United States v. Alston , 248 F. App'x 396 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-21-2007
USA v. Alston
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3065
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"USA v. Alston" (2007). 2007 Decisions. Paper 401.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3065
____________
UNTIED STATES OF AMERICA
vs.
MICHAEL ALSTON,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 05-cr-00332-1 )
District Judge: Honorable Petrese B. Tucker
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 18, 2007
Before: SLOVITER, SMITH and WEIS, Circuit Judges.
Filed September 21, 2007
____________
OPINION
WEIS, Circuit Judge.
Defendant Michael Alston pleaded guilty to two counts of mail fraud in
violation of 18 U.S.C. § 1341 and twelve counts of health care fraud in violation of 18
U.S.C. § 1347. Before accepting his guilty plea, the District Court engaged defendant in
an extensive colloquy during which defendant repeatedly assured the Court that he
understood the charges, was guilty, and wished to plead guilty. Three months later,
however, defendant filed a motion to withdraw his guilty plea, asserting his innocence.
The District Court rejected the motion and proceeded to sentence defendant to 57 months
imprisonment and three years of supervised release and ordered him to pay $800,000
restitution and a $1,400 special assessment.
On appeal, defendant contends that the District Court erred in calculating
the Guidelines range applicable to his conduct in two instances:
1. By adding a two level enhancement under § 3C1.1 for obstruction of
justice; and
2. By adding a four level enhancement under § 3B1.1(a) because of the
defendant’s role as organizer and leader of the fraudulent scheme.
Defendant also contends that the District Court did not properly consider
the relevant § 3553(a) sentencing factors.
In the hearing on the motion to withdraw his guilty plea, defendant testified
at length as to his innocence and his reasons for admitting his guilt during the plea
colloquy. At sentencing, the district judge said that she was assessing the enhancement
for obstruction of justice under the Guidelines, “not because Mr. Alston had exercised his
right to seek to withdraw his plea, but because of the lack of credibility with which he
approached this court.”
We have reviewed the testimony of defendant at the hearing on the
2
withdrawal of his plea and compared it with the expansive colloquy at the guilty plea
proceeding. We conclude that the District Court made sufficient findings to support the
enhancement. The record demonstrates that the District Court included a finding that
defendant was untruthful in his statements at the hearing on the motion to withdraw the
guilty plea. See United States v. Boggi, 74 F.3d 470, 479 (3d Cir. 1996); U.S.S.G. §
3C1.1 cmt. n.4(f) (obstruction of justice includes “providing materially false information
to a judge or magistrate”). Accordingly, we find no error in the enhancement for
obstruction of justice.
The evidence also supports the enhancement for the defendant’s role as a
leader and organizer of the fraudulent scheme. With respect to leadership, the District
Court said, “Mr. Alston was a person who ran the show. . . . [H]e certainly implemented
[the scheme].” The evidence showed that defendant instituted a practice of submitting
bills and medical reports to insurance companies for medical treatment and physical
therapy sessions that never took place. The record also indicates that he hired and trained
clerical workers who submitted the fraudulent bills and he lead staff meetings where he
established procedures for defrauding the insurance companies. In addition, defendant
owned and operated the relevant businesses and benefitted from the fraudulent scheme.
3
We are persuaded that this is ample evidence to support the finding that
defendant was a leader and organizer of the fraudulent scheme.1
Finally, the record indicates that the District Court adequately considered
the relevant § 3553(a) factors in this case. See United States v. Cooper, 437 F.3d 324,
330 (3d Cir. 2006).
Accordingly, the Judgment of the District Court will be affirmed.
1
Defendant does not dispute that the scheme involved more than five
participants. See U.S.S.G. § 3B1.1(a).
4