United States v. Florence Kroma ( 2018 )

Case: 16-41172 Document: 00514412886 Page: 1 Date Filed: 04/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41172
FILED
April 3, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FLORENCE B. KROMA, also known as Florence Kamara, also known as
Florence Koroma, also known as Florence Bangura,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-CR-165-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Florence B. Kroma appeals the sentence imposed after her conviction by
a jury of nine counts of health care fraud. She challenges the district court’s
adoption of the uncontroverted $775,099.09 loss amount reflected in her
presentence investigation report (PSR) as the basis for (1) a 14-level
enhancement to her offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(H) and
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-41172
(2) a restitution award in that amount. We review these unpreserved
arguments for plain error. See United States v. Hearns, 845 F.3d 641, 648 (5th
Cir.), cert. denied, 137 S. Ct. 2143 (2017); United States v. Inman, 411 F.3d 591,
595 (5th Cir. 2005).
With respect to the § 2B1.1(b)(1)(H) offense-level enhancement, the
district court was entitled to adopt the PSR’s findings, including the calculation
of the loss amount, “without additional inquiry if those facts have an
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
is materially unreliable.” Hearns, 845 F.3d at 650 (internal quotation marks
and citation omitted). Kroma did not present rebuttal evidence or demonstrate
that the loss amount was materially unreliable, and she fails to demonstrate
on appeal that the PSR lacked an evidentiary basis with sufficient indicia of
reliability; accordingly, she fails to establish that the district court erred by
sentencing her based on the loss amount in the unrebutted PSR. See United
States v. Ayika, 837 F.3d 460, 467 (5th Cir. 2016).
With respect to the restitution award, Kroma is correct, and the
Government concedes, that the district court erred by awarding restitution for
losses outside the specific temporal scope of the fraudulent scheme charged in
the indictment, and that the error was clear or obvious and affected Kroma’s
substantial rights. See United States v. Lozano, 791 F.3d 535, 537 (5th Cir.
2015); United States v. Mason, 722 F.3d 691, 695 (5th Cir. 2013); Inman,
411 F.3d at 595. We have previously held that failing to correct this type of
error would “constitute manifest injustice in the minds of most jurists,” Mason,
722 F.3d at 695, and “[i]n every case where a district court plainly erred by
ordering restitution for losses that occurred outside the proper temporal scope,
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No. 16-41172
we have exercised our discretion to correct the problem,” Lozano, 791 F.3d at
539. We exercise our discretion to correct the error in this case as well.
Accordingly, we VACATE the restitution award and REMAND to the
district court for recalculation of the amount of restitution in accordance with
this opinion. In all other respects, Kroma’s conviction and sentence are
AFFIRMED. Kroma’s motion for appointment of substitute counsel is
DENIED.
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