United States v. Enitan Isiwele ( 2012 )

Case: 11-40648 Document: 00512016524 Page: 1 Date Filed: 10/11/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 11, 2012
No. 11-40648
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ENITAN OSAGIE ISIWELE,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:08-CR-163-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges
PER CURIAM:*
Enitan Osagie Isiwele appeals the 78-month sentence imposed on remand
following his convictions for health care fraud and conspiracy to pay kickbacks
in connection with a scheme to fraudulently bill Medicare/Medicaid for power
wheelchairs. See United States v. Isiwele, 635 F.3d 196, 198 (5th Cir. 2011). We
remanded the case to the district court because the district court’s method for
determining the loss amount attributable to Isiwele under U.S.S.G. § 2B1.1(b)(1)
required clarification. Id. at 198.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40648 Document: 00512016524 Page: 2 Date Filed: 10/11/2012
No. 11-40648
Isiwele, proceeding pro se, contends that the district court violated Federal
Rule of Criminal Procedure 32 because it failed to make any factual finding with
respect to whether the $3,600 he received for Doris Becks’s power wheelchair
was fraudulently obtained and that the district court failed to properly calculate
the loss amount and restitution owed because it did not reduce those amounts
by the $3,600 reimbursed for Becks’s wheelchair and by $50,000 for work he
performed “which has been held up since the beginning of the case.” In addition,
he argues that the district court erred as a matter of law when it recalculated
the loss amount under § 2B1.1 because it did not make an independent factual
determination and instead deferred to the jury’s factual finding in the forfeiture
proceeding.
Isiwele’s arguments that the loss amount and the amount of restitution
owed should be reduced by $3,600 and $50,000 were not raised in his original
appeal, and are, pursuant to the mandate rule, beyond the scope of our remand.
See United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008); United States v.
Lee, 358 F.3d 315, 323 (5th Cir. 2004); United States v. Marmolejo II, 139 F.3d
528, 531 (5th Cir. 1998). Isiwele has not demonstrated that these arguments fall
within an exception to the mandate rule. See United States v. Matthews, 312
F.3d 652, 657 (5th Cir. 2002). These arguments will therefore not be considered
in this subsequent appeal.
We review Isiwele’s argument that the district court violated Rule 32 and
his challenge to the district court’s methodology for calculating the loss based
upon the forfeiture verdict for plain error as he did not raise those objections in
the district court. See United States v. Reyna, 358 F.3d 344, 349-50 (5th Cir.
2004) (en banc). To establish reversible plain error, Isiwele must show a clear
or obvious forfeited error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). This court retains discretion to correct
reversible plain error and generally will do so only if it seriously affects “the
fairness, integrity, or public reputation of the proceedings.” Id.2
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No. 11-40648
As the issue concerning the $3,600 reimbursement for Becks’s wheelchair
was abandoned in Isiwele’s original appeal and was beyond the scope of the
remand, the district court did not need to make a factual finding with respect to
that objection at resentencing. The district court nevertheless considered the
issue and did in fact make a finding with respect to that objection by crediting
the information in the presentence report (PSR) and the jury’s finding
concerning loss over Isiwele’s conclusory and unsupported assertion that the
reimbursement for Becks’s wheelchair was legitimate. Isiwele has not
demonstrated any plain error with respect to his challenge under Rule 32.
See FED. R. CRIM. P. 32(i)(3)(B).
Given the information in the PSR and the jury’s finding in the forfeiture
proceeding, the sentencing court made a reasonable estimate of loss under
§ 2B1.1(b)(1), and Isiwele has not shown that the district court’s methodology for
calculating the loss was clear or obvious error. See Isiwele, 635 F.3d at 203;
United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009); United States v. Jones,
475 F.3d 701, 705 (5th Cir. 2007). Although Isiwele has submitted supplemental
exhibits with his appellate brief to this court that purportedly support his
argument that Becks’s reimbursement was nonfraudulent, we do not consider
new evidence furnished for the first time on appeal and may not consider facts
which were not before the district court at the time of its ruling. Because we do
not conclude that this case should be remanded, we do not consider Isiwele’s
request that his case be reassigned to a different district court judge.
Isiwele’s sentence is AFFIRMED. All outstanding motions are DENIED.
3