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United States v. Gumila

United States Court of Appeals, Seventh Circuit

January 16, 2018

United States of America, Plaintiff-Appellee,
v.
Diana J. Gumila, Defendant-Appellant.

          Argued April 7, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 cr 411 - Charles P. Kocoras, Judge.

          Before Posner, [*] Ripple, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Diana Gumila ran a home-healthcare company that defrauded the federal government of several million dollars. She was convicted of multiple counts of healthcare fraud and making false statements in connection with a healthcare matter. The district judge imposed a below-guidelines prison sentence of 72 months followed by 24 months of supervised release.

         Gumila appeals, raising several challenges to her sentence. She first argues that the judge miscalculated the financial loss attributable to her offenses. She also contends that the 72-month prison term is substantively unreasonable. Finally, she claims that the judge did not adequately explain the term and conditions of supervised release. The first two arguments are meritless. The third is waived. We affirm.

         I. Background

         Diana Gumila was head of clinical operations for Suburban Home Physicians, LLC, which did business under the name "Doctor at Home." The company employed doctors and other medical personnel to provide home medical care to the elderly in and around Chicago. Gumila was indicted on 21 counts of healthcare fraud in violation of 18 U.S.C. § 1347 and three counts of making a false statement in a healthcare matter in violation of 18 U.S.C. § 1035. The indictment alleged that Doctor at Home (1) over billed Medicare for medical home visits; (2) billed Medicare for unwarranted skilled-nursing services; and (3) billed Medicare for care-plan oversight services that were never provided.

         At trial the government introduced testimony from more than 20 witnesses and a trove of documentary evidence establishing that Gumila played a central role in Doctor at Home's scheme to defraud the government. The evidence showed that she regularly overruled physicians who wanted to discharge patients from their care. She instructed nonphy- sician employees to bill medical services at unjustifiably high rates (a practice known as "upcoding"). She instructed employees to claim that patients were homebound even when they weren't. And she instructed employees to process orders authorizing skilled-nursing services even if the attending doctor did not believe the patient qualified for that service and even when no doctor had ever examined the patient. A jury found her guilty on all counts.

         Before the sentencing hearing, the government proposed figures for three categories of financial loss suffered by Medicare: (1) approximately $2, 375 million for unnecessary and upcoded home visits; (2) at least $9.45 million for skilled-nursing services that did not meet Medicare's requirements and were unnecessary; and (3) $3, 779 million in claims for care-plan oversight services that did not qualify for payment or were never performed.

         In the presentence report ("PSR"), the probation officer substantiated those figures for the three categories of loss and estimated the total financial loss stemming from Gumila's unlawful conduct to be $15.6 million. The corresponding guidelines range was 151 to 188 months in prison. The probation officer recommended a below-guidelines sentence of 84 months in prison and a 24-month term of supervised release. The PSR also recommended 18 specific conditions of supervision.

         Gumila filed written objections to the PSR, challenging the loss calculation and arguing that the loss should be limited to Medicare payments for the eight patients specifically mentioned in the indictment-for a total loss of only $14, 449. She argued for a prison sentence of 12 to 18 months. She did not object to the recommended term or conditions of supervised release. The government recommended a below-guidelines sentence of 120 months in prison, a 24-month term of supervised release, and $15.6 million in restitution.

         At sentencing the judge concluded that the evidence established an "overwhelming and massive scheme" to defraud the Medicare program. He rejected Gumila's argument that the government was required to present specific evidence to prove the fraudulent nature of each individual transaction contributing to the total financial loss. He also determined that the PSR's loss estimate of $15.6 million was reasonable. The judge imposed a sentence of 72 months in prison (less than half the low end of the guidelines range) and 24 months of supervised release. He also imposed the 18 conditions of supervision recommended by the PSR and ordered Gumila to pay $15.6 million in restitution.

         II. ...


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