Appeals Court Seems to Have No Problem With Tough Sentences But A Problem With Below Guidelines Sentences

United States v. Rick A. Kuhlman, No. 11-15959 Appeal from the United States District Court for the Northern District of Georgia (March 8, 2013) Before Hull, Wilson and Anderson, Circuit Judges Wilson, Circuit Judge: Vacated and Remanded Since the Supreme Court’s 1997 decision, Gall v. United States, in which the Court rejected an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range, the Eleventh Circuit has never found an upward variance sentence to be unreasonable. It has, on the other hand, found on several occasions that a downward variance sentence was unreasonable. Today’s decision adds one more to that collection. Appellant Rick Kuhlman pleaded guilty to perpetrating a five-year, $3 million health care fraud scheme. He was sentenced to probation for the “time served” while out on pre-trial release awaiting his sentence. Although the United States Sentencing Guidelines set forth a sentencing range of 57 to 71 months of imprisonment, Kuhlman was able to avoid a custodial sentence by simply paying the money back and performing community service, including speaking to medical and nursing students about the perils of health care fraud. On appeal, the Eleventh Circuit agreed with the government that Kuhlman’s sentence was unreasonable, and vacated the sentence and remanded the case back to the district court for resentencing. The Court held that the sentence imposed failed to achieve an important goal of sentencing in a white-collar crime prosecution: the need for general deterrence. The Court stated that it was hard-pressed to see how a non-custodial sentence serves the goal of general deterrence in this case. Insurance companies, the Court wrote, must rely on the honesty and integrity of medical practitioners in making diagnoses and billing for their services; deterrence is an important factor in the sentencing calculus, because health care fraud is so rampant that the government lacks the resources to reach it all. Thus, the Court held, when the government obtains a conviction in a health care fraud prosecution, one of the primary objectives of the sentence is to send a message to other health care providers that billing fraud is a serious crime that carries with it a correspondingly serious punishment. The full text of the decision can be found here: http://www.ca11.uscourts.gov/opinions/ops/201115959.pdf

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Ray Lopez has practiced since 1990, with prior experience as a Hillsborough County assistant State attorney and lawyer for the Tampa Police Department. He handles all criminal charges, from traffic violations and misdemeanors to serious felonies and federal drug charges. He practices in all state and federal courts of the Tampa Bay area and throughout Florida, as well as criminal appeals, juvenile court, administrative hearings, and civil forfeiture proceedings.

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