United States v. Cherie Dillon ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 14 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30122
Plaintiff-Appellee, D.C. No.
1:16-cr-00037-BLW-1
v.
CHERIE RENEE DILLON, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-30235
Plaintiff-Appellant, D.C. No.
1:16-cr-00037-BLW-1
v.
CHERIE RENEE DILLON,
Defendant-Appellee.
Appeals from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted December 5, 2018
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
Cherie Renee Dillon appeals from her guilty plea to twenty-four counts each
of health care fraud and aggravated identity theft. The government cross-appeals,
challenging only the district court’s calculation of restitution. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We dismiss Dillon’s appeal and vacate the
restitution order and remand for re-calculation of restitution.1
1. Dillon’s Direct Appeal. We review de novo the validity of an appeal waiver.
See United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016). An
appeal waiver is valid and enforceable if, among other requirements, it was
included in the terms of a knowing and voluntary guilty plea. Id. “A failure to
ensure that a defendant understands his range of exposure may violate the
requirement that a guilty plea be ‘knowing and voluntary.’” United States v.
Forrester, 616 F.3d 929, 938 (9th Cir. 2010). To satisfy this obligation, “district
courts in this circuit . . . must inform defendants pleading guilty of the direct
consequences of their plea and resulting conviction[.]” United States v. Littlejohn,
224 F.3d 960, 965 (9th Cir. 2000).
1
Because the parties are familiar with the facts and arguments on
appeal, we do not recite them.
2
The record demonstrates that Dillon was warned of the direct consequences
of her plea. The district court’s plea colloquy was extensive: it warned Dillon that
the PSR might include losses related to conduct for which she had not pleaded
guilty; that the loss amount would be the primary driver of her guideline range;
that forfeiture was implicated; and that the government could pursue a loss theory
for more than the amount alleged in the indictment. Dillon verbally acknowledged
each of these warnings. Because her plea was knowing and voluntary, Dillon’s
waiver of her appellate rights—including her right to challenge the forfeiture and
restitution orders—bars any further consideration of her claims and we must
dismiss her appeal. See Medina-Carrasco, 815 F.3d at 461–63 (enforcing
appellate waiver where it was knowingly and voluntarily made and dismissing
appeal).
2. The Government’s Cross-Appeal. The Mandatory Victims Restitution Act
of 1996 (“MVRA”) provides that “the court shall order . . . that the defendant make
restitution to the victim of the offense” following conviction for certain types of
crimes. 18 U.S.C. § 3663A(a)(1). “The legality of an order of restitution is
reviewed de novo, and factual findings supporting the order are reviewed for clear
error.” United States v. Luis, 765 F.3d 1061, 1065 (9th Cir. 2014) (internal
quotation marks omitted).
3
Although restitution is meant to compensate victims for their “actual
losses[,]” United States v. Hunter, 618 F.3d 1062, 1064 (9th Cir. 2010) (internal
quotation marks and emphasis omitted), “[u]nder the MVRA, restitution ‘may be
awarded only for losses for which the defendant’s conduct was an actual and
proximate cause.’” United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013) (per
curiam) (quoting United States v. Kennedy, 643 F.3d 1251, 1261 (9th Cir. 2011)).
Applying these principles, we conclude that the district court properly deducted
billings for services provided by contract dentists because the only evidence is that
those dentists performed their own examinations before providing services. Their
examinations constitute an “intervening cause” that severs the chain of proximate
causation between Dillon’s fraudulent conduct and payments by the victim
insurers. Id. (internal quotation marks omitted)
However, we further conclude that the district court should not have
deducted billings for hygiene services Dillon performed. Even billings for services
within the scope of her license were fraudulent because Dillon was not supervised
and she was not authorized to perform these services without supervision.
Accordingly, we vacate only the district court’s restitution order and remand
for recalculation of restitution. On remand, the district court shall calculate a new
restitution figure that includes billings for Dillon’s hygiene services.
4
Dillon’s appeal is DISMISSED; the restitution order is VACATED; and
the case is REMANDED for re-calculation of restitution.
5