United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS for the Fifth Circuit February 16, 2006

Charles R. Fulbruge III Clerk No. 04-20616

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CARRIE HAMILTON, RICHARD MILES, and ALICE MILES,

Defendants-Appellants.

Appeals from the United States District Court for the Southern District of Texas

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

Defendants-Appellants Carrie Hamilton, Richard Miles, and

Alice Miles (the “Appellants”) appeal their sentences, arguing the

district court erred in calculating their sentences by erroneously

relying upon the mandate rule on remand and by violating United

States v. Booker,

,

(2005). Finding no

reversible error, we AFFIRM.

I.

Four defendants, Carrie Hamilton, Richard Miles, Alice Miles,

and Harold Miles, were charged in a 32-count indictment with crimes related to their involvement in a Medicare fraud scheme,

surrounding the creation and management of Affiliated Professional

Home Health (APRO). Texas’s Department of Health certified APRO as

a Medicare provider, and APRO began in-home treatment of Medicare-

covered patients and to obtain reimbursement for the home visits to

those patients.

The Grand Jury charged the three Defendants who now appeal,

Carrie Hamilton (“Hamilton”), Richard Miles, and Alice Miles with:

(1) conspiracy to defraud the United States in Medicare program

reimbursements,

; (2) structuring currency

transactions,

; (3) money laundering conspiracy,

(h); (4) three counts of mail fraud,

;

(5) heath care fraud,

; (6) six counts of money

laundering promotion,

(a)(1)(A)(i); (7) seven

counts of money laundering concealment,

(a)(1)(B)(i); and (8) ten counts of illegal remunerations involving

a federal health care program, 42 U.S.C. § 1320a-7b(b)(2)(A).1

Appellants were convicted on various counts and were sentenced

as follows. Richard Miles was sentenced to 97 months’

imprisonment, three years’ supervised release, and a $200 special

assessment. Alice Miles was sentenced to 168 months’ imprisonment,

1 Harold Miles, who is not a party to this appeal, was charged only with three counts of mail fraud, one count of health care fraud, and six counts of money laundering promotion. Harold Miles was acquitted. All four defendants were subject to criminal forfeiture. See

.

2 three years’ supervised release, and a $2100 special assessment.

Hamilton was sentenced to 204 months’ imprisonment, three years’

supervised release, and a $2100 special assessment. Appellants

were ordered jointly and severally to make restitution to the

United States of $4,292,246.72.

Appellants challenged the convictions and sentences in their

first appeal. Reversing in part the convictions, a panel of this

Court remanded the case for resentencing. United States v. Miles,

(5th Cir. 2004) (reversing the convictions for

Hamilton and Alice Miles on money laundering promotion and for ten

counts for illegal healthcare kickbacks). Hamilton’s and Alice

Miles’s convictions for conspiracy to commit money laundering and

for money laundering concealment were affirmed.

.

Appellants argued in Miles that the district court erred in the

method of calculating the amount of loss and that the court erred

in enhancing their sentences under USSG § 2B1.1(b)(12)(A)(2001)

because Medicare is not a financial institution within the meaning

of that guideline. Agreeing in part, the panel vacated the

sentences and remanded for resentencing, as follows:

[W]e vacate the sentences of all three appellants and remand for resentencing on the ground that Medicare is not a ‘financial institution’ within the meaning of U.S.S.G. § 2B1.1(b)(12)(A), in addition to resentencing based on the reversal of the convictions noted above. On all other grounds, we affirm the rulings of the district court, the jury verdict, and the other bases for the sentences imposed by the district court.

Id. at 483 (emphasis added).

3 On remand, the Probation Office submitted a supplemental and

amended Presentence Report (the “Supplemental PSR”), noting the

effect of this Court’s opinion in Miles on both the sentencing

ranges and the amount of loss calculation. The Supplemental PSR

recommended a total loss figure of $4,266,246.74, a reduction from

the original of $26,000 (the amount attributable to the kickback

counts).

On June 24, 2004, the Supreme Court issued Blakely v.

Washington,

,

(2004). Appellants filed

a supplemental sentencing memorandum, arguing Blakely precluded the

enhancement of their sentences based upon facts not found by jury.2

On July 12, 2004, the Fifth Circuit issued United States v.

Pineiro,

(5th Cir. 2004) (Pineiro I) (rejecting

Blakely’s application to the federal sentencing guidelines),

2 Hamilton objected to the following enhancements: +18 for total loss; +2 for commission of sophisticated laundering; +4 for being a leader/organizer of criminal activity; and +2 for obstruction of justice. Alice Miles objected to enhancements of: +18 for total loss; +2 for commission of sophisticated laundering; +2 for 2S1.1(b)(2)(B); +3 for § 3B1.1(b); and +3 for obstruction of justice. Richard Miles objected to the following level increases: +2 for considerable planning over an extended time period; +3 for his role as a manager/supervisor of criminal activity that involved five or more participants; and +2 for committing perjury during trial. All three objected to the loss calculation on the grounds that it was (1) determined by subtracting the $26,000 related to the reversed kickback conviction from the district court’s original calculation; (2) not alleged in the indictment; and (3) not admitted to by defendants or determined by a jury.

4 vacated by,

(2005).

Subsequently, the district court resentenced Appellants. At

oral argument, Appellants again objected to the enhancements on the

basis of Blakely. The district court rejected this argument based

upon both Pineiro I and Appellants’ waiver of the objection. The

district court stated that Appellants failed to preserve the issue

by failing to raise it before this Court on initial appeal.

Defense counsel stated that the Sixth Amendment objection had been

made at initial sentencing. The district court then ruled that, in

addition to Pineiro I, the challenge was waived by failure to

preserve the issue on appeal and the scope of the issues viable for

consideration on remand. See United States v. Marmolejo,

(5th Cir. 1998).

Hamilton was resentenced to 171 months’ imprisonment, three

years’ supervised release, and a $1050 special assessment. Richard

Miles was resentenced to 63 months’ imprisonment, three years’

supervised release, and a $200 special assessment. Alice Miles was

resentenced to 135 months’ imprisonment, three years’ supervised

release, and a $1050 special assessment. With respect to the

amount of loss, the district court reduced the restitution order,

in accordance with the probation recommendations, ordering

restitution in the amount of $4,266,246.74. Appellants timely

appealed again, challenging their sentences, including the

calculation of loss amount.

5 II.

A.

Appellants challenge the district court’s calculation of loss

amount, arguing that the court reversibly erred by relying upon

Marmolejo’s mandate rule in declining to revisit the method of the

calculation of loss. “Whether the law of the case doctrine

foreclosed the district court’s exercise of discretion on remand

and the interpretation of the scope of this court’s remand order

present questions of law that this court reviews de novo.” United

States v. Lee (Lee II),

(5th Cir. 2004) (citing

Sobley v. So. Nat. Gas Co.,

(5th Cir. 2002)).

B.

Appellants argue, as they did at trial, on initial appeal, and

on resentencing, that the court erroneously calculated the amount

of restitution by improperly including profits lawfully obtained.

This objection is not based upon the Sixth Amendment jury trial

right but rather upon the method of calculation. The Government

argues that under the law of the case, an issue of law or fact

outside the mandate of the remand order “may not be reexamined

either by the district court on remand or by the appellate court on

a subsequent appeal” and that no exception to the mandate rule

applies to this record. See United States v. Becerra,

(5th Cir. 1998).

The scope of the mandate on remand for resentencing is

6 limited, precluding a district court’s de novo consideration of

issues at resentencing. Marmolejo,

. In Marmolejo,

we affirmed the district court’s exclusion of evidence newly

presented on remand for resentencing because the “determination was

not before the district court on remand.”

.

Accordingly, defendants must “raise all relevant and appealable

issues at the original sentencing,” and a district court

resentencing on remand must determine the scope of the mandate by

identifying “those issues arising out of the correction of the

sentence ordered by this court,” not by “allowing a defendant to

revisit issues with the benefit of this court’s opinion.”

.

[T]he resentencing court can consider whatever this court directs – no more, no less. All other issues not arising out of this court’s ruling and not raised before the appeals court, which could have been brought in the original appeal, are not proper for reconsideration by the district court below.

Three exceptions to this discretionary, rather than

jurisdictional, mandate rule exist. See Becerra,

-

53. These exceptions are: “(1) The evidence at a subsequent trial

is substantially different; (2) there has been an intervening

change of law by a controlling authority; and (3) the earlier

decision is clearly erroneous and would work a manifest injustice.”

United States v. Matthews,

(5th Cir. 2002)

(Matthews II) (citing Becerra,

).

7 Here, the district court properly concluded that the mandate

rule foreclosed any reconsideration of the amount of loss

calculation except to adjust as required by Miles’s reversal of the

money laundering promotion and illegal remuneration convictions.

This adjustment was recommended by the Supplemental PSR and adopted

by the district court. Appellants’ argument that the district

court and the panel in Miles all failed to properly calculate the

loss amount because the calculation included lawfully obtained

proceeds was not properly before the district court on remand. The

issue was presented to the Miles panel, fully briefed and argued,

and rejected. The method of calculating the loss amount was not

included within the scope of the remand order, given the general

language affirming the remainder of the district court’s bases for

sentencing as well as this Court’s rejection of the “various other

issues raised by the appellants.” See Miles,

.

Despite Appellants’ characterization to the contrary, the mandate

in Miles expressly affirmed the amount of loss calculation. The

Miles panel stated, “[o]n all other grounds, we affirm the rulings

of the district court, the jury verdict, and the other bases for

the sentences imposed by the district court.”

Moreover, Miles

noted the amount of loss figure in the context of its discussion of

Appellants’ fraudulent, not lawful, conduct. “The APRO defendants

engaged in a wide range of activities that fraudulently overcharged

Medicare and netted them a substantial amount of illicit revenue.

8 The appellants were held jointly and severally liable for

restitution of over $4 million in overcharges to Medicare.”

. The amount of loss with respect to these overcharges was

affirmed by the Miles panel, and neither the district court on

remand nor this panel may reconsider that law of this case.

Appellants argue that the intervening change in law of Blakely

and Booker precludes application of the mandate rule. The

Government argues that at the time Appellants were resentenced by

the district court there had been no intervening change in law.

The Government argues Blakely’s application of Apprendi v. New

Jersey,

(2000), to state sentencing schemes is

insufficient to serve as the “controlling authority” required to

trigger the intervening authority exception to the mandate rule.

In Matthews II, the defendant had argued on initial appeal of

his sentence, based on a carjacking and conspiracy conviction, the

position that was subsequently adopted in Apprendi.

. On remand to the district court, defendant argued that

Apprendi was an intervening change of law, overruling this Court’s

prior holding on his initial appeal.

The district court

disagreed and resentenced him according to the government’s

recommendations. On second appeal, Matthews argued the mandate

rule permitted the district court to reconsider the enhancement on

one conviction (which, upon reconsideration, the district court had

9 not applied) and prohibited consideration of the enhancement as to

another.

The panel concluded that Apprendi was an intervening

change in controlling law that “overruled our [initial panel]

decision affirming [the] enhancement.”

.

The holding of Apprendi,

, forms the basis for

both Blakely,

, and Booker,

. As the Government argues, Appellants here did not anticipate

this error, as did the defendant in Matthews I, nor argue at

initial sentencing and on initial appeal that the facts supporting

enhancement must be charged in the indictment and proven to a jury

as required by the Fifth and Sixth Amendments. See Matthews II,

(quoting Matthews I, 178 F.3d at 302). This

Circuit’s law following Blakely and Booker also indicates that

Blakely’s issuance prior to Appellants’ resentencing was not an

intervening change in law such that an exception to Marmolejo

should apply. See United States v. Malveaux,

(5th Cir.), cert. denied,

(2005); United States v.

Mares,

(5th Cir.), cert. denied,

(2005); see also United States v. Higginbotham,

(5th Cir.) (per curiam) (refusing to consider Booker error where

defendant failed to raise the claim in his initial appeal and

raised the challenge for the first time in his petition for

certiorari), cert. denied,

(2005).

Appellants have not shown that an exception applies to the

10 mandate rule to permit the district court’s or this panel’s

reconsideration of the loss amount. Blakely’s issuance between

initial appeal of this cause and resentencing on remand is not an

intervening change in law sufficient to trigger that exception to

the mandate rule. Accordingly, we affirm the Appellants’

sentences, including the calculation of restitution, essentially

for the reasons provided by the district court.

III.

A.

Appellants also argue that the district court erred in

sentencing by improperly relying upon facts not found by a jury or

admitted, in violation of Booker. Citing Chapman v. California,

(1967), Appellants argue that harmless error

applies to our review of this issue because they preserved their

challenge by raising a Sixth Amendment challenge at initial

sentencing and that their failure to raise the issue on initial

appeal does not eviscerate this preservation. The Government

argues that plain error applies because Appellants failed to

preserve their challenge grounded in the Sixth Amendment by waiving

the issue on first appeal.

Addressing both the mandate rule and preservation, we have

previously held that the mandate rule did not foreclose

reconsideration of sentencing to allow the application of an upward

departure when “the issue was not waived in the prior appeal and .

11 . . arose out of the correction of the sentence of this court [on

initial appeal].” Lee II,

n.3, 323-24. Such is

not the case here where any objection originally raised grounded on

the Sixth Amendment was waived when Appellants abandoned the

argument on initial appeal to this Court. See

(citing, amongst

others, United States v. Hass,

(5th Cir. 1999)).

Appellants’ argument that to raise Apprendi at the time of

sentencing or on appeal would have been futile is not availing.

See United States v. Akpan,

(5th Cir. 2005). We

review Appellants’ sentences for plain error.

B.

Appellants bear the burden of showing plain error. See FED.

R. CRIM. P. 52(b); Mares,

. The parties agree that

the district court plainly erred by increasing Appellants’

sentences on the basis of facts other than prior convictions not

alleged in the indictment, admitted by Appellants, or proven to a

jury beyond a reasonable doubt. It is now clear that the district

court’s reliance on Pineiro I to deny Appellants’ challenge to the

enhancements and loss amount was error that is plain. Mares,

; see also Booker,

; Johnson v. United

States,

(1997).

Thus, in order to show reversible error, Appellants must show

that the plain error affected their “substantial rights.” See

Mares,

(citing United States v. Cotton,

625, 631 (2002)). To do so, Appellants must show that the error

“affected the outcome of the district court proceedings.” United

States v. Olano,

(1993).

The transcript of the sentencing hearing indicates that the

district court made no suggestion of an inclination to sentence

outside the Guidelines or hint of constraint to sentence within

them. There is no statement by the district court judge to

indicate what he might have done were the Guidelines not mandatory.

Thus, “[w]e do not know what the trial judge would have done had

the Guidelines been advisory.” Mares,

. And, on

such a record, Appellants cannot show that the district court,

sentencing under an advisory scheme, “would have reached a

significantly different result.”

Appellants cannot

demonstrate plain error on this record.

IV.

For the foregoing reasons, we AFFIRM Appellants’ sentences

essentially for the reasons provided by the district court and

because Appellants cannot demonstrate that the court plainly erred

under Booker.

AFFIRMED.

13