     Case: 17-20520   Document: 00514603906        Page: 1   Date Filed: 08/16/2018




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

                                                                         FILED
                                    No. 17-20520                   August 16, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

MARIE NEBA,

             Defendant - Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Marie Neba was convicted in a jury trial of numerous offenses related to
Medicare fraud perpetuated by herself and her husband through their jointly
owned company. The district court sentenced her to 900 months in prison,
followed by a three-year term of supervised release.            On appeal, Neba
challenges her sentence on two bases: (1) the sentence was unreasonable by
being greater than necessary to comply with 18 U.S.C. § 3553(a); and (2) the
sentence was grossly disproportionate to her conduct in violation of the Eighth
Amendment. Neba also argues that the district court erred in failing to grant
her third motion to substitute counsel. We AFFIRM.
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                                   I.    Sentencing
      We first address Neba’s two arguments related to her sentence. Because
Neba did not object to either her presentence report or her sentence, we review
for plain error. United States v. Heard, 709 F.3d 413, 425 (5th Cir. 2013).
Under plain error review, Neba must show: (1) “an error or defect . . . that has
not been intentionally relinquished or abandoned”; (2) a legal error that is
“clear or obvious, rather than subject to reasonable dispute”; (3) that the error
“affected the appellant’s substantial rights”; and (4) that the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”
such that this court should exercise its discretion to remedy the error. United
States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)).
      A. Procedural and Substantive Reasonableness of the Sentence
      Neba first argues that her sentence was greater than necessary to
comply with the § 3553(a) sentencing factors. To determine if a sentence was
indeed reasonable, we use a bifurcated review process. United States v. Scott,
654 F.3d 552, 554–55 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38
(2007)). For the first consideration,
            We . . . determine whether the district court committed
            any significant procedural error, such as: “(1) failing to
            calculate (or improperly calculating) the applicable
            Guidelines range; (2) treating the Guidelines as
            mandatory; (3) failing to consider the [] § 3553(a)
            factors; (4) determining a sentence based on clearly
            erroneous facts; or (5) failing to adequately explain the
            chosen sentence, including an explanation for any
            deviation from the Guidelines range.”
Id. at 555 (quoting United States v. Armstrong, 550 F.3d 382, 404 (5th Cir.
2008)).    If there was no procedural error, we then reach the second
consideration, which is “the substantive reasonableness of the sentence,
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                                  No. 17-20520

considering the factors in [] § 3553(a).” Id. (quoting United States v. Gutierrez-
Hernandez, 581 F.3d 251, 254 (5th Cir. 2009)). A sentence within a properly
calculated Guideline range is presumptively reasonable.          United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Although Neba characterizes all of her § 3553(a) challenges as
substantive reasonableness challenges, the issues she raises are related to
(1) the district court’s alleged belief that it was required to sentence her to the
statutory maximum and (2) the district court’s consideration of her arguments
for a downward variance. These are procedural challenges. See id.
      Neba’s Guidelines range provided for up to a life sentence, limited to 900
months as the statutory maximum. Thus, her 900-month sentence was within
the Guidelines range. Nonetheless, Neba maintains that the sentencing court
mistakenly believed that it was required to sentence her to the statutory
maximum, ignoring her arguments that she would be sufficiently punished by
a lower sentence.
      There is no indication of a mistaken belief on the part of the sentencing
court that it was required to sentence Neba to 900 months. Neba points to the
court’s statement that the most important factor in determining the sentence
was that the Guidelines recommended a life sentence. Stating that something
is a “factor” does not mean, or even imply, that the judge considered it a
mandate.    The sentencing court reviewed the presentence report during
sentencing and listed a number of “factors” that went into the sentencing
decision, including Neba’s “role in the offense, the amount of loss attributable
to [Neba] compared to others, obstruction of justice, aggravating role
enhancement, and most importantly, the [G]uideline range of life.” Moreover,
the court noted Neba’s primary arguments for a downward departure—her
three minor children at home and her recent breast cancer diagnosis—just
prior to sentencing. The court heard an explanation from the Government

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                                 No. 17-20520

explaining why those facts should not affect Neba’s sentence. In context, it is
clear that the sentencing court considered the appropriate factors, including
Neba’s arguments for a downward departure, before making its sentencing
decision. Therefore, the sentencing procedure was sound, and the procedural
challenge fails. Given the deferential review of a within-guidelines sentence,
we conclude that the substantive unreasonableness challenge also fails. See
Scott, 654 F.3d at 555.
      B. Eighth Amendment
      Neba next argues that the district court’s sentence violated the Eighth
Amendment’s guarantee against cruel and unusual punishments, claiming
that her sentence was grossly disproportionate to her offense. Separation of
powers principles are of particular import in the Eighth Amendment context
and caution against finding prison sentences unconstitutional. See Ewing v.
California, 538 U.S. 11, 22 (2003) (“[F]ederal courts should be reluctant to
review legislatively mandated terms of imprisonment, and . . . successful
challenges to the proportionality of particular sentences should be exceedingly
rare.” (quoting Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam))).
      There are two parts to the test to determine whether a sentence is grossly
disproportionate in violation of the Eighth Amendment. McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir. 1992). First, we compare the gravity of the crime
against the severity of the sentence. Id. Only if the sentence seems grossly
disproportionate to the offense do we reach the second step of the analysis and
compare the sentence to “(1) sentences for similar crimes in the same
jurisdiction and (2) sentences for the same crime in other jurisdictions.” Id.
Neba fails the first step, so we do not reach the second step.
      Here, Neba was convicted of eight counts: conspiracy to commit health
care fraud, three counts of aiding and abetting health care fraud, false
statements relating to health care matters, conspiracy to pay and receive

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                                  No. 17-20520

health care kickbacks, payment and receipt of health care kickbacks, and
conspiracy to commit laundering of monetary instruments. For over nine
years, Neba participated as a leader in a sophisticated Medicare fraud and
money laundering scheme.       She defrauded Medicare—a program used to
ensure that particularly vulnerable individuals (the elderly and the disabled)
are able to afford medical care—to the tune of $13 million. Neba paid illegal
kickbacks to physicians, patient recruiters, and Medicare beneficiaries to
further the scheme, ultimately claiming fraudulent Medicare benefits for more
than 1000 patients.      Neba also obstructed justice in the course of the
investigation.
      Neba argues that her sentence is effectively a life sentence, and a life
sentence is disproportionate to a nonviolent, first offense. Neba is currently
fifty-four years old. Therefore, a seventy-five year sentence is equivalent to a
life sentence. See United States v. Looney, 532 F.3d 392, 395 (5th Cir. 2008)
(per curiam). This is particularly apparent given Neba’s current medical state.
We are sensitive to the fact, as the district court was, that Neba is currently
receiving treatment for metastasized breast cancer. However, that does not
change the fact of her crimes, and the legal system mandates that those
criminally liable receive just punishments. Here, Neba participated as a leader
in a prolonged, extensive Medicare fraud scheme, defrauded Medicare of over
$13 million dollars, and procured the involvement of numerous outside
individuals to participate in her scheme. Although seventy-five years is a
severe sentence, we cannot say that Neba’s crime was not grave enough that
the sentence is grossly disproportionate to her crime. See Ewing, 538 U.S. at
21 (“[T]he proportionality principle ‘would come into play in the extreme
example if a legislature made overtime parking a felony punishable by life
imprisonment . . . .’” (internal ellipses omitted) (quoting Rummel v. Estelle, 445
U.S. 263, 274 n.11 (1980))). This is not the “exceedingly rare” case that would

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warrant a successful Eighth Amendment challenge, particularly on plain error
review. The district court did not plainly err in imposing Neba’s sentence.
                         II.    Motion to Substitute Counsel
      We therefore move to Neba’s other argument, that the district court
erred in denying her motion to substitute counsel, and in doing so, violated her
Sixth Amendment right to counsel of her choice. The standard of review for a
district court’s decision to disallow substitution of counsel is for an abuse of
discretion. United States v. Jones, 733 F.3d 574, 587 (5th Cir. 2013).
      Neba’s motion to substitute counsel at issue here was made within a
week of trial. Neba had twice previously substituted counsel almost a year
beforehand, with the district court’s permission. The Government opposed
Neba’s motion at issue here, in large part based on the belief that Neba was
using the request as a way to delay the trial after the district court had denied
her motion to continue merely days before. The district court understood
Neba’s apparent frustration with her attorney, but it ultimately denied her
motion to substitute counsel. The court’s particular concern was with docket
control, i.e., the proximity of the request to the trial date. It noted that it was
“not fair to the system” for a party to be able to request a change of counsel
right before trial and throw months of planning off schedule—“that’s just not
how it works.” The court disagreed with Neba’s contention that her attorney
was not prepared, as, at the least, her attorney had heard all of the evidence
that the Government was preparing to put on, and therefore, could anticipate
and defend against it. But even if Neba’s attorney was not as prepared as Neba
would have preferred, the court stated that Neba should not have waited until
the week before trial to make a motion to substitute. To the court, it appeared
that Neba was attempting to delay trial. In the end, the district court refused
Neba’s request to substitute counsel and maintained the date of trial, which
was set for the next day.

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                                 No. 17-20520

      The Supreme Court has made clear that trial courts have “wide latitude
in balancing the right to counsel of choice against the needs of fairness and
against the demands of its calendar.” United States v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006) (internal citation omitted).         We have invoked that
language to compile a list of fairness considerations: (1) whether a continuance
would be required; (2) whether the party’s concerns were “based on anything
of a factual nature”; (3) whether the party requested substitution of counsel
late in the case; and (4) whether “a continuance could compromise the
availability of” key witnesses. Jones, 733 F.3d at 587–88. With regard to the
district court’s calendar, we have articulated that, ideally, a district court
would ask the parties about the amount of time they need to prepare; but a
district court can nonetheless, by being aware of the facts of the case and its
own docket, be “convinced that a substitution would necessitate a continuance”
of such a length as to be a burden on its docket. Id. at 588.
      Applying these considerations here, there is little question that the
district court did not abuse its discretion in denying Neba’s motion to
substitute counsel. Neba’s motion was made within a week of trial. Although
it would have been ideal for the district court to have asked Neba how long of
a continuance her new attorney would have needed before trial, id., inevitably,
it was longer than the mere days (or day, as the case may be) her attorney
would have had if the district court had granted Neba’s motion. Moreover, the
district court had good reason to believe that the continuance would not be
short—the judge had previously certified the case as complex, and the case had
been pending at that point for almost a year. The district court could have
reasonably believed that there was no actual problem with Neba’s counsel but
rather, because Neba was out on bond prior to trial, she wanted to delay the
trial. Based upon these considerations, it was not an abuse of discretion for
the district court to deny Neba’s motion for substitution of counsel. See United

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States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980) (per curiam) (“The freedom to
have counsel of one’s own choosing may not be used for purposes of delay. Last
minute requests are disfavored.” (internal citation omitted)).
      AFFIRMED.




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                                 No. 17-20520

EDITH H. JONES, Circuit Judge, concurring:
      Under current law, the court’s opinion in this case is well reasoned and
cannot be gainsaid. Neba’s long-running and sophisticated Medicare fraud
scheme yielded her family $13 million that was flagrantly stolen from U.S.
taxpayers. We reject Ms. Neba’s claim that her 900-month sentence was
“unreasonable” because it was calculated in accordance with the Guidelines,
fell within the Guidelines, must be deferentially reviewed on appeal, and is
accordingly “presumptively reasonable.” Ms. Neba’s case, in my view, displays
the lack of meaningful judicial standards for determining the substantive
reasonableness of Guidelines sentences.
      A bit of background is in order. In providing for sentencing guidelines,
Congress instructed judges to consider in each case specific factors including
“just punishment,” the “sentences available,” and “the need to avoid
unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(2)(A), (a)(3), (a)(6).
The same provision enjoins courts to issue sentences that are “sufficient, but
not greater than necessary” to achieve the listed objectives.        § 3553(a).
Congress instructed the U.S. Sentencing Commission to apply these factors in
writing the Guidelines and also to “avoid[] unwarranted sentencing
disparities.”   28 U.S.C. § 991(b).     The Sentencing Guidelines Manual
acknowledges these directions, stating that “the [Commission’s] basic
approach” was to achieve Congressional objectives of obtaining “reasonable
uniformity” in sentencing similar offenders convicted of similar crimes and
“proportionality in sentencing through a system that imposes appropriately
different sentences for criminal conduct of differing severity.” U.S. Sentencing
Guidelines Manual § 1A1.3 (U.S. Sentencing Comm’n 2000).
      The Supreme Court has held that appellate courts may presume that a
within-Guidelines sentence is reasonable. Rita v. United States, 551 U.S. 338,
347, 127 S. Ct. 2456, 2462 (2007). But the Court issued conflicting signals

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concerning when, if ever, the presumption can be rebutted.            The Court's
opinion flatly states, “[f]or one thing, the presumption is not binding,” 551 U.S.
at 347, 127 S. Ct. at 2463, but it also characterizes the presumption as guided
by the abuse of discretion test.     551 U.S. at 351, 127 S. Ct. at 2465.        A
concurring opinion takes this to mean that “presumptively reasonable does not
mean always reasonable; the presumption, of course, must be generally
rebuttable,” and it adds, “[o]ur decision today makes clear . . . that the
rebuttability of the presumption is real.” 551 U.S. at 366, 127 S. Ct. at 2474
(Stephens, J., concurring) (emphasis in original).          In deciding whether
defendant Rita's correctly-calculated sentence was “not unreasonable,”
however, the Court essentially restated and invoked the Guidelines for his
crime. See 551 U.S. at 359-60, 127 S. Ct. at 2469-70. If there is a threshold for
an appellate finding of substantive unreasonableness, rebutting the
presumption, Rita does not clarify it.
      The instant case suggests why some such threshold is needed.
      First, this 900-month sentence is by far the longest I have ever seen
imposed in a Medicare fraud case. Our court has considered many similar
fraud schemes and resulting sentences, although this one may involve the most
money stolen from Medicare. But the Nebas’ scheme is not unique in many of
its details. By piling on charges, perhaps for tactical reasons, the Government
heightened the maximum statutory sentence to life imprisonment and inflated
the ultimate Guidelines sentence calculation. Ms. Neba’s resulting sentence is
not similar to those of defendants sentenced for similar crimes. See, e.g. United
States v. Barson, 845 F.3d 159, 168 (5th Cir. 2016) (affirming sentences of 120
months and 130 months for Medicare fraud).            Yet under Rita and our
precedents, we must assume the district court's within-Guidelines sentence
was substantively reasonable because it was procedurally correct.

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                                 No. 17-20520

      In effect, the presumption is non-binding in theory but nearly ironclad
in fact. Cases in which any court has vacated sentences for “substantive
unreasonableness” are few and far between.        The Sentencing Commission
reported that only one case was reversed or remanded for a “[g]eneral
reasonableness challenge” in any circuit in 2017. UNITED STATES SENTENCING
COMM’N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS S-149. Very likely
it was referring to a decision by the Second Circuit, which has not adopted the
presumption of reasonableness. See United States v. Jenkins, 854 F.3d 181 (2d
Cir. 2017) (holding that a 225-month within-Guidelines sentence was
substantively unreasonable). On what basis may appellate courts that apply
the presumption find an abuse of discretion for sentences that, while within
the Guidelines, still embody punishment far outside of the mean for crimes of
the same general sort?
      Second, while Ms. Neba surely deserves stiff punishment, another way
to test the “substantive reasonableness” of her 75-year sentence is to assess its
“proportionality” against sentences that have been imposed for other federal
crimes. I turn again to my experience with hundreds of federal criminal cases
and consider the lengthy sentences this court has often affirmed over the years
for crimes by sex traffickers, and child pornography offenders. Compared with
these heinous crimes, Ms. Neba’s sentence still stands out as among the most
severe I have observed.    For instance, this court recently affirmed a not-
unusual sentence of 292 months for sex trafficking of minors, United States v.
Smith, __ F.3d __, 2018 WL 3406927, at *4 (5th Cir. 2018). The same lengthy
sentence was meted out for possession and receipt of child pornography.
United States v. Winstead, 717 Fed. App’x 369, 370 (5th Cir. 2017); cf. Jenkins,
supra (225-month sentence for transporting/possessing thousands of videos
and photos of child pornography was “unreasonable”). To be sure, murderers

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are often sentenced within Guidelines pertaining to RICO offenses, and many
receive life imprisonment. See, e.g., United States v. Velasquez, 881 F.3d 314,
346 (5th Cir. 2018) (affirming the life imprisonment sentences for four
defendants charged with violations of RICO and murder). But Ms. Neba also
received a de facto life sentence. Is thieving from Medicare, even for a long
time and for lots of money, and even accompanied by attempted witness
tampering, “proportional” to these crimes? Most laymen would not think so.
That the presumption of reasonableness attaches to within-Guidelines
sentences despite such disparities between Ms. Neba’s offense and violent,
exploitative crimes suggests something “unreasonable” is afoot, either in the
Guidelines themselves or in courts’ inability to assess “substantive
reasonableness.”
       Third, the Supreme Court has recently been concerned about appellate
courts’ application of the plain error rule, whose purpose is to gauge when
errors committed in the sentencing court, but not preserved for appeal, may
nonetheless deserve appellate correction. Fed. Rule Crim. P. 52(b). See, e.g.,
Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). In Rosales-Mireles,
the petitioner was sentenced to 78 months, which turned out to be in the mid-
range of the (ultimate) correct Guidelines calculation, 70-87 months. Id. at
1905. The Court’s opinion concluded that the petitioner deserved resentencing
even though the maximum benefit to him may be 8 months. 1 Id. at 1911. The
Supreme Court held that plain errors on sentencing “seriously affect[] the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1906


       1 Practically speaking, the actual resentencing in similar cases occasionally becomes
moot because during the course of appeal, the petitioner has served and been released from
the erroneously imposed sentence. This court frequently confronts similar disparities of a
year or less between the initial erroneous sentence and the correct sentence as eventually
determined by the appellate court.
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(citing United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779 (1993)
(internal quotation marks omitted).
      But if such plain errors, which may affect a few months of imprisonment,
deserve judicial correction, I think it fair to ask whether the Court should next
begin to consider articulating some rules for “substantive reasonableness.”
Ms. Neba’s uniquely onerous Guidelines sentence stands well outside the
heartland of those for similar crimes and is far from proportional to the
sentences for life-threatening crimes. The presumption of “reasonableness” is
either rebuttable—or it is not.




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