When You Do the Crime You Must Do the Time
Post 4851

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Thomas Sher was convicted of health care fraud and conspiracy to commit the same. The District Court sentenced him to ninety-six months' imprisonment. Sher appealed his sentence, arguing that the court erred in its loss calculation and in its application of a sophisticated means enhancement.

In United States Of America v. Thomas Sher, No. 23-2337, United States Court of Appeals, Third Circuit (August 1, 2024) the Third Circuit dealt with the felon's claims for a shorter sentence.

BACKGROUND

Sher worked as a firefighter with the Margate Fire Department from 2003 to 2019 and as a fitness trainer beginning in 2014. In 2015, he joined an ongoing conspiracy to commit insurance fraud by convincing acquaintances with state-provided health insurance plans to purchase medically unnecessary compound medications.

At the center of the conspiracy was Central Rexall Drugs, Inc. (CRD), a Louisiana based compounding pharmacy that produced the medications. CRD paid commissions to a pharmaceutical sales representative, William Hickman, for each prescription that he or those working for him originated. Hickman enlisted recruiters, including Sher's brother Michael, and instructed them to target individuals with state-provided insurance plans and sign them up for the maximum number of refills. The recruiters were paid a percentage of Hickman's commissions based on the amount of prescriptions they sold. The recruiters in turn enlisted and paid commissions to their own "pods" of sub-recruiters.

As a sub-recruiter in Michael's pod, Sher was at the lowest level of the conspiracy. In furtherance of the conspiracy, Sher approached friends and family about purchasing a wellness supplement made by CRD, offering cash payments and free gym memberships as incentives. Sher instructed the individuals he enrolled to fill in demographic and insurance information on pre-printed prescription forms, then sent the forms up the chain to Michael and eventually to Hickman. Hickman then arranged for a doctor to sign the forms, often without evaluating the patients. In total, Sher submitted prescriptions for eighteen people, causing $936,889.28 of fraudulent insurance reimbursements, while Michael's pod was responsible for $7,059,888.28 of fraudulent reimbursements.

After a jury trial, Sher was convicted on four counts of healthcare fraud and conspiracy to commit the same. The Probation Office (PO) prepared a Presentence Report (PSR) in which it calculated a total offense level of 31 and a Criminal History category of I, resulting in a guidelines range of 108 to 135 months' imprisonment. As relevant to Sher's appeal, the PSR applied an eighteen-level enhancement for causing a loss between $3.5 million and $9.5 million and a two-level enhancement for use of sophisticated means.  The PSR explained that because Sher "conspired and jointly engaged in health care fraud with his brother[,] . . . the loss amounts associated with [Michael's] prescriptions were within the scope of the jointly undertaken criminal activity and reasonably foreseeable to [] Sher pursuant to U.S.S.G. §1B1.3(1)."

At sentencing, Sher objected to the loss calculation, arguing that it penalized him for exercising his right to trial. He also argued that the sophisticated means enhancement should not apply. The District Court overruled both objections. After applying a two-level downward departure, resulting in an offense level of twenty-nine, the court sentenced Sher to ninety-six months' imprisonment.

DISCUSSION

Sher appealed claiming that the loss calculation and application of the sophisticated means enhancement amounted to unconstitutional trial penalties.

First, in cases of jointly undertaken criminal activity, the courts have considered as relevant conduct the actions of others if they were (i) within the scope of jointly undertaken criminal activity, (ii) in furtherance of the criminal activity, and (iii) reasonably foreseeable in connection with the criminal activity.

Second, Sher argued that the District Court erred by applying a sophisticated means enhancement. The District Court applied the enhancement based on the duration of the conspiracy, Sher's efforts to avoid detection, and the fact that the scheme involved sixty-nine participants, among other factors that supported its application.

Third, Sher maintained that the District Court unconstitutionally penalized him for exercising his right to a trial. Sher was not punished for going to trial. He chose to forego favorable terms that his co-conspirators received in exchange for pleading guilty. Indeed, the government offered Sher a plea deal that stipulated to a loss amount between $550,000 and $1.5 million. Sher rejected that offer.

The District Court was not required to give Sher the benefit of a bargain that he had turned down simply because his codefendants accepted similar terms.

ZALMA OPINION

When a criminal turns down a favorable plea bargain and insists on trial by jury, the conviction required a sentence greater than the one offered before trial he must do the time the jury trial required. He cannot obtain a smaller sentence just because his codefendants accepted the same terms he was offered and turned down.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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