United States v. Beverly Hannibal , 663 F. App'x 206 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1240
___________
UNITED STATES OF AMERICA
v.
BEVERLY HANNIBAL,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-14-cr-00291-001)
District Judge: Honorable Malachy E. Mannion
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
on September 9, 2016
Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges
(Opinion filed: October 20, 2016)
O P I N I O N∗
KRAUSE, Circuit Judge
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Appellant Beverly Hannibal contends the District Court erred in denying her
motions to withdraw her guilty plea and to continue her sentencing hearing, and she
challenges the reasonableness of her sentence. For the reasons stated below, we will
affirm.
I. Background 1
While Hannibal was being treated for cancer, she qualified for the services of an
in-home personal care worker funded by the Medicaid Home and Community Based
Services Attendant Care Program. Under the program, she was authorized to hire a care
worker, who would receive payment after Hannibal submitted timesheets reporting the
hours the caregiver worked. Hannibal hired her nephew and a friend and submitted time
sheets for work that she claimed they performed between 2013 and 2014. After Hannibal
was interviewed by the FBI and confronted with evidence that she submitted time sheets
for hours when neither care worker had actually provided services, she admitted that she
had submitted fraudulent reports and had received a portion of the proceeds from the
resulting payments.
Hannibal pleaded guilty to a single count of health care fraud in violation of 18
U.S.C. § 1347. In anticipation of sentencing, the Probation Office prepared a Presentence
Investigation Report (“PSR”), to which Hannibal filed objections. Before sentencing
1
Because we write primarily for the parties, we provide background only as
relevant to the issues on appeal.
2
took place, however, Hannibal’s counsel withdrew, citing Hannibal’s failure to cooperate
with her to prepare for sentencing.
Hannibal’s new counsel filed a motion to continue the sentencing date based on
Hannibal’s failure to appear or late appearance at four different appointments he had
attempted to schedule with her to prepare for sentencing and her failure to provide him
with medical records and information concerning potential witnesses. The District Court
granted that continuance. Two days before the new sentencing date, however, counsel
filed a motion on Hannibal’s behalf to withdraw her guilty plea. When the parties
appeared as scheduled, the District Court heard argument on the withdrawal motion and
denied it.
At that point, Hannibal’s new counsel made an oral motion to continue sentencing
“because of the difficulties in communicating with Ms. Hannibal” and her unwillingness
to discuss the PSR or her objections with him or to provide him with information
concerning her objection as to loss amount. App. 33a. After confirming with Hannibal
that she had received a copy of the PSR, had reviewed it and discussed objections with
prior counsel, and had not provided either her former or new counsel with information
they requested on loss amount or her medical condition, the District Court denied the
further continuance and proceeded to sentencing.
Hannibal was sentenced to ten months’ imprisonment, two years of supervised
release, and the payment of a $100 special assessment and $43,614.65 in restitution.
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II. Discussion 2
Hannibal argues that the District Court erred in denying her motion to withdraw
her guilty plea, in declining to continue her sentencing hearing, and in imposing sentence
based on an improper loss calculation. We address each argument in turn.
A. Denial of Hannibal’s Motion to Withdraw Her Guilty Plea
We review the District Court’s denial of Hannibal’s motion to withdraw her guilty
plea for abuse of discretion. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003).
“Once a court accepts a defendant’s guilty plea, the defendant is not entitled to withdraw
that plea simply at [her] whim. Rather, pursuant to Federal Rule of Criminal Procedure
32(e), a defendant must have a ‘fair and just reason’ for withdrawing a plea of guilty.”
Id. (citations omitted). In evaluating such a request, we consider “(1) whether the
defendant asserts [her] innocence; (2) the strength of the defendant’s reasons for
withdrawing the plea; and (3) whether the government would be prejudiced by the
withdrawal.” Id. The burden of establishing grounds for withdrawal is on the defendant,
and that burden is substantial. Id. Here, the District Court considered each of these
factors and did not abuse its discretion in concluding Hannibal failed to meet her burden.
As to the first factor, the District Court had a reasonable basis for discrediting
Hannibal’s belated assertion of innocence. Such an assertion must be supported by some
facts in the record, and the defendant must supply sufficient reasons to explain her
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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change in position before the district court. United States v. Brown, 250 F.3d 811, 818
(3d Cir. 2001). Here, however, Hannibal offered only her own proffer of her mental
state, claiming she was innocent because she was confused by the forms used to report
her care workers’ hours and lacked fraudulent intent. In rejecting that testimony, the
District Court took note of the “overwhelming” evidence of intent, including evidence
that Hannibal billed for aid services during a time when both she and the nephew
purportedly caring for her were in jail and evidence that she continued to fraudulently bill
for services even after the FBI approached her. App. 32a. In addition, Hannibal had
expressly admitted at the plea hearing that she received payments for individuals she
knew had not attended to her care during the periods of time she reported.
In considering the next factor, the District Court also reasonably found that the
two grounds put forward by Hannibal for withdrawing her guilty plea lacked credibility.
The first, that Hannibal allegedly felt pressured by her original counsel to plead guilty
was contrary to her statement under oath at the plea proceeding that no one had
“persuaded, induced, threatened or coerced [her] in any way to enter a plea of guilty.”
Change of Plea Hr’g Tr. 8, June 22, 2015, ECF No. 86. And aside from the fact that her
original counsel withdrew on the basis of an “irreparable breakdown in the attorney/client
relationship,” Hannibal offered no evidence or explanation about how her original
counsel in any way interfered with her decision to plead guilty. Appellee’s Br. 20; Mot.
to Withdraw as Att’y ¶ 9, Oct. 15, 2015, ECF No. 56. Hannibal’s second ground, that her
thinking allegedly was “clouded by medications” at the time of the plea, Appellant’s Br.
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13, also lacked support in the record and was contrary to her plea allocution. In response
to a specific question asked by the District Court as part of its colloquy, Hannibal
reported that no medications prevented her from understanding the proceedings. Thus,
no credible evidence supported Hannibal’s contention that her plea was anything but
knowing and voluntary.
The record also supports the District Court’s determination as to the third factor,
that is, that the Government would be prejudiced by a withdrawal. Hannibal argues that,
because she sought to withdraw her plea less than a year after it was entered, the
witnesses and documents still would have been available. The Government represented,
however, that Hannibal’s delay in waiting until the “eve of sentencing” to withdraw her
plea would make it difficult to reassemble witnesses and gather evidence for trial, App.
27a, and, as the District Court pointed out, that prejudice was heightened by the fact that
the underlying conduct dated back to three years before the withdrawal motion.
In sum, the District Court considered each of the relevant factors and did not abuse
its discretion in determining that Hannibal did not establish a “fair and just reason” to
withdraw the plea.
B. Denial of Hannibal’s Motion for Continuance
Hannibal next claims that the District Court abused its discretion in denying her
new counsel’s request for a second continuance of sentencing after her withdrawal
motion was denied. We only unsettle a denial of a continuance of a sentencing hearing
where it was “arbitrary and it substantially impaired the defendant’s opportunity to
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receive a fair sentence.” United States v. Olfano, 503 F.3d 240, 246 (3d Cir. 2007). An
opportunity for a fair sentence “requires that a defendant receive notice of, and a
reasonable opportunity to comment on, (a) the alleged factual predicate for his sentence,
and (b) the potential punishments which may be imposed at sentence.” United States v.
Ausburn, 502 F.3d 313, 322 (3d Cir. 2007). Those requirements were met here.
As the District Court confirmed before denying Hannibal’s motion for a second
continuance, Hannibal had received and reviewed the PSR with the Government’s loss
calculation; she discussed her objections with her original counsel; and she did not
provide either her former or new counsel with information they requested on loss amount
or her medical condition. Moreover, Hannibal had had nearly four months since her
counsel filed objections to obtain evidence of what she claimed was a more accurate loss
figure but instead of doing so or working with her counsel to do so, she missed or was
late for four different appointments her new counsel tried to schedule with her.
Under these circumstances, the District Court reasonably concluded that Hannibal
failed to cooperate with the efforts of her defense counsel to prepare for sentencing, that
she had sufficient notice and opportunity to be heard regarding sentencing, and that a
second continuance was not warranted.
C. Reasonableness of Hannibal’s Sentence
Hannibal’s last argument is that her sentence was unreasonable because it was
based on an erroneous loss calculation. Where, as here, “the asserted procedural error is
purely factual, our review is highly deferential and we will conclude there has been an
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abuse of discretion only if the district court’s findings are clearly erroneous.” United
States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). They were not.
Here, Hannibal’s PSR indicated that as a result of her fraud, the Government paid
out a total of $45,514.65, subjecting her to a six-level enhancement under U.S.S.G. §
2B1.1(a)(2) and resulting in a Guidelines range of ten to sixteen months’ imprisonment.
Once the Government made out its prima facie case of the amount of loss, “the burden of
production shift[ed] to the defendant to provide evidence that the Government’s evidence
[was] incomplete or inaccurate.” United States v. Jimenez, 513 F.3d 62, 86 (3d Cir.
2008); see also U.S.S.G. § 2B1.1 Application Note 3(F)(viii) (stating that, in the case of a
conviction for a federal health care offense involving a government health care program,
the dollar amount of fraudulent bills submitted to the program “is evidence sufficient to
establish the amount of the intended loss, if not rebutted”). Hannibal argued that the
Government’s loss figure should be reduced by the amount retained by her nephew and
his friend for services actually rendered, but she proffered no evidence to substantiate the
amount of that reduction. And while she asserted that her nephew and his friend had
received some in-kind benefits like housing and food and had retained more than the
$300 and $1,600, respectively, that they represented to government investigators, the
District Court found Hannibal’s testimony lacked credibility. Crediting the statements by
the care workers, the District Court reduced the loss amount by the $1,900 they reported
being paid, resulting in a loss figure of $43,614, which was still in excess of the $40,000
threshold for a six-level enhancement.
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Hannibal argues that her testimony should have been credited above the mere
“hearsay” reports of her nephew and his friend for a reduction below that $40,000
threshold. Appellant’s Br. 19. But hearsay testimony may be introduced at a sentencing
hearing, so long as it has some “minimal indicium of reliability,” United States v.
Robinson, 482 F.3d 244, 246 (3d Cir. 2007) (quoting United States v. Kikumura, 918
F.2d 1084, 1102 (3d Cir. 1990)), and the care workers’ reports were made in the course
of interviews with investigators—a context that gives them sufficient indicia of reliability
to be considered by the District Court.
To the extent Hannibal’s argument might be construed as a challenge to the
substantive reasonableness of her sentence, it is also meritless. Substantive
reasonableness is reviewed under an abuse-of-discretion standard, regardless of whether
the sentence falls within the Guidelines range, Wise, 515 F.3d at 218, and here, far from
abusing its discretion, the District Court based its decision on a careful and meaningful
review of the factors enumerated in 18 U.S.C. § 3553(a), including Hannibal’s
commission of the offense while on probation, her prior conviction involving forgery,
and the need for deterrence.
In sum, we discern neither procedural nor substantive error in the District Court’s
calculation of loss and imposition of sentence.
III. Conclusion
For the foregoing reasons, we will affirm Hannibal’s conviction and sentence.
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