                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 13 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 02-6313
                                                   (D.C. No. CIV-00-1290-M)
    RONALD TODD PAPA,                                     (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.



         After examining appellant’s brief and the appellate record, this panel has

determined unanimously to grant appellant’s request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

         Defendant-appellant Ronald Todd Papa appeals the district court’s decision

denying him collateral relief from the sentence he received for conspiring to



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defraud the United States.   1
                                 This court, on its own motion, ordered this appeal

abated pending our en banc decision in      United States v. Hahn , 359 F.3d 1315

(10th Cir. 2004) (per curiam). Having decided       Hahn , we now vacate our order

abating this appeal.

      Papa and his co-defendant were officers and directors of a medical supply

company, Destin Health Care, Inc. The Health Care Financing Administration

(HCFA) initiated an administrative proceeding to look into possible improprieties

with Destin’s Medicare claims for 1993 and the first part of 1994. As part of

those proceedings, the HCFA held an administrative hearing in August 1999 to

address a Medicare carrier’s allegations that Destin had filed four million dollars

in fraudulent Medicare claims during that time period.      See Aplt’s App. at 18. At

that hearing, Destin challenged the method the carrier had used to calculate that

loss. See id. at 19-20.

      A month after the administrative hearing, but while the HCFA’s decision

was still pending, the United States indicted Papa and his co-defendant on one

count of conspiring to defraud the United States,     see 18 U.S.C. § 371, and one



1
       This court previously granted Papa a certificate of appealability on his
28 U.S.C. § 2255 claims challenging both the length of his sentence and the
amount of restitution ordered.   See 28 U.S.C. § 2253. To the extent Papa is
appealing the district court’s decision denying him coram-nobis relief, he does not
need a COA. See United States v. Torres , 282 F.3d 1241, 1245 n.6, 1247 n.9
(10th Cir. 2002).

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count of filing false or fraudulent claims with the United States,       see 18 U.S.C.

§ 287. In October 1999, Papa, as well as his co-defendant, agreed to plead guilty

to the conspiracy count, in exchange for the government’s moving to dismiss the

false-claims count. In his plea agreement, Papa apparently agreed, and never

objected, to the government’s calculation that Papa’s criminal conduct resulted in

the United States losing over eight million dollars.      See Aplt’s App. at 30, 31

(Dist. Ct. Order). Based upon that eight-million-dollar loss calculation, the

district court sentenced Papa to thirty months’ imprisonment, followed by three

years’ supervised release, and ordered Papa to pay over ten million dollars in

restitution, representing the United States’ eight-million-dollar loss plus interest.

       Several months after his sentencing, the HCFA issued its decision, based

upon the earlier administrative hearing. The HCFA concluded that the Medicare

carrier had failed to support all of its claims adequately, and reduced the alleged

four-million-dollar loss to just over $16,000 for 1993 and just over $4,000 for the

first part of 1994.   See id. at 18-23 (HCFA decision). Based on that

administrative decision, Papa then filed a 28 U.S.C. § 2255 motion challenging

the length of his sentence and the ten-million-dollar restitution award.

       As an initial matter, we note that, as part of his plea agreement, Papa

waived his right to appeal or to pursue any collateral relief.       See Aplt’s App. at 6

(Papa’s amended mem. supporting § 2255 motion). That waiver, nevertheless,


                                             -3-
does not deprive this court of jurisdiction to consider this appeal.       See Hahn ,

359 F.3d at 1320, 1324 (considering direct criminal appeal).           Moreover, the

government did not argue that Papa’s plea-agreement waiver precludes these

collateral proceedings.    See Aplt’s App. at 32. Because ultimately Papa’s claims

lack merit, we will assume the government has waived this argument.

       Turning to the merits of Papa’s claims, he first challenges the length of his

imprisonment and supervised release, as based upon the government’s

eight-million-dollar loss calculation. The district court, however, held that Papa

had procedurally defaulted this claim by not objecting to the loss calculation until

his § 2255 motion. We agree.

       Papa argues that he has cause excusing this default, because his current

claim rests on newly discovered evidence - the HCFA’s administrative decision

issued after his sentencing. But, while the HCFA did not issue its decision until

after the district court had sentenced Papa, the administrative hearing underlying

that decision occurred prior to the government even indicting, let alone

sentencing, Papa. And during that administrative hearing, Destin was able to

challenge the Medicare carrier’s method for calculating the government’s loss.

Before his criminal proceedings, therefore, Papa was aware, or should have been

aware, of the grounds Destin had already used to challenge the government’s loss

calculation at the administrative hearing. Yet, in his criminal case, Papa never


                                             -4-
objected and, in fact, agreed to the government’s eight-million-dollar loss

calculation. See Aplt’s App. at 30, 31. Papa, therefore, has failed to establish

cause excusing his procedural default.   2
                                             See, e.g., Strickler v. Greene, 527 U.S.

263, 287 (1999) (noting defendant will be unable to establish cause where he was

previously aware of factual basis for claim, but failed to raise it earlier).

      Further, although a § 2255 motion may be the appropriate method for

challenging a federal conviction for the first time, where “[t]he facts relied on are

dehors the record and their effect on the judgment was not open to consideration

and review on appeal,” Waley v. Johnston, 316 U.S. 101, 104 (1942); see also

Bousley v. United States, 523 U.S. 614, 621-22 (1998), again Papa has failed to

establish that the means to challenge the government’s loss calculation were

unavailable to him at the time the district court sentenced him.

      We would further note that it is not at all clear from the appellate record

that Papa’s criminal case and the HCFA administrative proceedings addressed the

same time frame and the same claims. For one thing, the administrative hearing

addressed four million dollars’ worth of allegedly fraudulent claims, while the

government’s presentencing report, in these criminal proceedings, alleged twice


2
       Although this court can still generally overlook a procedural default if
declining to review a claim would produce a fundamental miscarriage of justice,
this procedural-bar exception does not apply to claims like Papa’s, challenging
a non-capital sentence. See United States v. Richards, 5 F.3d 1369, 1371
(10th Cir. 1993).

                                             -5-
that much. Additionally, the    district court noted that, while the HCFA

proceedings addressed “only . . . whether the services [Destin provided] were

medically necessary and whether the services were documented,” the criminal

indictment instead charged more broadly that Destin’s false Medicare claims

involved claims for supplies that 1) it never provided; 2) were not reimbursable;

3) were not medically necessary; 4) did not have a Florida “point of sale;” and

5) involved the “non-collection of co-payments.” Aplt’s App. at 30, 35 (Dist. Ct.

Order at 2, 7). Based upon these differences in the scope of the administrative

and criminal proceedings, therefore, the district court concluded that “the HCFA’s

Hearing Officer’s decision would have had only a small impact on the

government’s proof of loss.” Id. at 35 (Dist. Ct. Order at 7). Papa has not

specifically challenged these distinctions drawn by the district court.

       Papa next challenges the amount of restitution the district court ordered.

He cannot challenge that award under § 2255, however, because he is not

“claiming the right to be released” from custody based on that claim. 28 U.S.C.

§ 2255. See, e.g., United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003),

citing cases, cert. denied, No. 03-9320, 2004 WL 473818 (U.S. Apr. 19, 2004).

And, even if Papa could, instead, seek coram-nobis relief from the restitution

order, see Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997), that

relief is not warranted here.   Coram-nobis relief is available only to correct errors


                                           -6-
that result in a complete miscarriage of justice. See, e.g., United States v. Haga,

931 F.2d 642, 645 (10th Cir. 1991) (quotation omitted). In order to obtain

coram-nobis relief based upon newly discovered evidence, Papa must still show,

among other things, “that due diligence on his part could not have revealed the

evidence prior to” sentencing. Klein v. United States, 880 F.2d 250, 253-54

(10th Cir. 1989). Papa has failed to make that showing.

      For these reasons, this court’s order abating this appeal is VACATED

and the judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Michael W. McConnell
                                                     Circuit Judge




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