Criminal Law

Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on firearm and drug charges, where said sentence was premised on finding that defendant qualified for sentencing under Armed Career Criminal Act (ACCA), based, in part, on defendant’s prior Indiana conviction on charge of dealing cocaine. While defendant argued that his Indiana conviction did not qualify as “serious drug offense” for purposes of ACCA, because said offense covered, among other things, financing manufacture of cocaine, which, according to defendant, pertained to conduct outside ACCA’s definition of serious drug offense, Ct. of Appeals found that ACCA’s definition of serious drug offense, which concerned crimes “involving manufacture” of controlled substance, included financing manufacture of cocaine. As such, defendant’s Indiana conviction qualified as serious drug offense for purposes of ACCA.

Dist. Ct did not err in including in written judgment on defendant’s conviction on drug distribution charges, three of five conditions of supervised release that were listed as mandated by federal statute, even though Dist. Ct. had failed to mention them orally during sentencing hearing. Typically, if inconsistency exists between oral and later written sentence, sentence pronounced orally from bench controls. However, because said conditions were mandated by statute, they were valid parts of defendant’s sentence even though they were not mentioned during sentencing hearing. However, remaining two conditions, i.e., requirement that defendant report to probation officer within 72 hours from his release from prison and obligation to refrain from possession of firearm are only discretionary conditions and were not part of his sentence. As such Dist. Ct. will be given another opportunity to include them as part of defendant’s sentence on remand.

Dist. Ct. did not err in sentencing defendant to 60-month term of incarceration on health care fraud charges, after finding that defendant’s submission of fraudulent claims to Medicare and other heath claims benefits programs resulted in loss of $4,087,736, based on calculation that defendant treated 20 patients per day for three days per week. Defendant lacked patient files to obtain more accurate loss calculation, and while defendant argued that loss was more likely $3.5 million based on fact that he saw far more than 20 patients per day, defendant failed to produce any evidence to call into question calculations contained in presentence investigation report. Also, state’s calculations were based on patients’ testimonies regarding length of time for typical treatments and FBI surveillance of defendant’s workplace.

Dist. Ct. erred in sentencing defendant to 120-month term of incarceration on unlawful possession of firearm by felon charge, where said sentence was based in part on 2-level physical restraint enhancement under section 2B3.1(b)(4)(B) of USSG based on fact that defendant held victim at gunpoint and then fled victim’s home. Enhancement required showing of some sort of physical restraint such as being tied up, bound or locked up, and State needed to show something more that defendant pointing gun at someone and ordering that person not to move in order to establish instant enhancement. (Dissent filed.)

Dist. Ct. did not err in sentencing defendant to 48-month term of incarceration on charge of unlawful possession of firearm by felon, where said sentence was based in part on defendant’s statements to probation officer that he believed in white supremacy, that he had hatred for minority races and he had desire to return to Germany to embrace his Nazi roots. While defendant argued that Dist. Ct. had violated his First Amendment rights when it considered his white supremacist beliefs at sentencing, Dist. Ct. could properly consider said statements, in conjunction with defendant’s extensive criminal history, as raising serious question as to whether defendant posed threat of violent or anti-social conduct to community. As such, defendant’s beliefs were reasonably related to legitimate sentencing purpose.