United States v. Eleni Mayer

130 F.3d 333
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 1, 1997
Docket97-1015, 97-1016
StatusPublished

This text of 130 F.3d 333 (United States v. Eleni Mayer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Eleni Mayer, 130 F.3d 333 (8th Cir. 1997).

Opinion

WOLLMAN, Circuit Judge.

Eleni H. Mayer and Kerry A Mayer, both of whom pled guilty to one count of conspiracy to commit mail fraud, a violation of 18 U.S.C. § 371, challenge the district court’s order of restitution. In addition, Eleni Mayer appeals the district court’s two-level sentence enhancement for her role in the conspiracy. We affirm in part, reverse in part, and remand for a recalculation of the restitution order.

I.

Eleni Mayer and her husband, Kerry, operated Fidelity Nursing Services, Inc. (Fidelity). Fidelity provided home health care services, including skilled and unskilled nursing, for numerous patients, most of whom were eligible for Medicare. IASD Health Services Corporation (IASD) acted as fiscal intermediary between Fidelity and the Medicare program. Fidelity submitted all of its Medicare claims through IASD, which reimbursed Fidelity for approved claims. Fidelity also submitted yearly cost reports to IASD for a final year-end reimbursement. IASD commenced an audit of Fidelity after Fidelity’s 1994 report reflected a massive increase in costs. During the course of the audit it was revealed that the Mayers had submitted false invoices totaling $253,812.75 and claimed a $222,000 expense for computer equipment that was never purchased.

After their indictment on numerous counts of fraud and conspiracy, the Mayers agreed to plead guilty to conspiracy to commit mail fraud. The district court accepted the plea and sentenced Eleni Mayer to twenty-one months’ imprisonment, two years of supervised release, and $496,642.75 in restitution. Kerry Mayer was sentenced to twelve months and one day of imprisonment, two years of supervised release, and was ordered to pay an identical amount of restitution jointly and severally with his wife.

II.

Eleni Mayer first challenges the district court’s imposition of a two-level sentencing adjustment pursuant to U.S.S.G. § 3Bl.l(c) for her managerial role in the criminal activity. ‘We review a district court’s factual findings relied on to enhance a defendant’s sentence for clear error.” United States v. Black, 88 F.3d 678, 681 (8th Cir.1996).

The government contends the two-level increase is not reviewable because Ele-ni’s twenty-one month sentence would still be within the guideline range she seeks. Before review of the district court’s enhancement may be denied, however, it must be “clear that the sentencing court would have imposed the same sentence regardless of whether the appellant’s argument for a lower guideline range ultimately prevailed.” United States v. Simpkins, 953 F.2d 443, 446 (8th Cir.1992). We conclude that because the record as a whole does not suggest with sufficient certainty that the district court would have imposed the same sentence under the lower range, we may review Eleni’s sentence. See United States v. Kloor, 961 F.2d 1393, 1394 (8th Cir.1992) (per curiam).

Federal Rule of Criminal Procedure 32(c)(1) requires that the district court must either make specific findings as to each controverted component of a Presentence Investigation Report (PSR) or make a determination that no finding is necessary because the matter will not be considered during sentencing. See United States v. Flores, 9 F.3d 54, 55 (8th Cir.1993). We have consistently held that when a defendant objects to portions of the PSR, the district court must base its findings on evidence rather than on the disputed PSR information. See United States v. Hudson, 129 F.3d 994, 994-95 (8th Cir.1997) (per curiam). Eleni objected to the allegations involving her role in the enterprise contained in paragraphs 28-32 of her PSR, characterizing them as unreliable and largely untrue. The district court did not file Rule 32 findings regarding these objections, *340 instead announcing its findings on the record during the sentencing hearing by stating that “[Eleni] was in a greater role than an ordinary person. She was a manager in this criminal activity. It could not have been done if she had not been in charge.”

Eleni contends that the stipulated facts, as incorporated in the her plea agreement, fail to support the district court’s two-level enhancement. 1 The application notes to section 3B1.1 provide: “To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1, comment, (n.2). We have construed the definition of leadership or organizational role broadly. See United States v. Horne, 4 F.3d 579, 590 (8th Cir.1993). Our decision in United States v. McFarlane, 64 F.3d 1235 (8th Cir.1995), has further clarified the issue. In McFarlane we held that mandatory upward adjustments, such as the district court’s enhancement here, require the management or supervision of other participants. See Id. at 1239. While control of other participants is an important factor, section 3B1.1 focuses on the “relative responsibility within a criminal organization.” United States v. Bush, 79 F.3d 64, 67 (7th Cir.1996).

Eleni stipulated that (1) she was the “Administrator of Fidelity Nursing Services, Inc.”; (2) she “submitted and caused to be submitted” the fraudulent reports; (3) she, along with Kerry and Evangelos Stathoulo-poulos, her nephew, “submitted and caused to be submitted” false invoices; and (4) she wrote two checks to her nephew, purportedly for computer expenses, which he subsequently endorsed and were eventually redeposited in Fidelity’s checking account. Although El-eni contends that these stipulated facts are insufficient to show requisite control of her counterparts, we cannot agree. 2 “[E]ven if a defendant did not exercise control, an enhancement under § 3B1.1 ‘may apply so long as the criminal activity involves more than one participant and the defendant played a coordinating or organizing role.’ ” Id. (quoting United States v. Granado, 72 F.3d 1287, 1289 (7th Cir.1995)). We are satisfied that the stipulation, when considered as a whole, demonstrates Eleni’s coordinating role in the enterprise. Most telling is Eleni’s fraudulent transaction with her nephew, in which, acting as Fidelity’s administrator, she attempted to deceive IASD auditors and defraud the Medicare program.

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Related

Hughey v. United States
495 U.S. 411 (Supreme Court, 1990)
United States v. Joe Louis Simpkins
953 F.2d 443 (Eighth Circuit, 1992)
United States v. Edward Kloor
961 F.2d 1393 (Eighth Circuit, 1992)
United States v. Jose Hurtado Flores
9 F.3d 54 (Eighth Circuit, 1993)
United States v. Loren M. Welsand
23 F.3d 205 (Eighth Circuit, 1994)
United States v. Conrad Jules Braun
60 F.3d 451 (Eighth Circuit, 1995)
United States v. Koby Kirk McFarlane Sr.
64 F.3d 1235 (Eighth Circuit, 1995)
United States v. Emmett Granado, Jr.
72 F.3d 1287 (Seventh Circuit, 1995)
United States v. Larry Richard Bush
79 F.3d 64 (Seventh Circuit, 1996)
United States v. Norman Everett Black
88 F.3d 678 (Eighth Circuit, 1996)
United States v. Paula D. Hudson
129 F.3d 994 (Eighth Circuit, 1997)

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