United States v. Ira Klein , 491 F. App'x 493 ( 2012 )

Case: 11-20894 Document: 00512050365 Page: 1 Date Filed: 11/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2012
No. 11-20894
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IRA KLEIN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-56-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
In August 2007, Dr. Ira Klein was convicted by jury verdict of 18 counts
of mail fraud and 26 counts of health care fraud. In his first appeal, we affirmed
Klein’s convictions, but vacated the sentence and the restitution order because
the district court’s loss calculation neglected to discount the intended loss by the
average wholesale price (AWP) of the drugs that had been dispensed for self-
administration. United States v. Klein, 543 F.3d 206, 214-16 (5th Cir. 2008).
After a second vacatur and remand, the district court sentenced him to a total
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20894
of 135 months of imprisonment, three years of supervised release, and
$6,212,618.35 in restitution.
Klein filed a motion in this court seeking leave to file an out-of-time
addendum to his reply brief in order to include a list of his objections from the
second resentencing hearing into the appellate record. Because the transcript
of that hearing has been included in the appellate record, that motion is denied
as unnecessary.
In his first claim in this appeal, Klein argues that the district court
violated his right to a timely sentencing hearing under the Sixth Amendment
and Federal Rule of Criminal Procedure 32(a)(1). In Juarez-Casares v. United
States, 496 F.2d 190, 192 (5th Cir. 1974), this court stated that a trial judge is
bound by both Rule 32 and the Sixth Amendment’s Speedy Trial Clause in
sentencing a defendant in a timely manner. We review a Speedy Trial Clause
claim de novo. United States v. Green, 508 F.3d 195, 202 (5th Cir. 2007). The
parties differ as to whether the relevant period for Speedy Trial Clause purposes
should be measured cumulatively or only from the last remand. Even if the
period is measured cumulatively, thereby triggering the full four-step analysis,
Klein’s claim fails because he has not shown that the first three factors weigh in
his favor or that he has suffered actual prejudice. See United States v. Parker,
505 F.3d 323, 330 (5th Cir. 2007). Similarly, his Rule 32(a)(1) claim also fails
because he has not shown actual prejudice. See United States v. James, 459 F.2d
443, 444-45 (5th Cir. 1972).
Klein next asserts that the district court violated Rule 32(c)-(g) by failing
to require the Government to produce its sentencing evidence in a timely
manner. It is not clear that any of the documents submitted by the Government
or the probation officer regarding Klein’s second resentencing hearing were
subject to Rule 32's disclosure requirements. However, even if there was a Rule
32 error regarding disclosure, it was harmless because Klein had an adequate
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No. 11-20894
opportunity to object to those documents. See United States v. Arthur, 432 F.
App’x 414, 431 (5th Cir. 2011).
In his next issue, Klein contends that the district court erred by accepting
the Government’s loss calculations and that the methods used in those
calculations violated the mandate rule. We review the district court’s
application of the Guidelines de novo and its findings of fact for clear error.
Klein, 543 F.3d at 213. Examination of the record shows that the district court
did not err when determining the intended, rather than actual, loss and followed
this court’s instructions when calculating the amount of credit due to Klein for
the self-administered drugs including the date on which his offense was
detected. Similarly, the district court also did not err in determining the amount
of restitution.
Also, Klein asserts that he is actually innocent of his crimes of conviction
because the victim insurance companies did not actually incur any actual losses
and the insurance companies instigated these false charges against him to
obfuscate their own fraudulent practices. Despite his argument to the contrary,
his claim does not meet the exception to the mandate rule for a miscarriage of
justice. See United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006). To
the extent that he alleges in his reply brief that he is actually innocent because
nothing in his alleged scheme to defraud was published in the Federal Register,
we will not consider arguments first raised in a reply brief. See United States
v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
The judgment of the district court is affirmed.
MOTION TO FILE AN OUT-OF-TIME ADDENDUM DENIED; AFFIRMED.
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