Appellant. grounds. No. 14-40042.
We do not decide prison whether review mechanisms must be as extensive as in United States of Appeals, Court Wilkinson to pass order constitutional Fifth Circuit. muster. On the presented facts in this June case, however, we conclude that the record question establishes a triable of whether Department’s process review was ade- *2 At- O’Malley, Assistant U.S.
Terri-Lei Gowie, Ann Assis- torney Renata (argued), Office, Attorney’s Attorney, U.S. tant U.S. Houston, TX, Plaintiff-Appellee. Marjorie Meyers, A. Federal Public De- district court properly included losses fender, Crooks, Timothy Philip William G. traceable to the Mission conspiracy. Gallagher (argued), Assistant Federal follow, For the reasons that we affirm in Defenders, Public Federal Public Defend- part and in part. reverse Office, Houston, TX, er’s for Defendant-
Appellant. I. ordinarily
We review the legality of a restitution order de novo. United Adams, (5th 363, 363 F.3d REAVLEY, SMITH, Before Cir.2004). Here, however, because the de GRAVES, Judges. Circuit fendant object failed to the to the restitu calculation, tion we plain review for error. REAVLEY, Judge: Circuit Maturin, 657; United States v. 488 F.3d trial, days After six Juanita San 659-60 We must determine Gallegos plea Lozano entered into an oral error, if there if plain, it was and if it agreement pleaded guilty to Count affected the defendant’s rights. substantial Two of a thirteen-count relating at Id. 660. “When all three of these re conspiracy to a to defraud Medicare and quirements met, are we will exercise our Medicaid. Count Two referred to a con- discretion to correct the if error it serious spiracy involving “La Hacienda Clinic” ly affects the integrity public 30, began “on or April about” reputation proceedings.” Unit One, meanwhile, Count referred to a con- Inman, (5th 591, ed States v. 411 F.3d spiracy pertaining to the “Mission Clinic” Cir.2005) (internal quotations and brackets began “on or about” September omitted). Two, 2001. Consistent with Count the fac- proffered by tual basis II. agreed to the defendant established conspiracy began “on or about A. 30th,
April
2005.” In describing the fraud-
scheme,
ulent
the factual basis did not
a fraudulent scheme is
“[W]here
identify either clinic.
conviction,
an element of the
may
court
sentencing
At
the district court ordered
award restitution for ‘actions pursuant
to
”
Cothran,
restitution based on losses traceable to that scheme.’ United States v.
(5th Cir.2002)
both La Hacienda Clinic and Mission Clin- 302 F.3d
(quoting
ic beginning
September
on
2001. Lo-
Stouffer,
United States v.
986 F.2d
(5th Cir.1993)).
object
zano did not
to the calculation of 928
“When defendant is
appeal
restitution but asserts
pursuant
plea
convicted of fraud'
to a
by ordering
district court
erred
agreement,”
underlying
we
“define[]
restitution based on losses
to
referring
traceable
scheme
to the mutual under
Adams,
Mission
standing
parties.”
Clinic and based on losses occur-
363 F.3d
ring prior
April
2005. Given the
mutual understanding
“The
underpinning
guilty
by parties during plea negotia
factual basis
reached
plea,
government agrees
normally
origi
the district'
tions is
not detailed in the
document,
by ordering
charging
court committed
error
nal
and more often
indictments,
gleaned
any superceding
restitution based on losses that occurred
from
prior
argues
plea
agreements,
but
and statements made
guilty
pleaded
Lozano
to which
sentencing
scheme
plea and
during
parties
It
conspiracy.
the Mission Clinic
at 367.
hearings.” Id.
however,
if
say,
enough
us
fraud was
agree that
parties
erroneous, the
somehow
this conclusion is
conviction,
crime of
an element
obvious.” See Unit-
is not “clear or
by-
err
court did not
meaning
Coil,
912, 916
ed States
to both clinics
related
including losses
Cir.2006).
the order of
upset
We will
understood
mutually
traceable to Mission
for losses
scope of
agreed-upon
Clinic.
both clinics.
to cover
extended
in the record
evidence
is substantial
There
B.
guilty
understood
Lozano
suggest
con
encompass the Mission
the further
challenged on
The order is
*4
spiracy.
for
requires
that
it
grounds
proper tempo-
sustained outside
losses
argues it was error
Lozano now
While
Here,
according to both
scope.
ral
Clinic,
Mission
at
related to
include losses
by
and the factual basis recited
(both personally and
sentencing Lozano
temporal scope
government,
counsel)
responsibility
through her
took
30, 2005
April
was
offense of conviction
relating to Mission Clinic.
only for losses
Nonetheless,
10, 2006.
through January
disclaiming any connec-
example,
For
restitution based
court ordered
co-conspirator
La Hacienda
tion to
.Antho-
20, 2001.
commencing September
on losses
effectively asserted she
ny Puig, Lozano
plain
this was
error
agree
The
that
La Hacienda
nothing to do with the
had
appropriate.
and that remand is
wrongdoing
that her
was
conspiracy and
Objecting
to the Mission Clinic.
confined
stated,
previously
As
because
on
based
to a sentence enhancement
scheme, the
a fraudulent
this case involved
loss,
Lozano’s counsel
intended amount
to award res
court
authorized
district
was
perhaps consider the
the Court
“ask[ed]
that
pursuant
titution for “actions
just as to the Mission
amount of loss
actual
Cothran,
289.
302 F.3d at
scheme.”
Clinic,”
position
and asserted “our
that
“However,
underly
the restitution
Hacienda
amounts attributed
is limited to
ing scheme to defraud
liability
were so remote”
criminal
scope of the indictment.”
specific temporal
unwarranted,
seemingly
Lozano’s counsel
Inman,
595;
at
see also
F.3d
scope of the con-
confirmed that the
thus
Mason,
691,
States v.
Mission
at least
Clinic.
spiracy
Cir.2013).
words,
award of
In
“[a]n
other
trial court
arguing before the
After
...
a victim
compensate
restitution cannot
only
accountable
Lozano should be held
falls
by conduct
for losses caused
Clinic, Loza-
relating to
for losses
Mission
outside,
scope of the acts
temporal
appeal
on
that she should
argument
no’s
Sharma,
conviction.” United
losses
“responsible
held
for
related
be
318,
F.3d
conspiracy” because
to the Mission Clinic
guilty plea
that her
did not understand
she
above,
As discussed
“separate”
encompassed that
guilty plea,
was secured via
conviction
unconvincing.
solely on the indict
be
our focus cannot
temporal scope
record,
respect
ment.
have no trou-
With
we would
On
scheme, however, there is no ambi
government
concluding
ble
Lozano
concedes
its
guity.
As the
the fraudulent
mutually understood that
briefing,
basis limited the While the parties agree
“[t]he
that reversal
30,
temporal scope
April
of the scheme
proper,
and remand is
we
indepen-
must
through January
2006.” In con- dently
whether,
determine
in light of the
the factual
firming
foregoing,
basis
error seriously
affected “the
guilty plea,
the district court asked Lozano
integrity or public reputation of
to confirm that “sometime
on or
between
proceedings.”
Id. Even at this
about
continuing juncture,
30th
2005 and
reversal is not automatic. Unit-
until
January
on
about
of 2006”
10th
ed
Escalante-Reyes, 689 F.3d
(5th Cir.2012)
constituting
(en banc).
committed the acts
a con-
In every
Medicaid,
spiracy to defraud Medicare and
case
where district court plainly
erred
and Lozano affirmed these facts. Because
ordering restitution for losses that oc-
the restitution award accounted for losses
curred outside the proper temporal scope,
prior
to April
sustained
the dis- we'have exercised our discretion to correct
Inman,
trict court erred.
Mason,
See
411 F.3d at
problem.
695;
See
722 F.3d at
Inman,
595;
Maturin,
411 F.3d at
see also
improp-
error here
repeatedly
We have
found
erly increased the
restitution amount
where a district court awards restitution
$80,000
more than
and merits correction.
based
losses
occurred outside the
Inman,
stated the offense began on or about SMITH, 2005. The district court cited that JERRY E. Judge, Circuit temporal scope
same on the record. dissenting: Moreover, previously we have found error In though essence not explicitly, the ma- when, plea agreement, after a jority Judge accuses Chief U.S. District court awarded restitution part based in 1 Hinojosa Ricardo of being “derelict” in losses prior that occurred proper that, imposing majority’s sentence Sharma, temporal scope. See 703 F.3d at view, apparently “particularly is so egre- plain. The error was 2 gious” that it undermines the integrity
By
government’s
the res-
reckoning,
system
“injustice
as an
so
titution was excessive
of grave
amount
as to warrant disregard of usual
$80,533.93. The error affected Lozano’s procedural
Hinojosa
Judge
rules.”3 Chief
Inman,
rights.
substantial
is the former
Sentencing
Chair of the U.S.
at
is,
quite probably,
Commission and
152, 163,
Duarte-Juarez,
Frady,
1. United States v.
456 U.S.
3.United
441 F.3d
(1982).
(5th Cir.2006)
curiam)
S.Ct.
L.Ed.2d 816
(cita-
(per
omitted).
tions
Young,
2. United States v.
470 U.S.
S.Ct.
that statement and parts er of the indictment. that a have never established a rule We span about the time of a general statement incorporates by reference
Count Two specific the of scheme details overrides out forty paragraphs, lay the first scheme; contrary, the quite to the details of the fraudulent specific the are our alleged actions the indictment if stretching back to And scheme navigating murky of lodestar in waters enough, the overt-acts sec- were “Although defining fraudulent scheme. of a incorporates specifics tion Two of Count struggled have to define includ- we sometimes opening paragraphs, those particular fraudulent outer ing some that covered activities bounds fraudulent scheme, we have focused on the actions There agreement verbal between alleged in the tempo- indictment and their parties, your Honor. In exchange ral There is no scope.”4 dispute for Ms. plea guilty Lozano’s to Count specifically Count incorporated, Two as Two the indictment the overt conspiracy acts furtherance of the will move dismiss the remaining scheme, descriptions and the of fraudulent . counts of the superseding indictment stretching conduct back to If we along original with the indictment at the referencing just were the strict letter of time of sentencing. indictment, as we would there were a verdict, guilty enough would be to end lawyer hearing confirmed inquiry. the accuracy of that summary. But plea agreement, there is a so we That plea agreement offers no support must define scheme for an interpretation of the fraudulent mutual understanding parties. That scheme that is narrower than the one de- can be difficult because the strict letter of scribed the indictment. If anything, it might not indictment define supports following the scheme as in- scheme. plea agree- “The essence of a dictment define it. would There is no prosecution ment is that both the indication plea negotiations result- defense make poten- to avoid .concessions agreement ed an to limit the temporal States, tial Hughey v. losses.” United scope scheme; instead, U.S. 110 S.Ct. what Lozano L.Ed.2d One of may. those concessions secured was the dismissal of twelve other be some limitation on the scope of the counts. scheme, and such an understanding would Nor does the hearing help Lozano. not be memorialized in the indictment. Judge Hinojosa prosecutor had the Adams, aloud; read Count Two Lozano expressly possi- Because of that waived reading of the incorporated
bility, we must not limit our definition of introductory paragraphs the letter of the the overt but look “any should also to superseding acts. indictments, plea agreements, and state- THE you waiving COURT: So are ments made the plea during reading of paragraphs through one sentencing hearings” to determine whether forty of this indictment though even they reached a different understanding. they are referred to Count Number that, however,
Id. *7 None lends support to Two, acts; as well as the overt that Lozano. right, regards with to Count Number At plea hearing, Two? agreement stated the for Judge Chief Hi- nojosa: correct, That [LOZANO]: sir. Cothran, 4. United States v. 302 purposes 289 of scheme determin (5th Cir.2002); see also United v. In MVRA.”); States ing under United man, (5th Cir.2005) (hold 595 O’Neal, (5th Fed.Appx. ing temporal scope that of is es indictment Cir.2003) ("In order to determine of a therein); charged tablished actions pursuant defendant’s actions are actions to a Lee, Fed.Appx. conduct, scheme of courts must focus on Cir.2006) ("The temporal scope of the crimi alleged actions in the indictment their and specific charged nal and the behavior acts in temporal scope.”). parameters the indictment define the defining] hearing “unambiguously as them you’ve But read THE COURT: the offense of con- temporal scope them? of familiar with you’re and before viction,” the error was it concludes I have. [LOZANO]: plain. exchange as to understand It is hard Hinojo- Judge anything other than Chief too little credit holding gives Such a under- ensuring that Lozano diligently sa’s carefully Hinojosa, asked Judge who Chief facts paragraphs that those stood Lozano’s assurance for and received the count of part them were
within section understood that the overt-acts conviction. government, If the part of Count Two. still sentencing hearing provides The by referencing opening proffer in its support for a mutual understand- further specifically timeframe related narrower A defen- that reached back to 2001. ing clinic, intended to dis- the La Hacienda “in district object failure to dant’s out in background laid claim the characterization court to the Two, Hinojosa heard Judge Chief Count further amount[ ] or restitution scheme indication. no such mutual under- parties’ demonstrates] Additionally, majority’s disposition Cothran, F.3d at 290. standing.” strikingly incongruent. of the two issues is calculation of the presentence report’s majority’s theory, there According to the pre-2005 fraud- restitution award included par- to show that the is sufficient evidence object Lozano did not billings, ulent mutually the fraudulent ties understood sentencing. And instead writing Clinic activi- scheme to include the Mission though the fraudulent proceeding as ties, any enough evidence that or at least lawyer began in is also plain, was not but there error had ben- sentencing stated at Lozano .that court enough evidence that If years. for five efited from the scheme activities by including pre-2005 erred a any sentencing reflects aspect pill a hard the indictment. This is understanding mutual one considers that it was swallow when 2005, I begin the scheme have fraudu- pre-2005 that saw Mission Clinic found it. activities, nothing spe- lent and there was (1) end, an In the we are faced with April cial about 2005 for Mission Clinic. specifically encompassing pre- under- parties mutually to have For (2) at which activity; plea hearing include Mission Clinic stood the scheme to understanding that expressed Lozano reach 2005 would but not to before part indictment were those sections they understanding arrived at an mean (3) conduct; of her offense dramatically reality that differed from object- sentencing hearing at which no one admitted as of the scheme and the details elephant ed to what should have been the Though it was within part of Count Two. this, easy it is the room. From all of agreement, to come to such an their ambit Judge Hinojosa com- conclude that Chief repre- Judge Hinojosa nothing did mitted no in his restitution order. strange intuit failing hensible *8 without some indi- definition of the scheme II. parties. from the cation error, unobjected-to if Even there were or obvious to plain it would have to be III. majority merit correction. Because the affecting plain if there were proffer at Even characterizes the factual
543
143,
rights,5
substantial
we can exer-
banc)
(alteration in original)
(quoting
Perhaps
majority
means
say
States,
129,
Puckett v.
U.S.
we should exercise our discretion because
135,
1423,
S.Ct.
L.Ed.2d 266
seriously
fairness,
it would
affect the
integ-
(2009)).
properly
Our discretion is not
rity, and public reputation
judicial pro-
of
just
invoked
because the first
prongs
three
ceedings
similar errors were not treated
plain-error
test are met.
Id. at 425.
review;
identically on
the notion might be
This is not the “rare” case that demands
that because
repeatedly
we have
exercised
correction on
error.6 Lozano was
cases,
our
past
discretion
similar
dispa-
given notice
her restitution would ac-
rate
might
treatment now
undermine the
fraud,
pre-2005
count for
and she took no
concepts
consistency
of
equal justice
advantage
opportunity
object.
might damage
and thus
public confidence.
No
participated
one denies
strictly limited, however,
Our discretion is
fraud,
and that
is confirmed
“exceptional
circumstances”7 in which
pleading guilty
to Count Two.
seriously
“the error
affect[s]
panel majority gives
short shrift to
integrity
public reputation
or
judicial
of
discretion,
the exercise of its
pointing out
135,
proceedings.” Id. at
cial felon, poor perform- Ellis, account of her own 378-79 Cir.2009). court, arguendo that to account for Assuming is called ance ' increase or restitution actually of a sentence wrongdoing size she committed. satisfy the fourth enough to would be relief Supreme Court directs that fraud pre-2005 the inclusion prong, extreme- unobjected-to error should be 27.7%—an by only award increased be some- rare. The correct test should ly exercising our unreasonably low bar for this: thing like discretion. judge’s impos- misbehavior A district discretion no reason to exercise We have en- unchallenged an sentence ing should had the the error. Lozano to correct only resentencing to title defendant object that opportunity knowledge and adults, upon learning of the if reasonable Hinojosa Judge have allowed Chief would sentence, knowing and all the facts and in- in the first argument to consider circumstances, would walk down stance, wronged by a Lozano was not despair, shaking street their heads in miscon- or other prosecutorial double-cross sys- wondering what has become our it, Instead, asks us duct. she to consider liberty. tem of ordered instance, help escape her first for her conduct. despair because of this sen- No one will years taking five ad- spent tence. Lozano fairness is consideration for A relevant vantage ailing of an doctor bilk supports record evidence' whether other $371,000, of over government admitted Escalante-Reyes, punishment. See necessary to show know- all the facts guilty plea was F.3d at 425. Lozano’s scheme, engagement ing diligently Judge Hinojosa made after Chief years full because pay made to five the contents that she understood ensured to tell the court she and neglected It pleading. of the count to which she was understood error, highly unlikely judge’s only year. one stretch one, sufficiently if he committed even judicial system that we to the damaging respectfully I dissent.8 responsibili- upset must the distribution justice system. ties no er- Judge Hinojosa committed temporal scope
ror when he defined specif- fraudulent scheme indictment, by Loza- supported
ics of the Additionally, actions. even
no’s other erred, judge the mistake was from an
just the sentence deviated parties.
unspoken understanding rep- integrity, public
And judicial proceedings are not seri-
utation Seriously "Seriously” in Plain F.3d at More generally Escalante-Reyes, the Word J., (Smith, Sentencing Appeals, dissenting); Edward Federal Error Review 431-49 Comment, Law Review Goolsby, Taking Why So Serious? Houston