United States v. Vivit, Salvador A.

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3773
United States of America,

Plaintiff-Appellee,

v.

Salvador A. Vivit,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 157 01--James B. Zagel, Judge.

Argued April 10, 2000--Decided June 6, 2000

Before Easterbrook, Kanne and Rovner, Circuit Judges.

Kanne, Circuit Judge. A jury found Salvador
Vivit, a medical doctor, guilty of sixteen counts
of mail fraud based on a scheme in which he and
his patients submitted false claims to insurance
companies that grossly overstated the amount of
care he had provided. The district court
sentenced Vivit to seventy-two months
imprisonment for these offenses. On appeal, Vivit
does not contest the convictions, but he claims
that the district court committed numerous errors
in determining the appropriate sentence. Finding
no errors in Vivit’s sentence, we affirm the
decision of the district court.

I. History

Salvador Vivit operated the Family Medical
Center, a one-doctor clinic located in Elmwood
Park, Illinois. At the Family Medical Center,
Vivit employed only two other individuals,
Estrella Del Moral, who worked as a receptionist,
did filing and sometimes provided physical
therapy to Vivit’s patients, and Adriano "Andy"
Apostol, his partner, who processed and filed
insurance claims for Vivit.

Vivit and Apostol had founded the clinic
together in 1993, with Apostol providing about
$7,000 in start-up money and equipment. However,
because Vivit was the only licensed doctor, he
ran the clinic as a sole practitioner. Vivit
recruited patients and performed medical
treatment, while Apostol processed and filed
insurance claims for him and used the office as
a base for other shady business ventures. In
September 1994, Vivit and Apostol had a
disagreement. Apostol then quit and removed many
items from the clinic, including the clinic’s
computer, a television, a chair and 134 boxes of
patient files documenting the clinic’s accident
victims. These patient files were given by
Apostol to the Elmwood Park Police department,
who investigated and eventually arrested Vivit.
Shortly after removing this equipment from the
clinic, Apostol departed for the Philippines,
where he remains.

Between 1993 and 1996, Vivit involved as many
as 130 patients in a complicated scheme to
defraud insurance companies by charging for
services that he did not provide. Vivit engaged
in five principal types of fraudulent conduct:
(1) billing insurers for patient visits that did
not occur; (2) billing for physical therapy that
was not performed; (3) creating false medical
records and reports to submit to insurance
companies; (4) allowing his unlicensed assistant,
Del Moral, to perform physical therapy without
Vivit’s supervision while he charged for therapy
performed by a licensed therapist; (5) ordering
unnecessary allergy tests for patients with no
allergy symptoms.

Based on the information in Vivit’s files
obtained from Apostol, interviews conducted with
Vivit’s patients and claims filed by Vivit or his
patients to their insurers, the government
obtained enough evidence to secure a four-count
indictment in July 1998. In December 1998, a new
grand jury returned a seventeen-count superseding
indictment charging Vivit with devising and
executing a scheme to defraud. The indictment
alleged that Vivit engaged in fraudulent use of
the mails on seventeen separate instances between
1993 and 1996, and the final count of the
indictment claimed that one check was mailed in
furtherance of the conspiracy as late as August
6, 1996. On June 29, 1999, the district court
conducted a jury trial to consider the charges
against Vivit.

At trial, the government produced the testimony
of twenty-six former Vivit patients and entered
into evidence false bills and medical reports
created for forty-nine patients. Each of the
testifying patients had in some way been involved
in Vivit’s scheme to defraud their insurers.
Some, including Roy, Myla and Lauro Sansano,
merely filled out false attendance sheets at
Vivit’s request. However, the Sansanos testified
that they back-dated many of the signatures to
conceal a considerable lapse of time between when
the accident from which they claimed injuries
occurred and their initial visit to Vivit,
belying Vivit’s claim that the attendance sheets
were used to make future appointments. In
addition, Roy Sansano testified that they visited
Vivit because a friend told him that to receive
a favorable insurance settlement, they should see
Vivit, a doctor who would produce false medical
documentation to support their claim.

Other patients testified about more extensive
fraudulent conduct. For example, Veronica
Leighton testified that she received $53,000 as
a result of filing a false disability insurance
claim. Leighton, who pleaded guilty to tax
evasion and mail fraud for her crimes, first
submitted a false medical bill to her insurer
based, in part, on twenty-nine fictitious visits
to Vivit’s clinic for which Vivit created a
record. Leighton decided that she also should
seek disability benefits, and she testified that
Vivit told her how to prepare a fraudulent claim
for her disability insurer. In conjunction with
this fraud, Vivit filled out a certificate of
disability swearing that in his medical opinion
Leighton was disabled.

Many other patients testified that, in addition
to overbilling by creating a false attendance
record, Vivit exaggerated the amount of treatment
that he performed. Vivit’s records showed that he
had performed ultrasound therapy on numerous
patients in 1993, but the government produced the
supplier of Vivit’s ultrasound machine, who
testified that the machine was not delivered
until the spring of 1994. In addition, Vivit’s
files show that he performed an examination and
two follow-up examinations on Sharlon Silvestre,
but Silvestre testified that Vivit never examined
him. Vivit also included a diagnosis of whiplash
and migraines in his medical record, but
Silvestre testified that he did not have
headaches and that Vivit never informed him that
he suffered from whiplash. Vivit’s files also
show that he performed therapy on Jennifer
Cailles’s back and neck. Cailles, who was sixteen
at the time when she was treated by Vivit,
testified that this therapy was never performed.
In addition, many other patients added testimony
to the record similar to that offered by
Silvestre and Cailles.

Other patients testified that Vivit failed to
provide adequate medical services in the course
of his care. Avelina De La Rosa testified that
she had extremely high blood pressure following
an automobile accident, but Vivit failed to test
her blood pressure during the course of his
diagnostic examination. Melandro Lubguban
testified that he visited Vivit in pain following
an automobile accident, but Vivit failed to
examine him at all. Phina Garcia testified that
she was covered with bruises when she visited
Vivit, but Vivit did not examine her and instead
approved hydro collator treatments for her, a
treatment plan that medical experts advised
against.

Del Moral also testified for the government,
stating that she had performed "microphone"
(ultrasound) therapy, hydro collator therapy and
electrical muscle stimulation therapy on numerous
patients without Vivit’s supervision. She
testified that the unsupervised therapy occurred
largely because Vivit arrived at the clinic in
the afternoon, and Del Moral performed one or two
therapy sessions each morning. Although she
lacked a license to perform physical therapy, she
claimed that Vivit had trained her and that she
was taking courses on therapy. Del Moral also
testified that Vivit told her to make his
patients falsify attendance sheets to inflate the
amount of therapy they supposedly received. Del
Moral testified that Vivit prepared patient
bills, sometimes with the aid of Apostol, and
gave them to her to file and mail.

The government also presented the testimony of
two experts, Drs. Daniel Samo and Gregory
Mulford. Both doctors testified that the therapy
that Vivit prescribed would be useless without an
additional prescription of a course of exercise.
They also testified that Vivit’s failure to
examine patients constituted a "hideous"
dereliction of duty and that the prescription of
hydro collator or electrical muscle stimulation
therapy to patients with bruising was
contraindicated. Finally, the doctors provided
expert analysis about the amount which Vivit’s
fraudulent claims of treatment cost various
insurers. Both experts testified that because all
the treatment prescribed by Vivit was
unnecessary, the entire amount of his bills
should be considered fraudulent.

On the basis of this evidence, the jury
returned a guilty verdict against Vivit on
sixteen of the seventeen counts of the
indictment. The district court sentenced Vivit in
October 1999. Because it found that the
convictions all involved substantially the same
harm, the court chose to group all the
convictions, pursuant to United States Sentencing
Guidelines sec. 3D1.2. The total offense level of
the combined counts started at level six as
directed by sec. 2F1.1(a), but the court
increased the total offense level to thirteen
because it found that the government had proved
that, in aggregate, Vivit had defrauded insurers
of between $120,000 and $200,000.

The government originally argued that Vivit had
defrauded insurers of $265,618.80, of which about
$60,000 should have been removed for legitimate
pain and suffering of Vivit’s patients. However,
Vivit argued that the actual loss was much less
because of the medical services that he provided.
The parties argued extensively over the
computation of loss, and the government, in
support of its position, presented the court with
a "Vivit loss chart" that listed all the costs
associated with fraudulent billing by Vivit. This
chart showed that Vivit had submitted bills
containing fraudulent information valued at about
$149,000, to which insurers paid out nearly
$130,000, but the chart did not subtract the
value of legitimate medical services performed by
Vivit. The court found this chart persuasive and
eventually attached the chart to its ultimate
judgment. After listening to the parties’
extended discussion on the calculation of amount
of loss, the court concluded, "I think it is
quite clear from the papers before me and from
the trial and from the testimony, that a loss of
at least $100,000 was proved. I am inclined to
believe that more than $200,000 was proved, but
relying on what I believe is most appropriate for
this case, and that which cannot be questioned,
I find that we have to add seven points rather
than eight to the total offense level."

From a total offense level of thirteen, the
court ultimately enhanced Vivit’s total offense
level to twenty-seven. The court initially raised
the total offense level two levels pursuant to
sec. 2F1.1(b)(6)(A) because the court found that
Vivit’s treatment recklessly placed his patients
at serious risk of bodily injury. The court
explained that "what [Vivit]’s position in this
court is ’you know, I really didn’t do very much.
I used the most conservative treatment.’ . . .
But the fact of the matter is that the most
conservative treatment is not always best. . . .
[H]e was, given his medical examination
practices, a very lucky man that he did not miss
something more serious, and for all we know maybe
he did."

The court enhanced four levels pursuant to sec.
3B1.1(a) for Vivit’s role as an organizer or
leader, basing its decision that Vivit led five
other participants on the facts set out in the
Pre-Sentencing Investigation and Report ("PSR"),
and two additional levels because Vivit abused
his position of trust relative to insurers,
pursuant to sec. 3B1.3. In relation to the latter
enhancement, the court noted that it enhanced
Vivit’s sentence not because of his use of a
special skill, which the court felt would
constitute double-counting in relation to its
vulnerable victim enhancement, but because "it is
fair to say that he counted upon that the
insurance companies would extend trust to him,
and certainly after a period of time doing this
it is quite clear that he understood that they
did trust him; so that he did abuse his trust
relative to the insurance companies."

In addition, the court enhanced Vivit’s sentence
by two levels pursuant to sec. 3A1.1(b) because
many of his patients constituted vulnerable
victims and an additional two levels according to
sec. 3B1.4 for using minors to commit an offense.
Finally, the court enhanced two more levels
because Vivit’s scheme intended to defraud more
than one victim, pursuant to sec. 2F1.1(b)(2).
Adding all these enhancements, Vivit’s total
offense level reached twenty-seven. Because
Vivit’s criminal history category was I, this
total offense level created a sentencing range of
70 to 87 months. The district court sentenced
Vivit to 72 months imprisonment, followed by
three years supervised release. Vivit also was
ordered to pay $149,877 in restitution.

II. Analysis

On appeal, Vivit challenges his sentence on
five grounds. First, Vivit claims that the
district court erred in calculating the loss
amount caused by his scheme. Second, Vivit finds
error in the court’s determination that he used
minors in his scheme and in its application of
this enhancement in light of potential ex post
facto concerns. Third, Vivit claims that the
court erred in determining that his treatment
recklessly subjected his patients to a risk of
serious bodily injury. Fourth, Vivit challenges
the district court’s attribution of a leadership
role to him for his conduct in the scheme. Fifth,
Vivit challenges the district court’s enhancement
to his sentence for abuse of a "position of
trust" in relation to the insurance companies
that he defrauded.

A. Calculation of Loss

At sentencing, the government and the probation
office provided a "loss assessment" for the harm
caused by Vivit as totalling $265,618.80.
However, the district court found that the
government was able to prove a loss of only
$120,000 to $200,000. On this basis, the court
enhanced Vivit’s sentence seven levels, pursuant
to United States Sentencing Guidelines sec.
2F1.1(b)(1)(H). On appeal, Vivit claims that the
district court erred in its calculation of loss
because the court failed to subtract the value of
the legitimate medical services rendered from the
loss incurred by the insurance companies and
because the court’s calculation of loss included
evidence of fraud of which there was no testimony
at trial or sentencing. The definition of loss is
a question of law, reviewed de novo. See United
States v. Holiusa, 13 F.3d 1043, 1045 (7th Cir.
1994). The amount of loss calculated by the
district court is a finding of fact, which we
review for clear error. See United States v.
Craig, 178 F.3d 891, 899 (7th Cir. 1999). We find
clear error only when we are "left with the
definite and firm conviction that a mistake has
been made." United States v. Strache, 202 F.3d
980, 984-85 (7th Cir. 2000) (citation omitted).

Guidelines sec. 2F1.1(b)(1) directs sentencing
courts to increase the defendant’s total offense
level according to the total amount of loss
created by a defendant’s actions, if that loss
exceeds $2,000. U.S.S.G. sec. 2F1.1(b)(1).
Application note 8 to sec. 2F1.1 indicates that
the valuation of loss for the purposes of sec.
2F1.1 will be determined in the same fashion as
for sec. 2B1.1 (theft). U.S.S.G. sec. 2F1.1
application note 8. Application note 2 to sec.
2B1.1 defines loss as "the value of property
taken, damaged, or destroyed." U.S.S.G. sec.
2B1.1 application note 2. However, application
note 8(a) to sec. 2F1.1 provides that when a
fraud is committed by misrepresenting the value
of an item that has some value, courts should
value the loss at the amount by which the item
was overvalued, that is, the difference between
the represented value and the actual value.
U.S.S.G. sec. 2F1.1 application note 8(a).

The valuation of loss "need not be determined
with precision. The court need only make a
reasonable estimate of the loss, given the
available information." U.S.S.G. sec. 2F1.1
application note 9. Guidelines sec. 2F1.1(b)(1)
provides that courts should enhance the
defendant’s total offense level by at least eight
points if a loss greater than $200,000 is proved,
by only seven points if the total loss lies
between $120,000 and $200,000, and by six or less
points when the loss is less than $120,000.
U.S.S.G. sec. 2F1.1(b)(1)(A)-(I). At sentencing,
the parties engaged in an extended discussion
about the proper valuation of loss to attribute
to Vivit’s scheme, in which the government
claimed a loss valuation of greater than $200,000
and Vivit claimed a loss of less than $120,000.
At the close of this discussion, the district
court determined that "I think it is quite clear
from the papers before me and from the trial and
from the testimony, that a loss of at least
$100,000 was proved. I am inclined to believe
that more than $200,000 was proved, but relying
on what I believe is most appropriate for this
case, and that which cannot be questioned, I find
that we have to add seven points rather than
eight to the total offense level."

The parties disagree whether any of Vivit’s
services should be netted against the bills that
he provided to insurers for his services. Vivit
notes that we measure the amount of net detriment
to the victim in calculating the amount of loss,
rather than the total amount of money
transferred. See United States v. Mount, 966 F.2d
262, 265 (7th Cir. 1992). However, the government
contends that none of the services performed by
Vivit was medically necessary, and the great
majority of the services billed were not even
performed, making those services performed the
type of action made only to give the appearance
of legitimacy. In support of its contention, the
government cites the case law of another circuit
which provides that "if the ’value’ to the victim
is merely a part of the fraudulent scheme, the
defendant is not entitled to a credit." United
States v. Sayakhom, 186 F.3d 928, 947 (9th Cir.
1999). However, the court in Sayakhom also noted
that "in calculating loss, the district court
should give credit for any legitimate services
rendered to the victims." Id. at 946.

Application note 8(a) to sec. 2F1.1 reminds
courts that in frauds where the item
misrepresented has some value, the value of this
item should be netted against the price offered
to determine the amount of loss. While we have
traditionally applied this netting theory in the
fraudulent sale of goods, see United States v.
Schneider, 930 F.2d 555, 558 (7th Cir. 1991), we
have also applied this theory to the fraudulent
misrepresentation of other items of value, when
some value has actually been transferred. See
United States v. Jackson, 95 F.3d 500, 505-06
(7th Cir. 1996). Despite the government’s
contention that the overwhelming majority of
Vivit’s billing was based on unperformed or
unnecessary services, the evidence presented
demonstrates that Vivit did perform some
legitimate medical services. For this reason, we
calculate the amount of loss suffered by the
insurers by netting the total costs submitted by
Vivit, minus the legitimate medical services that
he provided.

However, we find no evidence in the record for
Vivit’s main contention on appeal, that the
district court failed to perform this cost-
netting in calculating the amount of loss caused
by Vivit’s fraud. The government urged the court
to adopt an amount of loss that the government
conservatively placed at greater than $200,000,
based on the $265,000 paid out by insurers less
the legitimate claims of Vivit’s patients. The
court felt that a loss greater than $200,000 had
probably been proved but decided to sentence
Vivit conservatively, finding that the government
had not clearly established a loss of $200,000.
As a benchmark, the court used the "Vivit loss
chart," which calculated Vivit’s fraudulent
billing at approximately $150,000, of which
insurers paid nearly $130,000. The court seems to
have determined that the Vivit loss chart
accurately reflected the amount of loss
established by the government for the purpose of
determining the sec. 2K1.1(b)(1) enhancement.

Unsatisfied by the court’s decision, Vivit
claims that the Vivit loss chart lacks any basis
in fact, because the chart fails to net out the
legitimate services provided by Vivit. However,
Vivit fails to recognize that the chart was
composed only of those bills in which fraudulent
information was submitted. In addition to showing
the total amount of loss, the chart shows the
ratio of legitimate services provided to
fraudulent services claimed, by showing for each
bill what fraudulent activity Vivit had
performed. The chart provides data on which to
determine the amount of loss claimed, because it
provides a basis from which to discount the value
of legitimate services provided by Vivit from the
fraudulent billing that he submitted. In
addition, the court was provided with evidence
about the amount Vivit charged for the
performance of legitimate services.

Armed with an accurate cost of fraudulent
services provided by Vivit and the ratio of
fraudulent to legitimate services provided, as
well as the rates that Vivit charged, we find
that the district court made a reasonable
approximation of the loss given the factual
complexity of Vivit’s scheme. Because the amount
of loss need not be calculated with precision and
because we believe that the loss chart and other
facts in the record relied on by the district
court to formulate a loss calculation support the
amount of loss found by the district court, we
find no clear error in the calculation of loss
made by the district court.

Vivit also argues that the district court’s
calculation of loss must be overturned because it
is based on testimony of witnesses who did not
testify at trial or at sentencing. While we
appreciate that the government bears the burden
of proof in demonstrating the amount of loss, see
United States v. Bahhur, 200 F.3d 917, 924 (6th
Cir. 2000), the sentencing court is not bound by
the Federal Rules of Evidence at sentencing and
"may take any information into account in passing
sentence so long as it has sufficient indicia of
reliability to support its probable accuracy."
United States v. Carmack, 100 F.3d 1271, 1276
(7th Cir. 1996). The information on which the
district court based its loss calculation had
been presented into evidence at trial without
objection before the court considered it, and
given the cumulative and reinforcing nature of
this evidence, we find no clear error in
determining that this evidence was supported by
sufficient indicia of reliability in support of
its accuracy, a finding that Vivit does not
dispute. Additional testimony at sentencing is
unnecessary to support a finding of reliability.
See United States v. Morrison, 207 F.3d 962, 968
(7th Cir. 2000). "A court can consider whatever
evidence is before it in arriving at the amount
of loss." United States v. Brown, 136 F.3d 1176,
1184 (7th Cir. 1998). Therefore, we find no clear
error in the district court’s reliance on
evidence in the record that was not supported by
witness testimony in its calculation of loss
amount.

B. Use of Minors

Next, Vivit contends that the district court
committed error in increasing his total offense
level by two points for using minors in the
commission of his offenses, pursuant to U.S.S.G.
sec. 3B1.4. Vivit argues that the court committed
error in finding that minors had in fact
participated in Vivit’s scheme. Vivit also argues
that because all the fraudulent mailings
involving minors were completed before the
enactment of sec. 3B1.4, enhancement under this
Guidelines section violates the Ex Post Facto
Clause of the Constitution. We review de novo the
district court’s interpretation of sec. 3B1.4,
see United States v. Brack, 188 F.3d 748, 765
(7th Cir. 1999), and the question whether the Ex
Post Facto Clause was violated by the enhancement
pursuant to sec. 3B1.4.

1. Ex Post Facto Clause

Guidelines sec. 3B1.4, the "use of minors"
enhancement, was enacted with an effective date
November 1, 1995. U.S.S.G. sec. 3B1.4 historical
note. Vivit admits that he filed false records
for many minor patients, but he asserts that this
conduct all occurred before November 1, 1995, and
that application of the sec. 3B1.4 enhancement
violates the Ex Post Facto Clause of the United
States Constitution, U.S. Const. Art. I, sec. 9,
because that clause generally prohibits the
retroactive application of the Sentencing
Guidelines if it results in a more onerous
penalty. See United States v. Shorter, 54 F.3d
1248, 1261 (7th Cir. 1995).
 The one-book rule, the policy statement guiding
the use of multiple guidelines, found in
Guidelines sec. 1B1.11(b)(1), provides that
"[t]he court shall use the Guidelines Manual in
effect on the date that the defendant is
sentenced." The one-book rule expresses the
intent of the Sentencing Commission that the
Guidelines reflect a cohesive whole and the
Commission’s resistance to application of various
Guidelines in a piecemeal fashion. See United
States v. Bousa, 997 F.2d 263, 266 (7th Cir.
1992). When faced with the possibility of an ex
post facto violation, the court is normally
directed to "use the Guidelines Manual in effect
on the date that the offense of conviction was
committed." U.S.S.G. sec. 1B1.11(b)(1).

However, the Guidelines also indicate that "[i]f
the defendant is convicted of two offenses, the
first committed before, and the second after, a
revised edition of the Guidelines Manual became
effective, the revised edition of the Guidelines
Manual is to be applied to both offenses."
U.S.S.G. sec. 1B1.11(b)(3). In this case, Vivit
was convicted on count 17, the final count of his
indictment for conduct that was committed in
August 1996, well after November 1, 1995.
Therefore, on its face, sec. 1B1.11(b)(3) should
apply, and absent ex post facto concerns we would
find no error in the application of sec. 3B1.4.

Vivit contests the application of sec.
1B1.11(b)(3) on two bases: (1) the only post-
revision count, count 17, does not involve the
use of a minor, so sec. 1B1.11(b)(3) is
inapplicable; and (2) sec. 1B1.11(b)(3) violates
the Ex Post Facto Clause. The former argument
ignores the plain language of sec. 1B1.11(b)(3),
which requires only that two crimes be committed
on different dates, before and after the
enactment of the Guidelines revision in question.
The one-book rule does not require that both
these crimes involve the same course of conduct,
or that both involve conduct giving rise to the
same sentencing enhancement. Therefore, it is
immaterial whether the conduct predicate to
Vivit’s conviction on count 17 involved the use
of a minor.
However, if we find application of sec.
1B1.11(b)(3) violates the Ex Post Facto Clause,
sec. 1B1.11(b)(1) requires that we instead apply
the 1994 Sentencing Guidelines to all Vivit’s
convictions, which would preclude a sec. 3B1.4
enhancement. See United States v. Ortland, 109
F.3d 539, 547 (9th Cir. 1997) (finding that mail
fraud is not a continuing offense, so the
defendant may properly be sentenced under
multiple sets of guidelines); United States v.
Bertoli, 40 F.3d 1384, 1404 (3d Cir. 1994). But
see United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999); United States v. Santopietro,
166 F.3d 88, 95-96 (2d Cir. 1999). The settled
law of this circuit is that when a defendant
commits crimes that straddle the date of
promulgation of new guidelines provisions, the
defendant can be punished under a guideline
effective after the beginning of the straddle
period. See, e.g., United States v. Boyd, 208
F.3d 638, 648 (7th Cir. 2000); United States v.
Korando, 29 F.3d 1114, 1119-20 (7th Cir. 1994).
The rationale for this rule is that "a statute
increasing the penalty for [an offense] beginning
before the date of enactment but continuing
afterwards does not offend the Constitution."
United States v. Baresh, 790 F.2d 392, 404 (5th
Cir. 1986).

The government contends that because the
district court found the conduct committed by
Vivit similar enough for sec. 3D1.2(d) grouping
to apply, Vivit’s actions constituted a
continuing offense which straddled the
promulgation of sec. 3B1.4, quieting any
potential ex post facto concerns about the use of
the 1995 Guidelines. However, the government’s
position is controversial. In United States v.
Ortland, 109 F.3d at 547, the Ninth Circuit found
that because the predicate conduct constituting
mail fraud was completed on mailing, a mail fraud
scheme constituted a series of completed
offenses, rather than a continuing course of
conduct. On this basis, the court felt that
applying the grouping rules and the one-book rule
to a series of mail fraud crimes constituted a
violation of the Ex Post Facto Clause on offenses
completed before a revision of the Guidelines.
See id.; see also Bertoli, 40 F.3d at 1404-07
(finding error in the district court’s failure to
analyze offenses independently for ex post facto
problems). However, in United States v. Kimler,
167 F.3d at 895, the Fifth Circuit reached the
opposite conclusion, relying on the Eleventh
Circuit’s reasoning in United States v. Bailey,
123 F.3d 1381, 1403-07 (11th Cir. 1997), that the
adoption of the one-book rule and the grouping
rules put criminals on notice that "the version
of the sentencing guidelines in effect at the
time he committed the last of a series of grouped
offenses will apply to the entire group," Kimler,
167 F.3d at 895, to determine that there was no
ex post facto violation in using a revised
guideline to sentence grouped mail fraud
convictions. In that case, the court noted that
although mail fraud offenses were completed
offenses, rather than continuing offenses like
conspiracies, because the grouping rules were in
effect at the time a defendant committed acts of
mail fraud, "a defendant has notice that if he
continues to commit offenses that are grouped
together, the revised guidelines will apply to
the group." Id. at 894 n.6; see also Bailey, 123
F.3d at 1406-07; United States v. Cooper, 35 F.3d
1248, 1252 (8th Cir. 1994).

In this circuit, the question whether to apply
sec. 1B1.11(b)(3) depends on whether we perceive
a defendant’s course of conduct to straddle the
enactment of revisions to the Sentencing
Guidelines. See Boyd, 208 F.3d at 648-49. With
continuing offenses, such as conspiracies, we
have never questioned the applicability of ex
post facto principles to this practice, because
by agreeing to engage in a conspiracy, a
defendant becomes culpable for all subsequent
acts committed by the conspiracy. See Korando, 29
F.3d at 1119. However, we have held that mail
fraud is a completed offense, implying that "the
crime of mail fraud is completed, for sentencing
purposes, at the time of the mailing. The actual
duration of the scheme is of no import." United
States v. Barger, 178 F.3d 844, 847 (7th Cir.
1999). For this reason, we have determined that
mail fraud is not a straddle offense, in which
case sec. 1B1.11 (b)(3) might not apply. See id.
at 848.

However, in Barger, we were not confronted with
a situation in which mail fraud convictions were
grouped together according to sec. 3D1.2, because
the criminal conduct committed in that case
occurred before the enactment of the Guidelines.
According to the rationale of the Eleventh
Circuit in Bailey, the enactment of the grouping
Guidelines places criminals on notice that
committing additional criminal acts that are
subject to grouping after a revision of the
Guidelines makes all the defendant’s conduct
susceptible to the one-book rule. Bailey, 143
F.3d at 1406-07. On this basis, a series of mail
fraud convictions that are grouped may be
considered to straddle a revision without a
presumptive ex post facto violation because of
the criminal’s prior notice of the grouping
rules. Because the grouping rules were not
available to provide notice when the defendants
in Barger committed the predicate offenses that
formed the basis for their convictions, we find
that the result in Barger, that a series of mail
fraud offenses do not straddle the enactment of
the Guidelines, does not require us to conclude
that applying a revised Guidelines Manual to a
series of grouped mail fraud convictions
constitutes an ex post facto violation.

By banning ex post facto application of new
criminal laws, "the Framers sought to assure that
legislative Acts give fair warning of their
effect and permit individuals to rely on their
meaning until explicitly changed." Weaver v.
Graham, 450 U.S. 24, 28-29 (1981); see also
Miller v. Florida, 482 U.S. 423, 430 (1987);
Dobbert v. Florida, 432 U.S. 282, 293 (1977). The
clause was also intended to check governmental
power "by restraining arbitrary and potentially
vindictive legislation." Weaver, 450 U.S. at 29.
"Critical to relief under the Ex Post Facto
Clause is not an individual’s right to less
punishment, but the lack of fair notice and
governmental restraint when the legislature
increases punishment beyond what was prescribed
when the crime was consummated." Id. at 30.

Viewed in this context, the relevant inquiry
becomes whether the grouping rules give the
defendant fair notice at the time a crime is
consummated that the commission of further crimes
subject to grouping would subject the defendant
to sentencing under revised Guidelines. The
grouping rules, enacted in 1987, provide warning
to criminals that completing another criminal
offense similar to one committed previously
places them in peril of sentencing under a
revised version of the Guidelines. The
introductory commentary to the grouping rules
explains that because the offense guideline for
fraud, sec. 2F1.1, "deal[s] with repetitive or
ongoing behavior," multiple fraud convictions are
appropriately grouped when the convictions
involve substantially the same harm. See U.S.S.G.
sec. 3D introductory commentary. We believe that
this conclusion reflects the intent of the
Sentencing Commission to provide notice to
criminals that engaging in ongoing fraudulent
behavior involving the same type of harm risks
grouping of convictions, which because of the
one-book rule, will all be sentenced according to
the Guidelines in effect when the latest conduct
occurred.

For this reason, we believe that the enactment
of the grouping rules provides fair notice such
that the application of sec.sec. 1B1.11(b)(3) and
3D1.2 does not violate the Ex Post Facto Clause.
To violate the Ex Post Facto Clause, the
application of amended Guidelines must
disadvantage the defendant without providing the
defendant with prior notice. See Miller, 482 U.S.
at 430. Because the grouping rules provide such
prior notice, we favor the position advanced by
the Eighth Circuit in Cooper that "it was not the
amendments to the Sentencing Guidelines that
disadvantaged [the defendant], it was his
election to continue his criminal activity." 35
F.3d at 1250.

Vivit does not argue that his conduct did not
involve "substantially the same harm," in which
case the grouping rules should not have been
applied. Nor does he provide any other reason
that the enactment of the grouping rules should
not be construed to place him on notice that the
commission of further fraudulent mailings would
subject him to sentencing under amended
Guidelines. For this reason, we find no Ex Post
Facto Clause violation in the district court’s
determination to apply the "use of minors"
enhancement to all of the grouped offenses
committed by Vivit.

2. Findings of Fact

Vivit also argues that the district court
committed clear error in finding that minors
participated in his scheme. Vivit was convicted
on two counts in which the predicate conduct
involved false insurance claims filed on behalf
of a minor, and Vivit admits that he treated many
minors in the course of his operation of the
clinic. However, he contends that the role of the
minor patients in his scheme was too minimal or
unintentional for the finding that he used minors
to commit the fraud offenses.

Application note 1 to sec. 3B1.4 includes
within the definition of use "directing,
commanding, encouraging, intimidating,
counseling, training, procuring, recruiting, or
soliciting." In United States v. Benjamin, 116
F.3d 1204, 1206 (7th Cir. 1997), we initially
reviewed the "use" requirement of sec. 3B1.4 and
found it met when the defendant took some
affirmative action to involve a minor. See also
United States v. Butler, 207 F.3d 839, 848 (6th
Cir. 2000) ("[B]y deeming age relevant, Congress
likely imagined an offender who actually
exercised some control or took some affirmative
role in involving the minor."). In United States
v. Brack, 188 F.3d at 765, we found that the fact
bases for an enhancement under sec. 3B1.4 had
been met when the defendant performed affirmative
acts to involve a minor in her crimes. Therefore,
Vivit "used minors in the commission of his
crimes" if his affirmative actions involved
minors in his criminal activities.

Vivit treated Jennifer Cailles for injuries
suffered in an automobile accident. At that time,
she was sixteen years old. As a part of the
treatment, Vivit directed Cailles to sign the
attendance sheet fraudulently to inflate the
number of visits she paid Vivit. Vivit eventually
submitted a bill to Cailles’s insurer that showed
forty-nine visits made, when Cailles actually
made only eight or ten visits. Vivit also treated
nine-year-old Laquita Barnett and her seven-year-
old sister Johnetta Johnson for injuries suffered
in an automobile accident. Laquita visited Vivit
twice, and was given hot pad therapy. However,
Vivit submitted a bill claiming that she had been
given a comprehensive examination and had made
two follow-up visits and twelve visits for
therapy. Johnetta only visited Vivit once, but
Vivit filed a bill with her insurer indicating
twelve visits had occurred. Vivit directed both
these girls to falsify an attendance sheet eleven
times.

The facts presented about Jennifer Cailles,
Laquita Barnett and Johnetta Johnson support the
district court’s finding that Vivit directed
these minors to create a false attendance record.
Therefore, Vivit’s direction to falsify
attendance records involved these minors in his
crime and fell within the definition of "use" of
minors contemplated by sec. 3B1.4.

C. Risk of Serious Bodily Injury

Vivit also challenges the district court’s
determination that the medical treatment Vivit
provided, or failed to provide, placed some of
his patients at risk of serious bodily injury, on
which basis the court increased Vivit’s total
offense level two levels, according to U.S.S.G.
sec. 2F1.1(b)(6)(A). Vivit claims that this
finding of fact was clearly erroneous because it
was based on speculation as to potential injury.
The determination that Vivit’s conduct posed a
conscious or reckless risk of serious bodily
injury to his patients is a finding of fact, and
we review for clear error. See United States v.
Turner, 102 F.3d 1350, 1357 (4th Cir. 1996).
However, to the extent that we review whether a
sentencing enhancement is appropriate under this
type of offense conduct, we face a question of
law that we review de novo. See id.

Guidelines sec. 2F1.1(b)(6) directs courts to
enhance a defendant’s total offense level by two
levels if the fraud perpetrated by the defendant
involves "the conscious or reckless risk of
serious bodily injury." U.S.S.G. sec. 2F1.1(b)
(6)(A). "Serious bodily injury" is a phrase of
general applicability used frequently throughout
the Guidelines, and the phrase has been explained
to mean "injury involving extreme physical pain
or the protracted impairment of a function of a
bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery,
hospitalization, or physical rehabilitation."
U.S.S.G. sec. 1B1.1 application note 1(j).
Guidelines sec. 2F1.1 does not provide any
insight into the type of conduct that should be
considered reckless, but application note 1 to
sec. 2A1.4 describes recklessness as "a situation
in which the defendant was aware of the risk
created by his conduct and the risk was of such
a nature and degree that to disregard that risk
constituted a gross deviation from the standard
of care that a reasonable person would exercise
in such a situation." U.S.S.G. sec. 2A1.4
application note 1 (involuntary manslaughter).

On appeal, Vivit contends that because no
patient was injured, any risk of serious injury
was purely conjectural, and for this reason, the
district court lacked any evidentiary basis on
which to base its enhancement. See United States
v. Greene, 71 F.3d 232, 236 (6th Cir. 1995)
(requiring district courts to base reckless risk
enhancement on evidence of risk). Improper
medical procedures, such as unnecessary surgery,
performed for fraudulent purposes obviously may
pose a risk of serious bodily injury. See, e.g.,
United States v. Laughlin, 26 F.3d 1523, 1531
(10th Cir. 1994) (finding that unnecessary
surgery creates a risk of serious bodily injury).
However, as the Eighth Circuit noted in United
States v. McCord, Inc., "for most frauds, risk of
serious bodily injury is less direct and less
obvious." McCord, 143 F.3d at 1098. In cases of
fraud, where sec. 2F1.1(6)(A) applies, we are not
concerned with whether actual injury occurred,
but whether the defendant’s fraudulent course of
conduct created a risk that others would suffer
serious bodily injury. In addition, Guidelines
sec. 2F1.1(6)(A) demands that such a risk be
undertaken recklessly. See id. Whether improper
medical treatment may form the basis for an
enhancement under sec. 2F1.1 (6)(A) is a question
of first impression for this circuit.

The government provided three bases on which
Vivit’s sentence might have been enhanced: (1)
his failure to supervise an unlicensed individual
performing potentially dangerous physical
therapy; (2) his direction to apply heat therapy
to bruised areas, increasing the risk of injury;
(3) his failure to examine physically certain
patients he knew to have been injured in
automobile accidents. The district court enhanced
Vivit’s sentence for reckless risk of serious
bodily injury, but the court did not state
directly on which of these theories it based the
enhancement. The court did note its
dissatisfaction with Vivit’s diagnostic
techniques by saying, "what [Vivit]’s position in
this court is ’you know, I really didn’t do very
much. I used the most conservative treatment.’ .
. . But the fact of the matter is that the most
conservative treatment is not always best. . . .
[H]e was, given his medical examination
practices, a very lucky man that he did not miss
something more serious, and for all we know maybe
he did."

Vivit contends that the government failed to
prove either that Vivit ignored a known risk of
serious injury or that any of the treatments that
he employed could have caused serious bodily
injury. The rehabilitative techniques employed by
Vivit, which included ultrasound therapy,
electric muscle stimulation and using heat pads,
are much less intrusive or inherently dangerous
than surgical procedures. The experts provided by
the government at trial testified that it was
possible to cause injury using electric muscle
stimulation if the electrodes used in the therapy
are improperly applied or placed close to the
heart. These experts also indicated that
providing heat or ultrasound therapy to bruised
areas was contraindicated. In addition, these
experts also testified that these therapies
provided no health benefits.

None of the government’s twenty-six patient
witnesses testified that electrical muscle
stimulation was used in the chest area, and given
the purpose of this therapy, we find the risk of
injury from that type of treatment to be slight,
even if the therapist who performed the therapy
lacked a license. In addition, although applying
heat to bruised areas may increase the internal
bleeding from this bruising, this type of
treatment does not rise to the level of "extreme
physical pain or protracted function" required by
the serious bodily injury standard. In fact, the
risk of increased injury created by the
treatments that Vivit actually performed or
ordered performed seems quite slight, certainly
too slight to justify an enhancement for reckless
risk of serious bodily injury.

The medical procedures that Vivit failed to
perform raise more troubling questions. To
conceal his ongoing fraud from insurers, Vivit
engaged in rudimentary examination procedures
better designed to generate additional visits in
his attendance log than to diagnose injury. On
multiple occasions, Vivit failed to perform
physical examinations on patients who visited him
following automobile accidents. In addition,
Vivit failed to perform certain basic diagnostic
tests, such as taking blood pressure, on certain
patients such as Avelina De La Rosa who later
proved to be at risk. While we do not believe
that Vivit created a risk by failing to treat
patients such as the Sansanos who visited him to
inflate their own insurance settlements knowing
that he would not provide adequate care, patients
such as De La Rosa relied on Vivit’s medical
opinion and treatment to ensure that they had not
suffered serious injury. By failing to examine
such patients properly, Vivit created a risk
that, had these patients suffered serious
injuries, their injuries would remain untreated.
Moreover, by presenting evidence that certain of
his patients were at risk of serious bodily
injury without treatment, for example by virtue
of their high blood pressure, the government has
presented sufficient evidence to show that the
risk here was actual, not conjectural. The facts
also clearly demonstrate that Vivit acted
recklessly in ignoring the risk that his failure
to treat created. Therefore, we conclude that the
district court did not err in enhancing Vivit’s
sentence under sec. 2F1.1(6)(A) for reckless risk
of serious bodily injury.

D. Leadership Role

Vivit contends that the district court erred in
increasing his total offense level four points
based on his leadership role in the scheme. He
argues that the record does not support such a
finding of fact, and the court failed to make
express findings as to which of his patients
constituted members of the scheme for purposes of
establishing a leadership role under U.S.S.G.
sec. 3B1.1(a). The court’s determination that
Vivit played a leadership role in the scheme is
a finding of fact, and we review for clear error.
See United States v. Lewis, 79 F.3d 688, 690 (7th
Cir. 1996).

Guidelines sec. 3B1.1 directs the sentencing
court to enhance a defendant’s offense level four
levels "[i]f the defendant was an organizer or
leader of a criminal activity that involved five
or more participants or was otherwise extensive."
U.S.S.G. sec. 3B1.1(a). A "participant" is "a
person who is criminally responsible for the
commission of the offense." U.S.S.G. sec. 3B1.1
application note 1. To determine whether a
defendant is an organizer or leader, we consider
"the defendant’s exercise of decision-making
authority, the nature of his participation in
committing the crime, his recruitment of
accomplices, his claimed right to a larger share
of the criminal proceeds, the extent of his
participation in planning or organizing the
crime, the nature and scope of the illegal
activity, and the degree of control and authority
exercised over others." United States v. Sierra,
188 F.3d 798, 803-04 (7th Cir. 1999); see also
U.S.S.G. sec. 3B1.1 application note 4. These
factors are not exhaustive, nor must all be
present in order to enhance the defendant’s
sentence. See United States v. Mankiewicz, 122
F.3d 399, 406 (7th Cir. 1997). Instead, we weigh
these factors "in light of the Guidelines’ intent
to punish with greater severity leaders and
organizers of criminal activity." Sierra, 188
F.3d at 804.
The district court adopted the statements in
the PSR that Vivit’s scheme involved at least
five other participants: Estrella Del Moral, his
receptionist; the Sansano family, Roy, Myla and
Lauro; and Veronica Leighton. Even though four of
these named participants were Vivit’s patients,
the district court felt that the four-level
enhancement was especially appropriate because
Vivit "in a moral sense and maybe in a legal
sense, made criminals out of some of his
patients." Vivit instructed Del Moral to create
false records and order patients to file false
claims and allowed her to perform therapy without
a license, which he billed to insurers. Vivit
taught Leighton how to obtain disability payments
fraudulently and convinced her to create false
records inflating her insurance claim. Vivit also
instructed each of the Sansanos to create false
medical records to inflate their insurance
claims.

The argument that the sentencing court failed
to identify five participants on which to base
the enhancement lacks merit. In this case, the
district court adopted the findings of fact in
the PSR, which isolated five individuals who were
deemed to be participants, and a sentencing court
may adopt the conclusions in the PSR as its own.
See United States v. Spears, 965 F.2d 262, 273
(7th Cir. 1992); United States v. Musa, 946 F.2d
1297, 1308 (7th Cir. 1991). By adopting the
conclusions of the PSR, the sentencing court
adopted by reference the individuals isolated
therein as participants.

Vivit’s argument that those patients of his who
were deemed participants lacked criminal intent
proves equally unavailing. To count as a
"participant" in Vivit’s scheme, his patients
must have been criminally responsible. See
U.S.S.G. sec. 3B1.1 application note 1. This
responsibility requires criminal intent, which
belies these patients’ status as victims. To this
extent, Vivit raises a valid objection; none of
those patients who were victimized by Vivit’s
poor treatment necessarily shared Vivit’s
criminal intent to defraud their insurers.
However, Vivit treated more than 130 patients,
and although many of these patients may have been
innocent victims, some of these patients
performed acts that suggest criminal
responsibility.

Vivit does not contest that Del Moral and
Leighton were participants in his scheme.
Instead, he focuses on the criminal
responsibility of the Sansanos. Vivit presented
each of the Sansanos with an attendance sheet and
asked them to sign and date it, which they each
did twenty-seven times. Vivit contends that this
procedure was done to set up future appointments,
and the Sansanos testified that they "pretty much
followed instructions," in signing the sheets.
However, the Sansanos back-dated many of these
"appointments" to cover up the lapse of time
between their automobile accident and their first
consultation with Vivit. Roy Sansano also
testified that his family visited Vivit because
a friend told him that Vivit would create a large
medical bill for him and his family to be used in
their insurance claim.

In reference to their claim, the Sansanos
signed false documents misrepresenting the extent
of treatment that they received from Vivit. The
facts presented at Vivit’s trial suggest that the
Sansanos filed these documents intending to
defraud their insurer. They also demonstrate that
Vivit directed them on how to create a false
record of treatment, and this false record of
treatment constituted the basis on which the
Sansanos filed false insurance claims. Therefore,
the Sansanos were all participants in Vivit’s
scheme within the meaning of sec. 3B1.1.
Considering Vivit’s activities within the rubric
of sec. 3B1.1, the evidence presented at trial
demonstrates that he was the principal organizer
of numerous fraudulent insurance claims, that he
recruited patients to file these false claims and
that the primary financial benefit from these
activities accrued to him. For this reason, we
find no error in the sentencing court’s
enhancement of Vivit’s total offense level as a
leader and organizer.

E. Position of Trust

Finally, Vivit claims error in the district
court’s determination that Vivit abused his
position of trust relative to the insurance
companies he defrauded, on which basis the court
increased his total offense level an additional
two levels according to U.S.S.G. sec. 3B1.3.
Vivit argues that he did not occupy a position of
trust in relation to the insurance companies that
he defrauded, and he contends that this
enhancement actually constitutes impermissible
double counting. Interpretation of the term
"position of trust" is a legal question that we
review de novo. See United States v. Hathcoat, 30
F.3d 913, 919 (7th Cir. 1994). However, the
determination that Vivit occupied a position of
trust is a finding of fact, which we review only
for clear error. See United States v. Boyle, 10
F.3d 485, 489 (7th Cir. 1993). The determination
whether a court has engaged in impermissible
double counting is a question of law, which we
review de novo. See United States v. Compton, 82
F.3d 179, 183 (7th Cir. 1996) (citation omitted).

Guidelines sec. 3B1.3 requires courts to
increase the total offense level of a defendant
by two levels "[i]f the defendant abused a
position of public or private trust . . . in a
manner that significantly facilitated the
commission or concealment of the offense."
U.S.S.G. sec. 3B1.3. The district court felt that
the insurance companies to whom Vivit submitted
claims trusted the doctor, and increased
accordingly on this ground. However, Vivit claims
that because his relationship with these
insurance companies was commercial rather than
fiduciary, the enhancement is not applicable.
We recently disposed of this argument in United
States v. Hoogenboom, 209 F.3d 665, 671 (7th Cir.
2000), when we noted that "[m]edical service
providers occupy positions of trust with respect
to private or public insurers (such as Medicare)
within the meaning of guideline sec. 3B1.3." Id.
(citations omitted). We explained that "[m]edical
providers . . . enjoy significant discretion and
consequently a lack of supervision in determining
the type and quality of services that are
necessary and appropriate for their patients.
This forces [the insurer] to depend, to a
significant extent, on a presumption of honesty
when dealing with statements received from
medical professionals." Id. Although in
Hoogenboom, we were faced with fraud committed
against a public insurer, Medicare, rather than
against private insurers, we made no distinction
between the two in determining whether the
enhancement was applicable, and we believe that
no distinction exists. For this reason, the facts
presented by Vivit cannot be distinguished from
those presented in Hoogenboom, and we find the
logic in that case controlling.

Vivit also claims that enhancement under sec.
3B1.3 constitutes impermissible double counting,
because it punished him for both acting as a
leader and abusing a "special skill." Guidelines
sec. 3B1.3 prohibits the enhancement under sec.
3B1.3 for use of a "special skill" in addition to
enhancement under sec. 3B1.1 for a leadership
role in the offense, but permits the enhancement
for an "abuse of trust" in addition to a sec.
3B1.1 enhancement. U.S.S.G. sec. 3B1.3. The
district court enhanced Vivit’s sentence under
both sec.sec. 3B1.1 and 3B1.3, but the court’s
articulated basis for the sec. 3B1.3 enhancement
was that "it is fair to say that he counted upon
that the insurance companies would extend trust
to him, and certainly after a period of time
doing this it is quite clear that he understood
that they did trust him; so that he did abuse his
trust relative to the insurance companies."
Therefore, the court based its enhancement on
"abuse of trust," not on "use of a special
skill." There is no impermissible double counting
to enhance under both sec.sec. 3B1.1 and 3B1.3 in
these circumstances.

III. Conclusion
 For all the foregoing reasons, we find no error
in the district court’s computation of Vivit’s
sentence. Therefore, the decision of the district
court is Affirmed.

Easterbrook, Circuit Judge, concurring. I join
the court’s opinion but add one thought. The
gymnastics performed in Part II.B.1 to show that
a two-level increase in Vivit’s offense level is
compatible with the ex post facto clause are
unnecessary, because the sentencing guidelines
are not "laws" within the scope of that clause.
See United States v. Seacott, 15 F.3d 1380, 1391-
93 (7th Cir. 1994) (concurring opinion); cf.
Prater v. U.S. Parole Commission, 802 F.2d 948,
951-52 (7th Cir. 1986) (en banc) (parole release
guidelines are not "laws" for ex post facto
purposes). Many cases say, and a few hold, that
changes in the guidelines must be treated like
changes in statutory punishments for purposes of
the ex post facto clause, and the parties to this
case accept that view, but these decisions are
unconvincing. The only "law" at issue is the
Sentencing Reform Act of 1984, enacted long
before Vivit’s crimes. Nothing that has occurred
since Vivit committed his acts changed the
definition of the offense, its maximum
punishment, or the evidence that may be used to
support conviction. See Carmell v. Texas, 68
U.S.L.W. 4325, 4328-29 (U.S. May 1, 2000). When
open-ended discretion prevailed before the
guidelines, no one would have doubted that
Presidents could appoint hard-nosed judges who
handed out steep penalties, provided they did not
exceed the statutory maximum at the time of the
defendant’s deeds. Large swings in effective
punishment occurred because of changes in the
composition of the bench and prevailing views
about the seriousness of particular offenses.

What judges used to do without offending the ex
post facto clause, the Sentencing Commission may
do. The Sentencing Reform Act moves discretion
from the individual judge to the Commission.
Because the ex post facto clause does not apply
to the judicial branch, see Marks v. United
States, 430 U.S. 188, 191 (1977), and the
Commission is in the judicial branch, see
Mistretta v. United States, 488 U.S. 361, 384-97
(1989), the effective constraint is the due
process clause, which requires judges to refrain
from adopting startling interpretations of
existing rules. E.g., Bouie v. Columbia, 378 U.S.
347 (1964); Prater, 802 F.2d at 952. Vivit does
not contend that the increase in his sentence is
so surprising that it violates the due process
clause, and given the history of variability in
sentencing practices over time (and across
judges) such an argument would be untenable.
"Changing the guidelines after the commission of
a crime does not deprive the criminal of notice
of the elements of the offense or the statutory
limits of punishment. It may upset the
expectations of the few would-be wrongdoers who
study sentencing practices to determine their
risks--though even a small change in the
probability of arrest or prosecution will have a
much greater effect on the anticipated punishment
than does a change in the guidelines, and no one
believes that pouring extra resources into the
detection and prosecution of crime violates the
ex post facto or due process clause." Seacott, 15
F.3d at 1392-93. So although my colleagues
faithfully implement the complex rules that have
sprouted up to limit the damage caused by
applying the ex post facto clause to a subject
outside its proper domain, I would prefer a
shorter path to affirmance. Congress has told
courts to use the guidelines in force at the time
of sentencing. 18 U.S.C. sec.3553(a)(4). That
command is constitutional, and I would follow it
notwithstanding the United States Attorney’s
failure to defend (or even cite) the governing
statute.