United States v. Bahram Khanali , 350 F. App'x 432 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10414 ELEVENTH CIRCUIT
OCTOBER 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00091-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BAHRAM KHANALI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 29, 2009)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Bharam Khanali, a chiropractor licensed to practice in Florida, appeals from
his 60-month sentence imposed after pleading guilty to one count of conspiracy to
commit health care fraud, 18 U.S.C. §§ 371 & 1347. On appeal, Khanali argues
that: (1) the district court erred in denying an acceptance of responsibility sentence
reduction; and (2) his sentence is unreasonable. After careful review, we affirm.
We review a district court’s factual findings concerning a reduction for
acceptance of responsibility for clear error. United States v. Williams, 408 F.3d
745, 756 (11th Cir. 2005). We review the ultimate sentence a district court
imposes for “reasonableness,” which “merely asks whether the trial court abused
its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)
(quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).
First, we reject Khanali’s claim that the district court erred in denying him
an acceptance of responsibility sentence reduction. Section 3E1.1 of the
Sentencing Guidelines permits a district court to give a defendant a sentence
reduction if “the defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). However, “[a] defendant who enters a guilty
plea is not entitled to an adjustment . . . as a matter of right.” U.S.S.G. § 3E1.1
cmt. n.3. While a guilty plea constitutes significant evidence of acceptance of
responsibility, that evidence may be outweighed by conduct that is inconsistent
with acceptance. United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997).
Appropriate considerations include the defendant’s “voluntary termination or
withdrawal from criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.1(b). We previously
2
have held that subsequent criminal activity may be considered, even if unrelated to
the offense of conviction. United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994).
Like the defendant in Pace, Khanali tested positive for marijuana in violation
of his bond terms, and although this criminal conduct was unrelated to the offense
of conviction, it nonetheless could be considered. Id. The district court thus did
not clearly err in denying Khanali an acceptance of responsibility reduction.
We also find no merit in Khanali’s argument that his sentence was
unreasonable. In reviewing sentences for reasonableness, we perform two steps.
Pugh, 515 F.3d at 1190. First, we must “‘ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.
United States, 128 S.Ct. 586, 597 (2007)).1 If we conclude that the district court
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
3
did not procedurally err, we must consider the “‘substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard,’” based on the “‘totality
of the circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in section 3553(a).”
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation
omitted). We ordinarily expect that a sentence within the advisory guidelines
range will be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008). While the district court must consider the § 3553(a) factors, it is not
required to discuss each individually. United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005). The district court must merely acknowledge “that it has
considered the defendant’s arguments and the [§ 3553(a)] factors.” Id.
As applied here, Khanali has not shown that his 60-month sentence is
procedurally reasonable. Regarding Khanali’s argument that the loss amount
calculated in the PSI was unsupported, Khanali agreed to the loss amount below,
and his argument on appeal therefore must be rejected as invited error. See United
States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party.”) (quotations omitted). Moreover, contrary to
4
Khanali’s claim, the district court did not consider Hernandez’s PSI when it
imposed Khanali’s sentence; it stated that it was “not including facts necessarily”
and did not mention any such facts while imposing the sentence. Lastly, the
district court acknowledged the nature of the offense, the sentencing Guidelines,
the statements by Khanali and his family, and the seriousness of the crime. The
record thus shows that the district court considered the factors in § 3553(a), and its
failure to explicitly discuss each factor does not render the sentence procedurally
unreasonable. Talley, 431 F.3d at 786.
Similarly, Khanali has not shown that his sentence, within the Guidelines
range, is substantively unreasonable. As the district court found, the offense in
question is a serious offense involving over a million dollars in healthcare fraud.
The district court discussed the impact of such fraud on society. The district court
also took into account Khanali’s background and character, as well as his family.
And while it chose to give more weight to the seriousness of the offense, which is
within the district court’s discretion, we will not substitute our own judgment in
weighing the factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.
2007).
AFFIRMED.
5