Petition for Writ of Certiorari — Vivit v. United States
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er,
Suprems Court, v.s.
PILED
00-478 sep 2 8 2000
In The
Supreme Court of the United States
No.
SALVADOR VIVIT,
Petitioner,
UNITED STATES,
Respondent.
On Petition For Writ Of Certiorari
To The Seventh Circuit Court Of Appeals
¢
PETITION FOR WRIT OF CERTIORARI
+
Marc WILLIAM MartTIN
Counsel of Record
Marc Martin, Ltp.
53 W. Jackson Blvd., Suite 1420
Chicago, IL 60604
(312) 408-1111
Attorney for Petitioner
Salvador Vivit
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Is the Ex Post Facto Clause violated by retroactive
application of a federal sentencing guideline enhance-
ment?
2. Is a person deprived of due process and the right
to a jury trial when facts giving rise to a sentence
imposed under the federal sentencing guidelines were
not particularly found beyond a reasonable doubt by_a
jury?
TABLE OF CONTENTS
Page
CQUESTIOINS PREGRICGED 6 oc scsi secbevssnssnues bea i
FAs 6 sin va nab dene bess Wek ec ea weawerenkend eae 1
CPRPGUGINN EAOOS oo ccvcccasabantanbadeiendananesas 1
fo et | errr TT Tr Ser yer Tre 1
CONSTITUTIONAL AND STATUTORY PROVI-
SIS CVA ES bcs er cciusssag eae ne tea eeenes 2
STATEMENT OF THe CAGE «osc iis ca cccaswndceanes 3
REASONS FOR GRANTING THE PETITION....... 5
I. THE EX POST FACTO CLAUSE IS VIOLATED
BY RETROACTIVE APPLICATION OF A FED-
ERAL SENTENCING GUIDELINE ENHANCE-
WEEPCE Pr WINS 6 60 6 oes 0504 cdaukabeeeuneeeas 5
A. “Gan... hiss is esadase canner 5
B. Majority and Concurring Seventh Circuit
Opinions on the Ex Post Facto Issue....... 6
C. The Seventh Circuit’s Decision Is Incompat-
ible with this Court’s Ex Post Facto Jurispru-
dence, and Squarely Conflicts with United
States v. Bertoli, 40 F.3d 1384 (3rd Cir. 1994),
and United States v. Ortland, 109 F.3d 539 (9th
Cie. W967) ic. isckenasuetye eee eee 8
Il. PETITIONER HAS BEEN DEPRIVED OF THE
RIGHTS TO DUE PROCESS, A GRAND JURY
INDICTMENT AND A JURY TRIAL SINCE
FACTS GIVING RISE TO HIS SENTENCE
UNDER THE UNITED STATES SENTENCING
GUIDELINES WERE NOT PARTICULARLY
FOUND BEYOND A REASONABLE DOUBT BY
A WOR «ccs xc ee 13
iil
TABLE OF AUTHORITIES
Page
Cases
Apprendi v. New Jersey, __ 78 nh ig Bx
I ea wip cn cs dsc hasan gna sbeeesaeeies 14, 16, 17
Carmell v. Texas, __ U.S. __, 120 S. Ct. 1620
RE A a ee Pre re ree Tee ee ee ee 8
Connally v. General Construct. Co., 269 U.S. 385
EEE RKKAACAS ADEA DAR OS SEADOO ARER ORE CGS 12
Griffith v. Kentucky, 479 U.S. 314 (1987) ............ 17
Jones v. United States, 526 U.S. 227 (1999) .......... 15
Kinder v. United States, 504 U.S. 946 (1992)
(White, J., dissenting from denial of certiorari) .... 14
Lindsey v. Washington, 301 U.S. 397 (1937)..........- 9
Lynce v. Mathis, 519 U.S. 433 Ee icicheean sa seess a
McBoyle v. United States, 283 U.S. 25 (1931) ........ 12
McMillan v. Pennsylvania, 477 U.S. 79 (1986)........ 15
Miller v. United States, 482 U.S. 423 (1987)......... 8, 9
Monge v. California, 524 U.S. 721 (1998) ...........- 15
Morales v. City of Chicago, 502 U.S. 875 (1999) ..... 12
Stinson v. United States, 508 U.S. 36 (1993) ........ 8, 9
United States v. Bailey, 123 F.3d 1381 (11th Cir.
| Tae Ce eT oer eT eT Tee Tere Te ee 7, 10
United States v. Barger, 178 F.3d 844 (7th Cir. 1999) ..... 6
United States v. Bertoli, 40 F3d 1384 (3rd Cir.
iv
TABLE OF AUTHORITIES - Continued
Page
United States v. Cooper, 35 F.3d 1248 (8th Cir.
1994), vacated 514 U.S. 1094 (1995), reinstated
without opinion, 63 F.3d 761 (8th Cir. 1995)....... 11
United States v. Ortland, 109 F.3d 539 (9th Cir.
5g FE re aR ety ye MOP E-g oe en par in piy eaters 8, 10, 11
United States v. Rodriguez, 73 F.3d 161 (7th Cir.
NN oy oo yes Cok a ek UR a a oe 13
United States v. Santopietro, 166 F.3d 88 (2nd Cir.
re roe a eee me Oo ee 11
United States v. Van Metre, 150 F.3d 339 (4th Cir.
RNs 5c chk RW CALE CARNES De eek eae ee 11
United States v. White, 888 F.2d 490 (7th Cir. 1989) .... 13
STATUTES
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Re Ee 2 rer, Peer ee ey rt ver a eee 3
De eR PE hh kik s 8 acca nasa xnsbasaunee Ovi cks 9
Oe Rs a SE ode kd Hiei eeexindsnyevensaceneds 1
UNitED STATES CONSTITUTION
SR Be Se eS Se ey Orr er rt 2
ny ea I es a hg oi ae ge 3, 16
Chis: I, I, “Wee so veto ca ubie Ss weubennaens 3, 16
Vv
TABLE OF AUTHORITIES - Continued
Unitep States SENTENCING GUIDELINES
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Pete Bh PO RUUD 55 chk eco beh ce scdanvebecceuuans
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aes SAP aMNIOND 6 55 bc cee cs aneveews dala seueas
SPARE: SEs 65 Ven K eaad Aca cheeses dank Eedebacens
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SS ee Ff Seer ee tere rer ere
U.S.S.G., Appendix C, amendment 527
PRAYER
Petitioner Salvador Vivit respectfully prays that a
writ of certiorari issue to review the judgment and opin-
ion of the United States Court of Appeals for the Seventh
Circuit.
OPINION BELOW
The Seventh Circuit’s opinion affirming the peti-
tioner’s conviction and sentence is published at 214 F.3d
908, and is attached hereto in Appendix A. The Seventh
Circuit’s order denying the petitioner’s petition for
rehearing with suggestion for rehearing en banc is
unpublished, and is attached hereto in Appendix B.
o
JURISDICTION
The Seventh Circuit entered judgment affirming the
petitioner’s conviction and sentence on June 6, 2000, and
denied the petitioner’s timely filed petition for rehearing
with suggestion for rehearing en banc on July 17, 2000.
This petition is timely in that it has been filed within 90
days of the order denying rehearing. This Honorable
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
¢
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
I.
a. The Ex Post Facto Clause of the United States
Constitution, U.S. Const., art. I § 9, provides:
No . . . ex post facto Law shall be passed.
b. Section 1B1.11 of the United States Sentencing
Guidelines (a policy statement) provides:
(a) The court shall use the Guidelines Manual
in effect on the date that the defendant is sen-
tenced.
(b)(1) If the court determines that use of the
Guidelines Manual in effect on the date that the
defendant is sentenced would violate the ex
post facto clause of the United States Constitu-
tion, the court shall use the Guidelines Manual
in effect on the date that the offense of convic-
tion was committed.
(2) The Guidelines Manual in effect on a par-
ticular date shall be applied in its entirety. The
court shall not apply, for example, one guideline
section from one edition of the Guidelines Man-
ual and another guideline section from a differ-
ent edition of the Guidelines Manual. However,
if a court applies an earlier edition of the Guide-
lines Manual, the court shall consider subse-
quent amendments, to the extent that such
amendments are clarifying rather than substan-
tive changes.
(3) If the defendant is convicted of two
offenses, the first committed before, and the
second after, a revised edition of the Guidelines
Manual became effective, the revised edition of
the Guidelines Manual is to be applied to both
offenses.
c. Section 3B1.4 of the United States Sentencing
Guidelines provides:
If the defendant used or attempted to use a
person less than eighteen years of age to commit
the offense or assist in avoiding detection of, or
apprehension for, the offense, increase by 2
levels.
II.
a. The Fifth Amendment to the United States Con-
stitution provides in relevant part:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment of a Grand Jury . . . nor
be deprived of life, liberty, or property, without
due process of law.
b. The Sixth Amendment to the United States Con-
stitution provides in pertinent part:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury . . . and to be informed of the
nature and cause of the accusation.
*
STATEMENT OF THE CASE
A superseding indictment named Petitioner Salvador
Vivit as a defendant in 17 mail fraud counts, 18 U.S.C.
§ 1341. R. 46. The district court had jurisdiction pursuant
to 18 U.S.C. § 3231.
Petitioner was a medical doctor who operated a small
clinic in Elmwood Park, Illinois. The charges related to
the petitioner’s submission of false bills to insurance
companies. See United States v. Vivit, 214 F.3d 908, 911-13
(7th Cir. 2000); App. A-2-6. Returning a general verdict, a
jury convicted the petitioner on all counts save one. R. 76,
77.
After a sentencing hearing during which the peti-
tioner raised a host of objections, the district court, using
the United States Sentencing Guidelines, imposed a
prison sentence of 72 months, and ordered $128,717.05 in
restitution. R. 94. Petitioner filed a timely notice of
appeal. R. 92.
On appeal, the petitioner did not raise any trial
issues, but rather argued that the district court had com-
mitted numerous errors in the sentencing process. App.
A. Specifically, the petitioner contested increases in his
offense level based upon: 1) the loss amount, U.S.S.G.
§ 2F1.1(b)(1); 2) conscious or reckless risk of serious
bodily injury, U.S.S.G. § 2F1.1(b)(6)(A); 3) use of minors,
U.S.S.G. § 3B1.4 (where the evidence showed that such
conduct occurred before the enhancement provision’s
enactment); 4) leadership role, U.S.S.G. § 3B1.1(a); and 5)
abuse of a position of trust, U.S.S.G. § 3B1.3.
A Seventh Circuit panel affirmed the petitioner’s sen-
tence in all respects. App. A. Judge Easterbrook filed a
concurring opinion in which he disputed the panel’s
“gymnastics” on the ex post facto point. App. A-34. Peti-
tioner filed a petition for rehearing in which he suggested
rehearing en banc based upon a circuit split over the ex
post facto point. The court ordered response from the
government, and denied the petition. App. B.
¢
REASONS FOR GRANTING THE PETITION
I. THE EX POST FACTO CLAUSE IS VIOLATED BY
RETROACTIVE APPLICATION OF A FEDERAL
SENTENCING GUIDELINE ENHANCEMENT PRO-
VISION
A. Background
Prior to November 1, 1995, the United States Sentenc-
ing Guidelines did not contain a specific upward adjust-
ment provision to cover instances when a defendant used
a minor to commit an offense. Effective November 1,
1995, the Sentencing Commission created such a provi-
sion. See U.S.S.G., Appendix C, amendment 527. As
amended, § 3B1.4 requires a two level increase in the
offense level if the defendant “used or attempted to use”
a minor “to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.”
Petitioner did not use any minors to-commit any
offenses after the effective date of § 3B1.4. Of the super-
seding indictment’s seventeen counts, conduct at issue in
only the final one (Count Seventeen) occurred after
§ 3B1.4’s effective date. Notwithstanding this, the offense
level found by the district court included a two level
§ 3B1.4 increase.
B. Majority and Concurring Seventh Circuit Opin-
ions on the Ex Post Facto Issue
i. The Seventh Circuit did not dispute the peti-
tioner’s contention that his use of minors occurred prior
to U.S.S.G. § 3B1.4’s effective date. The court, however,
pointed out that Count Seventeen occurred after the pro--
mulgation of § 3B1.4. App. A-16. The court further noted
U.S.S.G. § 1B1.11(c) indicates that “[i]f the defendant is
convicted of two offenses, the first committed before, and
the second after, a revised edition of the Guidelines Man-
ual became effective, the revised edition of the Guidelines
Manual is to be applied to both offenses.” App. A-16.
Applying this “one book” rule, the court deemed it
“immaterial” that the petitioner did not use a minor in
the offense charged in Count Seventeen. App. A-17.
The court also considered whether § 1B1.11(c) itself
violated the Ex Post Facto Clause. To quell ex post facto
concerns, the government Kad relied upon the “straddle”
line of cases (which hold that a defendant may be pun-
ished under a revised guideline provision when the
defendant committed a continuing crime that straddled
promulgation of the revised guideline). App. A-17-20.
The court believed this position to be “controversial,”
and discussed a pertinent circuit split. App. A-18-19.
Nevertheless, the court stated that it had “never ques-
tioned” deployment of the straddle doctrine to overcome
ex post facto objections when continuing offenses were at
issue. App. A-19. The question thus became whether the
straddle doctrine applied to substantive mail fraud con-
victions. The court ultimately answered this query in the
affirmative, distinguishing United States v. Barger, 178
F.3d 844, 847 (7th Cir. 1999), which had held that mail
fraud is not a continuing offense. App. A-19-20.
. The court went on to explain that the Framers created
the prohibition against ex post facto laws to ensure fair
notice of proscribed conduct. App. A-20. Transposing this
rationale to the sentencing guidelines, the court observed
that the Eleventh Circuit in United States v. Bailey, 123 F.3d
1381 (11th Cir. 1997), had held that “the enactment of the
grouping Guidelines places criminals on notice that com-
mitting additional criminal acts that are subject to group-
ing after a revision of the Guidelines makes all the
defendant’s conduct susceptible to the one-book rule.”
App. A-19. The court ruled that “[t]he grouping rules,
enacted in 1987, provide warning to criminals that com-
pleting another criminal offense similar to one committed
previously places them in peril of sentencing under a
revised version of the Guidelines.” App. A-20-21. Thus,
notwithstanding the fact that the petitioner did not use
any minors after § 3B1.4’s effective date, the court found
no ex post facto violation.
ii. Judge Easterbrook issued a concurring opinion in
which he initially stated:
I join in the court’s opinion but add one
thought. The gymnastics performed in Part
II.B.1 to show that a two-level increase in Vivit’s
offense level is compatible with the ex post facto
clause are unnecessary, because the sentencing
guidelines are not ‘laws’ within the scope of that
clause . . . Many cases say, and a few hold, that
changes in the guidelines must be treated like
changes in statutory punishments for purposes
of the ex post facto clause, and the parties to this
case accept that view, but these decisions are
unconvincing.
App. A-34 (citations omitted). Judge Easterbrook main-
tained that the Due Process Clause, rather than the Ex
Post Facto Clause, provided the “effective constraint” for
avoiding “startling interpretations of existing rules.”
App. A-35. As support for this view, Judge Easterbrook
commented the United States Sentencing Commission is
part of the judicial branch, and cited cases holding that
the Ex Post Facto Clause does not apply to the judicial
branch.! App. A-35.
C. The Seventh Circuit’s Decision Is Incompatible
with this Court’s Ex Post Facto Jurisprudence,
and Squarely Conflicts with United States v.
Bertoli, 40 F.3d 1384 (3rd Cir. 1994), and United
States v. Ortland, 109 F.3d 539 (9th Cir. 1997)
Since the beginning of the Republic (and before), the
prohibition against ex post facto laws has included
““le]very law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime,
when committed.’ ” Carmell v. Texas, __ U.S. __, 120
S. Ct. 1620, 1626 (2000) (quoting Calder v. Bull, 3 Dall. 386,
1 Judge Easterbrook did not cite Miller v. United States, 482
U.S. 423 (1987), in which this Court found that the constitutional
bar against ex post facto laws precluded retroactive application
of state sentencing guidelines, or Stinson v. United States, 508
U.S. 36 (1993), in which this Court discussed the promulgation
process and binding effect of sentencing guidelines. Judge
Easterbrook also did not address U.S.S.G. § 1B1.11(b)(1), which
implicitly recognizes that the Ex Post Facto Clause could be
violated by the application of sentencing guidelines.
i a ck ooh tab hes ia MN ee ee ee ae
390, 1 L.Ed. 648 (1798)). See also Lynce v. Mathis, 519 US.
433, 441 (1997). Contrary to Judge Easterbrook’s sugges-
tion, federal sentencing guidelines - which the United
States Sentencing Commission must submit to Congress
for modification or disapproval, 28 U.S.C. § 994(p) — have
the effect of law. See Stinson v. United States, 508 U.S. 36
(1993). Here, when the petitioner used minors in the
commission of offenses, the sentencing guidelines did not
call for an increase in the penalty as a consequence. It was
only after the petitioner used minors that the increased
penalty provision went into effect. As U.S.S.G. § 3B1.4
“inflicts a greater punishment, than the law annexed to
the crime, when committed,” Calder, 3 Dall. at 390, the
constitutional prohibition against ex post facto laws pre-
cludes retroactive application of § 3B1.4. Cf. Miller v.
United States, 482 U.S. 423 (1987); Lindsey v. Washington,
301 U.S. 397 (1937).
The guidelines, however, include a policy statement
that has been construed as permitting retroactive applica-
tion of enhancement provisions, even if the defendant did
not commit the conduct giving rise to the enhancement
after its enactment. Section 1B1.11(b)(3), a policy state-
ment, provides that “[i]f the defendant is convicted of
two offenses, the first committed before, and the second
after, a revised edition of the Guideline Manual became
effective, the revised edition of the Guideline Manual is
to be applied to both offenses.” In this case, the petitioner
was convicted of a single count - not involving the use of
minors — that occurred subsequent to § 3B1.4’s effective
date. On its face, then, § 1B1.11(b)(3) would permit retro-
active application of § 3B1.4.
10
But this does not answer whether §- 1B1.11(b)(3)
itself, or the “one book” principle embodied therein, vio-
late the Ex Post Facto Clause. The circuits have split over
the issue. The proposition that preference for use of a
single Guideline Manual cannot trump the constitutional
prohibition against ex post facto laws derives direct sup-
port from United States v. Bertoli, 40 F.3d 1384 (3rd Cir.
1994),2 and United States v. Ortland, 109 F.3d 539 (9th Cir.
1997).3 On the other hand, United States v. Bailey, 123 F.3d
2 In Bertoli, application of the 1989 version of the Guideline
Manual to one of the counts of conviction resulted in a lesser
penalty. The district court, however, did not consider applying
the 1989 guidelines because it “believed that if the conduct is
grouped together, there is no need to assess the counts
independently to determine whether ex post facto clause
considerations arise.” 40 F.3d at 1403. On appeal, the court of
appeals reversed. The court rejected the proposition that “one
book” or grouping rules could override ex post facto concerns.
The court found that “the trial court erred by failing
independently to analyze which Guidelines Manual should
have applied to the conduct charged in Count Three” Id. at
1403-04. The court further ruled that while the “one book” rule
cannot compel application of a later Guideline Manual to all
counts in the event of retroactive application of a guideline
provision, “it certainly can compel application of the earlier
Manual.” Id. at 1404. Accordingly, the court ruled that the
earlier Guideline Manual, the overall application of which
caused a lower guideline range, should have been used to
calculate the sentencing range for all counts.
% The defendant in Ortland was convicted of five mail fraud
counts. The conduct charged in four of the counts occurred
before November 1, 1989, the date on which a more stringent
loss table went into effect. The district court applied the more
recent loss table since the fifth count occurred after its
amendment. The court of appeals disagreed, emphasizing that
irrespective of the Sentencing Commission’s intent, a court
11
1381, 1402-07 (11th Cir. 1997), United States v. Cooper, 35
F.3d 1248, 1250-53 & n. 7 (8th Cir. 1994), vacated 514 U.S.
1094 (1995), reinstated without opinion, 63 F.3d 761 (8th Cir.
1995), and the Seventh Circuit’s opinion in this case pro-
vide support for the contrary position. In United States v.
Santopietro, 166 F.3d 88, 95-96 (2nd Cir. 1999), and United
States v. Van Metre, 150 F.3d 339 (4th Cir. 1998), the courts
discussed the circuit split, but did not resolve the point.
The Seventh Circuit here held that grouping rules
within the sentencing guidelines “provide warning to
criminals that completing another criminal offense simi-
lar to one committed previously places them in peril of
cannot apply guidelines that violate the Constitution. In the
case before it, the court ruled that § 1B1.11(b)(3) violated the Ex
Post Facto Clause:
Application of the policy statement in this case would
violate the Constitution; its application would cause
Ortland’s sentence on earlier, completed counts to be
increased by a later Guideline. Moreover, the
Commission’s explanation is not entirely logical. The
harm caused by the earlier offenses can be counted in
sentencing the later one .. . That does not mean that
the punishment for the earlier offenses themselves
can be increased, simply because the punishment for
the later one can be. In fact, were the later count to fall
at some time after sentencing, all that would remain
would be the earlier sentences, which would be too
long. There are, in fact, five separate crimes; each
carries its own punishment, even if the sentences are
all run concurrently to the extent that they overlap.
We therefore vacate the sentence and remand so that
the district court can sentence Gerald under the 1988
Guidelines on counts one through four and under the
1994 Guidelines on count five.
Ortland, 109 F.3d at 547 (citation omitted).
12
sentencing under a revised version of the guidelines.”
App. A-21. The notion that “grouping” rules provide an
accused with fair notice of the future outlawed conduct is
unconvincing. Grouping rules in themselves do not, and
cannot (given man’s inherent inability to prognosticate
the future with certainty), supply notice of specific guide-
line enhancement provisions that might be promulgated
in the future.4
It is not an understatement to say that the majority of
federal indictments contain more than one count, and
that “grouping” of counts occurs frequently in the district
courts. As such, decisions on the Seventh Circuit’s side of
the question will be implicated any time the government
seeks retroactive application of any sentencing guideline
enhancement provision where counts have been
“grouped” and the conduct involved in at least one of the
counts occurred after the enhancement provision’s enact-
ment. In light of the importance and constitutional nature
of the question presented, the likelihood that it will recur
and the definitive circuit split, certiorari should be
granted.
4 In an analogous vein, this Court’s due process “notice”
decisions, e.g., Morales v. City of Chicago, 502 U.S. 875 (1999),
Connally v. General Construct. Co., 269 U.S. 385 (1926), have
called for more specific notice than that sanctioned by the court
of appeals here. As stated by Justice Holmes, “a fair warning
should be given to the world in language that the common
world will understand, of what the law intends to do if a certain
line is passed. To make the warning fair, so fair as possible the
line should be clear.” McBoyle v. United States, 283 U.S. 25, 27
(1931).
13
II. PETITIONER HAS BEEN DEPRIVED OF THE
RIGHTS TO DUE PROCESS, A GRAND JURY
INDICTMENT AND A JURY TRIAL SINCE FACTS
GIVING RISE TO HIS SENTENCE UNDER THE
UNITED STATES SENTENCING GUIDELINES
WERE NOT PARTICULARLY FOUND BEYOND A
REASONABLE DOUBT BY A JURY
Petitioner has been ordered to spend 72 months in a
federal prison. The jury’s verdict did not mandate this
result, for the jury was not asked to return an interroga-
tory verdict specifying the amount of loss involved in the
offense of conviction and relevant conduct. Nor did the
jury expressly find whether the petitioner consciously or
recklessly risked serious bodily injury, used minors, acted
as a leader or organizer of criminal activity involving five
of more participants or abused a position of trust. Rather,
the petitioner’s sentence has been affirmed on the basis of
a district judge’s findings made under the preponderance
of the evidence standard.5
> The Seventh Circuit has long required district courts to
employ a preponderance of the evidence standard at
sentencing. E.g., United States v. White, 888 F.2d 490, 499 (7th Cir.
1989). The question of whether a preponderance standard
should apply when sentencing factors significantly increase a
sentence beyond that prescribed by the offense of conviction has
been a source of debate. E.g., United States v. Rodriguez, 73 F.3d
161 (7th Cir. 1996) (Posner, C.J., joined by Wood, J., dissenting
from denial of rehearing en banc) (“the question on which
rehearing en banc is sought is whether a heightened standard of
proof, either clear and convincing evidence or proof beyond a
reasonable doubt, is required in a case in which the real trial
occurs at the sentencing hearing rather than at the trial of guilt.
It is a difficult and important question, worth the attention of
the full court”). As stated by Justice White, dissenting from
14
Apprendi v. New Jersey, __ U.S. __, 120 S. Ct. 2348
(2000) — decided after the Seventh Circuit issued its opin-
ion in this case and after the expiration of the time for the
filing of a rehearing petition in the court of appeals, but
before the expiration of time for the filing of a certiorari
petition — casts doubt upon the validity of the petitioner’s
sentence. While we recognize that Apprendi involved an
instance in which a state sentence exceeded the normal
statutory maximum, Apprendi’s rationale, historical prac-
tices and other pronouncements by Justices of this Court,
allow a rule that an increase in a defendant’s sentence
must be based upon facts found beyond a reasonable
doubt by a jury. See Apprendi, 120 S. Ct. at 2367 (Scalia, J.,
concurring) (“What ultimately demolishes the case for the
dissenters is that they are unable to say what the right to
trial by jury does guarantee if, as they assert, it does not
guarantee - what it has been assumed to guarantee
throughout our history — the right to have a jury deter-
mine those facts that determine the maximum sentence
denial of certiorari in Kinder v. United States, 504 U.S. 946, 948
(1992):
[A]t least one Circuit has held, United States v.
Kikumera, 918 F2d 1084, 1098-1102 (CA3 1990), and
two have suggested, United States v. Townley, 929
F2d 365, 369-70 (CA8 1991); United States v. Restrepo,
946 F2d 654, 661, n 12 (CA9 1991) (en banc), cert
denied, 503 US __, 118 L Ed 2d 211, 112 S Ct. 1564
(1992); Restrepo, 946 F2d at 661-663 (Tang, J.,
concurring), id., at 664-679 (Norris J., dissenting), that
a clear and convincing standard is appropriate when
the relevant conduct offered at sentencing would
dramatically increase the sentence. Cf. id., at 663-664
(Pegerson, J., dissenting) (advocating beyond
reasonable doubt standard).
15
the law allows.”); id. at 2368 (Thomas, J., concurring) (“a
‘crime’ includes every fact that is by law a basis for
imposing or increasing punishment”); Jones v. United
Statec, 526 U.S. 227, 252-53 (1999) (Stevens, J., concurring)
(“[I]t is unconstitutional for a legislature to remove from
the jury the assessment of facts that increase the pre-
scribed range of penalties to which a criminal defendant
is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt.”);
McMillan v. Pennsylvania, 477 U.S. 79, 103 (1986) (Stevens,
J., dissenting) (“[I]f a State provides that a specific com-
ponent of a prohibited transaction shall give rise both to a
special stigma and to a special punishment, that compo-
nent must be treated as a ‘fact necessary to constitute the
crime.’ ”).
In his dissenting opinion for four Justices in Monge v.
California, 524 U.S. 721, 738-39 (1998), Justice Scalia put
his finger on the constitutional infirmity associated with a
sentencing regime that does not require juries to make
factual findings that trigger increases in an offender’s
sentence:
Suppose that a State repealed all of the violent
crimes in its criminal code and replaced them
with only one offense, ‘knowingly causing
injury to another,’ bearing a penalty of 30 days
in prison, but subject to a series ‘sentencing
enhancements’ authorizing additional punish-
ment up to life imprisonment or death on the
basis of various levels of mens rea, severity of
injury, and other surrounding circumstances.
Could the state then grant the defendant a jury
trial, with requirement of proof beyond a rea-
sonable doubt, solely on the question whether
16
he ‘knowingly cause[d] injury to another,’ but
leave it for the judge to determine by a prepon-
derance of the evidence whether the defendant
acted intentionally or accidently, whether he
used a deadly weapon, died from the injury the
defendant inflicted? If the protections extended
to criminal defendants by the Bill of Rights can
be so easily circumvented, most of them would
be, to borrow a phrase from Justice Field, ‘vain
and idle enactment([s], which accomplish noth-
ing, and most unnecessarily excited Congress
and the people on [their] passage.’
This objection has validity in the context of the
United States Sentencing Guidelines. To secure the sen-
tence here, the government only needed to obtain a gen-
eral verdict of guilty, before turning to a judge for
“findings” under a relaxed standard of proof. As a result
of the “findings” of a single, non-elected government
employee, the petitioner has been imprisoned. Since par-
ticular facts upon which the petitioner’s sentence has
been predicated were not found beyond a reasonable
doubt by a jury, the petitioner’s rights to due process, a
grand jury indictment and a jury trial under the Fifth and
Sixth Amendments have been violated.
Based upon the foregoing, we respectfully move this
Honorable Court to vacate the Seventh Circuit’s judg-
ment and remand for reconsideration in light of Appren-
di.© In the alternative, we move this Honorable Court to
6 While the petitioner’s appeal, decided before this Court’s
decision in Apprendi, raised numerous objections relating to the
imposition of sentence, it did not cast the objections in precise
Apprendi terms. However, because this case was on direct
eee eee
17
grant certiorari to determine the interplay between
Apprendi and the United States Sentencing Guidelines.
*
CONCLUSION
WHEREFORE, Petitioner Salvador Vivit respectfully
prays that this Honorable Court grant this petition and
issue a writ of certiorari to vacate or review the judgment
of the Seventh Circuit, remand for further consideration
and/or grant any other appropriate relief.
Respectfully submitted,
Marc W. Martin
Counsel of Record
53 W. Jackson Blvd., Suite 1420
Chicago, IL 60604
(312) 408-1111
Attorney for Petitioner
Salvador Vivit
appeal when Apprendi was decided, it is our position that
Apprendi applies. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(“a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in
which the new rule constitutes a ‘clear break’ with the past”).
A-1
APPENDIX A
United States Court of Appeals, Seventh Circuit.
UNITED STATES of America,
Plaintiff-Appellee,
Vv.
Salvador A. VIVIT,
Defendant-Appellant.
No. 99-3773.
Argued April 10, 2000
Decided June 6, 2000
Jacqueline O. Stern (argued), Office of the United
States Attorney, Criminal Division, Chicago, IL, for Plain-
tiff-Appellee.
Marc W. Martin (argued), Chicago, IL, for Defendant-
Appellant.
Before EASTERBROOK, KANNE and ROVNER, Cir-
cuit Judges.
KANNE, Circuit Judge.
A jury found Salvador Vivit, a medical doctor, guilty
of sixteen counts of mail fraud based on a scheme in
which he and his patients submitted false claims to insur-
ance companies that grossly overstated the amount of
care he had provided. The district court sentenced Vivit
to seventy-two months imprisonment for these offenses.
On appeal, Vivit does not contest the convictions, but he
claims that the district court committed numerous errors
in determining the appropriate sentence. Finding no
errors in Vivit’s sentence, we affirm the decision of the
district court. :
A-2
I. HISTORY
Salvador Vivit operated the Family Medical Center, a
one-doctor clinic located in Elmwood Park, Illinois. At
the Family Medical Center, Vivit employed only two
other individuals, Estrella Del Moral, who worked as a
receptionist, did filing and sometimes provided physical
therapy to Vivit’s patients, and Adriano “Andy” Apostol,
his partner, who processed and filed insurance claims for
Vivit.
Vivit and Apostol had founded the clinic together in
1993, with Apostol providing about $7,000 in start-up
money and equipment. However, because Vivit was the
only licensed doctor, he ran the clinic as a sole practi-
tioner. Vivit recruited patients and performed medical
treatment, while Apostol processed and filed insurance
claims for him and used the office as a base for other
shady business ventures. In September 1994, Vivit and
Apostol had a disagreement. Apostol then quit and
removed many items from the clinic, including the
clinic’s computer, a television, a chair and 134 boxes of
patient files documenting the clinic’s accident victims.
These patient files were given by Apostol to the Elmwood
Park Police department, who investigated and eventually
arrested Vivit. Shortly after removing this equipment
from the clinic, Apostol departed for the Philippines,
where he remains.
Between 1993 and 1996, Vivit involved as many as
130 patients in a complicated scheme to defraud insur-
ance companies by charging for services that he did not
provide. Vivit engaged in five principal types of fraudu-
lent conduct: (1) billing insurers for patient visits that did
A-3
not occur; (2) billing for physical therapy that was not
performed; (3) creating false medical records and reports
to submit to insurance companies; (4) allowing his
unlicensed assistant, Del Moral, to perform physical ther-
apy without Vivit’s supervision while he charged for
therapy performed by a licensed therapist; (5) ordering
unnecessary allergy tests for patients with no allergy
symptoms.
Based on the information in Vivit’s files obtained
from Apostol, interviews conducted with Vivit’s patients
and claims filed by Vivit or his patients to their insurers,
the government obtained enough evidence to secure a
four-count indictment in July 1998. In December 1998, a
new grand jury returned a seventeen-count superseding
indictment charging Vivit with devising and executing a
scheme to defraud. The indictment alleged that Vivit
engaged in fraudulent use of the mails on seventeen
separate instances between 1993 and 1996, and the final
count of the indictment claimed that one check was
mailed in furtherance of the conspiracy as late as August
6, 1996. On June 29, 1999, the district court conducted a
jury trial to consider the charges against Vivit.
At trial, the government produced the testimony of
twenty-six former Vivit patients and entered into evi-
dence false bills and medical reports created for forty-
nine patients. Each of the testifying patients had in some
way been involved in Vivit’s scheme to defraud their
insurers. Some, including Roy, Myla and Lauro Sansano,
merely filled out false attendance sheets at Vivit’s
request. However, the Sansanos testified that they back-
dated many of the signatures to conceal a considerable
lapse of time between when the accident from which they
A-4
claimed injuries occurred and their initial visit to Vivit,
belying Vivit’s claim that the attendance sheets were used
to make future appointments. In addition, Roy Sansano
testified that they visited Vivit because a friend told him
that to receive a favorable insurance settlement, they
should see Vivit, a doctor who would produce false medi-
cal documentation to support their claim.
Other patients testified about more extensive fraudu-
lent conduct. For example, Veronica Leighton testified
that she received $53,000 as a result of filing a false
disability insurance claim. Leighton, who pleaded guilty
to tax evasion and mail fraud for her crimes, first submit-
ted a false medical bill to her insurer based, in part, on
twenty-nine fictitious visits to Vivit’s clinic for which
Vivit created a record. Leighton decided that she also
should seek disability benefits, and she testified that Vivit
told her how to prepare a fraudulent claim for her dis-
ability insurer. In conjunction with this fraud, Vivit filled
out a certificate of disability swearing that in his medical
opinion Leighton was disabled.
Many other patients testified that, in addition to
overbilling by creating a false attendance record, Vivit
exaggerated the amount of treatment that he performed.
Vivit’s records showed that he had performed ultrasound
therapy on numerous patients in 1993, but the govern-
ment produced the supplier of Vivit’s ultrasound
machine, who testified that the machine was not deliv-
ered until the spring of 1994. In addition, Vivit’s files
show that he performed an examination and two follow-
up examinations on Sharlon Silvestre, but Silvestre testi-
fied that Vivit never examined him. Vivit also included a
diagnosis of whiplash and migraines in his medical
sets
A-5
record, but Silvestre testified that he did not have head-
aches and that Vivit never informed him that he suffered
from whiplash. Vivit’s files also show that he performed
therapy on Jennifer Cailles’s back and neck. Cailles, who
was sixteen at the time when she was treated by Vivit,
testified that this therapy was never performed. In addi-
tion, many other patients added testimony to the record
similar to that offered by Silvestre and Cailles.
Other patients testified that Vivit failed to provide
adequate medical services in the course of his care.
Avelina De La Rosa testified that she had extremely high
blood pressure following an automobile accident, but
Vivit failed to test her blood pressure during the course
of his diagnostic examination. Melandro Lubguban testi-
fied that he visited Vivit in pain following an automobile
accident, but Vivit failed to examine him at all. Phina
Garcia testified that she was covered with bruises when
she visited Vivit, but Vivit did not examine her and
instead approved hydro collator treatments for her, a
treatment plan that medical experts advised against.
Del Moral also testified for the government, stating
that she had performed “microphone” (ultrasound) ther-
apy, hydro collator therapy and electrical muscle stimula-
tion therapy on numerous patients without Vivit’s
supervision. She testified that the unsupervised therapy
occurred largely because Vivit arrived at the clinic in the
afternoon, and Del Moral performed one or two therapy
sessions each morning. Although she lacked a license to
perform physical therapy, she claimed that Vivit had
trained her and that she was taking courses on therapy.
Del Moral also testified that Vivit told her to make his
patients falsify attendance sheets to inflate the amount of
A-6
therapy they supposedly received. Del Moral testified
that Vivit prepared patient bills, sometimes with the aid
of Apostol, and gave them to her to file and mail.
The government also presented the testimony of two
experts, Drs. Daniel Samo and Gregory Mulford. Both
doctors testified that the therapy that Vivit prescribed
would be useless without an additional prescription of a
course of exercise. They also testified that Vivit’s failure
to examine patients constituted a “hideous” dereliction of
duty and that the prescription of hyc'ro collator or electri-
cal muscle stimulation therapy to patients with bruising
was contraindicated. Finally, the doctors provided expert
analysis about the~amount which Vivit’s fraudulent
claims of treatment cost various insurers. Both experts
testified that because all the treatment prescribed by Vivit
was unnecessary, the entire amount of his bills should be
considered fraudulent.
On the basis of this evidence, the jury returned a
guilty verdict against Vivit on sixteen of the seventeen
counts of the indictment. The district court sentenced
Vivit in October 1999. Because it found that the convic-
tions all involved substantially the same harm, the court
chose to group all the convictions, pursuant to United
States Sentencing Guidelines § 3D1.2. The total offense
level of the combined counts started at level six as
directed by § 2F1.1(a), but the court increased the total
offense level to thirteen because it found that the govern-
ment had proved that, in aggregate, Vivit had defrauded
insurers of between $120,000 and $200,000.
The government originally argued that Vivit had
defrauded insurers of $265,618.80, of which about $60,000
A-7
should have been removed for legitimate pain and suffer-
ing of Vivit’s patients. However, Vivit argued that the
actual loss was much less because of the medical services
that he provided. The parties argued extensively over the
computation of loss, and the government, in support of
its position, presented the court with a “Vivit loss chart”
that listed all the costs associated with fraudulent billing
by Vivit. This chart showed that Vivit had submitted bills
containing fraudulent information valued at about
$149,000, to which insurers paid out nearly $130,000, but
the chart did not subtract the value of legitimate medical
services performed by Vivit. The court found this chart
persuasive and eventually attached the chart to its ulti-
mate judgment. After listening to the parties’ extended
discussion on the calculation of amount of loss, the court
concluded, “I think it is quite clear from the papers before
me and from the trial and from the testimony, that a loss
of at least $100,000 was proved. I am inclined to believe
that more than $200,000 was proved, but relying on what
I believe is most appropriate for this case, and that which
cannot be questioned, I find that we have to-add seven
points rather than eight to the total offense level.”
From a total offense level of thirteen, the court ulti-
mately enhanced Vivit’s total offense level to twenty-
seven. The court initially raised the total offense level two
levels pursuant to § 2F1.1(b) (6) (A) because the court
found that Vivit’s treatment recklessly placed his patients
at serious risk of bodily injury. The court explained that
“what [Vivit]’s position in this court is ‘you know, I really
didn’t do very much. I used the most conservative treat-
ment.’ . . . But the fact of the matter is that the most
conservative treatment is not always best. . . . [H]e was,
A-8
given his medical examination practices, a very lucky
man that he did not miss something more serious, and for
all we know maybe he did.”
The court enhanced four levels pursuant to § 3B1.1(a)
for Vivit’s role as an organizer or leader, basing its deci-
sion that Vivit led five other participants on the facts set
out in the Pre-Sentencing Investigation and Report
(“PSR”), and two additional levels because Vivit abused
his position of trust relative to insurers, pursuant to
§ 3B1.3. In relation to the latter enhancement, the court
noted that it enhanced Vivit’s sentence not because of his
use of a special skill, which the court felt would consti-
tute double-counting in relation to its vulnerable victim
enhancement, but because “it is fair to say that he coun-
ted upon that the insurance companies would extend
trust to him, and certainly after a period of time doing
this it is quite clear that he understood that they did trust
him; so that he did abuse his trust relative to the insur-
ance companies.”
In addition, the court enhanced Vivit’s sentence by
two levels pursuant to § 3A1.1(b) because many of his
patients constituted vulnerable victims and an additional
two levels according to § 3B1.4 for using minors to com-
mit an offense. Finally, the court enhanced two more
levels because Vivit’s scheme intended to defraud more
than one victim, pursuant to § 2F1.1(b) (2). Adding all
these enhancements, Vivit’s total offense level reached
twenty-seven. Because Vivit’s criminal history category
was I, this total offense level created a sentencing range
of 70 to 87 months. The district court sentenced Vivit to
A-9
72 months imprisonment, followed by three years super-
vised release. Vivit also was ordered to pay $149,877 in
restitution.
Il. ANALYSIS
On appeal, Vivit challenges his sentence on five
grounds. First, Vivit claims that the district court erred in
calculating the loss amount caused by his scheme. Sec-
ond, Vivit finds error in the court’s determination that he
used minors in his scheme and in its application of this
enhancement in light of potential ex post facto concerns.
Third, Vivit claims that the court erred in determining
that his treatment recklessly subjected his patients to a
risk of serious bodily injury. Fourth, Vivit challenges the
district court's attribution of a leadership role to him for
his conduct in the scheme. Fifth, Vivit challenges the
district court’s enhancement to his sentence for abuse of a
“position of trust” in relation to the insurance companies
that he defrauded.
A. Calculation of Loss
At sentencing, the government and the probation
office provided a “loss assessment” for the harm caused
by Vivit as totalling $265,618.80. However, the district
court found that the government was able to prove a loss
of only $120,000 to $200,000. On this basis, the court
enhanced Vivit’s sentence seven levels, pursuant to
United States Sentencing Guidelines § 2F1.1(b) (1) (H).
On appeal, Vivit claims that the district court erred in its
calculation of loss because the court failed to subtract the
value of the legitimate medical services rendered from
A-10
the loss incurred by the insurance companies and because
the court’s calculation of loss included evidence of fraud
of which there was no testimony at trial or sentencing.
The definition of loss is a question of law, reviewed de
novo. See United States v. Holiusa, 13 F.3d 1043, 1045 (7th
Cir.1994). The amount of loss calculated by the district
court is a finding of fact, which we review for clear error.
See United States v. Craig, 178 F.3d 891, 899 (7th Cir.1999).
We find clear error only when we are “left with the
definite and firm conviction that a mistake has been
made.” United States v. Strache, 202 F.3d 980, 984-85 (7th
Cir.2000) (citation omitted).
Guidelines § 2F1.1(b) (1) directs sentencing courts to
increase the defendant’s total offense level according to
the total amount of loss created by a defendant’s actions,
if that loss exceeds $2,000. U.S.S.G. § 2F1.1(b) (1). Appli-
cation note 8 to § 2F1.1 indicates that the valuation of loss ,
for the purposes of § 2F1.1 will be determined in the same
fashion as for § 2B1.1 (theft). U.S.S.G. § 2F1.1 application
note 8. Application note 2 to § 2B1.1 defines loss as “the
value of property taken, damaged, or destroyed.”
U.S.S.G. § 2B1.1 application note 2. However, application
note 8(a) to § 2F1.1 provides that when a fraud is commit-
ted by misrepresenting the value of an item that has some
value, courts should value the loss at the amount by
which the item was overvalued, that is, the difference
between the represented value and the actual value.
U.S.S.G. § 2F1.1 application note 8(a).
The valuation of loss “need not be determined with
precision. The court need only make a reasonable esti-
mate of the loss, given the available information.”
U.S.S.G. § 2F1.1 application note 9. Guidelines § 2F1.1(b)
A-11
(1) provides that courts should enhance the defendant's
total offense level by at least eight points if a loss greater
than $200,000 is proved, by only seven points if the total
loss lies between $120,000 and $200,000, and by six or less
points when the loss is less than $120,000. U.S.S.G.
§ 2F1.1(b) (1) (A)-(I). At sentencing, the parties engaged
in an extended discussion about the proper valuation of
loss to attribute to Vivit’s scheme, in which the govern-
ment claimed a loss valuation of greater than $200,000
and Vivit claimed a loss of less than $120,000. At the close
of this discussion, the district court determined that “I
think it is quite clear from the papers before me and from
the trial and from the testimony, that a loss of at least
$100,000 was proved. I am inclined to believe that more
than $200,000 was proved, but relying on what I believe is
most appropriate for this case, and that which cannot be
questioned, I find that we have to add seven points rather
than eight to the total offense level.”
The parties disagree whether any of Vivit’s services
should be netted against the bills that he provided to
insurers for his services. Vivit notes that we measure the
amount of net detriment to the victim in calculating the
amount of loss, rather than the total amount of money
transferred. See United States v. Mount, 966 F.2d 262, 265
(7th Cir.1992). However, the government contends that
none of the services performed by Vivit was medically
necessary, and the great majority of the services billed
were not even performed, making those services per-
formed the type of action made only to give the appear-
ance of legitimacy. In support of its contention, the
government cites the case law of another circuit which
provides that “if the ‘value’ to the victim is merely a part
A-12
of the fraudulent scheme, the defendant is not entitled to
a credit.” United States v. Sayakhom, 186 F.3d 928, 947 (9th
Cir. 1999). However, the court in Sayakhom also noted that
“in calculating loss, the district court should give credit
for any legitimate services rendered to the victims.” Id. at
946.
Application note 8(a) to § 2F1.1 reminds courts that
in frauds where the item misrepresented has some value,
the value of this item should be netted against the price
offered to determine the amount of loss. While we have
traditionally applied this netting theory in the fraudulent
sale of goods, see United States v. Schneider, 930 F.2d 555,
558 (7th Cir.1991), we have also applied this theory to the
fraudulent misrepresentation of other items of value,
when some value has actually been transferred. See
United States v. Jackson, 95 F.3d 500, 505-06 (7th Cir.1996).
Despite the government's contention that the overwhelm-
ing majority of Vivit’s billing was based on unperformed
or unnecessary services, the evidence presented demon-
strates that Vivit did perform some legitimate medical
services. For this reason, we calculate the amount of loss
suffered by the insurers by netting the total costs submit-
ted by Vivit, minus the legitimate medical services that he
provided.
However, we find no evidence in the record for
Vivit’s main contention on appeal, that the district court
failed to perform this cost-netting in calculating the
amount of loss caused by Vivit’s fraud. The government
urged the court to adopt an amount of loss that the
government conservatively placed at greater than
$200,000, based on the $265,000 paid out by insurers less
the legitimate claims of Vivit’s patients. The court felt
A-13
that a loss greater than $200,000 had probably been
proved but decided to sentence Vivit conservatively, find-
ing that the government had not clearly established a loss
of $200,000. As a benchmark, the court used the “Vivit
loss chart,” which calculated Vivit’s fraudulent billing at
approximately $150,000, of which insurers paid nearly
$130,000. The court seems to have determined that the
Vivit loss chart accurately reflected the amount of loss
established by the government for the purpose of deter-
mining the § 2K1.1(b) (1) enhancement.
Unsatisfied by the court’s decision, Vivit claims that
the Vivit loss chart lacks any basis in fact, because the
chart fails to net out the legitimate services provided by
Vivit. However, Vivit fails to recognize that the chart was
composed only of those bills in which fraudulent infor-
mation was submitted. In addition to showing the total
amount of loss, the chart shows the ratio of legitimate
services provided to fraudulent services claimed, by
showing for each bill what fraudulent activity Vivit had
performed. The chart provides data on which to deter-
mine the amount of loss claimed, because it provides a
basis from which to discount the value of legitimate
services provided by Vivit from the fraudulent billing
that he submitted. In addition, the court was provided
with evidence about the amount Vivit charged for the
performance of legitimate services.
Armed with an accurate cost of fraudulent services
provided by Vivit and the ratio of fraudulent to legiti-
mate services provided, as well as the rates that Vivit
charged, we find that the district court made a reasonable
approximation of the loss given the factual complexity of
Vivit’s scheme. Because the amount of loss need not be
A-14
calculated with precision and because we believe that the
foss chart and other facts in the record relied on by the
district court to formulate a loss calculation support the
amount of loss found by the district court, we find no
clear error in the calculation of loss made by the district
court.
Vivit also argues that the district court’s calculation
of loss must be overturned because it is based on testi-
mony of witnesses who did not testify at trial or at
sentencing. While we appreciate that the government
bears the burden of proof in demonstrating the amount of
loss, see United States v. Bahhur, 200 F.3d 917, 924 (6th
Cir.2000), the sentencing court is not bound by the Fed-
eral Rules of Evidence at sentencing and “may take any
information into account in passing sentence so long as it
has sufficient indicia of reliability to support its probable
accuracy.” United States v. Carmack, 100 F.3d 1271, 1276
(7th Cir.1996). The information on which the district court
based its loss calculation had been presented into evi-
dence at trial without objection before the court consid-
ered it, and given the cumulative and reinforcing nature
of this evidence, we find no clear error in determining
that this evidence was supported by sufficient indicia of -
reliability in support of its accuracy, a finding that Vivit
does not dispute. Additional testimony at sentencing is
unnecessary to support a finding of reliability. See United
States v. Morrison, 207 F.3d 962, 968 (7th Cir.2000). “A
court can consider whatever evidence is before it in arriv-
ing at the amount of loss.” United States v. Brown, 136 F.3d
1176, 1184 (7th Cir.1998). Therefore, we find no clear error
in the district court’s reliance on evidence in the record
A-15
that was not supported by witness testimony in its calcu-
lation of loss amount.
B. Use of Minors
Next, Vivit contends that the district court committed
error in increasing his total offense level by two points
for using minors in the commission of his offenses, pur-
suant to U.S.S.G. § 3B1.4. Vivit argues that the court
committed error in finding that minors had in fact partici-
pated in Vivit’s scheme. Vivit also argues that because all
the fraudulent mailings involving minors were completed
before the enactment of § 3B1.4, enhancement under this
Guidelines section violates the Ex Post Facto Clause of
the Constitution. We review de novo the-district court’s
interpretation of § 3B1.4, see United States v. Brack, 188
F.3d 748, 765 (7th Cir.1999), and the question whether the
Ex Post Facto Clause was violated by the enhancement
pursuant to § 3B1.4.
\
1. Ex Post Facto Clause
Guidelines § 3B1.4, the “use of minors” enhancement,
was enacted with an effective date November 1, 1995.
U.S.S.G. § 3B1.4 historical note. Vivit admits that he filed
false records for many minor patients, but he asserts that
this conduct all occurred before November 1, 1995, and
that application of the § 3B1.4 enhancement violates the
Ex Post Facto Clause of the United States Constitution,
U.S. Const. Art. I, § 9, because that clause generally
prohibits the retroactive application of the Sentencing
Guidelines if it results in a more onerous penalty. See
United States v. Shorter, 54 F.3d 1248, 1261 (7th Cir.1995).
A-16
The one-book rule, the policy statement guiding the
use of multiple guidelines, found in Guidelines
§ 1B1.11(b)(1), provides that “[t]he court shall use the
Guidelines Manual in effect on the date that the defen-
dant is sentenced.” The one-book rule expresses the
intent of the Sentencing Commission that the Guidelines
reflect a cohesive whole and the Commission’s resistance
to application of various Guidelines in a piecemeal fash-
ion. See United States v. Boula, 997 F.2d 263, 266 (7th Cir.
1992). When faced with the possibility of an ex post facto
violation, the court is normally directed to “use the
Guidelines Manual in effect on the date that the offense
of conviction was committed.” U.S.S.G. § 1B1.11(b)(1).
However, the Guidelines also indicate that “[i]f the
defendant is convicted of two offenses, the first commit-
ted before, and the second after, a revised edition of the
Guidelines Manual became effective, the revised edition
of the Guidelines Manual is to be applied to both
offenses.” U.S.S.G. § 1B1.11(b)(3). In this case, Vivit was
convicted on count 17, the final count of his indictment
for conduct that was committed in August 1996, well
after November 1, 1995. Therefore, on its face,
§ 1B1.11(b)(3) should apply, and absent ex post facto
concerns we would find no error in the application of
§ 3B1.4. Vivit contests the application of § 1B1.11(b)(3) on
two bases: (1) the only post-revision count, count 17, does
not involve the use of a minor, so § 1B1.11(b)(3) is inap-
plicable; and (2) § 1B1.11(b)(3) violates the Ex Post Facto
Clause. The former argument ignores the plain language
of § 1B1.11(b)(3), which requires only that two crimes be
committed on different dates, before and after the enact-
ment of the Guidelines revision in question. The one-
A-17
book rule does not require that both these crimes involve
the same course of conduct, or that both involve conduct
giving rise to the same sentencing enhancement. There-
fore, it is immaterial whether the conduct predicate to
Vivit’s conviction on count 17 involved the use of a
minor. However, if we find application of § 1B1.11(b)(3)
violates the Ex Post Facto Clause, § 1B1.11(b)(1) requires
that we instead apply the 1994 Sentencing Guidelines to
all Vivit’s convictions, which would preclude a § 3B1.4
enhancement. See United States v. Ortland, 109 F.3d 539,
547 (9th Cir.1997) (finding that mail fraud is not a con-
tinuing offense, so the defendant may properly be sen-
tenced under multiple sets of guidelines); United States v.
Bertoli, 40 F.3d 1384, 1404 (3d Cir.1994). But see United
States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999); United
States v. Santopietro, 166 F.3d 88, 95-96 (2d Cir.1999). The
settled law of this circuit is that when a defendant com-
mits crimes that straddle the date of promulgation of new
guidelines provisions, the defendant can be punished
under a guideline effective after the beginning of the
straddle period. See, e.g., United States v. Boyd, 208 F.3d
638, 648 (7th Cir.2000); United States v. Korando, 29 F.3d
1114, 1119-20 (7th Cir.1994). The rationale for this rule is
that “a statute increasing the penalty for [an offense]
beginning before the date of enactment but continuing
afterwards does not offend the Constitution.” United
States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986).
The government contends that because the district
court found the conduct committed by Vivit similar
enough for § 3D1.2(d) grouping to apply, Vivit’s actions
constituted a continuing offense which straddled the pro-
mulgation of § 3B1.4, quieting any potential ex post facto
A-18
concerns about the use of the 1995 Guidelines. However,
the government’s position is controversial. In United
States v. Ortland, 109 F.3d at 547, the Ninth Circuit found
that because the predicate conduct constituting mail
fraud was completed on mailing, a mail fraud scheme
constituted a series of completed offenses, rather than a
continuing course of conduct. On this basis, the court felt
that applying the grouping rules and the one-book rule to
a series of mail fraud crimes constituted a violation of the
Ex Post Facto Clause on offenses completed before a
revision of the Guidelines. See id.; see also Bertoli, 40 F.3d
at 1404-07 (finding error in the district court’s failure to
analyze offenses independently for ex post facto prob-
lems). However, in United States v. Kimler, 167 F.3d at 895,
the Fifth Circuit reached the opposite conclusion, relying
on the Eleventh Circuit’s reasoning in United States v.
Bailey, 123 F.3d 1381, 1403-07 (11th Cir.1997), that the
adoption of the one-book rule and the grouping rules put
criminals on notice that “the version of the sentencing
guidelines in effect at the time he committed the last of a
series of grouped offenses will apply to the entire group,”
Kimler, 167 F.3d at 895, to determine that there was no ex
post facto violation in using a revised guideline to sen-
tence grouped mail fraud convictions. In that case, the
court noted that although maii fraud offenses were com-
pleted offenses, rather than continuing offenses like con-
spiracies, because the grouping rules were in effect at the
time a defendant committed acts of mail fraud, “a defen-
dant has notice that if he continues to commit offenses
that are grouped together, the revised guidelines will
apply to the group.” Id. at 894 n. 6; see also Bailey, 123 F.3d
A-19
at 1406-07; United States v. Cooper, 35 F.3d 1248, 1252 (8th
Cir.1994).
In this circuit, the question whether to apply
§ 1B1.11(b)(3) depends on whether we perceive a defen-
dant’s course of conduct to straddle the enactment of
revisions to the Sentencing Guidelines. See Boyd, 208 F.3d
at 648-49. With continuing offenses, such as conspiracies,
we have never questioned the applicability of ex post
facto principles to this practice, because by agreeing to
engage in a conspiracy, a defendant becomes culpable for
all subsequent acts committed by the conspiracy. See
Korando, 29 F.3d at 1119. However, we have held that mail
fraud is a completed offense, implying that “the crime of
mail fraud is completed, for sentencing purposes, at the
time of the mailing. The actual duration of the scheme is
of no import.” United States v. Barger, 178 F.3d 844, 847
(7th Cir.1999). For this reason, we have determined that
mail fraud is not a straddle offense, in which case
§ 1B1.11 (b)(3) might not apply. See id. at 848.
However, in Barger, we were not confronted with a
situation in which mail fraud convictions were grouped
together according to § 3D1.2, because the criminal con-
duct committed in that case occurred before the enact-
ment of the Guidelines. According to the rationale of the
Eleventh Circuit in Bailey, the enactment of the grouping
Guidelines places criminals on notice that committing
additional criminal acts that are subject to grouping after
a revision of the Guidelines makes all the defendant's
conduct susceptible to the one-book rule. Bailey, 123 F.3d
at 1406-07. On this basis, a series of mail fraud convic-
tions that are grouped may be considered to straddle a
revision without a presumptive ex post facto violation
A-20
because of the criminal’s prior notice of the grouping
rules. Because the grouping rules were not available to
provide notice when the defendants in Barger committed
the predicate offenses that formed the basis for their
convictions, we find that the result in Barger, that a series
of mail fraud offenses do not straddle the enactment of
the Guidelines, does not require us to conclude that
applying a revised Guidelines Manual to a series of
grouped mail fraud convictions constitutes an ex post
facto violation.
By banning ex post facto application of new criminal
laws, “the Framers sought to assure that legislative Acts
give fair warning of their effect and permit individuals to
rely on their meaning until explicitly changed.” Weaver v.
Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17
(1981); see also Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct.
2446, 96 L.Ed.2d 351 (1987); Dobbert v. Florida, 432 U.S.
282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The clause
was also intended to check governmental power “by
restraining arbitrary and potentially vindictive legisla-
tion.” Weaver, 450 U.S. at 29, 101 S.Ct. 960. “Critical to
relief under the Ex Post Facto Clause is not an individ-
ual’s right to less punishment, but the lack of fair notice
and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime
was consummated.” Id. at 30, 101 S.Ct. 960.
Viewed in this context, the relevant inquiry becomes
whether the grouping rules give the defendant fair notice
at the time a crime is consummated that the commission
of further crimes subject to grouping would subject the
defendant to sentencing under revised Guidelines. The
A-21
grouping rules, enacted in 1987, provide warning to crim-
inals that completing another criminal offense similar to
one committed previously places them in peril of sentenc-
ing under a revised version of the Guidelines. The intro-
ductory commentary to the grouping rules explains that
because the offense guideline for fraud, § 2F1.1, “deal[s]
with repetitive or ongoing behavior,” multiple fraud con-
victions are appropriately grouped when the convictions
involve substantially the same harm. See U.S.S.G. § 3D
introductory commentary. We believe that this conclusion
reflects the intent of the Sentencing Commission to pro-
vide notice to criminals that engaging in ongoing fraudu-
lent behavior involving the same type of harm risks
grouping of convictions, which because of the one-book
rule, will all be sentenced according to the Guidelines in
effect when the latest conduct occurred.
For this reason, we believe that the enactment of the
grouping rules provides fair notice such that the applica-
tion of §§ 1B1.11(b)(3) and 3D1.2 does not violate the Ex
Post Facto Clause. To violate the Ex Post Facto Clause, the
application of amended Guidelines must disadvantage
the defendant without providing the defendant with
prior notice. See Miller, 482 U.S. at 430, 107 S.Ct. 2446.
Because the grouping rules provide such prior notice, we
favor the position advanced by the Eighth Circuit in
Cooper that “it was not the amendments to the Sentencing
Guidelines that disadvantaged [the defendant], it was his
election to continue his criminal activity.” 35 F.3d at 1250.
Vivit does not argue that his conduct did not involve
“substantially the same harm,” in which case the group-
ing rules should not have been applied. Nor does he
A-22
provide any other reason that the enactment of the group-
ing rules should not be construed to place him on notice
that the commission of further fraudulent mailings would
subject him to sentencing under amended Guidelines. For
this reason, we find no Ex Post Facto Clause violation in
the district court’s determination to apply the “use of
minors” enhancement to all of the grouped offenses com-
mitted by Vivit.
2. Findings of Fact
Vivit also argues that the district court committed
clear error in finding that minors participated in his
scheme. Vivit was convicted on two counts in which the
predicate conduct involved false insurance claims filed
on behalf of a minor, and Vivit admits that he treated
many minors in the course of his operation of the clinic.
However, he contends that the role of the minor patients
in his scheme was too minimal or unintentional for the
finding that he used minors to commit the fraud offenses.
Application note 1 to § 3B1.4 includes -within the
definition of use “directing, commanding, encouraging,
intimidating, counseling, training, procuring, recruiting,
or soliciting.” In United States v. Benjamin, 116 F.3d 1204,
1206 (7th Cir.1997), we initially reviewed the “use”
requirement of § 3B1.4 and found it met when the defen-
dant took some affirmative action to involve a minor. See
also United States v. Butler, 207 F.3d 839, 848 (6th Cir.2000)
(“[B]y deeming age relevant, Congress likely imagined an
offender who actually exercised some control or took
some affirmative role in involving the minor.”). In United
States v. Brack, 188 F.3d at 765, we found that the fact
A-23
bases for an enhancement under § 3B1.4 had been met
when the defendant performed affirmative acts to involve
a minor in her crimes. Therefore, Vivit “used minors in
the commission of his crimes” if his affirmative actions
involved minors in his criminal activities.
Vivit treated Jennifer Cailles for injuries suffered in
an automobile accident. At that time, she was sixteen
years old. As a part of the treatment, Vivit directed Cai-
lles to sign the attendance sheet fraudulently to inflate
the number of visits she paid Vivit. Vivit eventually sub-
mitted a bill to Cailles’s insurer that showed forty-nine
visits made, when Cailles actually made only eight or ten
visits. Vivit also treated nine-year-old Laquita Barnett
and her seven-year-old sister Johnetta Johnson for inju-
ries suffered in an automobile accident. Laquita visited
Vivit twice, and was given hot pad therapy. However,
Vivit submitted a bill claiming that she had been given a
comprehensive examination and had made two follow-up
visits and twelve visits for therapy. Johnetta only visited
Vivit once, but Vivit filed a bill with her insurer indicat-
ing twelve visits had occurred. Vivit directed both these
girls to falsify an attendance sheet eleven times.
The facts presented about Jennifer Cailles, Laquita
Barnett and Johnetta Johnson support the district court's
finding that Vivit directed these minors to create a false
attendance record. Therefore, Vivit’s direction to falsify
attendance records involved these minors in his crime
and fell within the definition of “use” of minors contem-
plated by § 3B1.4.
A-24
C. Risk of Serious Bodily Injury
Vivit also challenges the district court’s determina-
tion that the medical treatment Vivit provided, or failed
to provide, placed some of his patients at risk of serious
bodily injury, on which basis the court increased Vivit’s
total offense level two levels, according to U.S.S.G.
§ 2F1.1(b)(6)(A). Vivit claims that this finding of fact was
clearly erroneous because it was based on speculation as
to potential injury. The determination that Vivit’s conduct
posed a conscious or reckless risk of serious bodily injury
to his patients is a finding of fact, and we review for clear
error. See United States v. Turner, 102 F.3d 1350, 1357 (4th
Cir.1996). However, to the extent that we review whether
a sentencing enhancement is appropriate under this type
of offense conduct, we face a question of law that we
review de novo. See id.
Guidelines § 2F1.1(b)(6) directs courts to enhance a
defendant’s total offense level by two levels if the fraud
perpetrated by the defendant involves “the conscious or
reckless risk of serious bodily injury.” U.S.S.G. § 2F1.1(b)
(6)(A). “Serious bodily injury” is a phrase of general
applicability used frequently throughout the Guidelines,
and the phrase has been explained to mean “injury
involving extreme physical pain or the protracted impair-
ment of a function of a bodily member, organ, or mental
faculty; or requiring medical intervention such as sur-
gery, hospitalization, or physical rehabilitation.” U.S.S.G.
§ 1B1.1 application note 1(j). Guidelines § 2F1.1 does not
provide any insight into the type of conduct that should
be considered reckless, but application note 1 to § 2A1.4
describes recklessness as “a situation in which the defen-
dant was aware of the risk created by his conduct and the
A-25
risk was of such a nature and degree that to disregard
' that risk constituted a gross deviation from the standard
of care that a reasonable person would exercise in such a
situation.” U.S.S.G. § 2A1.4 application note 1 (involun-
tary manslaughter).
On appeal, Vivit contends that because no patient
was injured, any risk of serious injury was purely conjec-
tural, and for this reason, the district court lacked any
evidentiary basis on which to base its enhancement. See
United States v. Greene, 71 F.3d 232, 236 (6th Cir.1995)
(requiring district courts to base reckless risk enhance-
ment on evidence of risk). Improper medical procedures,
such as unnecessary surgery, performed for fraudulent
purposes obviously may pose a risk of serious bodily
injury. See, e.g., United States v. Laughlin, 26 F.3d 1523,
1531 (10th Cir.1994) (finding that unnecessary surgery
_creates a risk of serious bodily injury). However, as the
Eighth Circuit noted in United States v. McCord, Inc., “for
most frauds, risk of serious bodily injury is less direct
and less obvious.” McCord, 143 F.3d at 1098. In cases of
fraud, where § 2F1.1(6)(A) applies, we are not concerned
with whether actual injury occurred, but whether the -
defendant’s fraudulent course of conduct created a risk
that others would suffer serious bodily injury. In addi-
tion, Guidelines § 2F1.1(6)(A) demands that such a risk be
undertaken recklessly. See id. Whether improper medical
treatment may form the basis for an enhancement under
§ 2F1.1(6)(A) is a question of first impression for this
circuit.
The government provided three bases on which
Vivit’s sentence might have been enhanced: (1) his failure
A-26
to supervise an unlicensed individual performing poten-
tially dangerous physical therapy; (2) his direction to
apply heat therapy to bruised areas, increasing the risk of
injury; (3) his failure to examine physically certain
patients he knew to have been injured in automobile
accidents. The district court enhanced Vivit’s sentence for
reckless risk of serious bodily injury, but the court did not
state directly on which of these theories it based the
enhancement. The court did note its dissatisfaction with
Vivit’s diagnostic techniques by saying, “what [Vivit]’s
position in this court is ‘you know, I really didn’t do very
much. I used the most conservative treatment.’ . . . But
the fact of the matter is that the most conservative treat-
ment is not always best. . . . [H]e was, given his medical
examination practices, a very lucky man that he did not
miss something more serious, and for all we know maybe
—he did.”
_____Vivit contends that the government failed to prove ;
either that Vivit ignored a known risk of serious injury or
that any of the treatments that he employed could have
caused serious bodily injury. The rehabilitative tech-
niques employed by Vivit, which included ultrasound
therapy, electric muscle stimulation and using heat pads,
are much less intrusive or inherently dangerous than
surgical procedures. The experts provided by the govezn-
ment at trial testified that it was possible to cause injury
using electric muscle stimulation if the electrodes used in
the therapy are improperly applied or placed*close to the
heart. These experts also indicated that providing heat or |
ultrasound therapy to bruised areas was contraindicated.
In addition, these experts also testified that these thera-
pies provided no health benefits.
A-27
None of the government's twenty-six patient wit-
nesses testified that electrical muscle stimulation was
used in the chest area, and given the Purpose of this
therapy, we find the risk of injury from that type of
treatment to be slight, even if the therapist who per-
formed the therapy lacked a license. In addition,
although applying heat to bruised areas may increase the
internal bleeding from this bruising, this type of treat-
ment does not rise to the level of “extreme physical pain
or protracted function” required by the serious bodily
injury standard. In fact, the risk of increased injury cre-
ated by the treatments that Vivit actually performed or
ordered performed seems quite slight, certainly too slight
to justify an enhancement for reckless risk of serious
bodily injury.
The medical procedures that Vivit failed to perform
raise more troubling questions. To conceal his ongoing
fraud from insurers, Vivit engaged in rudimentary exam-
ination procedures better designed to generate additional
visits in his attendance log than to diagnose injury. On
multiple occasions, Vivit failed to perform physical exam-
inations on patients who visited him following auto-
mobile accidents. In addition, Vivit failed to perform
certain basic diagnostic tests, such as taking blood pres-
sure, On certain patients such as Avelina De La Rosa who
later proved to be at risk. While we do not believe that
Vivit created a risk by failing to treat patients such as the
Sansanos who visited him to inflate their own insurance
settlements knowing that he would not provide adequate
care, patients such as De La Rosa relied on Vivit’s medical
opinion and treatment to ensure that they had not suf-
fered serious injury. By failing to examine such patients
A-28
properly, Vivit created a risk that, had these patients
suffered serious injuries, their injuries would remain
untreated. Moreover, by presenting evidence that certain
of his patients were at risk of serious bodily injury with-
out treatment, for example by virtue of their high blood
pressure, the government has presented sufficient evi-
dence to show that the risk here was actual, not conjec-
tural. The facts also clearly demonstrate that Vivit acted
recklessly in ignoring the risk that his failure to treat
created. Therefore, we conclude that the district court did
not err in enhancing Vivit’s sentence under § 2F1.1(6)(A)
for reckless risk of serious bodily injury.
D. Léadership Role
Vivit contends that the district court erred in increas-
ing his total offense level four points based on his leader-
ship role in the scheme. He argues that the record does
not support such a finding of fact, and the court failed to
make express findings as to which of his patients consti-
tuted members of the scheme for purposes of establishing
a leadership role under U.S.S.G. § 3B1.1(a). The court’s
determination that Vivit played a leadership role in the
scheme is a finding of fact, and we review for clear error.
See United States v. Lewis, 79 F.3d 688, 690 (7th Cir.1996).
Guidelines § 3B1.1 directs the sentencing court to
enhance a defendant's offense level four levels “[i]f the
defendant was an organizer or leader of a criminal activ-
ity that involved five or more participants or was other-
wise extensive.” U.S.S.G. § 3B1.1(a). A “participant” is “a
person who is criminally responsible for the commission
of the offense.” U.S.S.G. § 3B1.1 application note 1. To
A-29
determine whether a defendant is an organizer or leader,
we consider “the defendant’s exercise of decision-making
authority, the nature of his Participation in committing
the crime, his recruitment of accomplices, his claimed
right to a larger share of the criminal proceeds, the extent
of his participation in planning or organizing the crime,
the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.” United
States v. Sierra, 188 F.3d 798, 803-04 (7th Cir.1999); see also
U.S.S.G. § 3B1.1 application note 4. These factors are not
exhaustive, nor must all be present in order to enhance
the defendant’s sentence. See United States v. Mankiewicz,
122 F.3d 399, 406 (7th Cir.1997). Instead, we weigh these
factors “in light of the Guidelines’ intent to punish with
greater severity leaders and organizers of criminal activ-
ity.” Sierra, 188 F.3d at 804.
The district court adopted the statements in the PSR
that Vivit’s scheme involved at least five other partici-
pants: Estrella Del Moral, his receptionist; the Sansano
family, Roy, Myla and Lauro; and Veronica Leighton.
Even though four of these named Participants were
Vivit’s patients, the district court felt that the four-level
enhancement was especially appropriate because Vivit
“in a moral sense and maybe in a legal sense, made
criminals out of some of his patients.” Vivit instructed
Del Moral to create false records and order patients to file
false claims and allowed her to perform therapy without
a license, which he billed to insurers. Vivit taught
Leighton how to obtain disability payments fraudulently
and convinced her to create false records inflating her
A-30
insurance claim. Vivit also instructed each of the San-
sanos to create false medical records to inflate their insur-
ance claims.
The argument that the sentencing court failed to
identify five participants on which to base the enhance-
ment lacks merit. In this case, the district court adopted
the findings of fact in the PSR, which isolated five indi-
viduals who were deemed to be participants, and a sen-
tencing court may adopt the conclusions in the PSR as its
own. See United States v. Spears, 965 F.2d 262, 273 (7th
Cir.1992); United States v. Musa, 946 F.2d 1297, 1308 (7th
Cir.1991). By adopting the conclusions of the PSR, the
sentencing court adopted by reference the individuals
isolated therein as participants.
Vivit’s argument that those patients of his who were
deemed participants lacked criminal intent proves
equally unavailing. To count as a “participant” in Vivit’s
scheme, his patients must have been criminally responsi-
ble. See U.S.S.G. § 3B1.1 application note 1. This respon-
sibility requires criminal intent, which belies these
patients’ status as victims. To this extent, Vivit raises a
valid objection; none of those patients who were vic-
timized by Vivit’s poor treatment necessarily shared
Vivit’s criminal intent to defraud their insurers. However,
Vivit treated more than 130 patients, and although many
of these patients may have been innocent victims, some
of these patients performed acts that suggest criminal
responsibility.
Vivit does not contest that Del Moral and Leighton
were participants in his scheme. Instead, he focuses on
A-31
the criminal responsibility of the Sansanos. Vivit pre-
sented each of the Sansanos with an attendance sheet and
asked them to sign and date it, which they each did
twenty-seven times. Vivit contends that this procedure
was done to set up future appointments, and the San-
sanos testified that they “pretty much followed instruc-
tions,” in signing the sheets. However, the Sansanos
back-dated many of these “appointments” to cover up the
lapse of time between their automobile accident and their
first consultation with Vivit. Roy Sansano also testified
that his family visited Vivit because a friend told him that
Vivit would create a large medical bill for him and his
family to be used in their insurance claim.
In reference to their claim, the Sansanos signed false
documents misrepresenting the extent of treatment that
they received from Vivit. The facts presented at Vivit’s
trial suggest that the Sansanos filed these documents
intending to defraud their insurer. They also demonstrate
that Vivit directed them on how to create a false record of
treatment, and this false record of treatment constituted
the basis on which the Sansanos filed false insurance
claims. Therefore, the Sansanos were all participants in
Vivit’s scheme within the meaning of § 3B1.1. Consider-
ing Vivit’s activities within the rubric of § 3B1.1, the
evidence presented at trial demonstrates that he was the
principal organizer of numerous fraudulent insurance
claims, that he recruited patients to file these false claims
and that the primary financial benefit from these activ-
ities accrued to him. For this reason, we find no error in
the sentencing court’s enhancement of Vivit’s total
offense level as a leader and organizer.
A-32
E. Position of Trust i
Finally, Vivit claims error in the district court’s deter-
mination that Vivit abused his position of trust relative to
the insurance companies he defrauded, on which basis
the court increased his total offense level an additional
two levels according to U.S.S.G. § 3B1.3. Vivit argues that
he did not occupy a position of trust in relation to the
insurance companies that he defrauded, and he contends
that this enhancement actually constitutes impermissible
double counting. Interpretation of the term “position of
trust” is a legal question that we review de novo. See
United States v. Hathcoat, 30 F.3d 913, 919 (7th Cir.1994).
However, the determination that Vivit occupied a posi-
tion of trust is a finding of fact, which we review only for
clear error. See United States v. Boyle, 10 F.3d 485, 489 (7th
Cir.1993). The determination whether a court has engaged
in impermissible double counting is a question of law,
which we review de novo. See United States v. Compton, 82
F.3d 179, 183 (7th Cir.1996) (citation omitted).
Guidelines § 3B1.3 requires courts to increase the
total offense level of a defendant by two levels “[i]f the
defendant abused a position of public or private
trust . . . in a manner that significantly facilitated the
commission or concealment of the offense.” U.S.S.G.
§ 3B1.3. The district court felt that the insurance com-
panies to whom Vivit submitted claims trusted the doc-
tor, and increased accordingly on this ground. However,
Vivit claims that because his relationship with these
insurance companies was commercial rather than fiduci-
ary, the enhancement is not applicable.
Pe see
A-33
We recently disposed of this argument in United
States v. Hoogenboom, 209 F.3d 665, 671 (7th Cir. 2000),
when we noted that “[m]edical service providers occupy
positions of trust with respect to private or public
insurers (such as Medicare) within the meaning of guide-
line § 3B1.3.” Id. (citations omitted). We explained that
“[mJedical providers . . . enjoy significant discretion and
consequently a lack of supervision in determining the
type and quality of services that are necessary and appro-
priate for their patients. This forces [the insurer] to
depend, to a significant extent, on a presumption of hon-
esty when dealing with statements received from medical
professionals.” Id. Although in Hoogenboom, we were
faced with fraud committed against a public insurer,
Medicare, rather than against private insurers, we made
no distinction between the two in determining whether
the enhancement was applicable, and we believe that no
distinction exists. For this reason, the facts presented by
_ Vivit cannot be distinguished from those presented in
Hoogenboom, and we find the logic in that case control-
ling.
Vivit also claims that enhancement under § 3B1.3
constitutes impermissible double counting, because it
punished him for both acting as a leader and abusing a
“special skill.” Guidelines § 3B1.3 prohibits the enhance-
ment under § 3B1.3 for use of a “special skill” in addition
to enhancement under § 3B1.1 for a leadership role in the
offense, but permits the enhancement for an “abuse of
trust” in addition to a § 3B1.1 enhancement. U.S.S.G.
§ 3B1.3. The district court enhanced Vivit’s sentence
under both §§ 3B1.1 and 3B1.3, but the court’s articulated
basis for the § 3B1.3 enhancement was that “it is fair to
A-34
say that he counted upon that the insurance companies
would extend trust to him, and certainly after a period of
time doing this it is quite clear that he understood that
they did trust him; so that he did abuse his trust relative
to the insurance companies.” Therefore, the court based
its enhancement on “abuse of trust,” not on “use of a
special skill.” There is no impermissible double counting
to enhance under both §§ 3B1.1 and 3B1.3 in these cir-
cumstances.
II. CONCLUSION
For all the foregoing reasons, we find no error in the
district court’s computation of Vivit’s sentence. There-
fore, the decision of the district court is AFFIRMED.
EASTERBROOK, Circuit Judge, concurring.
I join the court’s opinion but add one thought. The
gymnastics performed in Part II.B.1 to show that a two-
level increase in Vivit’s offense level is compatible with
the ex post facto clause are unnecessary, because the
sentencing guidelines are not “laws” within the scope of
that clause. See United States v. Seacott, 15 F.3d 1380,
1391-93 (7th Cir.1994) (concurring opinion); cf. Prater v.
U.S. Parole Commission, 802 F.2d 948, 951- 52 (7th Cir.1986)
(en banc) (parole release guidelines are not “laws” for ex
post facto purposes). Many cases say, and a few hold, that
changes in the guidelines must be treated like changes in
statutory punishments for purposes of the ex post facto
clause, and the parties to this case accept that view, but
these decisions are unconvincing. The only “law” at issue
is the Sentencing Reform Act of 1984, enacted long before
A-35
Vivit’s crimes. Nothing that has occurred since Vivit com-
mitted his acts changed the definition of the offense, its
maximum punishment, or the evidence that may be used
to support conviction. See Carmell v. Texas, U.S. __,
120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). When open-ended
discretion prevailed before the guidelines, no one would
have doubted that Presidents could appoint hard-nosed
judges who handed out steep penalties, provided they
did not exceed the statutory maximum at the time of the
defendant's deeds. Large swings in effective punishment
occurred because of changes in the composition of the
bench and prevailing views about the seriousness of par-
ticular offenses.
What judges used to do without offending the ex
post facto clause, the Sentencing Commission may do.
The Sentencing Reform Act moves discretion from the
individual judge to the Commission. Because the ex post
facto clause does not apply to the judicial branch, see
Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51
L.Ed.2d 260 (1977), and the Commission is in the judicial
branch, sez Mistretta v. United States, 488 U.S. 361, 384-97,
109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the effective con-
straint is the due process clause, which requires judges to
refrain from adopting startling interpretations of existing
rules. E.g., Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697,
12 L.Ed.2d 894 (1964); Prater, 802 F.2d at 952. Vivit does
not contend that the increase in his sentence is so surpris-
ing that it violates the due process clause, and given the
history of variability in sentencing practices over time
(and across judges) such an argument would be unten-
able. “Changing the guidelines_after the commission of a
crime does not deprive the criminal of notice of the
A-36
elements of the offense or the statutory limits of punish-
ment. It may upset the expectations of the few would-be
wrongdoers who study sentencing practices to determine
their risks — though even a small change in the proba-
bility of arrest or prosecution will have a much greater
effect on the anticipated punishment than does a change
in the guidelines, and no one believes that pouring extra
resources into the detection and -prosecution of crime
violates the ex post facto or due process clause.” Seacott,
15 F.3d at 1392-93. So although my colleagues faithfully
implement the complex rules that have sprouted up to
limit the damage caused by applying the ex post facto
clause to a subject outside its proper domain, I would
prefer a shorter path to affirmance. Congress has told
courts to use the guidelines in force at the time of sen-
tencing. 18 U.S.C. § 3553(a)(4). That command is constitu-
tional, and I would follow it notwithstanding the United
States Attorney’s failure to defend (or even cite) the
governing statute.
B-1
APPENDIX B
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 17, 2000
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
UNITED STATES Appeal from the United
OF AMERICA, States District Court for the
sion Northern District of
Platntiff-Appellee, Illinois, Eastern Division.
an Reece No. 98 CR 157 01
v.
James B. Zagel, Judge.
SALVADOR A. VIVIT,
Defendant-Appellant.
ORDER
On consideration of the petition for rehearing and
petition for rehearing en banc, no judge in active service
has requested a vote on the petition for rehearing en banc
and all of the judges on the original panel have voted to
deny rehearing. It is, therefore, ORDERED that rehearing
and rehearing en banc are DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.