Opposition Brief — Marie Neba, Petitioner v. United States

Supreme Court briefFeb 11, 2019

Ask Donna

What actually matters in this document.

Text

No. 18-596

In the Supreme Court of the United States

MARIE NEBA, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly upheld petitioner’s within-Guidelines sentence as substantively

reasonable.

(I)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 7

Conclusion ................................................................................... 13

TABLE OF AUTHORITIES

Cases:

Bethesda Hosp. Ass’n v. Bowen, 485 U.S. 399 (1988) .......... 2

Chavez-Meza v. United States, 138 S. Ct. 1959 (2018) ...... 10

Gall v. United States, 552 U.S. 38 (2007) .............. 8, 9, 11, 12

Nelson v. United States, 555 U.S. 350 (2009) ..................... 10

Peugh v. United States, 569 U.S. 530 (2013)....................... 10

Rita v. United States, 551 U.S. 338 (2007) .................. 7, 8, 13

United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006) ......... 8

United States v. Booker, 543 U.S. 220 (2005) ..................... 12

United States v. Erika, Inc., 456 U.S. 201 (1982)................. 2

United States v. Feemster, 572 F.3d 455

(8th Cir. 2009) ...................................................................... 11

United States v. Gardellini, 545 F.3d 1089

(D.C. Cir. 2008) ................................................................... 11

United States v. Robinson, 437 Fed. Appx. 733

(10th Cir. 2011), cert. denied, 565 U.S. 1136 (2012) ......... 10

United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) ........ 11

Constitution, statutes, and Guidelines:

U.S. Const.:

Amend. VI ........................................................................ 12

Amend. VIII................................................................... 6, 9

Social Security Act, Tit. XVIII, 42 U.S.C. 1395 et seq. ........ 2

(III)

Statutes and guidelines—Continued:

Page

42 U.S.C. 1395c .................................................................. 2

18 U.S.C. 2 .................................................................... 1, 2, 3, 4

18 U.S.C. 24(b) ......................................................................... 2

18 U.S.C. 371 ........................................................................ 2, 3

18 U.S.C. 1035 ...................................................................... 1, 3

18 U.S.C. 1347 ...................................................................... 1, 3

18 U.S.C. 1349 ...................................................................... 1, 3

18 U.S.C. 1956(h) ................................................................. 2, 4

42 U.S.C. 1320a-7b(b)(1) (2012) .......................................... 2, 4

42 U.S.C. 1320a-7b(b)(2) (2012) .......................................... 2, 4

United States Sentencing Guidelines (2016):

Ch. 2:

§ 2B1.1(a)(2) ................................................................. 4

§ 2B1.1(b)(1)(K) ........................................................... 4

§ 2B1.1(b)(2)(A)(i) ........................................................ 4

§ 2B1.1(b)(7) ................................................................. 4

§ 2B1.1(b)(10)(c) ........................................................... 4

§ 2S1.1 ........................................................................... 4

Ch. 3:

§ 3B1.1(a) ...................................................................... 4

§ 3B1.3 .......................................................................... 4

§ 3C1.1 .......................................................................... 4

§ 3E1.1 .......................................................................... 4

Ch. 5:

§ 5G1.1(c)(a).................................................................. 5

Miscellaneous:

United States Sentencing Comm’n, 2017 Sourcebook

of Federal Sentencing Statistics, www.ussc.gov/

research/sourcebook-2017 (last visited Feb. 8,

2019) ............................................................................... 11, 13

In the Supreme Court of the United States

No. 18-596

MARIE NEBA, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-15)

is reported at 901 F.3d 260.

JURISDICTION

The judgment of the court of appeals was entered on

August 16, 2018. The petition for a writ of certiorari

was filed on November 2, 2018. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Texas, petitioner was

convicted on one count of conspiracy to commit health

care fraud, in violation of 18 U.S.C. 1349; three counts

of health care fraud, in violation of 18 U.S.C. 1347 and

2; one count of making false statements relating to

health care matters, in violation of 18 U.S.C. 1035 and

2; one count of conspiracy to pay and receive health care

(1)

kickbacks, in violation of 18 U.S.C. 371; one count of

payment of health care kickbacks, in violation of

42 U.S.C. 1320a-7b(b)(1) and (b)(2) (2012), and 18 U.S.C.

2; and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h). Judgment 1-2.

She was sentenced to 900 months of imprisonment, to

be followed by three years of supervised release. Judgment 3-4. The court of appeals affirmed. Pet. App. 1-15.

1. The Medicare program, Title XVIII of the Social

Security Act, 42 U.S.C. 1395 et seq., is a federal “health

care benefit program.” 18 U.S.C. 24(b). Under Medicare, “certain qualified providers of health care services

are reimbursed” by the federal government for “providing covered services to” certain persons with disabilities

or who are 65 years of age or older. Bethesda Hosp.

Ass’n v. Bowen, 485 U.S. 399, 400 (1988); see United

States v. Erika, Inc., 456 U.S. 201, 202 (1982). Among

the covered services are certain “home health services”

provided by eligible home health agencies. 42 U.S.C.

1395c; 11/3/2016 Tr. 122. To qualify for home health services, Medicare beneficiaries must be homebound and

under the care of a physician who specifically orders—

and then certifies the need for—home healthcare.

11/3/2016 Tr. 126-135. In addition, a registered nurse

from the agency providing the services must complete

an assessment verifying the need for home healthcare

services and develop a plan of care together with the

physician. Id. at 127, 131.

2. Petitioner, who was a licensed nurse practitioner,

and her husband owned a healthcare agency that purportedly provided home health care services to Medicare beneficiaries in Texas. Presentence Investigation

Report (PSR) ¶¶ 13-15, 21. From 2006 to 2015, petitioner and others recruited Medicare beneficiaries,

falsely represented to Medicare that those beneficiaries

qualified for home health care services, and then billed

Medicare for the unnecessary (and often fictitious) services. PSR ¶¶ 21-28.

To orchestrate the fraud, petitioner and her husband

paid illegal kickbacks to patient recruiters for referring

Medicare beneficiaries to the agency, to the physicians

for authorizing unnecessary services, and to Medicare

beneficiaries for permitting the agency to bill using the

beneficiaries’ Medicare numbers. PSR ¶¶ 22, 23, 25.

Petitioner and her husband concealed the illegal kickbacks by writing checks from the agency’s bank accounts to employees, then instructing those employees

to cash the checks and return the cash to petitioner and

her husband to pay the Medicare beneficiaries. PSR

¶ 33. Petitioner also falsified records by pre-signing

nursing forms without seeing patients and directed others to falsify forms as well. PSR ¶¶ 44, 52, 58-60. During the nine-year conspiracy, Medicare paid the agency

more than $13 million for fraudulent home healthcare

services for 1,175 putative beneficiaries. PSR ¶¶ 20, 27.

Petitioner and her husband “funneled” more than $10

million of those funds through three bank accounts, often “mov[ing] money amongst the accounts as well.”

PSR ¶¶ 36-37.

3. A grand jury in the Southern District of Texas returned an indictment charging petitioner with one count

of conspiracy to commit health care fraud, in violation

of 18 U.S.C. 1349; three counts of health care fraud, in

violation of 18 U.S.C. 1347 and 2; one count of making

false statements relating to health care matters, in violation of 18 U.S.C. 1035 and 2; one count of conspiracy

to pay health care kickbacks, in violation of 18 U.S.C.

371; one count of payment of health care kickbacks, in

violation of 42 U.S.C. 1320a-7b(b)(1) and (b)(2) (2012),

and 18 U.S.C. 2; and one count of conspiracy to commit

money laundering, in violation of 18 U.S.C. 1956(h). Indictment 4-14. Before a pretrial court appearance, petitioner instructed one of the clinic’s employees (who

also had been arrested and charged for her role in the

scheme) “not to tell the truth about being paid for referrals or paying patients.” PSR ¶ 43. Petitioner proceeded to trial, and a jury found her guilty on all counts.

Judgment 1.

Before sentencing, the Probation Office calculated a

total offense level of 43. PSR ¶ 94. From an initial offense level of 6 for health care fraud, petitioner’s base

offense level was increased by: 20 levels for causing a

loss of between $9.5 million and $25 million; 2 levels because the offense involved ten or more victims; 3 levels

for causing a loss to a government healthcare program

of between $7 million and $20 million; 2 levels for intentionally engaging in conduct constituting sophisticated

means; and 2 levels for having been convicted of a

money-laundering offense. PSR ¶ 84; see Sentencing

Guidelines §§ 2B1.1(a)(2), (b)(1)(K), (b)(2)(A)(i), (b)(7),

and (b)(10)(C), and 2S1.1 (2016). To this base offense

level of 35, the Probation Office recommended adding a

4-level enhancement for being an organizer or leader; a

2-level enhancement for abusing a position of trust;

and a 2-level enhancement for obstruction of justice

(based on the instruction to her subordinate not to tell

the truth). PSR ¶¶ 87-89; see Sentencing Guidelines

§§ 3B1.1(a), 3B1.3, and 3C1.1 (2016). Because petitioner had contested the charges and proceeded to trial,

she was not entitled to a reduction of her offense level

for acceptance of responsibility under Section 3E1.1.

PSR ¶ 91.

Petitioner had no previous convictions and so had a

criminal history category of I, which, when combined

with her total offense level of 43, yielded an advisory

Sentencing Guidelines range of life imprisonment,

capped at the statutory maximum sentence of 900

months of imprisonment under Section 5G1.1(c)(1).

PSR ¶¶ 94, 97, 117; Second Addendum to PSR ¶ 8. Petitioner’s only objections to the Probation Office’s calculations were to the loss amount, the number of victims, and the organizer/leader, abuse-of-trust, and

obstruction-of-justice sentencing enhancements. Addendum to PSR 1-2.

At sentencing, the district court overruled petitioner’s objections to the Probation Office’s calculations. Sent. Tr. 7-8, 10. Petitioner then argued that her

deteriorating health and motherhood of two young children justified a below-Guidelines sentence. Id. at 15-17.

The government recognized “the impact on her family,”

but observed that petitioner and her husband committed fraud out of greed, not necessity, to support their

“lavish spending.” Id. at 18. The government also

pointed out that petitioner impeded the investigation

into her fraud and that she was receiving appropriate

medical care in custody. Id. at 19-20.

The district court recognized petitioner’s health

problems, but emphasized the seriousness of petitioner’s crime, including the “great lengths” petitioner

and her husband took “to conceal their fraud, often involving several of their employees.” Sent. Tr. 31. The

court observed that petitioner also “falsified medical

records, sometimes while Medicare auditors were in

[petitioner’s] offices.” Ibid. The court also explained

that petitioner later “obstructed justice * * * by attempting to tamper with a [co-defendant] witness * * *

and suborn perjury.” Id. at 32. After considering petitioner’s “role in the offense, the amount of loss attributable to [petitioner] compared to others, [her] obstruction of justice, [her] aggravating role enhancement, and

most importantly the guideline range of life,” the court

determined that a within-Guidelines sentence of 900

months of imprisonment was appropriate. Id. at 33. Petitioner did not object. Id. at 37.

4. The court of appeals affirmed. Pet. App. 1-9. Because petitioner did not object to her sentence in the

district court, the court of appeals reviewed petitioner’s

sentencing challenges for plain error. Id. at 2.

The court of appeals explained that the crux of petitioner’s arguments on appeal amounted to claims of procedural error, including arguments that the district

court mistakenly believed it was required to sentence

petitioner to the statutory maximum and that the district court failed to consider petitioner’s arguments for

a downward variance. Pet. App. 3. The court of appeals

determined that both of those procedural claims were

belied by the record. Id. at 3-4. The court observed that

the district court reviewed the presentence report at

sentencing and relied on several factors to reach its decision, including petitioner’s role in the offense, the loss

amount, her obstruction of justice, her aggravating role

in the conspiracy, and the Guidelines range. Id. at 4.

The court of appeals then rejected petitioner’s substantive reasonableness challenge to her sentence, “[g]iven

the deferential review of a within-guidelines sentence.”

Ibid. And the court rejected petitioner’s Eighth Amendment challenge to that sentence, explaining that “we

cannot say that [petitioner’s] crime was not grave enough

that the sentence is grossly disproportionate to her

crime.” Id. at 6.

Judge Jones concurred, Pet. App. 10-15, expressing

concern that the presumption of reasonableness for a

within-Guidelines sentence authorized by this Court’s

decision in Rita v. United States, 551 U.S. 338 (2007),

“is non-binding in theory but nearly ironclad in fact.”

Pet. App. 12. Although Judge Jones remarked that the

majority’s decision was well-reasoned, she wrote separately to highlight her desire for rules to help determine

when a within-Guidelines sentence might be substantively unreasonable. Id. at 12-13.

ARGUMENT

Petitioner urges (Pet. 4) this Court to grant certiorari to “set forth the circumstances under which a defendant may rebut the presumption that a withinGuidelines range sentence is substantively reasonable.”

But petitioner fails to show that her sentence would be

substantively unreasonable even without such a presumption, and the court of appeals’ decision does not

conflict with any decision of this Court or other courts

of appeals. No further review is warranted.

1. In Rita v. United States, 551 U.S. 338 (2007), this

Court held that “a court of appeals may apply a presumption of reasonableness to a district court sentence

that reflects a proper application of the Sentencing

Guidelines.” Id. at 347. The Court recognized that such

a nonbinding presumption “reflects the fact that, by the

time an appeals court is considering a within-Guidelines

sentence on review, both the sentencing judge and the

Sentencing Commission will have reached the same

conclusion as to the proper sentence in the particular

case.” Ibid. “That double determination significantly

increases the likelihood that the sentence is a reasonable one.” Ibid.

As Rita explained, the presumption of reasonableness does not have “independent legal effect,” but instead “simply recognizes the real-world circumstance

that when the judge’s discretionary decision accords

with the Commission’s view * * * , it is probable that

the sentence is reasonable.” 551 U.S. at 350-351. That

is particularly true in light of the “deferential” standard

that applies to appellate review of sentences “[r]egardless of whether the sentence imposed is inside or outside the Guidelines range.” Gall v. United States,

552 U.S. 38, 51, 52 (2007). Accordingly, and as this Court

observed in Rita, even an appellate court that does not

apply the presumption should “usually” find a withinGuidelines sentence to be reasonable “because it reflects

both the Commission’s and the sentencing court’s judgment as to what is an appropriate sentence for a given

offender.” 551 U.S. at 351. Consistent with that observation, the Fifth Circuit has stated that “there does not

seem to be a practical difference between the burden of

rebutting a presumption of reasonableness afforded a

properly calculated Guideline range sentence and the

burden of overcoming the great deference afforded such

a sentence.” United States v. Alonzo, 435 F.3d 551, 554

(2006); see Pet. App. 3 (citing Alonzo).

2. The court of appeals correctly determined that

the district court did not abuse its discretion in imposing petitioner’s sentence. As the court of appeals observed, “[t]he sentencing court reviewed the presentence report during sentencing and listed a number of

‘factors’ that went into the sentencing decision, including [petitioner’s] ‘role in the offense, the amount of loss

attributable to [petitioner] compared to others, [her]

obstruction of justice, [her] aggravating role enhancement, and most importantly, the guideline range of

life.’ ” Pet. App. 4 (citation, brackets, and emphasis

omitted). The district court thus made a “reasoned and

reasonable decision” that the individual circumstances

here justified a lengthy (yet still within-Guidelines) sentence, and the court of appeals properly gave “due deference” to that decision, Gall, 552 U.S. at 59-60.

That remains true with or without the presumption

of reasonableness. Although the court of appeals noted

that petitioner’s within-Guidelines sentence is presumptively reasonable on appellate review, it also observed that petitioner had incorrectly labeled as “substantive” claims that were actually procedural in nature, not substantive. Pet. App. 3. The court evaluated

and rejected those procedural challenges without applying any presumptions. Id. at 3-4. Having rejected those

challenges, and in the absence of any other arguments

for why petitioner’s sentence was unreasonable, the

court correctly determined that petitioner’s substantive

reasonableness challenge failed as well. Id. at 4; see

Gall, 552 U.S. at 52.

Moreover, the court of appeals further examined petitioner’s sentence in rejecting her Eighth Amendment

challenge. Although the constitutional standard is not

the same as substantive reasonableness, the court’s reasoning sheds additional light on why the district court

did not abuse its discretion here. The court of appeals

concluded that, despite the “severe sentence,” petitioner’s crimes were “grave enough that the sentence is

[not] grossly disproportionate” to them. Pet. App. 6.

The court observed that “[petitioner] participated as a

leader in a prolonged, extensive Medicare fraud scheme,

defrauded Medicare of over $13 million dollars, and procured the involvement of numerous outside individuals

to participate in her scheme.” Ibid. Petitioner’s sentence is thus not the sort of “ ‘arbitrary, capricious,

whimsical, or manifestly unreasonable’ ” sentence that

would require reversal on appeal. United States v. Robinson, 437 Fed. Appx. 733, 735 (10th Cir. 2011) (Gorsuch, J.) (citation omitted), cert. denied, 565 U.S. 1136

(2012). To the extent petitioner simply disagrees (Pet.

10-11) with the lower courts’ assessment of her personal

circumstances, that factbound claim does not warrant

this Court’s review.

3. Petitioner nevertheless urges (Pet. i) this Court

to “overrule or refine Rita.” But this Court has repeatedly reaffirmed Rita’s holding that a “court of appeals

may, but is not required to, presume that a withinGuidelines sentence is reasonable.” Peugh v. United

States, 569 U.S. 530, 537 (2013); see Nelson v. United

States, 555 U.S. 350, 351 (2009) (per curiam). Indeed,

this Court favorably reiterated the principles underlying Rita just last Term in Chavez-Meza v. United

States, 138 S. Ct. 1959 (2018), explaining that “[w]hen a

judge applies a sentence within the Guidelines range, he

or she often does not need to provide a lengthy explanation” because “ ‘circumstances may well make clear that

the judge rests his decision upon the Commission’s own

reasoning that the Guidelines sentence is a proper sentence * * * in the typical case, and that the judge has

found that the case before him is typical.’ ” Id. at 1964

(brackets and citation omitted).

In asking the Court to reconsider Rita, petitioner

does not question those principles; instead, she asserts

that “[i]n practice, the rebuttability of the presumption

that a within-Guidelines sentence is reasonable” is a

“sham,” Pet. 5 (emphasis omitted), citing the low frequency with which within-Guidelines sentences are

found to be substantively unreasonable on appellate review, Pet. 7. Yet what is true of within-Guidelines sentences also is true of non-Guidelines sentences: in 2017,

for example, only eight sentences were reversed in the

federal system as substantively unreasonable. United

States Sentencing Comm’n, 2017 Sourcebook of Federal

Sentencing Statistics, tbl. 59, www.ussc.gov/research/

sourcebook-2017. That is no doubt in part because a reviewing court “must first ensure that the district court

committed no significant procedural error,” and only if

the “sentencing decision is procedurally sound” may the

court “then consider the substantive reasonableness of

the sentence imposed.” Gall, 552 U.S. at 51. Most sentences that would rise to the level of substantive unreasonableness likely are the product of some antecedent

procedural error. And in 2017, 351 federal sentences

were reversed or remanded for procedural errors—324

of them for incorrectly computing the Guidelines range.

2017 Sourcebook, supra, tbl. 59.

The low frequency of reversals for substantive unreasonableness also reflects the “deferential” standard

of review appellate courts generally apply to a district

court’s on-the-ground sentencing judgments. Gall,

552 U.S. at 52. As a result, “ ‘it will be the unusual case

when [a court] reverse[s] a district court sentence—

whether within, above, or below the applicable Guidelines range—as substantively unreasonable.’ ” United

States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en

banc) (quoting United States v. Gardellini, 545 F.3d

1089, 1090 (D.C. Cir. 2008) (Kavanaugh, J.)); see also

United States v. Tomko, 562 F.3d 558, 573 (3d Cir. 2009)

(en banc). Given the relative infrequency with which

any sentence is overturned for being substantively un-

reasonable, petitioner’s suggestion that the presumption of reasonableness itself is a barrier to relief lacks

meaningful support and provides no reason to revisit

Rita. Courts of appeals that view the presumption as

creating unwarranted results are free to dispense with

it or simply to reverse any within-Guidelines sentences

that they determine to be an abuse of discretion on the

facts of a particular case. See Gall, 552 U.S. at 51.

In any event, this case is not a suitable vehicle for

reconsidering the presumption of reasonableness. As

noted above, petitioner fails to show that the outcome

would be different without the presumption. Petitioner

raised only procedural challenges (to which the court of

appeals did not apply any presumption), and the court

appropriately gave “due deference” to the district

court’s “reasoned and reasonable decision.” Gall, 552

U.S. at 59-60.

4. Petitioner also briefly argues that the court of

appeals’ decision renders United States v. Booker,

543 U.S. 220 (2005), “meaningless.” Pet. 10 (emphasis

omitted). Booker held that the Sixth Amendment right

to a jury trial is violated when a defendant’s sentence is

increased based on judicial fact-finding under mandatory federal Sentencing Guidelines. 543 U.S. at 244. Accordingly, the Court severed “the provision of the federal

sentencing statute that makes the Guidelines mandatory,” thereby “mak[ing] the Guidelines effectively advisory.” Id. at 245. From the premise that courts of appeals rarely reverse within-Guidelines sentences as substantively unreasonable, petitioner concludes (Pet. 10)

that the presumption of reasonableness has caused

Booker to be “effectively overturned” “[i]n practice.”

The conclusion does not follow from the premise. “A

nonbinding appellate presumption that a Guidelines

sentence is reasonable does not require the sentencing

judge to impose that sentence.” Rita, 551 U.S. at 353.

Rita stressed that “the presumption * * * is an appellate court presumption” and that “the sentencing court

does not enjoy the benefit of a legal presumption that

the Guidelines sentence should apply.” Id. at 351. It

recognized the possibility that, even so, “the presumption will encourage sentencing judges to impose Guidelines sentences,” but concluded that the presumption

was nevertheless permissible. Id. at 354. And in practice, the knowledge that an appellate court will apply a

presumption of reasonableness to a within-Guidelines

sentence does not appear to have unduly induced district judges to impose within-Guidelines sentences or

otherwise treat the Guidelines as if they were mandatory. To the contrary, federal district courts impose

within-Guidelines sentences in fewer than half of all

cases. See, e.g., 2017 Sourcebook, supra, tbl. N (roughly

49.1% of sentences are within the Guidelines range,

2.9% above it; 47.9% below it).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.