United States v. Ben Bane

720 F.3d 818, 2013 WL 3242669
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 28, 2013
Docket11-14158
StatusPublished
Cited by73 cases

This text of 720 F.3d 818 (United States v. Ben Bane) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ben Bane, 720 F.3d 818, 2013 WL 3242669 (11th Cir. 2013).

Opinions

KRAVITCH, Circuit Judge:

Ben Bane was convicted after a jury trial of one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. §§ 287, 371, 1001, and 1347; five counts of health care fraud, in violation of 18 U.S.C. §§ 2 and 1347; and four counts of making false claims against the government, in violation of 18 U.S.C. §§ 2 and 287. Bane appeals his sentence, arguing that the district court: (1) improperly calculated his guidelines range; (2) improperly calculated the restitution amount; and (3) imposed a fine that exceeded the statutory maximum. After careful review, and with the benefit of oral argument, we affirm in part, vacate in part, and remand.

I.

This is a Medicare and Medicaid fraud1 case arising out of Bane’s ownership and operation of two companies, Bane Medical Services (BMS) and Oxygen & Respiratory, Inc. (ORT). BMS and ORT provided durable medical equipment, including portable oxygen, to Medicare patients. Medicare reimburses providers of portable oxygen for up to 80 percent of the allowable charge for this equipment, with patients and/or supplemental insurers covering the remaining 20 percent. To qualify for reimbursement, equipment providers must ensure the oxygen is medically necessary by sending patients to an independent laboratory for pulse oximetry testing. In this case, from January 2001 to December 2004, instead of referring patients to independent labs, BMS and ORT, at Bane’s [823]*823direction, conducted the testing themselves and falsely represented to Medicare that they used independent labs. Bane recruited the help of two companies that were authorized to perform pulse oximetry tests. Bane’s employees sent the results of tests BMS and ORT conducted to these labs, and the lab employees stamped the results to make it appear as if they had performed the tests. Bane also falsified test results and doctors’ signatures and, when the government began investigating, directed his son to delete hard drives and destroy computers.

Before sentencing, a probation officer prepared Bane’s Presentence Investigation Report (PSI), which calculated a base offense level of 6 under the sentencing guidelines.2 U.S.S.G. §§ 2Bl.l(a)(2), 3D1.2(d). The PSI calculated the estimated loss to Medicare, Medicaid, supplemental insurers, and patients was between $7,000,001 and $20,000,000 and accordingly applied a 20-level increase. Id. § 2Bl.l(b)(l). The PSI also included a 6-level increase because Bane’s fraud had 270 victims — Medicare, Medicaid, 109 supplemental insurance companies, and 159 patients. Id. § 2Bl.l(b)(2)(C). And the PSI applied a 2-level sophisticated-means enhancement because the offense involved four different corporations and “required that BMS employees create an intricate daily paper trail to mask the fraud.” See Id. § 2B1.1(b)(9)(C). With additional increases for his leadership role, production of an unauthorized access device, and obstruction of justice, Bane’s resulting total offense level was 42. With Bane’s criminal history category of I, this initially produced a guidelines range of 360 months’ to life imprisonment. Because the statutory maximum he could receive was 360 months, however, that became his guidelines sentence. See id. § 5Gl.l(a) & cmt. (n. 1). The PSI also noted that restitution was mandatory under 18 U.S.C. § 3663A and calculated the statutory maximum fine as twice the gross loss under 18 U.S.C. § 3571(d).

Bane filed numerous objections to the PSI. As relevant here, he objected to the PSI’s loss and restitution calculations because they included the value of oxygen that was medically necessary and actually provided. He also argued the victim calculation was incorrect for a similar reason — specifically, that patients who received medically necessary oxygen and supplemental insurers that paid co-pays for it were not victims. And he contended that the sophisticated-means enhancement was improper because the offense did not involve sophisticated or complex conduct.

At sentencing, the district court overruled Bane’s objections to the PSI. The court made minor adjustments to the restitution calculation and maximum fine amount, increasing them to $7,031,050.68 and $14,062,101.36, respectively. Despite [824]*824this, the district court noted that several factors supported a substantial downward variance from the guidelines range. Most significantly, the district court found that a high percentage of the patients actually needed oxygen, estimating that the oxygen BMS and ORT provided was medically necessary for 80 to 90 percent of patients.

Bane asked for a four-year sentence, but the district court opined that would be much too lenient. Instead, the court sentenced Bane to 151 months’ imprisonment, a downward variance of 209 months from his guidelines sentence. It also ordered Bane to pay $7,031,050.68 in restitution and a $3 million fine. This is Bane’s appeal.

II.

Bane first contends that his sentence is procedurally unreasonable because the district court incorrectly calculated his guidelines range. Specifically, he argues the district court erred by: (1) applying a 20-level enhancement for a loss between $7,000,001 and $20,000,000 that improperly included the value of medically necessary oxygen that was actually provided; (2) imposing a 6-level increase for an offense involving more than 250 victims because people who received medically necessary oxygen were not victims; and (3) imposing a 2-level sophisticated-means enhancement because the offense conduct was not sophisticated.

We review the district court’s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Ellisor, 522 F.3d 1255, 1273 n. 25 (11th Cir.2008). “The party challenging the sentence bears the burden of establishing that the sentence is unreasonable.” United States v. Willis, 649 F.3d 1248, 1258 (11th Cir.2011). We address Bane’s specific challenges in turn.

A.

Bane first challenges his 20-level loss enhancement. Section 2Bl.l(b)(l) of the guidelines increases a defendant’s offense level by 20 for crimes involving a loss between $7,000,001 and $20,000,000.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Kevin Clay
Sixth Circuit, 2025
Watkins v. State
Supreme Court of Georgia, 2025
United States v. Ryan Felton
Eleventh Circuit, 2024
United States v. Carie Lyn Beetle
Eleventh Circuit, 2023
United States v. John Gladden
78 F.4th 1232 (Eleventh Circuit, 2023)
United States v. Douglas Moss
30 F.4th 1271 (Eleventh Circuit, 2022)
United States v. Tamara Jeune
Eleventh Circuit, 2021
United States v. Isiah Price
Eleventh Circuit, 2020
United States v. Xiulu Ruan
966 F.3d 1101 (Eleventh Circuit, 2020)
United States v. Anthony Spencer
Eleventh Circuit, 2020
United States v. Oneil Christopher Russell
957 F.3d 1249 (Eleventh Circuit, 2020)
United States v. Gilberto Sanchez
Eleventh Circuit, 2020
United States v. Ileana Rodriguez
Eleventh Circuit, 2020
United States v. Loite Galindo
Eleventh Circuit, 2020

Cite This Page — Counsel Stack

Bluebook (online)
720 F.3d 818, 2013 WL 3242669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ben-bane-ca11-2013.