United States v. Vehoski ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-18-2003
USA v. Vehoski
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2395
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"USA v. Vehoski" (2003). 2003 Decisions. Paper 451.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2395
UNITED STATES OF AMERICA
v.
MARY ALICE VEHOSKI,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 00-cr-00292
District Judge: The Honorable Thomas I. Vanaskie, Chief Judge
Submitted Under Third Circuit LAR 34.1(a)
June 6, 2003
Before: BARRY, FUENTES, Circuit Judges, and McLAUGHLIN,* District Judge
(Opinion Filed: June 17, 2003)
OPINION
*
Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge
Appellant Mary Alice Vehoski pled guilty to one count of health care fraud,
pursuant to 18 U.S.C. § 1347, based on an indictment charging that a company she
owned, Nurses Per Diem, billed Blue Cross for reimbursement of over $70,000 in nursing
services that were never provided to patients between September 1996 and September
1998. After crediting her acceptance of responsibility, the presentence investigation
report calculated that Vehoski had an adjusted offense level of 15 and 0 criminal history
points, for which the sentencing guidelines recommend a sentence of 18-24 months. The
District Court imposed the minimum sentence of eighteen months, finding no reason to
downwardly depart. Vehoski filed a notice of appeal pro se, and current counsel was
appointed. We denied his motion to withdraw as counsel, and this appeal followed. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will affirm.
Vehoski’s counsel filed an appellate brief raising only one issue: whether
Vehoski’s sentence violates her Eighth Amendment right to be free from cruel and
unusual punishment. This claim is based on the alleged cruelty of preventing Vehoski
from caring for her three young children for eighteen months while she serves her term of
imprisonment. “[F]amily ties and responsibilities ... are not ordinarily relevant in
determining whether a sentence should be outside the applicable guideline range.”
United States v. Sweeting, 213 F.3d 95, 99, 102-13 (3d Cir. 2000) (quoting § 5H1.6) (the
fact that defendant was single parent providing for five children, one of whom had
2
Tourette's Syndrome, did not constitute extraordinary circumstances justifying downward
departure). Moreover, an eighteen-month sentence for defrauding a victim of over
$70,000 is not “grossly disproportionate” to the crime. Lockyer v. Andrade, 123 S.Ct.
1166, 1173 (2003). Therefore, this issue is patently frivolous.
Moreover, based upon our independent review of the record, we conclude that the
District Court’s sentence comports with the applicable law and the sentencing guidelines.
See 18 U.S.C. § 1347; U.S. S ENTENCING G UIDELINES §§ 2B1.1(b)(1)(E), 3B1.3, 3C1.1.
The record reveals compliance with Federal Rules of Criminal Procedure 11 and 32 in the
conduct of the plea hearing and in the procedure followed at sentencing. We do not have
jurisdiction to review a reasonable sentence within the applicable guidelines range. See
18 U.S.C. § 3742(a); United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989).
We affirm.
/s/ Maryanne Trump Barry
Circuit Judge