                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2395




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Recommended Citation
"USA v. Vehoski" (2003). 2003 Decisions. Paper 451.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-2395


                          UNITED STATES OF AMERICA

                                           v.

                              MARY ALICE VEHOSKI,
                                            Appellant


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                              D.C. Crim. No. 00-cr-00292
            District Judge: The Honorable Thomas I. Vanaskie, Chief Judge


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 6, 2003


   Before: BARRY, FUENTES, Circuit Judges, and McLAUGHLIN,* District Judge


                            (Opinion Filed: June 17, 2003)


                                       OPINION




   *
    Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       Appellant Mary Alice Vehoski pled guilty to one count of health care fraud,

pursuant to 18 U.S.C. § 1347, based on an indictment charging that a company she

owned, Nurses Per Diem, billed Blue Cross for reimbursement of over $70,000 in nursing

services that were never provided to patients between September 1996 and September

1998. After crediting her acceptance of responsibility, the presentence investigation

report calculated that Vehoski had an adjusted offense level of 15 and 0 criminal history

points, for which the sentencing guidelines recommend a sentence of 18-24 months. The

District Court imposed the minimum sentence of eighteen months, finding no reason to

downwardly depart. Vehoski filed a notice of appeal pro se, and current counsel was

appointed. We denied his motion to withdraw as counsel, and this appeal followed. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will affirm.

       Vehoski’s counsel filed an appellate brief raising only one issue: whether

Vehoski’s sentence violates her Eighth Amendment right to be free from cruel and

unusual punishment. This claim is based on the alleged cruelty of preventing Vehoski

from caring for her three young children for eighteen months while she serves her term of

imprisonment. “[F]amily ties and responsibilities ... are not ordinarily relevant in

determining whether a sentence should be outside the applicable guideline range.”

United States v. Sweeting, 213 F.3d 95, 99, 102-13 (3d Cir. 2000) (quoting § 5H1.6) (the

fact that defendant was single parent providing for five children, one of whom had



                                              2
Tourette's Syndrome, did not constitute extraordinary circumstances justifying downward

departure). Moreover, an eighteen-month sentence for defrauding a victim of over

$70,000 is not “grossly disproportionate” to the crime. Lockyer v. Andrade, 123 S.Ct.

1166, 1173 (2003). Therefore, this issue is patently frivolous.

       Moreover, based upon our independent review of the record, we conclude that the

District Court’s sentence comports with the applicable law and the sentencing guidelines.

See 18 U.S.C. § 1347; U.S. S ENTENCING G UIDELINES §§ 2B1.1(b)(1)(E), 3B1.3, 3C1.1.

The record reveals compliance with Federal Rules of Criminal Procedure 11 and 32 in the

conduct of the plea hearing and in the procedure followed at sentencing. We do not have

jurisdiction to review a reasonable sentence within the applicable guidelines range. See

18 U.S.C. § 3742(a); United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989).

       We affirm.




                                                 /s/ Maryanne Trump Barry
                                                 Circuit Judge
