A federal appeals court today unanimously vacated a doctor's 53-month prison sentence in a fraud case, saying the trial judge failed to provide a satisfactory reason for bumping up the prison sentence a year above the guideline range.
Federal prosecutors in Washington alleged the doctor, Ehigiator Akhigbe, defrauded the private insurance company Amerigroup Corporation through claims for visits and surgical procedures that did not take place or were misrepresented. Akhigbe, according to the government, created false progress notes to substantiate fraudulent billings.
Akhigbe’s lawyers, David Schertler and Veronica Jennings of Washington’s Schertler & Onorato, maintained any billing discrepancies stemmed from negligent oversight, not intentional fraud. Following a jury trial in Washington federal district court in
December 2009, Akhigbe was convicted and faced a guideline sentence between 33 and 41 months.
The U.S. Court of Appeals for the D.C. Circuit today vacated the 53-month sentence but kept intact the jury’s verdict finding Akhigbe guilty on one count of health care fraud and 16 counts of false statements in health care matters.
In sentencing Akhigbe to a term above the guidelines, Senior Judge Sterling Johnson Jr. of Brooklyn federal district court, sitting by designation, said fraud in the health care system contributes to the rising cost of care.
“[A] sentence above the guidelines will promote respect for the law and provide just punishment for the offense,” Johnson said in a ruling. “It will provide adequate deterrence and protect the public.”
The appeals court panel—Judges Douglas Ginsburg, David Tatel and Janice Rogers Brown—said today that broad statements about the cost of health care would apply to any defendant and do not, on their own, provide sufficient reasoning for a 12-month increase in the prison sentence.
“Devoting most of its discussion at sentencing to its views about the severity of Akhigbe’s offense, the district court commented generally and somewhat hyperbolically about the negative consequences of health care fraud, which the court said generates ‘much of the cost’ in the United States health care system,” Tatel said.
The D.C. Circuit panel said Johnson’s “oral and written statements are clearly insufficient." The court, however, said it recognized trial judges do “necessarily and appropriately exercise professional judgment in determining how much reasoning to give when explaining discretionary sentencing decisions.”
Johnson, the appeals court, doesn’t need to “do the impossible” and provide a detailed reason why the court believes 12 months—and not, say, 11 or 13—is the appropriate increased above the top of the guideline.
Jennings, who argued the case for Akhigbe in the D.C. Circuit in April, said in an e-mail: “We are still in the process of reviewing the entire decision, but we are very pleased the Court recognized that Dr. Akhigbe’s original sentencing decision was not supported by the record and that he will have the opportunity for a new sentencing hearing.”
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