                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0409p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                       X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                        -
                                                        -
                                                        -
                                                            No. 05-3173
          v.
                                                        ,
                                                         >
 NICHOLAS J. TRIANA, JR.,                               -
                               Defendant-Appellant. -
                                                       N
                        Appeal from the United States District Court
                       for the Northern District of Ohio at Cleveland.
                      No. 04-00099—John R. Adams, District Judge.
                                           Submitted: July 19, 2006
                                  Decided and Filed: November 2, 2006
             Before: MARTIN and RYAN, Circuit Judges; MARBLEY, District Judge.*
                                              _________________
                                                   COUNSEL
ON BRIEF: G. Richard Strafer, OFFICE OF G. RICHARD STRAFER, Miami, Florida, for
Appellant. Bruce A. Khula, UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
         MARBLEY, D. J., delivered the opinion of the court, in which MARTIN, J., joined. RYAN,
J. (p. 16), delivered a separate opinion concurring except as to Part II.C.
                                              _________________
                                                  OPINION
                                              _________________
        ALGENON L. MARBLEY, District Judge. On March 3, 2004, in a five-count indictment,
a federal grand jury charged Nicholas J. Triana (hereinafter, “Triana” or “Defendant”) with various
fraudulent acts: (1) Count 1 charged Triana with conspiring, under 18 U.S.C. § 371, with unindicted
co-conspirators – his sister, Jolynn Peck (“Peck”), and his attorney, Brian Salvagni (“Salvigni”), and
“others” – to defraud the Medicare and Medicaid programs and the United States District Court for
the Northern District of Ohio, including the United States Probation Office; (2) Count 2 alleged that
Triana committed health care fraud by “fraudulently” trying to circumvent the exclusion provision
of his settlement agreement in violation of 18 U.S.C. § 1347; (3) Count 3 alleged that Triana
violated the federal false statement statute, 18 U.S.C. § 1001, by allegedly failing to “notify” and/or

         *
          The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                          1
No. 05-3173           United States v. Triana                                                 Page 2


by “conceal[ing]” from his probation officers that he had a “de facto ownership, interest and control”
of two companies – FootCare Consultants, Inc. (“Footcare”), a company providing podiatric services
to patients in nursing homes around Ohio, and Podiatry Administration, LLC (“Podiatry Admin.”),
a business allegedly performing marketing and other administrative services for Footcare; (4) Count
4 charged Triana with one count of bank fraud under 18 U.S.C. § 1344, for causing Peck, to file a
loan application for a second home containing materially incorrect information; and (5) Count 5
charged Triana with making a false statement in an application for an automobile loan in violation
of 18 U.S.C. § 1014. Triana went to trial, and a jury convicted him on Counts 1 through 4.
        Triana now raises three issues on appeal. First, he asserts that the district court abused its
discretion in refusing to allow the jury to consider his proposed jury instruction raising an
entrapment by estoppel theory of defense. Second, he argues that the district court erred as a matter
of law in basing its “loss” calculation under U.S.S.G. § 2B1.1 on Footcare’s approximately $1.7
million in gross receipts from Medicare, when the fraud did not cause any actual losses to the
Medicare program. Third, Triana argues that he should be resentenced in the aftermath of United
States v. Booker,125 S. Ct. 738, 747 (2005). For the reasons set forth below, although we AFFIRM
both Triana’s conviction and the district court’s “loss” calculation, we VACATE Triana’s sentence,
and REMAND his case to the district court for resentencing in light of United States v. Booker and
its progeny.
                                        I. BACKGROUND
                                            A. Triana I
         Between 1987 and 1998, Defendant-Appellant, Triana, worked as a Doctor of Podiatric
Medicine in Ohio, specializing in the treatment of elderly patients housed in nursing homes
throughout the state. On September 28, 1998, Triana executed a plea agreement with the
government under which he pled guilty to one count of health care fraud for inflated Medicare
billing, in violation of 18 U.S.C. § 1347 (hereinafter referred to as “Triana I”). Under the terms of
Triana’s plea agreement, he agreed that he would not “personally, or through any entity he controls,
i.e. through a direct or indirect ownership interest of five percent or more or an officer, agent, or
managing employee (as defined in 42 U.S.C. § 1320a 5(b)) submit claims or cause claims to be
submitted for program payment.” Triana also reached a settlement with the United States
Department of Health and Human Services (“HHS”), excluding him from participation in
“Medicare, Medicaid and all other federal health care programs” for a period of eight years.
According to the exclusion notice he received from HHS, Triana could receive “no program
payment . . . for any items and services . . . including administrative and management services,” and
such restrictions on payment would occur whether he served as an employee, administrator,
operator, or in any other capacity.
        Pursuant to the above agreements, on January 29, 1999, the district court sentenced Triana
to six months of imprisonment in Oriena House, a half-way house with work release privileges
located in Akron, Ohio, to be followed by a two-year period of supervised release, pursuant to
18 U.S.C. § 3583. As a condition of Triana’s sentence, he was required to “notify [his] probation
officer any time he had an interest of five percent or more in any entity or practice which submits
claims or causes claims to be submitted to . . . Medicaid or Medicare reimbursement.” In addition,
Triana was required to pay a fine of $10,000.00 and restitution in the amount of $83,644.00 “to be
paid at a minimum rate of 15% of defendant’s gross monthly earnings.” In addition, effective
June 11, 1999, the State of Ohio Medical Board permanently revoked Triana’s podiatry license.
No. 05-3173           United States v. Triana                                                 Page 3


                  B. Triana’s Involvement in Footcare and Podiatry Admin.
        Because of his exclusion from Medicare and Medicaid programs, Triana was unable to
obtain a Medicare or Medicaid provider number for any entity that he owned or controlled.
Nonetheless, with the help of Salvagni, his corporate attorney and friend, Triana was able to create
two new companies, Footcare and Podiatry Admin., and use them in a scheme that would enable him
to participate, benefit from, and control a podiatry practice that billed Medicare. Although both
Footcare and Podiatry Admin. were, in actuality, operated by Triana, Triana placed Dr. Stephen
Castor (“Castor”) at the helm of Footcare, and made his own sister, Peck, the owner and sole
shareholder of Podiatry Admin.
        In October 1998, Triana contracted to sell Castor his former podiatry practice under the name
Footcare for $50,000.00, consisting of a $500 down payment and a promissory note for the balance
of $49,500. Castor, a former bellhop at the Cleveland Airport Marriott, was a recent graduate of
podiatry school who had been working for Triana without pay since early 1998 in the hopes of
establishing himself as a podiatrist and eventually opening a podiatry practice in Ohio. Though
Salvagni testified that the agreement between Triana and Castor was a standard-form contract,
Castor’s testimony at trial made clear that Triana had arranged the deal to allow him to maintain
control of the operation while having Castor serve as a figurehead. First, despite the terms of the
agreement, no money changed hands. Castor never paid Triana the $500 down payment required
by the agreement, and Triana told Castor that he would not have to pay Triana any money on the
$49,500 promissory note. Castor’s eventual default on the note would, therefore, permit Triana to
reclaim his practice at the appropriate moment. Second, Triana significantly limited Castor’s power
to oversee the business. From 1998 onward, Footcare hired at least thirty new podiatrists and took
on hundreds of new nursing home clients. Castor never once authorized a contract, and was at all
times restricted from looking at Footcare’s books. Third, Triana ensured that Castor’s salary was
limited to 30% of the net receipts from work he billed plus a 5% administrative fee. Thus, despite
the fact that after Castor “purchased” the company, Footcare grew exponentially, eventually
achieving gross income upwards of $650,000 in 2001, Castor’s salary was consistently under
$70,000 per year. By limiting Castor’s income, Triana was able to funnel the rest of the money to
his second company, Podiatry Admin., under the guise of “management costs.”
         Salvagni also assisted Triana in creating Podiatry Admin., an Ohio limited liability company.
Podiatry Admin. received a high percentage of Footcare’s monthly gross profits, ostensibly in return
for providing Footcare with both management and administrative services. In order to hide his
control of the company, however, Triana recruited his younger sister, Peck, to serve as the owner
and sole shareholder of the company. Peck was a recently-divorced, financially strapped elementary
school teacher in Florida, who had no background in either health care or medicine. At trial, Peck
testified that both Triana and Salvagni had assured her that after signing the appropriate paperwork,
she would be “relieved of all responsibilities” regarding Podiatry Admin., including ever having to
visit the company headquarters in Ohio. In return for permitting Triana to use her name, Peck
received a $500 monthly stipend from the Podiatry Admin. account.
        Footcare’s podiatrists, allegedly “unaffiliated” with Triana, derived significant income from
Medicare billing. The income passing from Medicare to Footcare and Podiatry Admin., was
funneled to Triana in a number of ways. Because Footcare and Podiatry Admin. both maintained
office space in a building owned by Triana, Podiatry Admin. credited Triana for thousands of dollars
in rental expenses. Triana’s office building contained four separate and nearly identical suites, and
although the two other renters testified that they paid roughly $6,000 per year in rent, Podiatry
Admin.’s rent was inexplicably higher, totaling approximately $80,000 per year. Podiatry Admin.
also charged Footcare considerable sums for “administration” and “management” costs; such costs
usually amounted to at least 57% of Footcare’s monthly earnings. At trial, however, Podiatry
Admin.’s former President, Theresa Kripinsky (“Kripinsky”), testified that despite Podiatry
No. 05-3173           United States v. Triana                                                   Page 4


Admin.’s high management fees, Podiatry Admin.’s services to Footcare were actually quite limited
in scope. For instance, though Podiatry Admin. charged Footcare to perform its Medicare billing,
in reality, Northcoast Medical Billing Service (“North Coast”), not Podiatry Admin., submitted all
of Footcare’s claims to Medicare. Kripinsky testified that Triana consistently instructed her to issue
Podiatry Admin. checks to take care of his personal expenses. While serving as Podiatry Admin.’s
President, Kripinsky used Podiatry Admin. checks to make Triana’s restitution payments as well as
monthly mortgage payments on his two condos. Further, Kripinsky used Podiatry Admin. funds to
settle a number of Triana’s bills from various stores such as Sam’s Club, Kaufman’s and Pier 1
Imports. On occasion, Triana also asked Kripinsky for blank checks from the Podiatry Admin.
account to use for his own purposes. At trial, Kripinsky claimed that she quit because she was upset
that between his salary and his various personal expenses, Triana consumed approximately 45% of
all of Podiatry Admin.’s funds.
                             C. Triana’s Monthly Probation Reports
        As a condition of his conviction in Triana I, Triana was required to cooperate with assigned
United States Probation Officers and to provide them with truthful information regarding the nature
of his employment and income. Though Triana argued that he was continuously truthful in
completing his probation reports, at trial, the government adduced evidence suggesting that in
addition to underreporting his financial assets significantly, Triana provided the probation officers
with substantially inaccurate accounts of his involvement in Footcare and Podiatry Admin. For
instance, though Triana told his probation officers that he was not involved with Medicare billing
in any way, at trial, various witnesses testified that Triana often inquired of Footcare staff regarding
claims submitted to Medicare, as well as any Medicare monies that were received. Further, in order
to keep from piquing Medicare’s suspicion about Footcare’s billing procedures, Triana consistently
instructed Footcare podiatrists to bill with a lower patient code whenever possible. Most shocking,
when Matthew Simpson, a fraud investigator at Nationwide Insurance Company, came to Footcare’s
home office to perform an audit, Triana representing himself as Castor, went through the necessary
audit procedures with him, ensuring that Simpson would not learn any potentially incriminating or
fraudulent information.
                           D. The Course of Proceedings in Triana II
        In July 2000, the FBI began to suspect that Triana was skirting the requirements of his
sentence in Triana I, as well as his settlement agreement with HHS. Hence, on March 3, 2004, after
the FBI had completed a thorough investigation, a federal grand jury returned the five-count
indictment for conspiracy, health care fraud, making false statements and bank fraud, currently at
issue (hereinafter referred to as “Triana II”).
        At trial, Triana presented a proposed theory of defense jury instruction on entrapment by
estoppel. Triana asserted that because there was ample evidence at trial to show that he had been
forthcoming about his involvement in both Footcare and Podiatry Admin., he should not now be
punished for his reliance on his USPOs’ implied ratification of his actions. The district court denied
the jury instruction, finding both that there was no evidence in the record to support Triana’s claim
that he had informed his USPOs that he had any interest in either Footcare or Podiatry Admin. and
that Triana had been “indirectly” receiving funds from Medicare since being sentenced in Triana I.
        Triana was found guilty, and the government’s sentencing memorandum recommended
numerous sentence enhancements from the Federal Sentencing Guidelines (the “Guidelines”), that,
when combined, raised Triana’s offense level from a base level of 7 to at least a 33. The government
urged the following enhancements: (1) a two-level enhancement under U.S.S.G. § 2B1.1(b)(1)(7)(C)
for Triana’s violation of a prior court order; (2) a two-level enhancement under U.S.S.G.
§ 2B2.2(b)(8)(C) for Triana’s use of sophisticated means in concealing his involvement in Footcare
No. 05-3173               United States v. Triana                                                                Page 5


and Podiatry Admin.; (3) a two-level enhancement under U.S.S.G. § 3A1.1 for Triana’s knowledge
that a victim of the offense, nursing home patients, was a “vulnerable victim”; (4) a two-level
enhancement under U.S.S.G. §§ 3B1.3 and 3B1.3(c) for a person who both “abuses a position of trust
during the course of illegal activity” and is the “leader, manager, or supervisor of criminal activity.”
Although Triana objected to each of the government’s proposed enhancements, the district court
overruled his objections.
        The government also argued for an 18-point enhancement under U.S.S.G. § 2B1.1 for the
substantial loss to Medicare caused by Triana’s fraud. The government recommended that the district
court adopt the $2,922,967.90 in bills Footcare submitted to Medicare – the “intended loss” – as the
loss attributable to Triana under the Guidelines. Triana objected and argued that because all of
Footcare’s services were legitimate services to Medicare-eligible patients, the appropriate “loss”
under U.S.S.G. § 2B1.1(a)(1) was zero. In its discretion, the district court adopted the $1,764,199.36
Footcare received from Medicare – the “actual loss” – adding 16 points to Triana’s base offense level,
instead of the government’s recommended 18.
        Accordingly, the district court calculated Triana’s offense level to be a Level 1, Category III,
and sentenced him to the following concurrent sentences: Count 1- 60 months; Count 2 - 120 months;
Count 3 - 60 months; Count 4 - 135 months. The district court also ordered Triana to pay
$1,764,199.6 in restitution, and to serve three years on supervised release. As set forth above, Triana
now appeals his conviction and his sentencing on three bases: (1) that the district court erred in
failing to allow his entrapment by estoppel jury instruction; (2) that the district court erred in
calculating “loss” under the U.S.S.G. § 2B1.1; and (3) that Triana must be resentenced in light of
United States v. Booker.
                                                   II. ANALYSIS
                                                A. Jury Instruction
        At trial, Triana submitted a proposed jury instruction, which raised an entrapment by estoppel
defense for Counts 1 through 5.1 Triana’s based his proposed instruction on his assertion that there
was ample evidence to show that because he was consistently forthcoming about his involvement in
both Footcare and Podiatry Admin., he should not be punished for his reliance on his probation
officers to inform him of any potential violations. The district court found Triana’s theory untenable,
and refused to present his requested theory of defense instruction to the jury. The district court
explained that there was “[n]o evidence . . . that the Government or an agent thereof affirmatively
informed the Defendant that his conduct was legal,” or that Triana relied on any such announcement.


       1
           The proposed jury instruction stated:
                Defendant Nicholas J. Triana, Jr., claims that he is not guilty of the willful or deliberate wrongdoing
       as charged in Counts I through V of the indictment because he acted on the basis of authorization from the
       Government.
                  If before taking any action, Defendant Nicholas J. Triana, Jr., acted in good faith, and the Government:
       First: Through an authorized Government official, empowered to render the erroneous advice to the Defendant;
       Second: Who was made aware of all relevant historical facts;
       Third: Affirmatively told the Defendant that his conduct was permissible;
       Fourth: And That the Defendant relief [sic.] on this false information; and
       Fifth: The Defendant’s reliance was reasonable.
No. 05-3173               United States v. Triana                                                              Page 6


Further, the district court noted that it had “repeatedly g[iven] [Triana] the opportunity to provide any
evidence to support this [entrapment-by-estoppel] defense” and did not require him to take the stand
in order to present such evidence. Triana’s first assignment of error is that the district court’s
decision not to adopt his   defense instruction was an abuse of discretion entitling him to a new trial
on Counts 1 through 4.2
       A district court must grant an instruction on the defendant’s theory of the case if the theory
has some support in the evidence and the law. United States v. Duncan, 850 F.2d 1104, 1117-18 (6th
Cir. 1988). An instruction which lacks evidentiary support or is based upon speculation should not
be given. United States v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994). The proposed instruction must
adequately submit the3 issues and applicable law to the jury. United States v. Brown, 946 F.2d 1191,
1194 (6th Cir. 1991).
        This Court reviews a district court’s decision not to give a jury instruction for abuse of
discretion. See United States v. Ursery, 109 F.3d 1129, 1136 (6th Cir. 1997); see also, United States
v. Colon, 268 F.3d 367, 373 (6th Cir. 2001). When conducting such review, this Court reverses the
trial court if it finds that: (1) the proposed instruction is substantially correct; (2) the proposed
instruction is not substantially covered by other delivered charges; and (3) the failure to give the
instruction impaired the defendant’s theory of the case. See United States v. Newcomb, 6 F.3d 1129,
1132 (6th Cir. 1993) (citations omitted); see also Morgan, 216 F.3d at 566; see United States v.
Newcomb, 6 F.3d 1129, 1133 (6th Cir. 1993) (assuming, arguendo, that the theory of defendant’s
requested instruction was legally sound, noting that if the government relies on legal error as the basis
for its refusal to give an instruction, the district court is responsible for making the necessary
alterations to the instruction). Although a jury instruction “should not be given if it lacks evidentiary
support or is based upon mere suspicion or speculation,” United States v. James, 810 F.2d 674, 675
(6th Cir. 1987) (citation omitted), so long as there is even weak supporting evidence, “[a] trial court
commits reversible error in a criminal case when it fails to given an adequate presentation of a theory
of defense.” United States v. Plummer, 789 F.2d 435, 438 (6th Cir. 1986).
         Entrapment by estoppel applies when an official tells a defendant that certain conduct is legal
and the defendant believes that official to his detriment. See Cox v. Louisiana, 379 U.S. 559 (1965)
(to find defendant liable for violating a statute when defendant relied on the Chief of Police’s
incorrect advice that his actions would be lawful “would be to sanction an indefensible sort of
entrapment by the State”); see also, Raley v. Ohio, 360 U.S. 423 (1959). As a threshold requirement,
Triana must show that an evidentiary basis exists upon which the instruction can be issued. Morgan,
216 F.3d at 566. In order to prove the defense of entrapment by estoppel, a defendant must show
that: (1) a government agent announced that the charged conduct was legal; (2) the defendant relied
on the agent’s announcement; (3) the defendant’s reliance was reasonable; and (4) given the


         2
           Though the language of Triana’s proposed jury instruction set forth an entrapment by estoppel defense on
counts 1 through 5, Defendant-Appellee’s brief state that “the requested instruction applied only to Counts 1-3.” See
Defendant-Appellee’s Brief at 55. The Brief goes on to state that this Court must now find that the faulty jury
instructions on Triana’s defense to counts 1 through 3 also infected count 4 because in successfully opposing Triana’s
pre-trial motion to sever counts 4 and 5, the government argued that count 4 was “inextricably intertwined” with the
charges in counts 1 through 3.
         3
          Relying on authority from various other circuits, Triana proposes that his threshold evidentiary burden is
extremely low, and that he is entitled to his requested jury instruction if there is any supporting evidence whatsoever,
regardless of whether that evidence is tenuous. See United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995); Perez
v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961); United States v. Pedroza, 750 F.2d 187, 204-05 (2d Cir. 1984)
(emphasis added). In Morgan, however, this Court held that when an instruction “lacks evidentiary support,” or is based
on “speculation,” it should not be given. See 216 F.3d 557, 566 (6th Cir. 2000). Therefore, Triana’s argument that his
tenuous evidence is enough to establish a basis for his requested instruction is without merit.
No. 05-3173                  United States v. Triana                                                             Page 7


defendant’s reliance, prosecution would be unfair. United States v. Levin, 973 F.2d 463, 468 (6th Cir.
1992).
        This Court holds that the district court did not abuse its discretion in rejecting Triana’s
entrapment by estoppel defense because Triana failed to put forth evidence sufficient to satisfy the
first prong of the entrapment by estoppel test. Triana concedes that no government official ever
explicitly told him that his actions were legal, but he asserts that because he was forthcoming about
his involvement in Footcare and Podiatry Admin., his probation officers’ failure to prohibit his
activities actively amounted to an implied ratification of his actions. This Court finds Triana’s
arguments to be disingenuous in light of the evidence established at trial. Because Triana was made
plainly aware of the requirements of his Triana I sentence on more than one occasion, it strains this
Court’s credulity that he did not know that his control of Footcare and Podiatry Admin. was illegal.
Moreover, Triana cannot now blame his probation officers for “failing to alert” him to any illegality
when the evidence at trial demonstrated that he withheld any incriminating information from them.
                                       1. Triana’s Knowledge of Illegality
         Triana was informed by a number of different authorities that becoming too involved in
Footcare and Podiatry Admin. would violate his sentence in Triana I. Upon being sentenced by the
district court in Triana I, Triana was explicitly instructed by the terms of his plea agreement as well
as by the HHS letter of exclusion that he was to be excluded from participating in any manner
whatsoever with federal health care programs, including Medicare, for a period of eight years.4 By
accepting the foregoing terms in a number of different contexts and circumstances, Triana clearly
knew his legal obligations, and continuously attempted to circumvent them.
        At trial, Salvagni testified that as Triana’s corporate attorney, he continuously instructed
Triana that he must remain in compliance with the terms of his Triana I sentence. Salvagni stated
that though he helped to create Footcare and Podiatry Admin., he informed Triana that to comply
with the law, Triana could have no power or authority over either entity. Salvagni testified that he
told Triana that, “he had to remain in an administrative capacity. That there was a spectrum, is the
way I explained it to him on a number of occasions. There was a spectrum where if he swept the
floors of [Podiatry Admin.] and did menial work that there would clearly have been, in my opinion,
you know, no issue.” Nonetheless, Triana controlled both the actions of Castor with respect to
Footcare, and the actions of Peck with respect to Podiatry Admin. Accordingly, he enjoyed unlimited
discretion with both companies, and, in using his knowledge of the Medicare system, his physician
contacts with nursing homes, and his ongoing podiatry practice, he pursued profit above all else.




           4
               The language present in the Plea Agreement, the Judgment and Order, and the HHS exclusion letter was as
follows.
           The defendant understands that following the exclusion, he cannot personally, or through any entity he controls
           (i.e., through a direct or indirect ownership interest of five percent (5%) or more or an officer, agent, or
           managing employee . . . submit claims or cause claims to be submitted for program payment. He further
           understands that violations of the conditions of the exclusion may result in criminal prosecution and the
           imposition of civil monetary penalties.
No. 05-3173              United States v. Triana                                                             Page 8


        Triana’s blatant disregard for the express instructions of his Triana I settlement as well as the
exclusion letter of HHS resembles the actions of the defendant in United States v. Morgan, a case in
which this Court considered whether a district court had erred in refusing to allow a defendant’s
entrapment by estoppel defense theory. See 216 F.3d at 557. In Morgan, defendant Morgan appealed
his three-count jury conviction for being a felon in possession of a firearm, an unregistered machine
gun, and a machine gun. Id. Morgan claimed that he was entitled to an entrapment by estoppel jury
instruction because police officers had led him to believe that his actions were legal. Id. Evidence
set forth at trial showed that on more than one occasion, police officers, finding over 58 firearms in
Morgan’s possession, had expressly told him that it was illegal for him to have the guns, and that
though he could not sell them, he had to find a way to dispose of them. See id. Morgan asserted that
because the police officers never told him a specific deadline by which he had to dispose of the
firearms, and because he had intended to give the guns to his parents eventually, he was entitled to
a defense of entrapment by estoppel. Id. at 560-61. This Court, however, upheld the district court’s
decision, explaining that because police officers had expressly told Morgan on more than one
occasion that his actions were per se illegal, he could not now claim they had approved of his
behavior. Id. (emphasis added). In this case, much like in Morgan, Triana admits that government
officials never expressly told him his actions were legal. And, like Morgan, Triana was at all times
apprised of the requirements of both his sentence and the law. The Court finds it illogical to allow
Triana to now claim “ignorance” in the face of clear instruction from the district court, HHS, his
probation officers, and his own attorney.
                                             2. Failure to Disclose
        Further, according to the testimony of one of Triana’s probation officers, Eric Corns
(“Corns”), Triana consistently withheld key information about his involvement with Footcare and
Podiatry Admin. from his probation officers that would have put them on notice of the illegality of
his actions. In failing to disclose all relevant information to the USPOs, Triana could not reasonably
rely on them to inform him when he was in breach of his Triana I settlement.
         Pursuant to their statutory duties, probation officers, who are assigned a case-load of
approximately sixty files at a time, are required to verify monthly forms completed by defendants
describing their employment, their daily schedule, and their finances. According to the United States
Probation Office “Chronological Record” submitted into evidence in this case, from 1998 through
his dismissal from probation in 2001, Triana either failed5to disclose or covered up information he
presented to each of the probation officers to take his case. Triana consistently reported that he was
working for a doctor’s office as an “administrative assistant.” At trial, however, Castor and others
testified that Triana’s role in the company did not comport with his title. In addition, Triana also
consistently reported monthly income of approximately $950.00, excluding his rental income of
approximately $7,000, which he stated was mostly used for property expenses. In truth, however,
Triana’s use of approximately 45% of Podiatry Admin. finances for personal use put his “monthly
income” at a level far above that which he reported. Moreover, though Triana consistently listed his
supervisor as “Penny Tuley,” at trial, Ms. Tuley testified that as the Podiatry Admin. office manager,
she was never Triana’s supervisor and was in fact subject to his direction at all times. Triana sought
to hide the depth of his participation in Footcare and Podiatry Admin., and the information in
Triana’s reports was clearly far outside the realm of reality.
       As Corns testified at trial, Triana’s probation officers did not have access to any Footcare or
Podiatry Admin. records other than what Triana gave them. Hence, the only information the
probation officers had on which to base a decision not to charge Triana with a violation was Triana’s

         5
          In October 2000, because Triana moved from Port Clinton, Ohio to Strongville, Ohio, his case was transferred
to probation officer Dodds. Further, on August 1, 2001, Triana’s case was again transferred from probation officer
Dodds to Urda.
No. 05-3173           United States v. Triana                                                 Page 9


consistent misrepresentation that he was only tangentially involved with both Footcare and Podiatry
Admin. In addition, Corns testified that probation officers are not accountants, attorneys, or fraud
investigators, and that they have no background in the complex forums of Medicare, Medicaid or
other federal health insurance programs. Thus, probation officers are not trained to investigate
complex health care fraud such as Triana’s. Further, Corns testified that probation officers are not
trained to act as “legal advisors” to offenders in any way. Since, through his demonstrably false
assertions, Triana effectively prevented the USPOs from developing a thorough knowledge of his
business practices, he cannot now impose on them the obligation to have declared his activities
verboten.
        Defendant claims that his reliance on the advice of the probation officers makes his case
similar to that of the defendant exonerated in United States v. Hedges, 912 F.2d 1397, 1405-06 (11th
Cir. 1990). This Court disagrees. In Hedges, the Eleventh Circuit found that the district court had
erred in refusing to give an entrapment by estoppel instruction to the defendant who had relied on
advice given to him by a “standards of conduct officer.” See id. at 1397. When defendant Hedges,
a former Colonel in the United States Air Force, was looking to retire from military duty, he sought
advice from Captain Lehman, the Standards of Conduct Counselor charged with advising personnel
about conflict of interest matters. Id. at 1398-99. Hedges sought work as a defense consultant for
Sperry Corporation (“Sperry”), one of the bidders on a military contract for which Hedges had been
responsible while serving as a Colonel. Id. at 1399. Hedges told Sperry that he would not accept
employment with them until Lehman told him it would comply with all conflict of interest laws, and,
after Sperry had sent him a draft agreement, he passed it along to Lehman. Id. The agreement
contained no salary or terms of employment, and though Lehman edited it to satisfy any conflict of
interest concerns, he never told Hedges that he should wait until his terminal leave began before
proceeding with negotiations with Sperry. Id. at 1399-1400. At trial, the jury found that because
Hedges had negotiated with Sperry before he was officially placed on terminal leave, he had violated
military conflict of interest laws. Id. at 1400. On appeal, however, the Eleventh Circuit, relying on
“principles of fairness” rather than the “defendant’s mental state,” found that the district court had
erred in refusing to allow Hedges entrapment by estoppel defense and reversed Hedges’ conviction.
Id. at 1406.
       Triana argues that just as Hedges provided Lehman with all relevant information regarding
his proposed work with Sperry, in this case Triana had provided all relevant information to the
probation officers. This Court disagrees. Unlike Hedges, Triana consistently altered or failed to
disclose financial and work-related information that showed him to be in clear violation of his
sentence. Moreover, where Hedges, who had no criminal history, had placed himself wholly in
Lehman’s hands, in this case, Triana, who has once before been found guilty of fraud, made sure that
he did not reveal the full extent of his business-related activities to the USPOs. Thus, where the
Hedges court found it “unfair” to prosecute Hedges for his actions, in this case fairness dictates the
opposite result.
       As demonstrated by the foregoing analysis, Triana provided no evidence to support his
proposed entrapment by estoppel jury instruction. Accordingly this Court AFFIRMS Triana’s
convictions on all grounds.
No. 05-3173                 United States v. Triana                                                              Page 10


                                                 B. Loss Calculation
        U.S.S.G. § 2B1.16 is the Guideline used by courts in determining “loss” for fraud cases.7 The
Guideline enhances a defendant’s    sentence to correlate to the amount of loss caused his fraud. See
U.S.S.G. § 2B1.1(b)(1).8 Application Note 2 to § 2B1.1 provides guidance for the determination of
loss. The application note states that “loss is the greater of actual loss or intended loss.” Id. § 2B1.1,
cmt. (n.2) (2002). “[A]ctual loss” is “the reasonably foreseeable pecuniary harm that resulted from
the offense,” and “intended loss” is “the pecuniary harm that would have been impossible or unlikely
to occur.” Id. § 2B1.1, cmt. (n.2(A)(I) and (ii)). In situations where the losses occasioned by
financial frauds are not easy to quantify, the district court need only make a reasonable estimate of
the loss, given the available information. Id. § 2B1.1, cmt. (n.2(C)). Such estimates “need not be
determined with precision.” United States v. Miller, 316 F.3d 495, 593 (4th Cir. 2003).
        At trial, Janet Siriano (“Siriano”), a long-time, government-contracted benefit integrity
analyst involved with both Medicare investigations of Triana, testified that from July 1999 through
2003, Footcare billed Medicare for $2,922,967.90, and received $1,764,199.36.9 Based upon
Siriano’s estimates, the government’s sentencing memorandum suggested that under the Guidelines,
because the intended loss was over $2.5 million, Triana should get an 18-point enhancement. The
government also noted that should the district court find that the approximately $1.7 million actual
loss was the more appropriate measure of Medicare’s loss, it should apply a 16-point enhancement.
Id. at 383. Defendant objected to both enhancements asserting that because the services billed to
Medicare were legitimate podiatric services for qualified Medicare recipients, Medicare had suffered
no loss for which Defendant could be held liable.
       At sentencing, the district court, relying on United States v. Brown, 151 F.3d 476 (6th Cir.
1998) and United States v. Nastasi, 2002 WL 1267995 (E.D.N.Y. Apr. 17, 2002), found that Triana’s
above argument “misse[d] the point,” because given that under the exclusion, Medicare would not
pay money to any entity with which Triana was associated, the “evidence showed that Medicare

         6
            The Guidelines were amended, effective November 1, 2001, and § 2F1.1 of the Guidelines was deleted as part
of that amendment. Under the revised version of the Guidelines, “loss” in fraud cases is calculated under a revised
version of § 2B1.1. Some cases cited in this Opinion, however, were decided prior to those amendments, and, therefore,
referenced § 2F1.1, as opposed to § 2B1.1. § 2B1.1 is the Federal Sentencing Guideline for larceny, embezzlement, and
theft, and the commentary to § 2B.1.1 emphasizes the amount taken from the victim as the primary measure of loss: “The
value of the property stolen plays an important role in determining sentences for theft and other offenses involving stolen
property because it is an indicator of both the harm to the victim and the gain to the defendant.” U.S.S.G. § 2B.1.1,
Background, ¶ 1.
         7
             According to the Guidelines, the greater the loss, the greater the corresponding enhancement level:
         Loss (Apply the Greatest)                       Increase in Level
         ***
         (I) More than $1,000,000                        add 16.
         (J) More than $2,500,000                        add 18.
U.S.S.G. § 2B1.1.
         8
           Because the base offense level in fraud cases often does not identify the seriousness of the offense, the
Guidelines are intended to offer a series of ways to enhance a fraud sentence, allowing what the Seventh Circuit in
United States v. Schneider, 930 F.2d 555, 559 (7th Cir. 1991), has called “bonus punishment points for different levels
of proven loss beginning with $2,000.” See United States v. Khan, 969 F.2d 218 (finding that because defendant was
ineligible for the fraudulent social security benefits he applied for, his sentence should not be enhanced by the “intended”
loss).
         9
           This information was encapsulated in Government Exhibit #26, which Siriano authenticated and, upon
instruction of the court, signed in the presence of the jury.
No. 05-3173            United States v. Triana                                                    Page 11


would not have paid [Footcare] but for the fraud.” The district court then held Triana accountable
only for the $1,764,199.36 in actual losses suffered by Medicare – not the $2,922,967.90 in intended
losses – requiring an offense level increase of 16.
        Defendant’s next assignment of error is that the district court erred as a matter of law in
basing its “loss” calculation under U.S.S.G. § 2B1.1 on Triana’s approximately $1.7 million in gross
receipts from Medicare when the fraud did not cause any actual losses to the Medicare program.
According to Defendant, as he stated in his objection at trial, there was nothing fraudulent about
Footcare’s billings because the services in question “were all properly performed by licensed
podiatrists” working for Footcare, and the patients were all Medicare-eligible and entitled to the
treatment. Moreover, assuming arguendo that this Court finds that a “loss” did occur, Defendant
asserts that the “loss” figure should have been reduced to the amount of money actually taken
improperly by Triana in excess of the less than 5% permitted under the exclusion.
        The Court reviews a district court’s findings of fact at sentencing as to “loss” and restitution
for “clear error,” and its methodology for calculating loss de novo. United States v. Rothwell, 387
F.3d 579, 582 (6th Cir. 2004); see also, United States v. DeSantis, 237 F.3d 607, 611 (6th Cir. 2001).
Under the Guidelines, the district court is to determine the amount of loss by a preponderance of the
evidence, and the district court’s findings are not to be overturned unless they are clearly erroneous.
United States v. Guthrie, 144 F.3d 1006, 1011 (6th Cir. 1998); see also United States v. Bracciale,
374 F.3d 998, 1003 (11th Cir. 2004) (nothing that “the district court cannot merely ‘speculate’ as to
the proper amount of loss). However, “whether those facts as determined by the district court warrant
the application of a particular guideline provision is purely a legal question and is reviewed de novo
by this court.” United States v. Garner, 940 F.2d 172, 174 (6th Cir. 1991).
        The Court agrees with the district court’s determination that this case falls squarely within
our reasoning in United States v. Brown, 151 F.3d 476 (6th Cir. 1998). In Brown, defendant Brown
was convicted of fraud relating to the provision of “Section 8 housing benefits” from the United
States Department of Housing and Urban Development (“HUD”). Id. at 479. As the administrator
of the program, Brown was supposed to place applicants for benefits on a waiting list and then select
persons from that waiting list in a particular order. Id. Instead, Brown accepted bribes and other
consideration from individuals, and, in return, chose those individuals off the waiting list out of order.
Id. At sentencing, pursuant to the Guidelines, the district court tried to calculate the actual and
intended losses suffered by HUD. Id. at 488. The actual loss figure in Brown’s PSR “represented
the money which, at the time of [his] conviction, HUD had already expended on those individuals
who had improperly received Section 8 benefits through Brown,” and the intended loss figure
“covered those individuals who [had] received a certificate or voucher, but who [had not yet] actually
received Section 8 benefits. . .” Id. The district court adopted the actual and intended loss figures
from the PSR, explaining that all it had to find is the “diversion of funds.” Id.
        On appeal, Brown adopted an argument very similar to that which Triana now asserts,
contending that “HUD incurred no loss because the people who received housing were eligible, in
a financial sense.” 151 F.3d at 489. In upholding the district court’s calculation, however, this Court
explained that by choosing people out of order, Brown had “diverted or attempted to divert funds
from the recipients contemplated by the application regulations.” 151 F.3d at 489. Further, this
Court noted that “it is irrelevant that the action recipients were financially eligible, given the fact that
they were certainly not ‘next in line’ for benefits. . .” Id. (emphasis added). Similarly, in this case,
Triana’s argument that the fact that each recipient of Footcare podiatric services was eligible to
receive Medicare benefits meant that Medicare had not incurred a loss, fails to consider the important
No. 05-3173               United States v. Triana                                                              Page 12


fact that Triana’s participation in Footcare made it10ineligible for the receipt of any Medicare funds
whatsoever, regardless of the services it provided.
         Defendant relies on United States v. Schneider, 930 F.2d 555 (7th Cir. 1991) to assert that
should the Court determine that a loss did indeed occur, it should at least recalculate that loss to
encompass only the percentage of the $1.7 million plus awarded to Footcare by Medicare that Triana
took for himself; in other words, Triana’s improper gain. In Schneider, defendants, husband and
wife, submitted bids for a government construction contract which included fraudulent information.
Id. at 556. In calculating the victims’ loss from defendants’ fraud, the district court used the “amount
bid” by each defendant. Id. at 557. The Seventh Circuit, however, reversed on appeal, explaining
that the estimate of the loss bore no relation to the economic reality, and suggesting that:
         . . . it is necessary to distinguish between two types of fraud. One is where the offender – a
         true con artist . . . – does not intend to perform his undertaking, the contract or whatever; he
         means to pocket the entire contract price without rendering any service in return. In such a
         case the contract price is a reasonable estimate of what we are calling the expected loss, and
         we repeat that no more than a reasonable estimate is required. The other type of fraud is
         committed in order to obtain a contract that the defendant might otherwise not obtain, but he
         means to perform the contract (and is able to do so) and to pocket, as the profit from the
         fraud, only the difference between the contract price and his costs.
Id. at 558 (internal citations omitted).
        Accordingly, the Court finds that the district court did not abuse its discretion in determining
that Triana’s actions caused an approximately $1.7 million “loss” to Medicare. Under the terms of
Triana’s Triana I sentence, he was excluded from participation in Medicare and Medicaid programs.
By extension, Triana’s substantial participation in Footcare made the company ineligible for
participation in Medicare and Medicaid as well. Therefore, as in Brown, while defendant’s efforts
to divert HUD funds to allegedly “eligible” applicants did not mean that he had caused no losses to
HUD, Triana’s attempt to divert Medicare funds to Footcare caused a loss to Medicare regardless of
whether Footcare hired legitimate podiatrists or provided services to legitimate Medicare
beneficiaries.


         10
            Moreover, this Court is also persuaded by the district court’s reasoning in United States v. Nastasi, 2002 WL
1267995 (E.D.N.Y. Apr. 17, 2002). In Nastasi, four defendants and the “Nastasi Companies,” which were purportedly
owned by the defendants, pled guilty to conspiracy to commit health care fraud by concealing the true ownership of the
Nastasi Companies by the titular defendant, Mr. Nastasi (“Nastasi”). Id. at *1. Like Triana, Nastasi had a prior federal
conviction for health care fraud, and HHS had excluded him from participating in the Medicare and Medicaid programs
for 25 years. Id. With full knowledge of his exclusion, however, Nastasi participated in a scheme through which he and
his relatives, listing straw-people as owners on the Medicare/Medicaid applications, actually owned and operated a
number of entities (the “Nastasi Companies”), which subsequently billed over $57 million to Medicare and Medicaid
illegally. Id.
          During sentencing, the government asked the district court to calculate loss pursuant to application note 8(d)
of U.S.S.G. § 2F1.1, which dealt with “Diversion of Government Program Benefits.” Nastasi, 2002 WL 1267994, at
*2. The defendants, however claimed that such a calculation would be inappropriate under the circumstances. Id. at *3.
They asserted that because the Nastasi Companies actually provided services to “individuals qualified for Medicare or
Medicaid benefits,” no loss had occurred to Medicare. Id. The district court and the appellate court rejected the
defendants’ arguments, noting that “the ‘intended recipients’ of those benefits are not, as the defendants argue,
individuals qualified for Medicare or Medicaid, but instead are entities qualified to participate in, and receive
reimbursement from those programs.” Id. The Nastasi court explained that, “[b]ecause the Nastasi Companies should
have been excluded from participation in the Medicare and Medicaid programs, they were not ‘intended recipients’ under
the programs, and thus the ‘benefits’ of those programs were ‘diverted.’” Id. Similarly, in Triana’s case, because he,
and by association, Footcare, should have been excluded from participation in Medicare and Medicaid for eight years,
regardless of whether Footcare podiatrists had provided proper treatment to qualified elderly Medicare patients, he had
improperly diverted over $1.7 million in benefits to Footcare.
No. 05-3173                 United States v. Triana                                                                    Page 13


        Moreover, Triana’s assertion that the Court should substitute its previous loss calculation with
an estimate of his own personal gain, is not well-taken where Triana’s efforts to circumvent his
settlement in Triana I demonstrate that his case does not warrant such leniency. Although this Court
recognizes that there may be some cases of fraud in which the facts surrounding a defendant’s
wrongdoing demand more leniency than the statutory formulas may allow, this, unlike Schneider, is
not one of those cases. Triana has one previous conviction for health care fraud, and his actions in
creating and subsequently hiding his involvement in both Footcare and Podiatry Admin. showcase
a sophisticated plan meant to circumvent his prior punishment. Further, courts have consistently held
that in calculating loss, “substitution of defendants’ gain is not the preferred method because it
ordinarily underestimates the loss.” See United States v. Snyder, 291 F.3d 1291, 1295 (11th Cir.
2002); see also, United States v. Chatterji, 46 F.3d 1336 (4th Cir. 1995); United States v. Haddock,
12 F.d 950, 960 (10th Cir. 1993).
         Therefore, regardless of Triana’s assertion that his scheme was not akin to that of a true “con-
artist,” because this Court finds that a quantifiable, actual loss can be attributed to Triana’s conduct,
it will not substitute Triana’s percentage of gain for that actual loss. Accordingly, the Court hereby
AFFIRMS the district court’s loss calculation.
                                                       C. Sentencing
        The district court sentencing hearing was convened on the morning of January 12, 2005 when
the Guidelines were still mandatory. That same day, the Supreme Court issued its opinion in United
States v. Booker, 125 S. Ct. 747 (2005), holding that the Guidelines are advisory, not mandatory.
Incidental discussion during the sentencing hearing indicates that neither the parties nor the district
court was aware that Booker had been decided at the time that it sentenced Triana. Accordingly,
Triana argues that if the Court declines to overturn his conviction on counts 1 through 4, it must
vacate his sentence, and re-sentence him pursuant to United States v. Booker.
        As a threshold matter, the parties dispute the standard of review applicable to their appeal
regarding the methodology used in the loss calculation portion of Triana’s sentencing. Triana argues
that his sentencing should be reviewed under a “preserved error” standard11 because at trial, his
counsel expressly objected to the constitutionality of the Guidelines. See 542 U.S. 296 (2004). The
government counters that because Triana did not raise timely express sentencing     challenges under
Booker, this Court must review the district court’s ruling for “plain error.”12 See 125 S. Ct. at 747.
The government concedes, however, that even under a “plain error” standard of review, Triana’s
sentence should be vacated and remanded. Though the government’s concession diminishes the
importance of whether the Court adopts “plain error” or “preserved error” review, because the Sixth
Circuit has yet to address the issue of what constitutes “preservation” of a Booker objection at trial,
an analysis follows.13



         11
             In cases receiving “preserved error” review, a reviewing court looks at the case de novo to determine whether
there is error. If error is found, it is generally subject to a “harmless error” analysis. See FED. R. CRIM. P. 52(a).
         12
             “[B]efore an appellate court can correct an error not raised at trial, there must be (1) an error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Johnson v. United States, 520 U.S. 461 (1997); see FED. R. CRIM. P. 52(b)
         13
           As in this case, in U.S. v. Nanez, 168 Fed. Appx. 72, 79 (6th Cir. 2006), the parties disputed whether the
Court should apply a “preserved error” or “plain error” standard of review. Because the Court found it appropriate to
vacate defendant’s sentence even under the more stringent plain error review, it did not address the issue of whether
defendant’s sentencing objections preserved his Sixth Amendment claim. Id. at 79, n. 3.
No. 05-3173              United States v. Triana                                                 Page 14


           Defense counsel objected to the “harshness” of Triana’s sentence under the Guidelines,
stating.
           I think the courts have seen, and I think this is also perhaps why there is a wholesale
           movement away from the [G]uidelines, in any event based on the Fanfan case that was just
           argued in the Supreme Court, is the results under the [G]uidelines have proved to be far
           harsher than before we had the [G]uidelines. So that which was supposed to promote equity
           in sentencing has actually resulted in unfairness in sentencing. And this would be a good
           example.
Triana asserts that the foregoing objection suffices to raise a constitutional objection, entitling him
to de novo review of his sentence. The government disagrees.
        This Court has not directly addressed the issue of what amounts to a timely constitutional
objection. Other circuits have noted, however, that “there exists some question ‘whether, in cases
not involving a Sixth Amendment violation, there must be an objection to the mandatory nature of
the guidelines in order to preserve that error on appeal, or whether a general objection to the sentence
imposed under the [G]uidelines is sufficient to preserve a Booker challenge.” See United States v.
Akpan, 497 F.3d 360, 376, n.53 (citing United States v. Sayre, 400 F.3d 599, 599-600 (8th Cir.
2005)).
        The Court finds United States v. Candelario, 240 F.3d 1300, 1303-04 (11th Cir. 2001) to be
instructive on the issue of the requisites for a constitutional objection, although it is a pre-Booker
decision. In Candelario, the Eleventh Circuit focused on the distinction between constitutional
objections and non-constitutional objections for a defendant appealing his conviction and sentence
for conspiracy to traffic crack cocaine, and possession of crack cocaine under Apprendi v. New
Jersey, 530 U.S. 466 (2000) (holding that “any fact [other than a prior conviction] that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”). See 240 F.3d at 1300. The Candelario court noted that “not every
objection is a constitutional objection,” explaining:
           [a] defendant may be deemed to have made a constitutional objection if his objection invokes
           Apprendi. A defendant may also be deemed to have made a constitutional objection if he
           contends that “the issue of drug quantity should go to the jury.” Other potential constitutional
           objections include that an element of the offense was not proved, that the judge cannot
           determine quantity, or that quantity must be proved beyond a reasonable doubt (and not by
           a preponderance of the evidence). However, a defendant’s objection to the quantity of drugs
           that the Government attributes to him is not, on its own, a constitutional objection. Such an
           objection is properly characterized as either an evidentiary objection or a sufficiency of the
           evidence objection.
Id. at 1303 (internal citations omitted).
        Applying Candelario’s reasoning to the instant case, the Court finds that Triana’s objection
to the “harshness” of the Guidelines during his sentencing hearing constitutes a timely constitutional
objection. First, though the Supreme Court had not yet decided Booker when Triana was sentenced,
Triana’s counsel referenced the case. Despite the fact that the area of law was unsettled at the time
of Triana’s sentencing, such a reference certainly put the district court on notice that Triana’s counsel
objected to the constitutionality of Triana’s sentence. Second, both before and during sentencing,
Triana’s counsel made several evidentiary objections, concerning, for instance, the four-level
enhancement the government suggested for Triana’s role in the Footcare/Podiatry Admin. conspiracy
and claiming that the evidence adduced at trial did not amount to a showing that Triana was “in
control” of the scheme. Triana’s Booker objection, however, can be viewed as distinct from these
No. 05-3173               United States v. Triana                                                             Page 15


other objections because instead of taking issue with factual interpretations, it raised the broader
constitutional question of whether Triana’s Guideline sentence was disproportionate to the crime, i.e.
“harsher” than he deserved.
        Additionally, this Court finds Triana’s objections to the district court’s sentencing calculation
of the amount of loss caused by his fraudulent activity sufficient to constitute a constitutional
objection. See supra Part II.A. (“Loss Calculation”); Akpan, 407 F.3d 360; United States v. Kirkham,
129 Fed. Appx. 61 (5th Cir. Apr. 11, 2005). Like the case sub judice, both Akpan and Kirkham are
cases in which defendants appealed their respective health care fraud convictions. Id. Both the
Eighth and the Fifth Circuits found that a defendant’s objection to the district court’s sentencing
calculation of the amount of loss caused by his fraudulent activity raised during his sentencing
hearing, effectively preserved his Booker objection for appeal. Akpan, 407 F.3d at 376 (“we are
satisfied that [defendant’s] objections adequately apprised the district court that [defendant] was
raising a Sixth Amendment objection to the loss calculation . . .”); Kirkham, 129 Fed. Appx. at 76-77
(“we hold - and the government concedes - that objections made by defendants at their sentencing
hearings [regarding the district court’s loss calculations] were sufficient to invoke their Sixth
Amendment rights to the extent necessary to preserve their Booker objections”). Accordingly, in this
case, where Triana raised objections to the loss calculation applied by the district court both pre-
sentencing, and during sentencing, this Court joins the Fifth and Eighth Circuits in holding that these
objections effectively preserved his Booker objection for appeal. See supra Part II.B. (“Loss
Calculation”).
         In cases applying preserved error review, this Court applies a de novo standard of review to
determine whether the district court, viewing the Guidelines as mandatory rather than advisory,
sentenced a defendant in violation of Booker. See 125 S. Ct. at 747. Although the constitutional
infirmity of the Guidelines was not settled at the time Triana was sentenced, both parties agree that
in light of Booker, the district court erred by adopting the Guidelines as mandatory.
        If on de novo review, an appellate court finds a constitutional error, it is also subject to a
“harmless error” analysis under FED. R. CRIM. P. 52(a).14 The Supreme Court has explained that a
constitutional error, such as a Booker error, must be disregarded as not “affect[ing] substantial
rights,” if that error is “harmless beyond a reasonable doubt.” See Chapman v. California, 368 U.S.
18, 24 (1967). The foregoing standard is only met, however, where it is clear “beyond a reasonable
doubt hat the error complained of did not contribute to the verdict obtained.” Id. (emphasis added).
In Triana’s case, it is clear that the district court’s application of the Guidelines enhanced his sentence
significantly. Accordingly, this Court VACATES Triana’s sentence and REMANDS his case for
resentencing pursuant to Booker and its progeny, and also according to the sentencing goals outlined
in 18 U.S.C. § 3553(a).
                           III. CONCLUSION AND RECOMMENDATION
        Accordingly, this Court AFFIRMS Defendant’s conviction, and finds that the district court
correctly held that Triana’s actions resulted in a “loss” to Medicare. Because, however, the sentence
imposed by the district court violated Triana’s Sixth Amendment right to a jury trial, we hereby
VACATE Triana’s sentence and REMAND the case for re-sentencing in light of this opinion and
the Supreme Court’s holding in Booker.
         IT IS SO ORDERED.



         14
            FED. R. CRIM. P. 52(a) reads: “Any error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded.” (emphasis added).
No. 05-3173           United States v. Triana                                                 Page 16


                                      _____________________
                                         CONCURRENCE
                                      _____________________
        RYAN, Circuit Judge, concurring. I concur in my brother’s opinion, except with respect to
part II.C. The government concedes that, even under plain error review, this case should be
remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005), and we agree.
Therefore, I do not think it is necessary to address whether Triana’s objections at sentencing
preserved his claim that the district court’s fact finding, which resulted in an enhanced sentence under
the mandatory guidelines, violated Triana’s constitutional rights under the Sixth Amendment.
