Friday, April 29, 2016

US v. Adebimpe, No. 14-10303 (4-27-16)(Murguia with Hurwitz; Paez dissenting). We have a circuit split here: Can there be an abuse of trust enhancement under 3B1.3 appropriate for suppliers of durable Medicare equipment--mobile electric wheelchairs. The majority says "yes" because the supplier has to make sure the wheelchair is correct, independent of the physician prescribing and final approval. (The physician here was in on the fraudulent prescribing). The defendant thus had managerial discretion.

The dissent argues that the supplying was just ministerial. The prescription came in and the electric wheelchairs rolled out.

The 9th sides with the 5th against the 11th. 
The decision is here:


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