                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 12-3745
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                                JO BENOIT,
                            a/k/a Elissa Jo Benoit

                                JO BENOIT,
                                      Appellant
                               _____________

               On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                     District Court No. 2-11-cr-00617-001
               District Judge: The Honorable Norma L. Shapiro

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            November 20, 2013

                  Before: AMBRO, SMITH, Circuit Judges
                  and O’CONNOR,* Associate Justice (Ret.)

                          (Filed: November 26, 2013)
                           _____________________

                                  OPINION
                           _____________________


SMITH, Circuit Judge.
*
 The Honorable Sandra Day O’Connor, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
      In 2008, Jo Benoit founded Transition Phase III, a mental health clinic in

Philadelphia, Pennsylvania, and served         as its   chief executive officer.

Pennsylvania’s licensing requirements require mental health clinics to have at least

sixteen hours per week of supervision by a licensed psychiatrist. Benoit operated

the clinic from the start with less than the required hours of psychiatric

supervision. Indeed, at times, after the psychiatrists Benoit had hired stopped

working at the clinic, she operated the clinic without any psychiatric supervision.

Although Benoit was not licensed as a therapist, psychologist or psychiatrist, she

held herself out as a psychiatrist, and provided counseling to clients.         She

stipulated at trial that she had no authority to write prescriptions.      Yet she

prescribed several schedule II controlled substances to her clients, some of whom

were minors. In order to prescribe the medication, Benoit used the names and

identifying information of two psychiatrists who no longer worked at the clinic.

Benoit also submitted fraudulent claims for her services to several insurance

companies.

      In October of 2011, a grand jury returned an indictment against Benoit. Two

months later, a superseding indictment was filed, charging Benoit with twenty-five

counts of health care fraud in violation of 18 U.S.C. § 1347, twenty-five counts of

aggravated identity theft in violation of 18 U.S.C. § 1028A, eight counts of

distributing controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and
                                         2
(b)(1)(C), and eighteen counts of distributing controlled substances to persons

under the age of 21 in violation of 21 U.S.C. § 859. The superseding indictment

also sought the forfeiture of assets derived from the gross proceeds of the

fraudulent scheme.

      After extensive pretrial motions, a jury trial commenced on June 5, 2012.

The jury found Benoit guilty on all charges. At sentencing, the United States

District Court for the Eastern District of Pennsylvania calculated an advisory

guideline range of 168 to 210 months. The Court sentenced Benoit to 72 months

of imprisonment, six years of supervised release, and ordered restitution in the

amount of $422,583.62. No fine was imposed. This timely appeal followed.1 For

the reasons set forth below, we will affirm.

      Benoit’s counsel, who represented her at trial, filed an Anders brief. See

Anders v. California, 386 U.S. 738 (1967). In Anders, the Supreme Court stated

that the “constitutional requirement of substantial equality and fair process” means

that appellate counsel must act as an advocate for the defendant. 386 U.S. at 744.

Thus, counsel’s

      role as advocate requires that he support his client’s appeal to the best
      of his ability. Of course, if counsel finds his case to be wholly
      frivolous, after a conscientious examination of it, he should so advise
      the court and request permission to withdraw. That request must,
      however, be accompanied by a brief referring to anything in the

1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                          3
      record that might arguably support the appeal.

Id. In United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001), we instructed that

the “duties of counsel when preparing an Anders brief are (1) to satisfy the court

that counsel has thoroughly examined the record in search of appealable issues,

and (2) to explain why the issues are frivolous.” Id. (citing United States v.

Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). “An appeal on a matter of law is

frivolous where ‘[none] of the legal points [are] arguable on their merits.’” Id. at

301 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). If our review fails to

reveal any nonfrivolous issues, we “may grant counsel’s request to withdraw and

dismiss the appeal.” Anders, 386 U.S. at 744.

      After considering the Anders brief and Benoit’s own pro se brief,2 we are

satisfied that counsel has conscientiously examined this record for appealable

issues. We agree with counsel that there are no non-frivolous issues for appeal.

      With regard to Benoit’s convictions, we agree that there is no basis for

setting aside Benoit’s conviction on any of the counts. Benoit complains that

stipulations were admitted into evidence and that she was neither advised of these

stipulations nor agreed to waive any right to cross-examine these witnesses. We

see no error. We have recognized that defense counsel has the ultimate authority


2
  Our local appellate rule requires notice to the appellant and affords the appellant
an opportunity to submit her own pro se brief. 3d Cir. L.A.R. 109.2(a). Benoit
took advantage of this opportunity.
                                         4
to decide issues concerning “what evidence should be introduced [and] what

stipulations should be made[.]” Gov’t of Virgin Islands v. Weatherwax, 77 F.3d

1425, 1434 (3d Cir. 1996) (omitting internal quotation marks and citation).

      Benoit asserts that she was not required to have a degree to be the chief

executive officer of the state licensed clinic. There is no dispute in that regard.

But the law required licensing as a psychiatrist, which necessarily requires a

medical degree, to prescribe the medicine and charge for services rendered. The

stipulation established that she was not licensed.

      Counsel also correctly notes that Benoit cannot challenge the District

Court’s ruling that her prior conviction would be admissible under Federal Rule of

Evidence 609(a) to impeach her if she chose to testify on her own behalf. As the

Supreme Court held in Luce v. United States, 469 U.S. 38, 43 (1984), “to raise and

preserve for review the claim of improper impeachment with a prior conviction, a

defendant must testify.” Because Benoit did not testify, she cannot challenge the

District Court’s ruling on the Rule 609 motion.

      Benoit also attacks her convictions, arguing that the government failed to

present the testimony of any expert. Expert testimony was not required here, as the

evidence presented was understandable. See Fed. R. Evid. 702(a) (permitting the

admission of expert testimony to “help the trier of fact understand the evidence”).



                                          5
      Benoit challenges the credibility of some of the trial witnesses. Because

issues of credibility are for the jury to determine, we construe her argument as a

challenge to the sufficiency of the evidence. See Kansas v. Ventris, 556 U.S. 586,

594 n.* (2009) (observing that “it is the province of the jury to weigh the

credibility of competing witnesses”). We “review the sufficiency of the evidence

in the light most favorable to the government and must credit all available

inferences in favor of the government.” United States v. Riddick, 156 F.3d 505,

509 (3d Cir. 1998). Our review of the record compels the conclusion that there

was sufficient evidence to establish beyond a reasonable doubt each element of

each of the charged offenses.

      In concluding that there was sufficient evidence to support her convictions,

we reject Benoit’s contention that her convictions cannot stand because no witness

testified that she signed the prescriptions. Circumstantial evidence supports the

jury’s conclusion that Benoit falsely issued the prescriptions.

      Benoit also asserts that some of the prosecutor’s comments were improper.

In the Anders brief, counsel identified two statements by the prosecution that, he

explained, did not amount to improper vouching but were rather comments on the

evidence presented at trial. See United States v. Saada, 212 F.3d 210, 225 (3d Cir.

2000). We agree. Our review of the record fails to reveal any prosecutorial

vouching.

                                          6
      Benoit contends that the jury selection was flawed because there was only

one African-American male and the jury was “not a valid cross section of the

community.” In order to establish a prima facie violation of the fair cross section

requirement of the Sixth Amendment and the Jury Selection and Service Act, 28

U.S.C. § 1861, a defendant must show: “(1) the group alleged to be excluded is a

‘distinctive’ group in the community; (2) the representation of this group in jury

venires is not ‘fair and reasonable’ in relation to the number of such persons in the

community; and (3) the underrepresentation is caused by the ‘systematic’

exclusion of the group in the jury selection process.’” United States v. Weaver,

267 F.3d 231, 237 (3d Cir. 2001) (quoting Duren v. Missouri, 439 U.S. 357, 364

(1979)). Benoit has not attempted to show any of these elements, and we conclude

that, without more, her bald assertion does not merit relief.

      Benoit also complains that her counsel was not given adequate preparation

time and that the Court erred by failing to grant a continuance. Presumably, this

claim relates to current counsel, who was appointed to represent Benoit a month

before trial, and after prior counsel had withdrawn. Because counsel did not seek a

continuance of trial, there can be no error in denying a continuance.

      Benoit’s pro se submission also asserts that her convictions should be set

aside because the District Court’s failure to suppress evidence violated her

constitutional rights. Inasmuch as there was no motion to suppress evidence filed

                                          7
by Benoit, we conclude that the issue was waived. United States v. Rose, 538 F.3d

175, 182 (3d Cir. 2008).

      Benoit submits that her convictions should be set aside because the District

Court erred in failing to conduct a competency hearing. The record fails to

support Benoit’s assertion. In response to a motion by the defense, the District

Court ordered a competency evaluation. The examining practitioner found Benoit

competent for trial.       A mental health evaluation also was ordered before

sentencing, and that report was provided to counsel for the parties and the District

Court with the presentence investigation report. In the absence of some evidence

to suggest that counsel and the Court erred by proceeding with the sentencing, we

see no ground for vacating the sentence.

      We also agree with counsel that there is no reason to vacate Benoit’s

sentence and to remand for further proceedings. As counsel noted, the District

Court carefully considered the various factors bearing on Benoit’s sentence. It

scrutinized the evidence pertaining to the amount of loss and employed a

conservative method that relied on actual payments received by the clinic from

insurance companies and patients. There was no error in this approach.

      Nor is there any merit to the assertion that Benoit was deprived of notice of

the sentencing factors the District Court identified as possible grounds for an

upward departure. There was no upward departure.

                                           8
       Benoit takes issue with the admissibility of the evidence adduced at

sentencing. We conclude that it was properly considered. Contrary to Benoit’s

assertion, she was not deprived of her right to confront and cross-examine the

victims.    See United States v. Robinson, 482 F.3d 244, 246 (3d Cir. 2007)

(concluding that the Confrontation Clause does not apply to sentencing). The

hearsay that was admitted was not improper, as it contained an indicia of

reliability. Id.

       In sum, the District Court carefully considered the sentencing factors set

forth in 18 U.S.C. § 3553(a), and Benoit’s counsel was afforded ample opportunity

to present an argument for a downward variance. In light of this, and mindful of

the substantial downward variance granted by the Court, we agree with counsel

that the sentence is neither procedurally nor substantively unreasonable.         See

United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (instructing

that “if the district court’s sentence is procedurally sound, we will affirm it unless

no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided”).

       Benoit asserts in her pro se submission that the fine was “excessive” and

“unjustly high.” This claim lacks merit, as no fine was imposed. Benoit also

contends that the $422,583.62 ordered as restitution was incorrect. “[W]e review

specific awards of restitution for abuse of discretion.” United States v. Crandon,

                                          9
173 F.3d 122, 125 (3d Cir. 1999). We find no abuse, as the amount is consistent

with the loss computed by the District Court, which was supported by the

evidence.

      In sum, we agree with counsel’s assessment of Benoit’s appeal. Our own

independent review of the record fails to reveal any nonfrivolous issues for appeal.

Accordingly, we will grant counsel’s motion to withdraw and affirm the judgment

of the District Court. We certify that the issues presented in the appeal lack legal

merit and thus do not require the filing of a petition for writ of certiorari with the

Supreme Court. 3d Cir. LAR 109.2(b).




                                         10
