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


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "USA v. Alston" (2007). 2007 Decisions. Paper 401.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/401
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    NOT PRECEDENTIAL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
    

Document Info

Docket Number: 06-3065

Citation Numbers: 248 F. App'x 396

Filed Date: 9/21/2007

Precedential Status: Non-Precedential

Modified Date: 1/12/2023