Wednesday, January 29, 2014

§ 841(b)(1)(C) Enhancement Requires Proof that Drug Was But-For Cause of Death or Injury

Under 21 U.S.C. § 841(b)(1)(C), a defendant who unlawfully distributes a Schedule I or II drug has a 20-year mandatory minimum sentence if “death or serious bodily injury results from the use of such substance.”  The death/injury “results from” enhancement is an element that must be submitted to the jury and found beyond a reasonable doubt since it increases the minimum and maximum sentences.  In Burrage’s case, the victim had multiple drugs were present in his system, and no expert was prepared to testify that the heroin Burrage sold was the sole factor for the victim’s death or that the victim would have lived if he had not taken the heroin.  Nevertheless, Burrage was convicted under the enhancement because the jury was instructed that the Government must prove that the heroin Burrage distributed “was a contributing cause” of the victim’s death.  The Eighth Circuit affirmed the conviction. 

The Supreme Court agreed with Burrage that the statute as written requires but-for causation, as a matter of common sense and given the rule of lenity.  The Court reversed Burrage’s conviction on that count and remanded for further proceedings:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.

Justices Ginsburg and Sotomayor concurred in the judgment but wrote separately to clarify that they “do not read ‘because of’ in the context of antidiscrimination laws to mean ‘solely because of.’”

See Scotsblog for more coverage.

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ABA Article on Chief Judge Stewart

Take a closer look at Chief Judge Stewart in this ABA Journal article by Mark Curriden.  Describing the Fifth Circuit as "the most divisive, controversial and conservative appeals court," the article provides insight into Chief Judge Stewart's inspiring background and even temperament and into some of the challenges he will face during his years of leadership.

Tuesday, January 28, 2014

“Vulnerable Victim” Enhancement Not Barred by “Victim Under 12” Enhancement

Jenkins appealed his conviction and sentence for various offenses concerning child pornography. He argued that the district court erred in applying a two-level sentence enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), the vulnerable victim enhancement, and that his sentence of twenty-years imprisonment is substantively unreasonable. The panel affirmed the judgment of the district court.
The vulnerable victim enhancement applies if the defendant knew or should have known that a victim of the offense was a vulnerable victim. Jenkins argued that the very nature of child pornography involves those who may be considered “vulnerable victims” due to age and that the vulnerability of the victims was already accounted for by the “prepubescent minor” and “depictions of violence” enhancements. The panel concluded that there was no logical reason why a “victim under the age of twelve” enhancement should bar application of the “vulnerable victim” enhancement when the victim is especially vulnerable, considering the fact that children under twelve years of age are vulnerable for various reasons other than age.
Jenkins also contended that his twenty-year sentence was substantively unreasonable. Jenkins claimed that the child pornography guideline, § 2G2.2, lacks an empirical basis. The panel found that Jenkins’ argument was foreclosed by United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), and that he failed to show in any way that his sentence was substantively unreasonable.
See also blog post on United States v. Ramos, No. 11-51232 (5th Cir. Jan. 9, 2014), which considers Jenkins and does not apply the vulnerable-victim enhancement when the vulnerability was already accounted for by the sadistic-conduct enhancements.
Thanks to FPD Intern Matthew Gonzalez for this post.


Friday, January 24, 2014

Officer Trickery Can Taint Subsequent Admissions or Consent Depending on Circumstances

The panel vacates Guzman’s conviction and remands since “the district court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing.”  What factual findings did the court refuse to make?  Whether Guzman consented, whether the officer misrepresented his authority to search Guzman’s car, and whether the officer’s misrepresentation rendered Guzman’s statements inadmissible and consent involuntary.  Instead, the court decided that even if the officer tricked Guzman into making an admission, such trickery did not taint the search.

Here’s what happened: Officers arrive at a house based on a tip that meth is being sold there.  Guzman was sitting in a car in the driveway, and he exited the car when the officers approached.  An officer “struck up a conversation” with Guzman, during which Guzman mentioned that he was just released from prison.  In the officer’s version of what happened next, he asked Guzman if he could search his car for drugs; Guzman consented, saying there were no drugs but there was a handgun.  In Guzman’s version (corroborated by the audio recording of his later interrogation), the officer said he was going to search the car, and Guzman responded that there were no drugs but there was a handgun.  The officers found the handgun but no drugs.  Of course, the officers also discovered that Guzman was a convicted felon, and he was then charged with being a felon in possession.

In response to Guzman’s suppression motion, the Government argued that Guzman gave verbal consent or, alternatively, that the search was permissible under the automobile exception since Guzman said he was released from prison and there was a gun in the car.  During closing, the district court asked whether an officer could trick a defendant into making a guilty admission by saying, “I’m going to search your car whether you like it or not.  When I do, am I going to find any contraband?,” and whether a guilty admission would justify probable cause to search the car.  The court decided an officer could do such a thing, which would justify probable cause for the automobile exception to the warrant requirement, and denied the motion to suppress without deciding whether or not Guzman voluntarily consented to the search or whether or not the officer asked for consent or said he was going to search the car.

The panel points out that a false claim of lawful authority could affect the validity of Guzman’s consent and the admissibility of his subsequent statements.  “An inadmissible statement cannot constitute probable cause to support an otherwise illegal search.”  Further, “‘any misrepresentation by the Government is a factor to be considered in evaluating’ whether the defendant’s consent was voluntary.”  The panel clarified that United States v. Andrews, 746 F.2d 247 (5th Cir. 1984), “did not establish a general rule that officers can use trickery to obtain consent” but was a “narrow” decision holding that the Government carried its burden in that case to show that Andrew’s consent was voluntary.

Since the district court did not ask the right legal questions in making its ruling and declined to make the factual findings necessary to resolve the issue, the panel remands to the district court to obtain additional findings.

Note: As an alternative, Guzman argues for the first time on appeal that the automobile exception could not apply to this case because his car was parked in a private driveway.  Even though the panel finds Guzman waived this argument by not raising it at the suppression hearing, the panel notes that this argument does not have clear support in Fifth Circuit precedent when officers believe the home in question was being used for illegal activity.

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Thursday, January 23, 2014

Obstruction of Justice Enhancement Applied Based on Trial Testimony; Knowledge of Drugs Contested, but Behavior Sufficiently Incriminating

Perez, charged with possession with intent to distribute fifty grams or more methamphetamine and conspiracy to do the same, appealed his conviction. He challenged the sufficiency of the evidence supporting his conviction, disputed the evidentiary rulings surrounding the prosecution’s cross-examination of Perez, claimed that the prosecutor committed misconduct during closing argument, and contested the district court’s application of the Sentencing Guidelines. The panel affirmed the judgment of sentence and conviction.
The defense got off to a turbulent start when Perez failed to renew his motion for a judgment of acquittal regarding his sufficiency of evidence argument, thus forfeiting his first challenge. The evidence in question was still reviewed, however, and found to be quite sufficient. Perez’s other arguments were also reviewed and subsequently dismissed. A significant obstacle to Perez’s claims was his nonchalant reaction to the narcotics present at the intended drug deal. The panel suggests that the evidence was more than enough to convince a reasonable jury that Perez’s alleged ignorance was feigned.

The panel held that the government permissibly used financial documents to undermine Perez’s alibi during cross examination, and that the prosecutor’s references during closing arguments to the financial documents that arguably impeached Perez was not misconduct. Furthermore, the district court properly applied the obstruction of justice enhancement since the court pointed to specific statements in Perez’s testimony that it found to be false and willfully made. The panel also affirmed the district court’s finding that Perez was not a minor participant because he transported the meth concealed in a cooler and helped the undercover dismantle the cooler.

Thanks to FPD Intern Matthew Gonzalez for this blog post.


Friday, January 17, 2014

U.S. Sentencing Commission Proposes 2-Level Reduction to Drug Trafficking Sentences

In keeping with the theme from 2013 that the mandatory minimum sentences impose harsher penalties than necessary to serve the purposes of sentencing, the U.S. Sentencing Commission voted to seek comment on a proposed amendment to lower the base offense levels in the Drug Quantity Table by two levels across the board.  In its news release, Judge Patti B. Saris, Chair of the Commission, stated that the proposal reflects the Commission’s “priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety.”  Judge Saris described the proposed approach as “modest” and stated that “[t]he real solution rests with Congress.”  The Commission continues to “support efforts there to reduce mandatory minimum penalties, consistent with [the Commission’s] recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.

The comment period on the proposed amendments runs through mid-March 2014, and a public hearing is scheduled for March 13, 2014, in Washington, D.C.  More information is available at, including a reader-friendly version of the amendments and a link to the Federal Register notice.

Other proposed amendments address U.S.S.G. §§ 1B1.10, 2L1.1, 5D1.2, 5G1.3, the Violence Against Women Reauthorization Act of 2013, and relevant conduct for felon in possession.  The § 2L1.1 amendment would add the following language to the description of the reckless endangerment enhancement: “guiding persons through, or abandoning persons in, dangerous terrain without adequate food, water, clothing, or protection from the elements.”

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Thursday, January 16, 2014

Judgment of Acquittal Reversed Even Though Theoretically “Just as Likely” Defendant’s Roommate Downloaded the Child Pornography

Smith had two roommates during the time that someone intentionally downloaded videos of child pornography onto his computer.  Both of the roommates regularly used Smith’s computer.  One roommate’s employment records eliminated her as a suspect.  The other, Jolly, testified that he did not download files.  Smith did not testify but presented three witnesses who claimed he was visiting his parents during the time the child pornography was downloaded.

The jury returned a guilty verdict after deliberating for a few hours.  Smith filed a motion for a new trial, which the district court rejected, and a separate motion for acquittal, which the district court granted.  In its order, the district court reasoned that “it is just as likely that Joshua Jolly downloaded the child pornography onto the computer as Smith did.” 

The panel reverses the judgment of acquittal since the question is not whether it is equally likely that Smith did not download the files but whether “this evidence, taken in the light most favorable to the verdict, offers ‘nearly equal circumstantial support’ for competing explanations.”  The panel believes that it does not since it was reasonable for the jury to credit Jolly’s testimony over the testimony of Smith’s witnesses, particularly since the prosecution introduced evidence that one of Smith’s witnesses had changed her account of the relevant dates and another had not mentioned Smith’s visits home during her first questioning by police.  The panel also rejected Smith’s argument that the prosecution had to show knowledge of or access to the child pornography, which would go to constructive possession, since there was sufficient evidence to find actual possession.  Undisputed expert testimony indicated that someone searched for and selected the files for download, and that 19 of the 26 files were previewed at the time of download.


Tuesday, January 14, 2014

Criminal Forfeiture Statute Trumps Third Party Petition and the Terrorism Risk Insurance Act

If you have a claim to assets blocked as belonging to a terrorist party, you better file your claim before the government restrains them under 21 U.S.C. § 853 to preserve their availability for criminal forfeiture proceedings.

The Rubins, who were victims of a terrorist attack in 1997, filed a third party petition under 21 U.S.C. § 853(n) to assert their interest in the Holy Land Foundation for Relief’s assets.  In 2001, HLF was deemed an arm of Hamas and its funds were blocked.  In 2004, while HLF’s assets were still blocked, the government filed an indictment including its notice to seek criminal forfeiture. In denying the government’s motion to dismiss the Rubins’ petition, the district court held that the Terrorism Risk Insurance Act of 2002 (TRIA) allowed the Rubins to execute against HLF’s assets notwithstanding the government’s forfeiture proceedings. The government appealed, however, and the panel reversed, holding that the Rubins failed to demonstrate an entitlement to recovery under either 21 U.S.C. § 853 or the TRIA.

The panel held that the Rubins cannot prevail under 21 U.S.C. § 853 because the criminal forfeiture statute bars a third party claiming an interest in forfeitable property from intervening in the criminal trial or appeal, and also prohibits a third party from commencing a separate action against the United States on the basis of that party’s interest in the property. In regards to the TRIA argument, the panel reasoned that, since TRIA only applies to blocked assets of a terrorist party, it did not apply here since the assets became unblocked once the government filed its forfeiture.  Lastly, the panel held that the clause “notwithstanding any other provision of law” of TRIA does not trump the criminal forfeiture statute.

Thanks to FPD Intern Matthew Gonzalez for this post.


Monday, January 13, 2014

No Vulnerable-Victim Enhancement When Double Counts Factors Already Accounted for by Other Enhancements

Ramos pleaded guilty to one count of receipt of child pornography, one count of distribution of child pornography, and two counts of possession of child pornography.  The presentence report recommended a two-level enhancement for vulnerable victims explaining that Ramos knew or should have known that the victims were vulnerable because they were young and small.  Ramos objected to the vulnerable-victim enhancement as double counting the age and sadistic-conduct enhancements.  The district court overruled the objection. 

The panel “doubt[s] that the district court correctly applied the vulnerable-victim enhancement here, where the only factor that made these children particularly vulnerable as compared to other pre-pubescent children—that some images depicted the children bound to chairs with rope—was already accounted for by the sadistic-conduct enhancement.”  The panel rejects the Government’s argument that the sadistic-conduct enhancement was broader in that it covers other behavior present in the videos.  Under United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013), the question is not whether other videos could justify the sadistic-conduct enhancement but whether the factor that makes the person a vulnerable victim is already incorporated in the offense guideline.  Here, “the sadistic-conduct enhancement already covered the vulnerability of bondage.”

Any error, however, was harmless.  The district court granted a variance on the first two counts and sentenced Ramos to the statutory maximum for the possession counts: 120 months.  The panel believed the record was clear that the district court would have imposed the same sentence even if the Guidelines range was properly calculated.


Thursday, January 09, 2014

A Few Kilos Short of 10-Year Mandatory Minimum Sentence, but Conspiracy Conviction Stands

A group accused of drug distribution appealed their convictions and sentences for conspiracy to distribute and to possess with intent to distribute five kilos or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). The defendants argued that evidence provided at trial was insufficient to support the jury’s verdict regarding drug quantity. Since only 1.535 kilograms were offered as physical evidence to the jury, the panel agreed that evidence did not support a finding that the conspiracy involved five kilograms or more. The Government’s failure to prove the five kilo quantity did not invalidate the conspiracy convictions but did call for resentencing (resentencing under 21 U.S.C. § 841 (b)(1)(B)(ii) was deemed appropriate in this case). The panel also vacated Daniels’ sentence on unlawful use of a communication facility and remanded to the district court for resentencing.

On 9/5/2013, the panel decided pursuant to a petition for rehearing by several defendants that those defendants’ sentences on the substantive counts would also be vacated and the case remanded for resentencing since the “Guidelines range calculations were driven by the conspiracy’s non-vacated 5 kilogram finding.”

Thanks to FPD Intern Matthew Gonzalez for this blog post.

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Wednesday, January 08, 2014

Court-Ordered Psychological Examination Admissible to Rebut Mental Status Defense (SCOTUS)

In a unanimous opinion, the Court held that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.”

The Kansas Supreme Court had reversed Cheever’s conviction, holding that the admission of evidence form a court-ordered psychological examination violated Cheever’s Fifth Amendment right against self-incrimination.  In so doing, the Kansas Supreme Court distinguished Buchanan v. Kentucky, 483 U.S. 402 (1987), by finding that Cheever’s voluntary intoxication—his defense—was not a “mental disease or defect.”  The U.S. Supreme Court reversed and clarified that its holding in Buchanan is not limited to “mental disease or defect” defenses but rather “mental status” defenses, which would include voluntary intoxication.

For more information, see the Cheever post on


Tuesday, January 07, 2014

Health Care Fraud Conspiracies that Overlap in Time, Place, Personnel, and Statutory Charge Don't Violate Double Jeopardy Since Government Sought to Punish Different Activity

Four defendants were convicted on numerous counts related to committing health care fraud, receiving or paying healthcare kickbacks, and/or making false statements for use in determining rights Medicare benefits and payments.  The panel affirms the convictions and sentences but remands to the district court to amend Njoku’s written sentence of 63 months to conform with the oral sentence of 60 months.

The panel finds the Government presented sufficient evidence that Njoku knew of the unlawful purpose of both the health care fraud conspiracy and the kickback conspiracy and that she joined in those agreements willfully.  She also challenges the two conspiracy counts as multiplicitous.  (Since she did not object to the indictment as multiplicitous, the convictions stand but the sentences can be challenged under plain error review.)  Njoku argues that her health care fraud conspiracy conviction was based entirely on proof of the kickback conspiracy, so the kickback conspiracy is a lesser included of the health care fraud conspiracy.  The panel disagrees, noting that one conspiracy is under 18 U.S.C. § 1349 (proof of conspiracy to commit fraud and that fraud is the object of the conspiracy) and the other under 18 U.S.C. § 371 (proof of conspiracy against United States and the commission of an overt act).  Further, the indictment described the unlawful purpose of the health care conspiracy as the receipt of kickbacks in addition to the submission of fraudulent claims to Medicare.

Defendant Ellis challenges her trial on the of conspiracy to commit health care fraud as violating the Double Jeopardy Clause because she was acquitted of a conspiracy to commit health care fraud after a trial by jury prior to the instant indictment.  The first indictment focused on her activity as a recruiter and the other focused on her falsification of nursing notes and medical certifications.  Since she established a prima facie nonfrivolous double jeopardy claim, the Government bears the burden to prove by a preponderance of the evidence that she was charged in separate conspiracies.  The panel undertakes the five-prong test to determine whether there were two agreements and conspiracies.  It concludes that “the time, statutory offenses, and places involved suggest that there was one agreement.  Nevertheless, . . . two agreements and two conspiracies existed because of the separate functions that central co-conspirators provided in each scheme and the distinctive activity that the Government sought to punish in each case.” 

Ellis also argues that in her acquittal of the first charged conspiracy, the jury necessarily determined that she did not know her paid referrals were illegal, which she argues would bar any subsequent prosecution on whether she willfully received kickbacks.  The panel finds that the first jury could have based the acquittal either on Ellis not knowing that the paid referrals were illegal or on her not intending to further the unlawful purpose as charged in the indictment.  Since the jury did not have to necessarily find that she did not know the referrals were illegal, she was not twice put in jeopardy.

During trial, Ellis sought to introduce portions of testimony by a person, Clifford Ubani, who testified in the first trial that he never agreed with Ellis to do something unlawful but invoked his right against self-incrimination in the second trial.  The district court excluded this evidence finding its admission would require the admission of additional evidence in order to explain the statement in the proper context and would be more misleading or confusing than probative.  The panel also rejects Ellis’s argument that the district court’s ruling violated her Sixth Amendment right to present a complete defense.

With regard to sentencing, the panel affirms the loss amount calculated for Ellis, finding that the Government presented reliable evidence of actual loss and the district court properly considered Ellis’s contrary evidence.  The panel also affirms Ezinne Ubani’s enhancements as a manager/supervisor and abuse of trust, noting that “Medicare invests an important trust in RNs who complete OASIS questionnaires and certify plans of care for initial episodes of care and recertifications . . . .”

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Monday, January 06, 2014

New Study Finds Test Often Used in Sexually Violent Predator Evaluations Is Unreliable

A new study finds that the Psychopathy Checklist-Revised, which is often used to determine the civil commitment of offenders as sexually violent predators, is unreliable.  The study is “The Role and Reliability of the Psychopathy Checklist-Revised in U.S. Sexually Violent Predator Evaluations: A Case Law Survey” by DeMatteo, D., Edens, J. F., Galloway, M., Cox, J., Toney Smith, S. and Formon, D. in Law and Human Behavior (2013).
Here is the abstract from American Psychiatric Association PsychNET Direct:
The civil commitment of offenders as sexually violent predators (SVPs) is a highly contentious area of U.S. mental health law. The Psychopathy Checklist—Revised (PCL–R) is frequently used in mental health evaluations in these cases to aid legal decision making. Although generally perceived to be a useful assessment tool in applied settings, recent research has raised questions about the reliability of PCL–R scores in SVP cases. In this report, we review the use of the PCL–R in SVP trials identified as part of a larger project investigating its role in U.S. case law. After presenting data on how the PCL–R is used in SVP cases, we examine the reliability of scores reported in these cases. We located 214 cases involving the PCL–R, 88 of which included an actual score and 29 of which included multiple scores. In the 29 cases with multiple scores, the intraclass correlation coefficient for a single evaluator for the PCL–R scores was only .58, and only 41.4% of the difference scores were within 1 standard error of measurement unit. The average score reported by prosecution experts was significantly higher than the average score reported by defense-retained experts, and prosecution experts reported PCL–R scores of 30 or above in nearly 50% of the cases, compared with less than 10% of the cases for defense witnesses (κ = .29). In conjunction with other recently published findings demonstrating the unreliability of PCL–R scores in applied settings, our results raise questions as to whether this instrument should be admitted into SVP proceedings. (PsycINFO Database Record (c) 2013 APA, all rights reserved)

NPR covered the rise of the PCL-R in a 2011 story, describing how it began as a research tool and then was coopted by the criminal justice system to the dismay of its creator who “feared that the test, created purely for research purposes, might be used incorrectly in the real world and could hurt people. 

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Thursday, January 02, 2014

Judge’s Use of Red Pen to Note Humorous Points During Health Care Fraud Trial Not Plain Error; Restitution Orders Vacated for Erroneous Calculation

Three defendants were convicted by a jury of various crimes related to their involvement in a health care fraud conspiracy.  The panel affirms their convictions.  At one point during trial, the district judge commented to the jury that he will make notes about things he finds humorous with a red pen so that he can visit with the jury after the case in the jury room about those things; all other notes he will take in black ink.  None of the defendants objected contemporaneously to these remarks.  The panel rejects the argument that the jury could look to see what color of pen the judge was using to help them determine how to interpret the evidence.  No plain error.

Ramos objected to the introduction of her personnel file on the first day of trial on the grounds that her counsel had not seen the records before and did not have sufficient time to review them.  She challenges the admission of the documents as a violation of the court’s order requiring parties to exchange exhibits seven days prior to the start of trial.  Ramos did not request discovery pursuant to Rule 16, and could not therefore challenge the admission under Rule 16.  The panel finds that the admission of the personnel file did not prejudice Ramos’s substantial rights because the Government would have sustained its burden of proof without it, noting that Ramos had equal access to it prior to trial.

The panel finds that the district court properly allowed rebuttal testimony that was relevant, was not hearsay (because not offered for the truth of the matter but rather to impeach the defendant’s credibility), and was not offered as character evidence.  The panel also defers to the district court’s decision to limit the deliberate ignorance instruction to one of the defendants whose defense at trial focused on her alleged lack of guilty knowledge. 

The panel rejects Ramos’s argument that she could not have willfully violated the Anti-Kickback Statute because she did not know that engaging in a commission-based pay arrangement with a Medicare provider violated the law.  The panel finds that the Government need only “prove that the defendant willfully committed an act that violated the Anti-Kickback Statute,” not that the defendant knew of the statute or acted with a specific intent to violate it.

The panel affirms St. Junius’s sentence, finding that it is plausible that she held a managerial role in the offense since she led others to believe she owned the business and “signed Medicare documents, signed and issued paychecks, and sent correspondence as the owner” of the business.  St. Junius also held a position of trust since she had a license to provide medical equipment for Medicare, and she abused that trust by signing documents and engaging in other activities that helped facilitate the health care fraud conspiracy.  The panel finds that Ramos and Spicer also abused positions of trust even though they did not have a fiduciary relationship with Medicare; they both transferred patients’ “means of identification” to facilitate the crime.  

The panel vacates Spicer’s and Ramos’s restitution orders, however, because they were improperly based on conduct outside of the offense for which they were convicted.  The restitution amount was based on the total amount Medicare/Medicaid paid the business based on Spicer’s and Ramos’s referrals ($794,434.08); “a figure that grossly exceeded the amount Medicare/Medicaid paid with respect to the crimes for which” they were convicted. 

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