               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0773n.06

                                          No. 10-3088

                         UNITED STATES COURT OF APPEALS                                 FILED
                              FOR THE SIXTH CIRCUIT
                                                                                   Nov 18, 2011
                                                                             LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE NORTHERN
                                       )                DISTRICT OF OHIO
DAVID E. GROPPI, SR.,                  )
                                       )
      Defendant-Appellant.             )                       OPINION
_______________________________________)


Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. David E. Groppi (“Groppi”) pleaded guilty

to one count of mail fraud in connection with an insurance-fraud scheme. The United States

Probation Office calculated a Total Offense Level of 20 and a Criminal History Category of VI in

the Presentence Report (“PSR”), and recommended a sentence of seventy to eighty-seven months

of imprisonment. At sentencing, Groppi was granted a downward departure to a Criminal History

Category V, thereby adjusting the guidelines range to sixty-three to seventy-eight months of

imprisonment. The district judge imposed a sentence of sixty-eight months of imprisonment.

Groppi timely appeals and challenges the reasonableness of his sentence. Because we conclude that

the sentence imposed by the district court was not unreasonable, we AFFIRM.
No. 10-3088
United States v. Groppi


                                        I. BACKGROUND

       From January 2003 through May 2004, Groppi operated a fraudulent-insurance scheme.

Groppi represented himself as an insurance agent for United Health Insurance Plans (“United”), a

company not licensed to sell insurance in Ohio,1 and collected premiums from individuals and small

businesses for nonexistent health-care plans. In furtherance of the scheme, Groppi sent his clients

falsified insurance cards and billing statements by mail. He also provided clients with detailed

instructions for payment and submission of claims. Groppi contends that his original intent was to

provide clients with “mold[ed]” insurance plans, which would offer significantly lower premiums

by patching together products offered by various insurance providers. R. 25 (Sent. Tr. at 21:15-23).

Groppi stated that when he found himself unable to secure the third-party coverage for his clients,

“a snowball situation” ensued. Id. at 21:24-22:11.

       In January 2004, the Ohio Department of Insurance Enforcement Unit (“ODI”) began

investigating Groppi and learned of his fraudulent-insurance scheme. On April 28, 2009, Groppi

was indicted on one count of mail fraud, to which he pleaded guilty on August 12, 2009. The

indictment specified that approximately one hundred individuals were harmed as a result of Groppi’s

conduct and that in addition to $142,560.76 of losses in the form of premium payments, victims also

suffered losses resulting from unpaid medical bills totaling $138,015.16.

       At sentencing, neither party objected to the PSR’s calculation of a Total Offense Level of 20

and a Criminal History Category VI. However, Groppi requested a downward departure on two


       1
           Groppi himself, however, was licensed to sell insurance in Ohio.

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United States v. Groppi


grounds: (1) overstatement of his criminal history and (2) family responsibilities and ties pursuant

to U.S.S.G. § 5H1.6. The district judge granted a downward departure with respect to the former

ground by adjusting Groppi’s Criminal History Category to V. However, the district court declined

to grant a downward departure pursuant to U.S.S.G. § 5H1.6 finding that Groppi “simply does not

present [an] extraordinary case” of familial hardship. R. 25 (Sent. Tr. at 19:10).

       The district judge then imposed a sentence of sixty-eight months of imprisonment followed

by three years of supervised release, which was within the guidelines range. The district court also

denied Groppi’s request for a recommendation for drug and alcohol treatment. In deeming this

sentence appropriate, the district judge noted the “incredibly serious, and incredibly heinous” nature

of Groppi’s unlawful actions, id. at 31:10-11, as well as Groppi’s history of recidivism, id. at 31:23-

32:19. The court also noted that Groppi had engaged in criminal conduct victimizing his own son,

which made it “really difficult to entertain any argument regarding family ties and responsibilities.”

Id. at 32:19-20. On April 12, 2010, pursuant to a procedure agreed upon by the parties at

sentencing,2 the district court ordered restitution in the amount of $435,075.

       Groppi timely appeals his sentence.




       2
         During sentencing the district court granted, at both parties’ agreement, a ninety-day
continuance to allow the government to calculate the proper amount of restitution. The government
submitted a motion to this effect, which was unopposed by Groppi, and that motion served as the
basis for the district court’s restitution order.

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United States v. Groppi


                                          II. ANALYSIS

A. Standard of Review

       We review the reasonableness of district court sentencing determinations “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Sentences within the

guidelines range are presumptively reasonable. United States v. Vonner, 516 F.3d 382, 389-90 (6th

Cir. 2008) (en banc).

B. Reasonableness of Sentence

       1. Number of Victims and Amount of Losses

       Groppi contends that the district court committed error by over-ascribing the number of

victims and amount of losses in determining his sentence. However, Groppi unconditionally pleaded

guilty to an indictment that specified harm to approximately one hundred individuals and losses

totaling more than $200,000. “The Supreme Court has held that when a defendant voluntarily and

knowingly enters a guilty plea, that individual admits all averments of fact in the indictment.”

United States v. Kyle, 24 F. App’x 447, 451 (6th Cir. 2001) (unpublished opinion) (citing Tollett v.

Henderson, 411 U.S. 258, 260-67 (1973)); see also United States v. Burgin, 388 F.3d 177, 182 (6th

Cir. 2004), cert. denied, 544 U.S. 936 (2005) (“A plea of guilty by a prisoner in open court . . .

admits all facts alleged in the indictment”) (internal quotation marks omitted). Because Groppi does

not challenge the validity of his plea, there is no doubt that Groppi has already admitted the facts he

now attempts to contest. Because Groppi may not reverse his position on appeal in this manner, we




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United States v. Groppi


conclude that this claim is without merit.3 See United States v. Sedore, 512 F.3d 819, 827 (6th Cir.

2008) (“It would be unreasonable to allow a defendant to admit to a particular fact during sentencing,

and then argue against the existence of that fact on appeal.”).

       2. Downward Departures

       Groppi also argues that the district court should have granted further downward departures

with respect to his overstated criminal history and his asserted extraordinary family circumstance.

“This court generally does ‘not review a district court’s decision not to depart downward unless the

record shows that the district court was unaware of, or did not understand, its discretion to make such

a departure.’” United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (quoting United States

v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469 (2008)); United States v.

Carter, 510 F.3d 593, 600 (6th Cir. 2007) (recognizing applicability to departures claimed pursuant

to U.S.S.G. § 5H1.6). Given that the district court granted a downward departure with respect to

criminal history, the court was clearly aware of its discretion in this regard. Although the district

court did not grant a departure based on family circumstance, the court evidenced its understanding

of its discretion to do so by explaining why such a departure was not appropriate. R. 25 (Sent. Tr.

at 19:1-16) (“There is just not an extraordinary situation presented to me that I should grant a

downward departure for family responsibilities and ties.”). Accordingly, this issue is not appropriate

for our review.


       3
        Groppi also explicitly withdrew any objections as to the amount of losses inflicted on the
victims at sentencing, and filed no objections to the government’s restitution motion asserting total
claims above $200,000.

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United States v. Groppi


       3. Consideration of § 3553(a) factors

       Groppi argues that the district court failed properly to consider and apply the 18 U.S.C.

§ 3553(a) factors. This argument is also unfounded. The district court clearly explained that the

sentence was appropriate in light of the serious nature of Groppi’s offense coupled with Groppi’s

protracted history of criminal activity involving fraud and deceit. Id. at 31:11-15 (“When I read the

statements from the victims, it absolutely was so disturbing that no amount of time was sufficient

punishment. That was my knee jerk reaction when I read the statements from these victims.”). The

court emphasized that Groppi, even after receiving punishment and early release on another

conviction, continued to violate the law and victimize others, including his own son. Thus, the

district court properly considered the need for “just punishment” and “adequate deterrence” as well

as public safety in fashioning the appropriate sentence. 18 U.S.C. § 3553(a). Moreover, given

Groppi’s lack of a history of alcohol and drug abuse, it was not unreasonable for the district court

to decline to recommend drug and alcohol treatment. Thus, Groppi has failed to overcome the

presumption of reasonableness afforded to his within-guidelines sentence.

                                       III. CONCLUSION

       Because we conclude that the district court’s sentence of sixty-eight months of imprisonment

was not unreasonable, we AFFIRM the judgment of the district court.




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