In U.S. v. Gupta, No. 08-12248 (June 23, 2009), on a government appeal, the Court vacated the sentence of three years probation and no restitution imposed on a Medicare fraud defendant.
At sentencing, confronted with a government loss estimate of $3.4 million and a defendant estimate of zero, the district court split the difference and determined loss to be $1.5 million. The Court found this "arbitrary decision"
to be a failure to resolve the factual issues underlying the loss issue.
The Court also faulted the district court for granting an acceptance of responsibility sentence reduction, noting that the defendant had gone to trial and continued to protest his innocence after conviction. The reduction was a "gratuitous" decision.
The district court further abused its discretion in failing to order restitution. Restitution was mandatory under the Mandatory Victims Restitution Act.
Finally, the Court agreed with the government that the case should be reassigned to another judge for resentencing. Noting the district court’s "obvious" errors, the fact that the case had been remanded for resentencing several times before, and its failure to follow prior mandates, and the district court’s own suggestion that it is not capable of addressing the issues, reassignment was necessary "to preserve the appearance of justice."
