United States v. Patient Transfer Service, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1999
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Patient Transfer Service, Inc., *
*
Defendant - Appellant. *
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Submitted: September 25, 2006
Filed: October 11, 2006
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Before MURPHY, HANSEN, and RILEY, Circuit Judges.
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MURPHY, Circuit Judge.

After Patient Transfer Service, Inc. (PTS), an Arkansas corporation that
provides ambulance transport services, was convicted of filing false Medicare and
Medicaid claims and sentenced to a $1,177,786 fine, it appealed. We affirmed the
conviction but remanded for resentencing. See United States v. Patient Transfer Serv.,
Inc., 413 F.3d 734 (8th Cir. 2005). On remand the district court1 made additional
findings and imposed a fine of $500,000. PTS appeals, and we affirm.

1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
 At the original sentencing proceeding the district court set a base fine of
$841,276 under U.S.S.G. § 8C2.4(a) and multiplied it by PTS's total culpability factor
determined under § 8C2.5. The resulting fine range was $1,177,786 to $2,355,572,
and the district court imposed a fine at the very bottom of the guideline range. It
stayed payment of the fine and ordered PTS not to dispose of its assets in the
meantime.

On the earlier appeal we found there was sufficient evidence to support the
findings on which the district court relied in calculating the guideline range, but we
vacated the sentence and remanded because the court had not made specific findings
about PTS's ability to pay the amount of the fine. It was also unclear whether PTS had
been found to be a criminal purpose organization under U.S.S.G. § 8C1.1 (fines
should divest such a defendant of all its net assets).

At resentencing the district court expressly found PTS not to be a criminal
purpose organization and then considered whether PTS had the ability to pay a fine
within the guideline range. The court indicated that it intended to rely on the
presentence report which had been prepared for the original sentencing and asked
whether PTS had additional information to offer. PTS acknowledged that it bore the
burden of persuading the court to depart beneath the guideline range, but asked the
court to "impose as small a fine as possible" based on "the financial information
compiled by the probation office." Although PTS remarked that the presentence
report had been prepared "at [a] time when certain factors, which are now relevant,
weren't taken into consideration," it offered no new evidence relating to its financial
condition and did not request any revision of the original figures.

Based on the presentence report's financial data for PTS for the year 2002, the
district court found the market value of the company's assets to be $2,369,724. It then
deducted $871,357 in liabilities and applied discounts for depreciation and for the fact
that any sale or liquidation would take place in "less than ideal market conditions."
The court concluded that PTS had approximately $1 million in net assets and then

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examined the company's reported cash flow for 2002 in order to estimate future annual
income. After taking into account "write-down" depreciation and extraordinary legal
expenses incurred as a result of the prosecution, it estimated that future operating
expenses would be lower than those reported in 2002 and that the company's annual
net income would be approximately $200,000. After making these findings, the
district court imposed a fine of $500,000 to be paid in quarterly installments of
$25,000 over a period of five years.

Just before concluding the resentencing and after advising PTS of its right to
appeal, the court asked whether there was "anything else ... to resolve today," and
defense counsel replied, "nothing further." PTS raised no objection at the hearing to
the district court's findings about its finances or to the nature of the fine imposed and
never suggested a specific fine amount. Furthermore, PTS does not now argue that
the district court should not have relied on the facts contained in the presentence
report.

On its new appeal PTS complains that the district court relied on "its own
understanding of certain accounting principles" and used a questionable method of
determining the company's ability to pay and that the company does not have the
ability to pay a $500,000 fine. The government argues that the amount of the fine was
reasonable.

A defendant's financial condition must be considered in determining the amount
of a fine. 18 U.S.C. § 3572(a); see also U.S.S.G. § 8C3.3 (providing that the amount
of a fine may be reduced if an organization is unable to pay a guideline range fine).
A sentencing court must make specific factual findings on the record demonstrating
that it has considered the defendant's ability to pay the fine. United States v. Walker,
900 F.2d 1201, 1206 (8th Cir. 1990).

Because PTS did not object at sentencing to the amount of the fine imposed, the
manner in which the fine was calculated, or the court's factual findings, its sentence

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is reviewed for plain error. United States v. Johnson, 327 F.3d 758, 759 (8th Cir.
2003). Plain error exists when (1) there is error (2) which is plain and (3) affects
substantial rights, and we should only exercise our discretion to correct such error if
it seriously affects the fairness, integrity or public reputation of judicial proceedings.
See United States v. Olano, 507 U.S. 725, 732-36 (1993).

The district court committed no plain error by relying on its own understanding
of accounting principles. PTS neither expressly states what it believes was wrong
about the district court's method of calculation nor points to anything unusual about
it. It has also cited no case that supports its argument that the district court should be
reversed because of its method of calculating the amount of fine PTS is able to pay.
The district court explained in detail both the manner in which it calculated
defendant's assets, liabilities and future earning estimates, and the rationale behind
those calculations. This explanation was more than sufficient to satisfy the
requirement that a district court make specific findings showing it has considered the
defendant's ability to pay. See United States v. Aguilera, 48 F.3d 327, 329 (8th Cir.
1995) ("detailed analysis" of defendant's finances not required).

PTS submitted no new evidence to supplement the original presentence report,
and the district court carefully considered the financial information in that report in
calculating the fine it imposed on remand. PTS has shown no error in the district
court's thorough consideration of PTS's ability to pay, and we find none.

We conclude that the significantly reduced fine imposed by the district court
is reasonable and accordingly affirm its judgment.
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