Case: 10-30974 Document: 00511509229 Page: 1 Date Filed: 06/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2011
No. 10-30974
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD MONTALBANO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:09-CR-294-1
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Richard Montalbano appeals the sentence imposed for his conviction for
three counts of healthcare fraud in violation of 18 U.S.C. § 1347. The district
court imposed consecutive terms of 12 months of imprisonment on all counts for
a total term of imprisonment of 36 months, concurrent terms of three years of
supervised release on all counts, a fine of $115,228.24, and restitution of
$22,051.24.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-30974 Document: 00511509229 Page: 2 Date Filed: 06/15/2011
No. 10-30974
There is no reversible plain error in the imposition of the term of
imprisonment. The imposition of consecutive sentences was not a departure
triggering the notice requirement of Federal Rule of Criminal Procedure 32(h).
See Irizarry v. United States, 553 U.S. 708, 714, 716 (2008). The district court’s
factual findings were not clearly erroneous, see United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006), and any findings implicating factual disputes that
could have been resolved by the district court if Montalbano had objected or
presented rebuttal evidence do not constitute plain error, see United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Though the imposition of three
consecutive 12-month sentences does not comply with U.S.S.G. § 5G1.2(c)
because it exceeds the total punishment of six to 12 months, Montalbano has
failed to carry his burden of demonstrating that the error affected his
substantial rights. See United States v. Ruiz-Arriaga, 565 F.3d 280, 282-83 (5th
Cir. 2009). Montalbano’s assertion that the district court failed to give any or
sufficient reasons to support its departure or variance from the Guidelines is
waived by virtue of inadequate briefing. See United States v. Reagan, 596 F.3d
251, 254-55 (5th Cir. 2010). Montalbano has also failed to demonstrate that the
term of imprisonment was substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
In addition, there is no reversible plain error in the imposition of the fine.
The record demonstrates that the district court gave reasons for imposing the
fine. Montalbano has not shown that he was entitled to notice of the district
court’s intent to impose a fine that was higher than the guidelines range. See
Irizarry, 553 U.S. at 716. Though the district court was not required to impose
a fine representing the costs of confinement and supervision in addition to a
punitive fine, see U.S. S ENTENCING G UIDELINES M ANUAL app. C, Vol. 1,
Amendment 572, at p. 427 (Nov. 1, 1997), § 5E1.2(d)(7), Montalbano has failed
to carry his burden of demonstrating that the error affected his substantial
rights. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006).
2
Case: 10-30974 Document: 00511509229 Page: 3 Date Filed: 06/15/2011
No. 10-30974
Montalbano has also failed to demonstrate that the fine was substantively
unreasonable. See Gall, 552 U.S. at 51.
The judgment of the district court is AFFIRMED.
3