                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2007

USA v. Alston
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3065




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Recommended Citation
"USA v. Alston" (2007). 2007 Decisions. Paper 401.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/401


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3065
                                     ____________

                           UNTIED STATES OF AMERICA

                                            vs.

                                  MICHAEL ALSTON,
                                                Appellant

                                     ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. Crim No. 05-cr-00332-1 )
                   District Judge: Honorable Petrese B. Tucker

                                     ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 18, 2007
                Before: SLOVITER, SMITH and WEIS, Circuit Judges.

                                Filed September 21, 2007
                                     ____________

                                       OPINION


WEIS, Circuit Judge.

             Defendant Michael Alston pleaded guilty to two counts of mail fraud in

violation of 18 U.S.C. § 1341 and twelve counts of health care fraud in violation of 18

U.S.C. § 1347. Before accepting his guilty plea, the District Court engaged defendant in
an extensive colloquy during which defendant repeatedly assured the Court that he

understood the charges, was guilty, and wished to plead guilty. Three months later,

however, defendant filed a motion to withdraw his guilty plea, asserting his innocence.

The District Court rejected the motion and proceeded to sentence defendant to 57 months

imprisonment and three years of supervised release and ordered him to pay $800,000

restitution and a $1,400 special assessment.

              On appeal, defendant contends that the District Court erred in calculating

the Guidelines range applicable to his conduct in two instances:

              1. By adding a two level enhancement under § 3C1.1 for obstruction of
              justice; and
              2. By adding a four level enhancement under § 3B1.1(a) because of the
              defendant’s role as organizer and leader of the fraudulent scheme.

              Defendant also contends that the District Court did not properly consider

the relevant § 3553(a) sentencing factors.

              In the hearing on the motion to withdraw his guilty plea, defendant testified

at length as to his innocence and his reasons for admitting his guilt during the plea

colloquy. At sentencing, the district judge said that she was assessing the enhancement

for obstruction of justice under the Guidelines, “not because Mr. Alston had exercised his

right to seek to withdraw his plea, but because of the lack of credibility with which he

approached this court.”



              We have reviewed the testimony of defendant at the hearing on the


                                               2
withdrawal of his plea and compared it with the expansive colloquy at the guilty plea

proceeding. We conclude that the District Court made sufficient findings to support the

enhancement. The record demonstrates that the District Court included a finding that

defendant was untruthful in his statements at the hearing on the motion to withdraw the

guilty plea. See United States v. Boggi, 74 F.3d 470, 479 (3d Cir. 1996); U.S.S.G. §

3C1.1 cmt. n.4(f) (obstruction of justice includes “providing materially false information

to a judge or magistrate”). Accordingly, we find no error in the enhancement for

obstruction of justice.

              The evidence also supports the enhancement for the defendant’s role as a

leader and organizer of the fraudulent scheme. With respect to leadership, the District

Court said, “Mr. Alston was a person who ran the show. . . . [H]e certainly implemented

[the scheme].” The evidence showed that defendant instituted a practice of submitting

bills and medical reports to insurance companies for medical treatment and physical

therapy sessions that never took place. The record also indicates that he hired and trained

clerical workers who submitted the fraudulent bills and he lead staff meetings where he

established procedures for defrauding the insurance companies. In addition, defendant

owned and operated the relevant businesses and benefitted from the fraudulent scheme.




                                             3
              We are persuaded that this is ample evidence to support the finding that

defendant was a leader and organizer of the fraudulent scheme.1

             Finally, the record indicates that the District Court adequately considered

the relevant § 3553(a) factors in this case. See United States v. Cooper, 437 F.3d 324,

330 (3d Cir. 2006).

             Accordingly, the Judgment of the District Court will be affirmed.




             1
                Defendant does not dispute that the scheme involved more than five
participants. See U.S.S.G. § 3B1.1(a).

                                            4
