United States v. Hal Mark Kreitman

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 20, 2019
• Docket: 18-12838
• Status: Unpublished

Opinion

Case: 18-12838 Date Filed: 05/20/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12838 Non-Argument Calendar ________________________

D.C. Docket No. 9:11-cr-80106-KAM-25

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HAL MARK KREITMAN,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 20, 2019)

Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-12838 Date Filed: 05/20/2019 Page: 2 of 9

Hal Kreitman appeals the district court’s sentence of 84 months of

imprisonment and two years of supervised release. He also appeals the court’s

order to pay $795,945.51 in restitution. After careful consideration, we affirm his

sentence and vacate and remand for reconsideration his restitution order.

I.

The facts of this case are set out in this Court’s earlier decision addressing

the direct appeal brought by Kreitman and his co-defendants. See United States v.

Ramirez, 724 F. App’x 704 (11th Cir. 2018) (unpublished). We will briefly

recount them here. Kreitman was convicted of mail fraud, conspiracy to commit

mail fraud, money laundering, and conspiracy to commit money laundering for

participating in a scheme that defrauded insurance companies. Id. at 709–10. The

scheme was as elaborate as it was criminal. The conspirators recruited people to

stage car accidents and seek “treatment” at one of several clinics operated by the

conspirators. Id. at 709. At the clinic, a conspirator chiropractor, like Kreitman,

would prescribe dozens of fake therapy sessions for the “injured” person, bill

insurance companies for the cost, and pocket the money. Id. at 709–10.

For his role in this scheme, Kreitman was sentenced to 96-months

imprisonment and 2 years of supervised release, and ordered to pay more than $1.5

million in restitution and an assessment of $2,500. Id. at 710. On appeal, this

Court vacated his sentence and restitution order because the district court

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improperly held him accountable “for all of the loss that was generated during the

course of the conspiracy” as opposed to “all reasonably foreseeable” losses. Id. at

718–19 (quotation marks omitted). In addition, the district court failed to “make

individualized findings on the scope of criminal activity undertaken by Mr.

Kreitman.” Id. at 719. This Court remanded Kreitman’s case for resentencing. Id.

at 720.

On remand, the district court reevaluated the evidence and found that the

actual loss was $795,945.51 and that ten or more victims were involved. The court

also declined to apply a two-level special skills enhancement because Kreitman did

not use any special skills in service of the money laundering offense. As a result,

the district court calculated Kreitman’s new guideline range as 78 to 97 months,

which the court characterized as “an appropriate range . . . to work with” and

“sufficient but not greater than necessary to comply with the requirements of

Section 3553.” Before imposing a sentence, the district court heard arguments

from counsel, who urged the court to vary downwards on account of Kreitman’s

exemplary behavior in prison. While in prison, Kreitman taught multiple GED

courses and completed more than 900 hours of coursework in preparation for

reentry.

The court imposed an 84-month sentence followed by two years of

supervised release. The court also ordered Kreitman to pay $795,945.51 in

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restitution. The court explained that it arrived at its sentence after considering “the

statements of the parties, the information contained in the presentence investigation

report, and the advisory guideline range, as well as the statutory factors set forth in

18 U.S.C. [§] 3553.”

Kreitman timely appealed.

II.

“We review a district court’s interpretation and application of the Sentencing

Guidelines de novo but accept the court’s factual findings unless they are clearly

erroneous.” United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). We

likewise review de novo “the legality of an order of restitution,” and we review the

factual findings undergirding the order for clear error. See United States v. Foley,

508 F.3d 627, 632 (11th Cir. 2007). We review the procedural reasonableness of a

sentence under an abuse-of-discretion standard. United States v. Ellisor, 522 F.3d

1255, 1273 n.25 (11th Cir. 2008). A district court abuses its discretion if it follows

improper procedures in setting a sentence. Id.

III.

Kreitman first argues the district court erred in calculating the guideline

range by relying on unreliable government calculations of claims, failing to

identify and exclude insurance claims involving legitimate patient treatment, and

speculating that more than ten victim-entities were involved. We disagree.

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The Sentencing Guidelines impose a 14-level enhancement if the actual loss

attributable to the defendant is more than $550,000 and less than or equal to $1.5

million. USSG § 2B1.1(b)(1)(H). Kreitman argues the district court

overcalculated the loss amount and suggests that he should have received a lower-

level enhancement. The problem with his argument is this: counsel for Kreitman

conceded at the sentencing hearing that even if the billings were off, the errors

were “not going to be anywhere near getting [Kreitman] down to 550”—or

$550,000. True, Kreitman asked the district court to calculate a loss amount no

greater than 65% of $795,000, or $516,750, to account for Kreitman’s actual

culpability. But the district court was entitled to find, given counsel’s concession,

that the loss was above $550,000 and commensurate with a 14-level enhancement.1

Neither did the district court clearly err in finding that Kreitman’s offenses

involved ten or more victims. As Kreitman conceded at the hearing, there were

“about 12” insurance companies affected by Kreitman’s billings. Although

Kreitman later maintained that the government failed to prove more than 8

insurance entities were the victims of Kreitman’s fraudulent insurance claims, he

1 The government argues that Kreitman cannot challenge the district court’s calculated loss amount of $795,945.51 because he invited the error by agreeing at resentencing that the actual loss amount was around $795,000. However, the record is clear counsel was referring to the total potential loss amount—not how much Kreitman should be held liable for. As a result, the doctrine of invited error does not bar him from making these arguments on appeal.

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has presented no argument on appeal that persuades us the district court’s finding

was clearly erroneous. 2

Even assuming that only insurance claims filed by Kreitman’s patients after

August 28, 2010 may be counted,3 the record reflects there were thirteen insurance

companies that made payments on or after that date. Kreitman nonetheless argues

there was not enough evidence to find more than ten victims because some of these

payments involved only one exam as opposed to a pattern of repeated visits, which

could be a sign that the victim was legitimately injured. But again, Kreitman

admitted at the resentencing hearing that these single examinations were

“borderline” cases and should be omitted under a “conservative” estimate.

Beyond Kreitman’s admission, there was testimony that single payments

would have been consistent with the fraud scheme because the government

introduced only bills attributable to Kreitman—not those bills attributable to his

co-conspirators or anyone else. In other words, a “patient” could have scheduled

several fake therapy treatments and billed them separately through a co-

conspirator, leaving Kreitman responsible for billing a fake x-ray and nothing else.

2 The government also argues Kreitman invited error on the number of victims involved. However, because Kreitman did dispute the number of victims during the resentencing hearing, we will not apply the invited error doctrine to bar consideration of the merits of his claim. 3 Kreitman argued during resentencing that August 28, 2010, the day the indictment says Kreitman fraudulently mailed an insurance claim, should serve as the start date for all loss calculations.

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The district court was entitled to credit that testimony. The court therefore did not

clearly err in finding that the government met its burden of proving by a

preponderance of the evidence that more than ten victims were involved. See

United States v. Castaneda–Pozo, 877 F.3d 1249, 1251 (11th Cir. 2017) (per

curiam) (“We will not reverse a district court’s factual finding unless we are left

with a definite and firm conviction that a mistake has been committed.” (quotation

marks omitted)).

As for the restitution order, it appears the district court recognized that some

of the billing numbers “might be inaccurate” but credited the government’s

proffered number anyway because the mistakes wouldn’t lower the guideline

range. This was improper. This Court has cautioned that “the amount of loss for

restitution purposes will not always equal the amount of loss under the sentencing

guidelines” and courts must be careful to narrowly tailor restitution so as not to

“provide a windfall for crime victims.” United States v. Bane, 720 F.3d 818, 827

(11th Cir. 2013) (quotation marks omitted). Kreitman raised several concerns

during resentencing about how the government calculated loss. The most serious

of these was the government’s decision to include billing for a time period that

may have predated Kreitman’s employment with the clinic. If Kreitman is correct

about these mistakes, it is doubtful he could be made to pay the restitution amount

based on them, even if his guideline range remained the same. See United States

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v. Dickerson, 370 F.3d 1330, 1341 (11th Cir. 2004) (“[A] criminal defendant

cannot be compelled to pay restitution for conduct committed outside of the

scheme, conspiracy, or pattern of criminal behavior underlying the offense of

conviction.”).

The district court did not meaningfully engage with Kreitman’s arguments

about the loss amount once it determined the guideline range would remain

unchanged. We therefore vacate the restitution order and remand for the district

court to reconsider all the evidence. If Kreitman wants to pursue his argument that

some amount of money should be deducted from the restitution order because he

actually treated injured patients, he must present some evidence about what that

amount should be. See Bane, 720 F.3d at 829 n.10 (“The defendant bears the

burden to prove the value of any medically necessary goods or services he

provided that he claims should not be included in the restitution amount.”).

IV.

Kreitman also argues the district court erred by failing to explain why it did

not vary downwards from the guideline range. This argument fails to persuade.4

“It is sufficient that the district court considers the defendant’s arguments at

sentencing and states that it has taken the § 3553(a) factors into account.” United

4 We do not address whether our review of this issue should be for plain error, as the government argues, or abuse of discretion, as Kreitman contends. Kreitman’s procedural challenge fails regardless of the standard of review. 8 Case: 18-12838 Date Filed: 05/20/2019 Page: 9 of 9

States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010) (en banc) (quotation marks

omitted). As long as the record demonstrates that the district court “listened to the

evidence and arguments and was aware of the various factors the defendant put

forward for a lesser sentence,” the court has adequately explained its sentence. Id.

This district judge listened to Kreitman’s statement at resentencing that he had

completed more than a thousand credit hours of programming while incarcerated

and actively taught other inmates as well. The court also heard Kreitman’s

arguments regarding his mother’s poor health. The court chose nonetheless to

adhere to the guideline range, determining that a sentence of 84 months was

appropriate and sufficient under § 3553. This was no abuse of discretion. It was a

reasoned consideration of the evidence that we are not at liberty to disturb on

appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.