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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12838
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80106-KAM-25
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAL MARK KREITMAN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 20, 2019)
Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.
PER CURIAM:
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Hal Kreitman appeals the district court’s sentence of 84 months of
imprisonment and two years of supervised release. He also appeals the court’s
order to pay $795,945.51 in restitution. After careful consideration, we affirm his
sentence and vacate and remand for reconsideration his restitution order.
I.
The facts of this case are set out in this Court’s earlier decision addressing
the direct appeal brought by Kreitman and his co-defendants. See United States v.
Ramirez, 724 F. App’x 704 (11th Cir. 2018) (unpublished). We will briefly
recount them here. Kreitman was convicted of mail fraud, conspiracy to commit
mail fraud, money laundering, and conspiracy to commit money laundering for
participating in a scheme that defrauded insurance companies. Id. at 709–10. The
scheme was as elaborate as it was criminal. The conspirators recruited people to
stage car accidents and seek “treatment” at one of several clinics operated by the
conspirators. Id. at 709. At the clinic, a conspirator chiropractor, like Kreitman,
would prescribe dozens of fake therapy sessions for the “injured” person, bill
insurance companies for the cost, and pocket the money. Id. at 709–10.
For his role in this scheme, Kreitman was sentenced to 96-months
imprisonment and 2 years of supervised release, and ordered to pay more than $1.5
million in restitution and an assessment of $2,500. Id. at 710. On appeal, this
Court vacated his sentence and restitution order because the district court
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improperly held him accountable “for all of the loss that was generated during the
course of the conspiracy” as opposed to “all reasonably foreseeable” losses. Id. at
718–19 (quotation marks omitted). In addition, the district court failed to “make
individualized findings on the scope of criminal activity undertaken by Mr.
Kreitman.” Id. at 719. This Court remanded Kreitman’s case for resentencing. Id.
at 720.
On remand, the district court reevaluated the evidence and found that the
actual loss was $795,945.51 and that ten or more victims were involved. The court
also declined to apply a two-level special skills enhancement because Kreitman did
not use any special skills in service of the money laundering offense. As a result,
the district court calculated Kreitman’s new guideline range as 78 to 97 months,
which the court characterized as “an appropriate range . . . to work with” and
“sufficient but not greater than necessary to comply with the requirements of
Section 3553.” Before imposing a sentence, the district court heard arguments
from counsel, who urged the court to vary downwards on account of Kreitman’s
exemplary behavior in prison. While in prison, Kreitman taught multiple GED
courses and completed more than 900 hours of coursework in preparation for
reentry.
The court imposed an 84-month sentence followed by two years of
supervised release. The court also ordered Kreitman to pay $795,945.51 in
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restitution. The court explained that it arrived at its sentence after considering “the
statements of the parties, the information contained in the presentence investigation
report, and the advisory guideline range, as well as the statutory factors set forth in
18 U.S.C. [§] 3553.”
Kreitman timely appealed.
II.
“We review a district court’s interpretation and application of the Sentencing
Guidelines de novo but accept the court’s factual findings unless they are clearly
erroneous.” United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). We
likewise review de novo “the legality of an order of restitution,” and we review the
factual findings undergirding the order for clear error. See United States v. Foley,
508 F.3d 627, 632 (11th Cir. 2007). We review the procedural reasonableness of a
sentence under an abuse-of-discretion standard. United States v. Ellisor, 522 F.3d
1255, 1273 n.25 (11th Cir. 2008). A district court abuses its discretion if it follows
improper procedures in setting a sentence. Id.
III.
Kreitman first argues the district court erred in calculating the guideline
range by relying on unreliable government calculations of claims, failing to
identify and exclude insurance claims involving legitimate patient treatment, and
speculating that more than ten victim-entities were involved. We disagree.
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The Sentencing Guidelines impose a 14-level enhancement if the actual loss
attributable to the defendant is more than $550,000 and less than or equal to $1.5
million. USSG § 2B1.1(b)(1)(H). Kreitman argues the district court
overcalculated the loss amount and suggests that he should have received a lower-
level enhancement. The problem with his argument is this: counsel for Kreitman
conceded at the sentencing hearing that even if the billings were off, the errors
were “not going to be anywhere near getting [Kreitman] down to 550”—or
$550,000. True, Kreitman asked the district court to calculate a loss amount no
greater than 65% of $795,000, or $516,750, to account for Kreitman’s actual
culpability. But the district court was entitled to find, given counsel’s concession,
that the loss was above $550,000 and commensurate with a 14-level enhancement.1
Neither did the district court clearly err in finding that Kreitman’s offenses
involved ten or more victims. As Kreitman conceded at the hearing, there were
“about 12” insurance companies affected by Kreitman’s billings. Although
Kreitman later maintained that the government failed to prove more than 8
insurance entities were the victims of Kreitman’s fraudulent insurance claims, he
1
The government argues that Kreitman cannot challenge the district court’s calculated
loss amount of $795,945.51 because he invited the error by agreeing at resentencing that the
actual loss amount was around $795,000. However, the record is clear counsel was referring to
the total potential loss amount—not how much Kreitman should be held liable for. As a result,
the doctrine of invited error does not bar him from making these arguments on appeal.
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has presented no argument on appeal that persuades us the district court’s finding
was clearly erroneous. 2
Even assuming that only insurance claims filed by Kreitman’s patients after
August 28, 2010 may be counted,3 the record reflects there were thirteen insurance
companies that made payments on or after that date. Kreitman nonetheless argues
there was not enough evidence to find more than ten victims because some of these
payments involved only one exam as opposed to a pattern of repeated visits, which
could be a sign that the victim was legitimately injured. But again, Kreitman
admitted at the resentencing hearing that these single examinations were
“borderline” cases and should be omitted under a “conservative” estimate.
Beyond Kreitman’s admission, there was testimony that single payments
would have been consistent with the fraud scheme because the government
introduced only bills attributable to Kreitman—not those bills attributable to his
co-conspirators or anyone else. In other words, a “patient” could have scheduled
several fake therapy treatments and billed them separately through a co-
conspirator, leaving Kreitman responsible for billing a fake x-ray and nothing else.
2
The government also argues Kreitman invited error on the number of victims involved.
However, because Kreitman did dispute the number of victims during the resentencing hearing,
we will not apply the invited error doctrine to bar consideration of the merits of his claim.
3
Kreitman argued during resentencing that August 28, 2010, the day the indictment says
Kreitman fraudulently mailed an insurance claim, should serve as the start date for all loss
calculations.
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The district court was entitled to credit that testimony. The court therefore did not
clearly err in finding that the government met its burden of proving by a
preponderance of the evidence that more than ten victims were involved. See
United States v. Castaneda–Pozo, 877 F.3d 1249, 1251 (11th Cir. 2017) (per
curiam) (“We will not reverse a district court’s factual finding unless we are left
with a definite and firm conviction that a mistake has been committed.” (quotation
marks omitted)).
As for the restitution order, it appears the district court recognized that some
of the billing numbers “might be inaccurate” but credited the government’s
proffered number anyway because the mistakes wouldn’t lower the guideline
range. This was improper. This Court has cautioned that “the amount of loss for
restitution purposes will not always equal the amount of loss under the sentencing
guidelines” and courts must be careful to narrowly tailor restitution so as not to
“provide a windfall for crime victims.” United States v. Bane, 720 F.3d 818, 827
(11th Cir. 2013) (quotation marks omitted). Kreitman raised several concerns
during resentencing about how the government calculated loss. The most serious
of these was the government’s decision to include billing for a time period that
may have predated Kreitman’s employment with the clinic. If Kreitman is correct
about these mistakes, it is doubtful he could be made to pay the restitution amount
based on them, even if his guideline range remained the same. See United States
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v. Dickerson, 370 F.3d 1330, 1341 (11th Cir. 2004) (“[A] criminal defendant
cannot be compelled to pay restitution for conduct committed outside of the
scheme, conspiracy, or pattern of criminal behavior underlying the offense of
conviction.”).
The district court did not meaningfully engage with Kreitman’s arguments
about the loss amount once it determined the guideline range would remain
unchanged. We therefore vacate the restitution order and remand for the district
court to reconsider all the evidence. If Kreitman wants to pursue his argument that
some amount of money should be deducted from the restitution order because he
actually treated injured patients, he must present some evidence about what that
amount should be. See Bane, 720 F.3d at 829 n.10 (“The defendant bears the
burden to prove the value of any medically necessary goods or services he
provided that he claims should not be included in the restitution amount.”).
IV.
Kreitman also argues the district court erred by failing to explain why it did
not vary downwards from the guideline range. This argument fails to persuade.4
“It is sufficient that the district court considers the defendant’s arguments at
sentencing and states that it has taken the § 3553(a) factors into account.” United
4
We do not address whether our review of this issue should be for plain error, as the
government argues, or abuse of discretion, as Kreitman contends. Kreitman’s procedural
challenge fails regardless of the standard of review.
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States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010) (en banc) (quotation marks
omitted). As long as the record demonstrates that the district court “listened to the
evidence and arguments and was aware of the various factors the defendant put
forward for a lesser sentence,” the court has adequately explained its sentence. Id.
This district judge listened to Kreitman’s statement at resentencing that he had
completed more than a thousand credit hours of programming while incarcerated
and actively taught other inmates as well. The court also heard Kreitman’s
arguments regarding his mother’s poor health. The court chose nonetheless to
adhere to the guideline range, determining that a sentence of 84 months was
appropriate and sufficient under § 3553. This was no abuse of discretion. It was a
reasoned consideration of the evidence that we are not at liberty to disturb on
appeal.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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