United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS for the Fifth Circuit February 16, 2006
Charles R. Fulbruge III Clerk No. 04-20616
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CARRIE HAMILTON, RICHARD MILES, and ALICE MILES,
Defendants-Appellants.
Appeals from the United States District Court for the Southern District of Texas
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
Defendants-Appellants Carrie Hamilton, Richard Miles, and
Alice Miles (the “Appellants”) appeal their sentences, arguing the
district court erred in calculating their sentences by erroneously
relying upon the mandate rule on remand and by violating United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Finding no
reversible error, we AFFIRM.
I.
Four defendants, Carrie Hamilton, Richard Miles, Alice Miles,
and Harold Miles, were charged in a 32-count indictment with crimes related to their involvement in a Medicare fraud scheme,
surrounding the creation and management of Affiliated Professional
Home Health (APRO). Texas’s Department of Health certified APRO as
a Medicare provider, and APRO began in-home treatment of Medicare-
covered patients and to obtain reimbursement for the home visits to
those patients.
The Grand Jury charged the three Defendants who now appeal,
Carrie Hamilton (“Hamilton”), Richard Miles, and Alice Miles with:
(1) conspiracy to defraud the United States in Medicare program
reimbursements, 18 U.S.C. § 371; (2) structuring currency
transactions, 31 U.S.C. § 5324; (3) money laundering conspiracy, 18
U.S.C. § 1956(h); (4) three counts of mail fraud, 18 U.S.C. § 1341;
(5) heath care fraud, 18 U.S.C. § 1347; (6) six counts of money
laundering promotion, 18 U.S.C. § 1956(a)(1)(A)(i); (7) seven
counts of money laundering concealment, 18 U.S.C. § 1956
(a)(1)(B)(i); and (8) ten counts of illegal remunerations involving
a federal health care program, 42 U.S.C. § 1320a-7b(b)(2)(A).1
Appellants were convicted on various counts and were sentenced
as follows. Richard Miles was sentenced to 97 months’
imprisonment, three years’ supervised release, and a $200 special
assessment. Alice Miles was sentenced to 168 months’ imprisonment,
1 Harold Miles, who is not a party to this appeal, was charged only with three counts of mail fraud, one count of health care fraud, and six counts of money laundering promotion. Harold Miles was acquitted. All four defendants were subject to criminal forfeiture. See 18 U.S.C. § 982.
2 three years’ supervised release, and a $2100 special assessment.
Hamilton was sentenced to 204 months’ imprisonment, three years’
supervised release, and a $2100 special assessment. Appellants
were ordered jointly and severally to make restitution to the
United States of $4,292,246.72.
Appellants challenged the convictions and sentences in their
first appeal. Reversing in part the convictions, a panel of this
Court remanded the case for resentencing. United States v. Miles,
360 F.3d 472 (5th Cir. 2004) (reversing the convictions for
Hamilton and Alice Miles on money laundering promotion and for ten
counts for illegal healthcare kickbacks). Hamilton’s and Alice
Miles’s convictions for conspiracy to commit money laundering and
for money laundering concealment were affirmed. Id. at 479.
Appellants argued in Miles that the district court erred in the
method of calculating the amount of loss and that the court erred
in enhancing their sentences under USSG § 2B1.1(b)(12)(A)(2001)
because Medicare is not a financial institution within the meaning
of that guideline. Agreeing in part, the panel vacated the
sentences and remanded for resentencing, as follows:
[W]e vacate the sentences of all three appellants and remand for resentencing on the ground that Medicare is not a ‘financial institution’ within the meaning of U.S.S.G. § 2B1.1(b)(12)(A), in addition to resentencing based on the reversal of the convictions noted above. On all other grounds, we affirm the rulings of the district court, the jury verdict, and the other bases for the sentences imposed by the district court.
Id. at 483 (emphasis added).
3 On remand, the Probation Office submitted a supplemental and
amended Presentence Report (the “Supplemental PSR”), noting the
effect of this Court’s opinion in Miles on both the sentencing
ranges and the amount of loss calculation. The Supplemental PSR
recommended a total loss figure of $4,266,246.74, a reduction from
the original of $26,000 (the amount attributable to the kickback
counts).
On June 24, 2004, the Supreme Court issued Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Appellants filed
a supplemental sentencing memorandum, arguing Blakely precluded the
enhancement of their sentences based upon facts not found by jury.2
On July 12, 2004, the Fifth Circuit issued United States v.
Pineiro, 377 F.3d 464 (5th Cir. 2004) (Pineiro I) (rejecting
Blakely’s application to the federal sentencing guidelines),
2 Hamilton objected to the following enhancements: +18 for total loss; +2 for commission of sophisticated laundering; +4 for being a leader/organizer of criminal activity; and +2 for obstruction of justice. Alice Miles objected to enhancements of: +18 for total loss; +2 for commission of sophisticated laundering; +2 for 2S1.1(b)(2)(B); +3 for § 3B1.1(b); and +3 for obstruction of justice. Richard Miles objected to the following level increases: +2 for considerable planning over an extended time period; +3 for his role as a manager/supervisor of criminal activity that involved five or more participants; and +2 for committing perjury during trial. All three objected to the loss calculation on the grounds that it was (1) determined by subtracting the $26,000 related to the reversed kickback conviction from the district court’s original calculation; (2) not alleged in the indictment; and (3) not admitted to by defendants or determined by a jury.
4 vacated by, 543 U.S. 1101 (2005).
Subsequently, the district court resentenced Appellants. At
oral argument, Appellants again objected to the enhancements on the
basis of Blakely. The district court rejected this argument based
upon both Pineiro I and Appellants’ waiver of the objection. The
district court stated that Appellants failed to preserve the issue
by failing to raise it before this Court on initial appeal.
Defense counsel stated that the Sixth Amendment objection had been
made at initial sentencing. The district court then ruled that, in
addition to Pineiro I, the challenge was waived by failure to
preserve the issue on appeal and the scope of the issues viable for
consideration on remand. See United States v. Marmolejo, 139 F.3d
528 (5th Cir. 1998).
Hamilton was resentenced to 171 months’ imprisonment, three
years’ supervised release, and a $1050 special assessment. Richard
Miles was resentenced to 63 months’ imprisonment, three years’
supervised release, and a $200 special assessment. Alice Miles was
resentenced to 135 months’ imprisonment, three years’ supervised
release, and a $1050 special assessment. With respect to the
amount of loss, the district court reduced the restitution order,
in accordance with the probation recommendations, ordering
restitution in the amount of $4,266,246.74. Appellants timely
appealed again, challenging their sentences, including the
calculation of loss amount.
5 II.
A.
Appellants challenge the district court’s calculation of loss
amount, arguing that the court reversibly erred by relying upon
Marmolejo’s mandate rule in declining to revisit the method of the
calculation of loss. “Whether the law of the case doctrine
foreclosed the district court’s exercise of discretion on remand
and the interpretation of the scope of this court’s remand order
present questions of law that this court reviews de novo.” United
States v. Lee (Lee II), 358 F.3d 315, 320 (5th Cir. 2004) (citing
Sobley v. So. Nat. Gas Co., 302 F.3d 325, 332 (5th Cir. 2002)).
B.
Appellants argue, as they did at trial, on initial appeal, and
on resentencing, that the court erroneously calculated the amount
of restitution by improperly including profits lawfully obtained.
This objection is not based upon the Sixth Amendment jury trial
right but rather upon the method of calculation. The Government
argues that under the law of the case, an issue of law or fact
outside the mandate of the remand order “may not be reexamined
either by the district court on remand or by the appellate court on
a subsequent appeal” and that no exception to the mandate rule
applies to this record. See United States v. Becerra, 155 F.3d
740, 752 (5th Cir. 1998).
The scope of the mandate on remand for resentencing is
6 limited, precluding a district court’s de novo consideration of
issues at resentencing. Marmolejo, 139 F.3d at 528. In Marmolejo,
we affirmed the district court’s exclusion of evidence newly
presented on remand for resentencing because the “determination was
not before the district court on remand.” Id. at 530-31.
Accordingly, defendants must “raise all relevant and appealable
issues at the original sentencing,” and a district court
resentencing on remand must determine the scope of the mandate by
identifying “those issues arising out of the correction of the
sentence ordered by this court,” not by “allowing a defendant to
revisit issues with the benefit of this court’s opinion.” Id. at
531.
[T]he resentencing court can consider whatever this court directs – no more, no less. All other issues not arising out of this court’s ruling and not raised before the appeals court, which could have been brought in the original appeal, are not proper for reconsideration by the district court below.
Id.
Three exceptions to this discretionary, rather than
jurisdictional, mandate rule exist. See Becerra, 155 F.3d at 752-
53. These exceptions are: “(1) The evidence at a subsequent trial
is substantially different; (2) there has been an intervening
change of law by a controlling authority; and (3) the earlier
decision is clearly erroneous and would work a manifest injustice.”
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)
(Matthews II) (citing Becerra, 155 F.3d at 752-53).
7 Here, the district court properly concluded that the mandate
rule foreclosed any reconsideration of the amount of loss
calculation except to adjust as required by Miles’s reversal of the
money laundering promotion and illegal remuneration convictions.
This adjustment was recommended by the Supplemental PSR and adopted
by the district court. Appellants’ argument that the district
court and the panel in Miles all failed to properly calculate the
loss amount because the calculation included lawfully obtained
proceeds was not properly before the district court on remand. The
issue was presented to the Miles panel, fully briefed and argued,
and rejected. The method of calculating the loss amount was not
included within the scope of the remand order, given the general
language affirming the remainder of the district court’s bases for
sentencing as well as this Court’s rejection of the “various other
issues raised by the appellants.” See Miles, 360 F.3d at 483.
Despite Appellants’ characterization to the contrary, the mandate
in Miles expressly affirmed the amount of loss calculation. The
Miles panel stated, “[o]n all other grounds, we affirm the rulings
of the district court, the jury verdict, and the other bases for
the sentences imposed by the district court.” Id. Moreover, Miles
noted the amount of loss figure in the context of its discussion of
Appellants’ fraudulent, not lawful, conduct. “The APRO defendants
engaged in a wide range of activities that fraudulently overcharged
Medicare and netted them a substantial amount of illicit revenue.
8 The appellants were held jointly and severally liable for
restitution of over $4 million in overcharges to Medicare.” Id. at
478. The amount of loss with respect to these overcharges was
affirmed by the Miles panel, and neither the district court on
remand nor this panel may reconsider that law of this case.
Appellants argue that the intervening change in law of Blakely
and Booker precludes application of the mandate rule. The
Government argues that at the time Appellants were resentenced by
the district court there had been no intervening change in law.
The Government argues Blakely’s application of Apprendi v. New
Jersey, 530 U.S. 466 (2000), to state sentencing schemes is
insufficient to serve as the “controlling authority” required to
trigger the intervening authority exception to the mandate rule.
In Matthews II, the defendant had argued on initial appeal of
his sentence, based on a carjacking and conspiracy conviction, the
position that was subsequently adopted in Apprendi. 312 F.3d at
656. On remand to the district court, defendant argued that
Apprendi was an intervening change of law, overruling this Court’s
prior holding on his initial appeal. Id. The district court
disagreed and resentenced him according to the government’s
recommendations. On second appeal, Matthews argued the mandate
rule permitted the district court to reconsider the enhancement on
one conviction (which, upon reconsideration, the district court had
9 not applied) and prohibited consideration of the enhancement as to
another. Id. The panel concluded that Apprendi was an intervening
change in controlling law that “overruled our [initial panel]
decision affirming [the] enhancement.” Id. at 657.
The holding of Apprendi, 530 U.S. at 490, forms the basis for
both Blakely, 124 S. Ct. at 2537, and Booker, 125 S. Ct. at 753,
756. As the Government argues, Appellants here did not anticipate
this error, as did the defendant in Matthews I, nor argue at
initial sentencing and on initial appeal that the facts supporting
enhancement must be charged in the indictment and proven to a jury
as required by the Fifth and Sixth Amendments. See Matthews II,
312 F.3d at 657 (quoting Matthews I, 178 F.3d at 302). This
Circuit’s law following Blakely and Booker also indicates that
Blakely’s issuance prior to Appellants’ resentencing was not an
intervening change in law such that an exception to Marmolejo
should apply. See United States v. Malveaux, 411 F.3d 558, 560-61
(5th Cir.), cert. denied, 126 S. Ct. 194 (2005); United States v.
Mares, 402 F.3d 511, 518-59 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005); see also United States v. Higginbotham, 137 Fed. Appx. 665
(5th Cir.) (per curiam) (refusing to consider Booker error where
defendant failed to raise the claim in his initial appeal and
raised the challenge for the first time in his petition for
certiorari), cert. denied, 126 S. Ct. 498 (2005).
Appellants have not shown that an exception applies to the
10 mandate rule to permit the district court’s or this panel’s
reconsideration of the loss amount. Blakely’s issuance between
initial appeal of this cause and resentencing on remand is not an
intervening change in law sufficient to trigger that exception to
the mandate rule. Accordingly, we affirm the Appellants’
sentences, including the calculation of restitution, essentially
for the reasons provided by the district court.
III.
Appellants also argue that the district court erred in
sentencing by improperly relying upon facts not found by a jury or
admitted, in violation of Booker. Citing Chapman v. California,
386 U.S. 18, 24 (1967), Appellants argue that harmless error
applies to our review of this issue because they preserved their
challenge by raising a Sixth Amendment challenge at initial
sentencing and that their failure to raise the issue on initial
appeal does not eviscerate this preservation. The Government
argues that plain error applies because Appellants failed to
preserve their challenge grounded in the Sixth Amendment by waiving
the issue on first appeal.
Addressing both the mandate rule and preservation, we have
previously held that the mandate rule did not foreclose
reconsideration of sentencing to allow the application of an upward
departure when “the issue was not waived in the prior appeal and .
11 . . arose out of the correction of the sentence of this court [on
initial appeal].” Lee II, 358 F.3d at 320 n.3, 323-24. Such is
not the case here where any objection originally raised grounded on
the Sixth Amendment was waived when Appellants abandoned the
argument on initial appeal to this Court. See id. (citing, amongst
others, United States v. Hass, 199 F.3d 749, 753 (5th Cir. 1999)).
Appellants’ argument that to raise Apprendi at the time of
sentencing or on appeal would have been futile is not availing.
See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005). We
review Appellants’ sentences for plain error.
Appellants bear the burden of showing plain error. See FED.
R. CRIM. P. 52(b); Mares, 402 F.3d at 521. The parties agree that
the district court plainly erred by increasing Appellants’
sentences on the basis of facts other than prior convictions not
alleged in the indictment, admitted by Appellants, or proven to a
jury beyond a reasonable doubt. It is now clear that the district
court’s reliance on Pineiro I to deny Appellants’ challenge to the
enhancements and loss amount was error that is plain. Mares, 402
F.3d at 520; see also Booker, 125 S. Ct. at 738; Johnson v. United
States, 520 U.S. 461, 468 (1997).
Thus, in order to show reversible error, Appellants must show
that the plain error affected their “substantial rights.” See
Mares, 402 F.3d at 520 (citing United States v. Cotton, 535 U.S.
12 625, 631 (2002)). To do so, Appellants must show that the error
“affected the outcome of the district court proceedings.” United
States v. Olano, 507 U.S. 725, 734 (1993).
The transcript of the sentencing hearing indicates that the
district court made no suggestion of an inclination to sentence
outside the Guidelines or hint of constraint to sentence within
them. There is no statement by the district court judge to
indicate what he might have done were the Guidelines not mandatory.
Thus, “[w]e do not know what the trial judge would have done had
the Guidelines been advisory.” Mares, 402 F.3d at 522. And, on
such a record, Appellants cannot show that the district court,
sentencing under an advisory scheme, “would have reached a
significantly different result.” Id. Appellants cannot
demonstrate plain error on this record.
IV.
For the foregoing reasons, we AFFIRM Appellants’ sentences
essentially for the reasons provided by the district court and
because Appellants cannot demonstrate that the court plainly erred
under Booker.
AFFIRMED.