     Case: 10-30974     Document: 00511509229          Page: 1    Date Filed: 06/15/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 15, 2011
                                     No. 10-30974
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICHARD MONTALBANO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:09-CR-294-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Richard Montalbano appeals the sentence imposed for his conviction for
three counts of healthcare fraud in violation of 18 U.S.C. § 1347. The district
court imposed consecutive terms of 12 months of imprisonment on all counts for
a total term of imprisonment of 36 months, concurrent terms of three years of
supervised release on all counts, a fine of $115,228.24, and restitution of
$22,051.24.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 10-30974    Document: 00511509229      Page: 2    Date Filed: 06/15/2011

                                  No. 10-30974

      There is no reversible plain error in the imposition of the term of
imprisonment. The imposition of consecutive sentences was not a departure
triggering the notice requirement of Federal Rule of Criminal Procedure 32(h).
See Irizarry v. United States, 553 U.S. 708, 714, 716 (2008). The district court’s
factual findings were not clearly erroneous, see United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006), and any findings implicating factual disputes that
could have been resolved by the district court if Montalbano had objected or
presented rebuttal evidence do not constitute plain error, see United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991).         Though the imposition of three
consecutive 12-month sentences does not comply with U.S.S.G. § 5G1.2(c)
because it exceeds the total punishment of six to 12 months, Montalbano has
failed to carry his burden of demonstrating that the error affected his
substantial rights. See United States v. Ruiz-Arriaga, 565 F.3d 280, 282-83 (5th
Cir. 2009). Montalbano’s assertion that the district court failed to give any or
sufficient reasons to support its departure or variance from the Guidelines is
waived by virtue of inadequate briefing. See United States v. Reagan, 596 F.3d
251, 254-55 (5th Cir. 2010). Montalbano has also failed to demonstrate that the
term of imprisonment was substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
      In addition, there is no reversible plain error in the imposition of the fine.
The record demonstrates that the district court gave reasons for imposing the
fine. Montalbano has not shown that he was entitled to notice of the district
court’s intent to impose a fine that was higher than the guidelines range. See
Irizarry, 553 U.S. at 716. Though the district court was not required to impose
a fine representing the costs of confinement and supervision in addition to a
punitive fine, see U.S. S ENTENCING G UIDELINES M ANUAL app. C, Vol. 1,
Amendment 572, at p. 427 (Nov. 1, 1997), § 5E1.2(d)(7), Montalbano has failed
to carry his burden of demonstrating that the error affected his substantial
rights. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006).

                                         2
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                                No. 10-30974

Montalbano has also failed to demonstrate that the fine was substantively
unreasonable. See Gall, 552 U.S. at 51.
     The judgment of the district court is AFFIRMED.




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