Case o' The Week: Doc Convicted When Patients Didn't Die - Wijegoonaratna and Ex Post Facto Issues at Sentencing

  Reports of impending deaths (unfortunately) exaggerated.

United States v. Wijegoonaratna, 2019 WL 1870688 (9th Cir. Apr. 26, 2019), decision available here.

Players: Decision by Judge Gould, joined by Judges Nguyen and Owens.
  Nice sentencing win in a tough case, by former CD Cal AFPD, current CD Cal CJA member Alyssa Bell.  

Facts: Dr. Wijegoonaratna certified patients as “terminal,” and eligible for Medicare-funded hospice care. Id. at *2. In reality, however, the majority of these patients did not die within six months (85% of hospice patients die in hospice). Id. at *1-*2. 

  Wijegoonaratna was convicted after trial of seven counts of healthcare fraud. Id. at *2. The district court sentenced Wijegoonaratna for six of the counts using revised guidelines that post-dated the conduct. Id. at *7. The defense did not object.

Issue(s): “Wijegoonaratna contends that the district court violated the ex post facto clause . . . by sentencing him under the revised Guidelines Manual on the six counts . . . arising from conduct that occurred before the revision.” Id. at *7. “The crux of the issue . . . is whether Wijegoonaratna was charged with a continuing offense. If so, application of the 2016 Guidelines . . . to all counts would not violate the ex post facto clause.” Id. at *8.

Held: “[T]he government’s decision to charge Wijegoonaratna with multiple counts has consequences. The government could have charged Wijegoonaratna’s offense as a continuing offense, but it chose not to do so. For that reason, the ex post facto rule that applies to continuing offenses—just like the statute of limitations rule for continuing offenses—does not apply here, where the health care fraud was charged as multiple counts. Instead, the district court was required to calculate and apply the guideline ranges from the Guidelines Manual in effect at the time of each count. It did not. We vacate Wijegoonaratna’s sentence and remand for further proceedings consistent with our decision.” Id. at *8.

Of Note: Wijegoonaratna didn’t object to the use of the revised guideline at sentencing, so what is the standard of review? In an interesting discussion, Judge Gould notes that this would typically be “plain error” review. Id. at *7. Because this ex post facto issue is a “purely legal” question, however, the panel reviewed this sentencing issue de novo. Id. 

  This approach isn’t without controversy –Judge Graber has sought to take this “purely legal” carve-out en banc. Id. (citing Yijun Zhou, 838 F.3d at 1015-17 (Graber, J., concurring)).

  Hopefully the en banc review suggested by Judge Graber never happens –until it does, this “purely legal” hook can help us avoid the pit of plain error.

How to Use: Wijegoonaratna was sentenced to 108 months – a term that was lower than both the old guideline, or the new revised guideline, ranges. Id. at *7 & n.3. Although the actual sentence imposed was below these guideline ranges, Wijegoonaratna still earned a remand for the ex post facto error. Id. Why? Because “regardless of whether the sentence imposed is inside or outside the Guidelines range,” the appellate court’s job is to “ensure that the district court committed no significant procedural error, such as . . . improperly calculating the Guidelines range.” Id.

  Twelve years after SCOTUS made this principle crystal clear in Gall, the government still argues on appeal that guideline error is harmless (or, in an odd recent government brief, that such guideline error is “moot.”) Use Wijegoonaratna footnote 3 to fend off this tiresome attack.      

                                               

For Further Reading: Does a DJ worry about the appellate standard of review, when contemplating a below-guideline sentence? An interesting piece tackles that question (and concludes, “it depends.”) See “Do Standards of Review Matter? The Case of Federal Criminal Sentencing, available here. 

  For a very helpful outline untangling the extraordinarily confusing standards of review, see the Ninth’s “S.O.R.” webpage, available here. 

Image of Mark Twain from https://kimblechartingsolutions.com/2018/02/bonds-poised-blast-off-similar-2000-2007/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.