USA v. Bryce Wood
Filing
Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge; Daniel A. Manion, Circuit Judge and Diane S. Sykes, Circuit Judge. [6716871-1] [6716871] [15-1495]
Case: 15-1495
Document: 32
Filed: 12/23/2015
Pages: 5
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1495
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
BRYCE WOODS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 595‐2 — Virginia M. Kendall, Judge.
____________________
ARGUED NOVEMBER 18, 2015— DECIDED DECEMBER 23, 2015
____________________
Before POSNER, MANION, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The defendant was found guilty of
multiple counts of health care fraud, 18 U.S.C. § 1347, and
Judge Kendall sentenced him to 70 months in prison (a
shade under six years). His appeal argues only that he
should be resentenced because the judge did not address one
of his arguments for a lighter sentence—that after commit‐
ting the fraud he landed an honest job and performed it in
Case: 15-1495
2
Document: 32
Filed: 12/23/2015
Pages: 5
No. 15‐1495
exemplary fashion, demonstrating that he has been rehabili‐
tated.
The fraud was the brainchild of a pair of companies (both
run by the same doctor) for which the defendant worked.
The companies purported to provide psychological services
to residents of nursing homes. The boss of the enterprise di‐
rected the defendant, who had significant administrative du‐
ties, to file almost 34,000 claims for Medicare reimbursement
for services that either were not provided at all or did not
comply with Medicare requirements for reimbursement. The
defendant, although not a psychologist, conducted some of
the phony treatment sessions himself; others were conduct‐
ed by unqualified graduate students. Had the claims of Med‐
icare reimbursement been paid in full, the government
would have been out almost $3.5 million between 2006 and
2011; as it was, the government paid the fraudulent enter‐
prise only $1.5 million. Judge Kendall correctly calculated a
guidelines range for the defendant of 70 to 87 months, and
the sentence she imposed was thus at the bottom of the
range.
The fraud ended in 2011 when the scheme was discov‐
ered; two years later the defendant started work for a com‐
pany called American Leaders, Ltd., which provides leader‐
ship training for business executives and is a subsidiary of
Fleming Group. His supervisor, a vice president of Ameri‐
can Leaders, wrote a letter submitted at the sentencing hear‐
ing praising the defendant as an exemplary employee and
saying that the defendant had been offered management po‐
sitions in several of the company’s overseas offices, though
of course he couldn’t exercise any of these options because
of his prosecution and conviction, of which the employer
Case: 15-1495
No. 15‐1495
Document: 32
Filed: 12/23/2015
Pages: 5
3
was aware. What his duties were at American Leaders is
somewhat unclear; according to his lawyer “he set[] up
meetings for persons who are trying to become better in
business.”
The defendant’s lawyer pressed the rehabilitation argu‐
ment at the sentencing hearing and the judge questioned
him about it, so she unquestionably was aware of it; but she
rejected it without explanation as a ground for giving the
defendant a below‐guidelines sentence. Ordinarily a crimi‐
nal defendant’s nonfrivolous argument for leniency requires
discussion by the sentencing judge, United States v. Hodge,
729 F.3d 717, 723–24 (7th Cir. 2013), but the argument of the
defendant in this case bordered on the frivolous. It is too pat
for a person convicted of a substantial business fraud to ask
for leniency on the ground that after the fraud ended he
went to work for a business that (we can assume) does not
engage in fraud. What would one expect him to do? He
landed the job within two months of his conviction, and in
the year and a half that followed (he remained free on bail
until he was sentenced in February 2015) unsurprisingly es‐
chewed (so far as anyone knows) fraudulent activity. That
tells a judge nothing about what business opportunities the
defendant might seek upon completion of a shorter prison
sentence than she was minded to impose; he might seek op‐
portunities that would enable him to engage in fraud again,
fraud being an activity in which he had a good deal of expe‐
rience.
If a defendant convicted of dangerous criminal activity
such as operating a drug stash house goes straight after be‐
ing released from prison in middle age there is a fair likeli‐
hood that he will remain straight because the type of crimi‐
Case: 15-1495
4
Document: 32
Filed: 12/23/2015
Pages: 5
No. 15‐1495
nal activity that he had engaged in is a young man’s game.
United States v. Poke, 793 F.3d 759, 760–61 (7th Cir. 2015);
United States v. Presley, 790 F.3d 699, 701–03 (7th Cir. 2015).
But there is little basis for confidence that a businessman will
eschew fraud when he re‐enters the job market after com‐
pleting his prison sentence. Fraud isn’t the type of crime one
ages out of, because it does not involve physical danger. So,
for example, Jeffery T. Ulmer & Darrell Steffensmeier, in
their chapter, “The Age and Crime Relationship: Social Vari‐
ation, Social Explanations,” in The Nature Versus Biosocial De‐
bate in Criminology: On the Origins of Criminal Behavior and
Criminality 377, 386–87 (Kevin Beaver et al., eds., 2014), place
fraud among “offenses with flatter age curves,” which “are
often those for which the structure of illegitimate opportuni‐
ties increases rather than disappears with age.”
The fact that a defendant convicted of fraud is able to se‐
cure a lawful job while on bail is thus not a persuasive rea‐
son for giving him a below‐guidelines sentence; it does not
prove rehabilitation; and so clear is this that the sentencing
judge is not to be faulted for failing to explain why it isn’t a
compelling reason for dipping below the bottom of the ap‐
plicable guidelines range. According to the presentence re‐
port, the defendant’s annual earnings when employed by
American Leaders were not quite $22,000, and if his criminal
record keeps his earnings depressed when he is released
from prison he may be tempted to try his hand at fraud
again, and may succumb to the temptation.
Since the defendant’s employment argument borders on
the frivolous, the sentencing judge was entitled to ignore it,
and to focus as she did on the other, more substantial argu‐
ments that the defendant made for leniency, having to do
Case: 15-1495
No. 15‐1495
Document: 32
Filed: 12/23/2015
Pages: 5
5
with the extent of his participation in the conspiracy and his
lack of any other criminal history. The judge also discussed
at length the details of the offense and the defendant’s fami‐
ly background. We are confident that she imposed an ap‐
propriately individuated sentence.
AFFIRMED
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?