UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5053
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL R. BENNETT,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00045-TDS-1)
Submitted: June 13, 2011 Decided: June 23, 2011
Before NIEMEYER, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Robert M. Hamilton, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Michael R.
Bennett pled guilty to three counts of wire fraud, in violation
of 18 U.S.C. § 1343 (2006) (Counts One, Fourteen, and Fifteen),
and one count of making a false statement, in violation of 18
U.S.C. § 1001(a)(3) (2006) (Count Twenty-One). We affirm.
The Government charged Bennett based on his scheme to
defraud employers and background screening companies of money
and property by misrepresenting to those victims that he and his
company, Workplace Compliance, Inc. (“WCI”), provided drug
testing services in compliance with U.S. Department of
Transportation (“DOT”) regulations. Specifically, Bennett and
WCI fraudulently purported to provide drug testing services to
employers covered by DOT regulations 49 C.F.R. § 40.1 — .413
(2010). Those regulations require that covered workers submit
to drug screening reviewed by a licensed physician trained in
substance abuse and designated as the Medical Review Officer
(“MRO”). 49 C.F.R. §§ 40.3 and 40.121. Under the regulations,
if a drug screening returns a non-negative result, the MRO
receives the result, interviews the worker, and determines
whether the result indicates illicit drug use. Here, the doctor
identified as the MRO for WCI neither held certification as an
MRO nor acted as MRO for WCI. Rather, Bennett — who is not a
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physician — reviewed drug screenings and performed all duties
required of the MRO.
Generally, this court reviews a sentence for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). However, because
Bennett did not raise this objection in the district court, this
court reviews for plain error. 1 See Fed. R. Crim. P. 52(b);
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). To
prevail on a claim of unpreserved error, Bennett must show that
error occurred, was plain, and affected his substantial rights.
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). Even if such error is found, it is within this court’s
discretion to notice the error, and we do so “only if the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted).
The Guidelines direct courts to determine a
defendant’s offense level for fraud commensurate with the amount
1
At sentencing, Bennett did not object to the loss amount
used to calculate his Guidelines range but only the amount used
to determine restitution. Bennett asserts that his objection
below preserved his challenge to the loss calculation. However,
we have held that objection on one ground does not preserve
claims on different grounds. United States v. Massenburg, 564
F.3d 337, 342-43 & n.2 (4th Cir. 2009) (reviewing unpreserved
Rule 11 error).
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of loss involved in the fraud. See U.S. Sentencing Guidelines
Manual (“USSG”) § 2B1.1(b)(1) (2009). In the presentence
investigation report (“PSR”), the probation officer added twelve
levels to Bennett’s offense level based on the total provable
loss to victims of $337,030. 2 With a total offense level of
eighteen and a criminal history category of I, Bennett earned a
Guidelines range of twenty-seven to thirty-three months of
imprisonment. USSG ch. 5, pt. A (sentencing table). The
probation officer calculated restitution of $398,335 based on
the amount of loss attributable to fifteen specific victims.
Bennett noted an objection only to the amount of restitution.
At the sentencing hearing, the district court spent considerable
time resolving the restitution issue, then imposed a below-
Guidelines sentence of twenty-two months, and $209,030 in
restitution.
On appeal, Bennett asserts that the district court
committed procedural sentencing error in its calculation of loss
and therefore erred in establishing his recommended Guidelines
range. He contends that because some of the drug testing he
2
The probation officer noted that although Bennett
defrauded a broad range of victims, the Government focused on
the fraud perpetrated against fifteen victims in the healthcare
and transportation industries in computing “total loss” for
purposes of USSG § 2B1.1(b)(1)(G). The probation officer noted
that Bennett purported to provide these specified victims with
services mandated by federal regulation.
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contracted to perform did not require DOT compliance, victims
did not suffer a loss as to those tests. Bennett concedes that
under USSG § 2B1.1, loss may be actual, intended, or estimated
loss to victims, or gain to defendant. USSG § 2B1.1 cmt.
n.3(A), (B). He asserts that in this instance, loss is only the
financial gain he received for DOT-regulated testing that he
failed to provide. Bennett further argues that because the
Government failed to submit evidence denoting what quantum of
testing was DOT-regulated as compared to unregulated, the
district court had no factual basis on which to base its loss
calculation for purposes of determining his offense level. 3 As
support for his argument, Bennett relies on this court’s opinion
in United States v. Dawkins, 202 F.3d 711 (4th Cir. 2000).
Dawkins, a former federal employee, was required to
provide periodic certification to retain disability benefits.
202 F.3d at 713. Dawkins fraudulently certified that he was
unemployed, even though he received payment as a courier in a
drug conspiracy. The trial court calculated loss for sentencing
3
Because Bennett did not raise this objection below, but in
fact agreed to the amount of loss for USSG § 2B1.1 purposes,
neither the Government nor the district court were put on notice
of the need to closely examine the loss amount. Bennett’s
conduct below comes perilously close to inviting error. See
United States v. Hickman, 626 F.3d 756, 772 (4th Cir. 2010)
(“Under ordinary circumstances, this court will not consider
alleged errors that were invited by the appellant.”).
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purposes as the total payment Dawkins received from the
government while participating in the drug conspiracy, citing
former USSG § 2F1.1 (deleted by 2001 consolidation with
§ 2B1.1). This court disagreed, concluding that “the loss was
only the amount fraudulently claimed” rather than the full
amount of payment. Dawkins, 202 F.3d at 714-15.
We are persuaded by the Government’s brief that
Bennett’s reliance on Dawkins is misplaced and this case is
controlled by USSG § 2B1.1 cmt. n.3(F)(v)(I). That application
note directs that, “[i]n a case involving a scheme in which
services were fraudulently rendered to the victim by persons
falsely posing as licensed professionals,” “loss shall include
the amount paid for the . . . services . . . rendered with no
credit provided for the value of those . . . services.” Here,
Bennett posed as a doctor in purporting to provide the services
of an MRO. Therefore, he is not entitled to the reduction
applied in Dawkins. See United States v. Kieffer, 624 F.3d 825,
834 (8th Cir. 2010) (applying USSG § 2B1.1 cmt. n.3(F)(v)(I) to
defendant who posed as licensed attorney).
Accordingly, we conclude the district court did not
plainly err when it adopted the PSR’s calculation of loss for
purposes of determining Bennett’s offense level. We therefore
affirm Bennett’s conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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