United States v. Cherie Dillon

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2018
• Docket: 17-30122
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 14 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30122

Plaintiff-Appellee, D.C. No. 1:16-cr-00037-BLW-1 v.

CHERIE RENEE DILLON, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-30235

Plaintiff-Appellant, D.C. No. 1:16-cr-00037-BLW-1 v.

CHERIE RENEE DILLON,

Defendant-Appellee.

Appeals from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Argued and Submitted December 5, 2018 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

Cherie Renee Dillon appeals from her guilty plea to twenty-four counts each

of health care fraud and aggravated identity theft. The government cross-appeals,

challenging only the district court’s calculation of restitution. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We dismiss Dillon’s appeal and vacate the

restitution order and remand for re-calculation of restitution.1

1. Dillon’s Direct Appeal. We review de novo the validity of an appeal waiver.

See United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016). An

appeal waiver is valid and enforceable if, among other requirements, it was

included in the terms of a knowing and voluntary guilty plea. Id. “A failure to

ensure that a defendant understands his range of exposure may violate the

requirement that a guilty plea be ‘knowing and voluntary.’” United States v.

Forrester, 616 F.3d 929, 938 (9th Cir. 2010). To satisfy this obligation, “district

courts in this circuit . . . must inform defendants pleading guilty of the direct

consequences of their plea and resulting conviction[.]” United States v. Littlejohn,

224 F.3d 960, 965 (9th Cir. 2000).

1 Because the parties are familiar with the facts and arguments on appeal, we do not recite them. 2 The record demonstrates that Dillon was warned of the direct consequences

of her plea. The district court’s plea colloquy was extensive: it warned Dillon that

the PSR might include losses related to conduct for which she had not pleaded

guilty; that the loss amount would be the primary driver of her guideline range;

that forfeiture was implicated; and that the government could pursue a loss theory

for more than the amount alleged in the indictment. Dillon verbally acknowledged

each of these warnings. Because her plea was knowing and voluntary, Dillon’s

waiver of her appellate rights—including her right to challenge the forfeiture and

restitution orders—bars any further consideration of her claims and we must

dismiss her appeal. See Medina-Carrasco, 815 F.3d at 461–63 (enforcing

appellate waiver where it was knowingly and voluntarily made and dismissing

appeal).

2. The Government’s Cross-Appeal. The Mandatory Victims Restitution Act

of 1996 (“MVRA”) provides that “the court shall order . . . that the defendant make

restitution to the victim of the offense” following conviction for certain types of

crimes. 18 U.S.C. § 3663A(a)(1). “The legality of an order of restitution is

reviewed de novo, and factual findings supporting the order are reviewed for clear

error.” United States v. Luis, 765 F.3d 1061, 1065 (9th Cir. 2014) (internal

quotation marks omitted).

3 Although restitution is meant to compensate victims for their “actual

losses[,]” United States v. Hunter, 618 F.3d 1062, 1064 (9th Cir. 2010) (internal

quotation marks and emphasis omitted), “[u]nder the MVRA, restitution ‘may be

awarded only for losses for which the defendant’s conduct was an actual and

proximate cause.’” United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013) (per

curiam) (quoting United States v. Kennedy, 643 F.3d 1251, 1261 (9th Cir. 2011)).

Applying these principles, we conclude that the district court properly deducted

billings for services provided by contract dentists because the only evidence is that

those dentists performed their own examinations before providing services. Their

examinations constitute an “intervening cause” that severs the chain of proximate

causation between Dillon’s fraudulent conduct and payments by the victim

insurers. Id. (internal quotation marks omitted)

However, we further conclude that the district court should not have

deducted billings for hygiene services Dillon performed. Even billings for services

within the scope of her license were fraudulent because Dillon was not supervised

and she was not authorized to perform these services without supervision.

Accordingly, we vacate only the district court’s restitution order and remand

for recalculation of restitution. On remand, the district court shall calculate a new

restitution figure that includes billings for Dillon’s hygiene services.

4 Dillon’s appeal is DISMISSED; the restitution order is VACATED; and

the case is REMANDED for re-calculation of restitution.