                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 23, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 06-4252
 v.                                           (D.Ct. No. 2:05-CR-892-TC-ALL)
                                                          (D. Utah)
 LA RRY STO D D A RD ,

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Larry Stoddard pled guilty to executing a scheme or artifice to



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
commit heath care fraud in violation of 18 U.S.C. § 1347. The district court

sentenced Dr. Stoddard to twelve months imprisonment followed by three years

supervised release. Dr. Stoddard now appeals his conviction and sentence

through his attorney, who has filed an Anders brief and motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Exercising our

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant counsel’s

motion to withdraw and dismiss Dr. Stoddard’s appeal.



                                  I. Background

      Dr. Stoddard was licensed to practice medicine and prescribe controlled

substances in Utah where he operated Utah Hyperbaric Oxygen Therapy. 1 He also

qualified as an approved health care provider entitled to payments from the

M edicare program for services provided to qualified beneficiaries. Under

M edicare rules and regulations, hyperbaric oxygen therapy services must be

performed under the attendance and supervision of a licensed physician in order

to qualify for M edicare coverage. In 2005, following an investigation, the

government brought a twelve-count indictment against Dr. Stoddard charging he

executed a scheme or artifice to commit health care fraud and submit false claims.

Specifically, the indictment charged Dr. Stoddard directed others to perform



      1
        In 2003, during the investigation which eventually led to his indictment,
Dr. Stoddard surrendered his medical license.

                                        -2-
hyperbaric oxygen therapy in a monoplace chamber on certain M edicare

beneficiaries without his or any other licensed physician’s attendance and

supervision and then submitted claims falsely representing to the M edicare

program and Regence, a fiscal agency of the United States, that he or another

licensed physician performed the hyperbaric oxygen therapy services rendered.



      Dr. Stoddard agreed to plead guilty to one count of executing a scheme or

artifice to commit health care fraud in violation of 18 U.S.C. § 1347 in exchange

for dismissal of the other charges. After Dr. Stoddard pled guilty, the probation

officer prepared a presentence report in w hich he calculated Dr. Stoddard’s

sentence, determining: 1) his base offense level was 6, pursuant to United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 2B1.1(a)(2); 2) the base

level should be increased eight levels to 14, pursuant to U.S.S.G.

§ 2B1.1(b)(1)(E), because the loss was at least $70,000 but less than $120,000;

and 3) he should receive a two-level reduction for acceptance of responsibility,

pursuant to U.S.S.G. § 3E1.1, for a resulting total offense level of 12. Based on

Dr. Stoddard’s criminal history, the probation officer calculated his criminal

history level at II, resulting in a Guidelines sentencing range of twelve to eighteen

months imprisonment. Neither the government nor Dr. Stoddard filed a formal

objection to the presentence report.




                                         -3-
      At sentencing, Dr. Stoddard did not dispute the facts represented in the

presentence report or that the advisory Guidelines range was twelve to eighteen

months imprisonment, but requested home confinement rather than incarceration

based on his medical problems and because he cared for his disabled son and

daughter while his wife w orked. After questioning by the district court, Dr.

Stoddard’s counsel acknowledged Dr. Stoddard participated in past criminal

conduct involving a pattern of falsity in the conduct of his medical profession and

had a history of reliance on pain killers. 2 In turn, government counsel argued

incarceration of twelve to eighteen months was warranted, due, in part, to the

seriousness of the offense of not rendering supervision during care of patients

undergoing hyperbaric treatment and to send a message to the medical community

not to falsify medical claims. Dr. Stoddard then addressed the court, stating, “I

agree with what [counsel] said. I broke the law, and I’m sorry. Nothing else. I

regret that I did it. I’m sorry.” R., Supp. Vol. 1 at 10.



      The district court then imposed a twelve-month sentence, stating it was

appropriate for the purpose of deterring Dr. Stoddard from future crimes given it

      2
         Dr. Stoddard’s criminal history includes falsely obtaining or dispensing a
prescription and illegal possession of a controlled substance, as well as attempted
submission of a false or fraudulent insurance claim. He also twice participated in
substance abuse programs for prescription pain medication use in order to retain
his medical license and is currently on various medications for pain, although he
and his wife insist his need for pain medication is mis-characterized as an
addiction and deny he is in need of substance abuse treatment.

                                         -4-
was his third offense and he continued to demonstrate a pattern of criminal

behavior. In rendering the sentence, the court directed Dr. Stoddard to submit to

drug testing and participate in a drug abuse treatment program and recommended

he receive a full medical screening and incarceration in a medical facility.



                                    II. Discussion

      Dr. Stoddard filed a timely notice of appeal, after which his counsel filed

an Anders appeal brief alleging no meritorious appellate issues exist and moving

for an order permitting him to withdraw as counsel. See Anders, 386 U.S. at 744.

In support of the contention no meritorious appellate issues exist, Dr. Stoddard’s

counsel points out the district court either implicitly or explicitly considered the

sentencing factors outlined in 18 U.S.C. § 3553(a). In support, counsel explains

the district court considered or discussed: 1) the nature of D r. Stoddard’s offense

and his history and characteristics, which included his pattern of falsity in the

medical profession, his drug problems, and his family responsibilities; 2) the need

for deterrence based on Dr. Stoddard’s prior crimes; 3) his need for medical care;

and 4) his family responsibilities related to the care of his disabled son and

daughter, which the district court weighed against the need for deterrence. 3



      3
        W e further note the district court considered government counsel’s
argument concerning the seriousness of the crime in not rendering supervision
during care of patients undergoing hyperbaric treatment and the need for
deterrence in sending a message to the medical community not to falsify claims.

                                          -5-
Counsel further asserts the factors not explicitly referenced by the district court

would not warrant a remand under the circumstances presented and points out the

district court also properly considered the applicable Guidelines in rendering the

twelve-month sentence. For these reasons, counsel suggests Dr. Stoddard’s

appeal is frivolous and requests an order authorizing counsel’s withdrawal and

dismissing the appeal.



      Pursuant to Anders, this court gave Dr. Stoddard an opportunity to raise

points in response to his attorney’s Anders brief. Id. Dr. Stoddard did not file a

response.



      As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. The Anders brief before us raises an issue

concerning whether the sentence of twelve months is reasonable under the

§ 3553(a) factors, which is an argument Dr. Stoddard did not raise before the

district court. Nevertheless, when a defendant’s “claim is merely that the

sentence is unreasonably long, we do not require the defendant to object in order

to preserve the issue.” United States v. Torres-Duenas, 461 F.3d 1178, 1183

(10th Cir. 2006), cert. denied, ___ S. Ct. ___, 2007 W L 1854536 (U.S. Jun. 29,

2007) (No. 06-7990).




                                          -6-
      W e review for reasonableness the sentence’s length, as guided by the

factors in 18 U.S.C. § 3553(a). See id. W e require reasonableness in two

respects: “the length of the sentence, as well as the method by which the sentence

was calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006)

(emphasis omitted). In order to be reasonable a sentence must be both

procedurally and substantively sound. United States v. Cage, 451 F.3d 585, 591

(10th Cir. 2006). A procedurally reasonable sentence is one that is “calculated

utilizing a legitimate method.” Id. In this case, Dr. Stoddard does not contest the

procedural reasonableness of his sentence nor does our review of the record

suggest any error occurred in its calculation.



      Next, we look at the substantive reasonableness of Dr. Stoddard’s sentence.

A sentence is substantively reasonable so long as the district court did not abuse

its discretion. See Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2465

(2007). On appellate review, a presumption of reasonableness attaches to a

sentence, like here, which is within the correctly-calculated Guidelines range.

See id.; Kristl, 437 F.3d at 1053-54. If the district court “properly considers the

relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable,” but “[t]he defendant may rebut this

presumption by demonstrating that the sentence is unreasonable in light of the

other sentencing factors laid out in § 3553(a).” Id. at 1055. W e have also held

                                          -7-
that a decision to impose a sentence at the low end of the Guidelines range may

be read as a functional rejection of the defendant’s arguments based on any of the

§ 3553(a) factors. See United States v. Sanchez-Juarez, 446 F.3d 1109, 1115

(10th Cir. 2006). “[A]lthough the district court is not obligated to expressly

weigh on the record each of the factors set out in § 3553(a), it must state its

reasons for imposing a given sentence.” Id. at 1116 (quotation marks and

citations omitted). In determining whether the district court properly considered

the applicable Guidelines, we review its legal conclusions de novo and its factual

findings for clear error. See Kristl, 437 F.3d at 1054.



      W ith these principles in mind and after a careful review of the record, w e

note counsel correctly points out the district court considered the applicable

factors provided in § 3553(a) 4 by explicitly discussing them or by considering

      4
          18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant;
             and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner;
      (3) the kinds of sentences available; ...
                                                                       (continued...)

                                          -8-
arguments raised by both counsel in conjunction with those factors. A s a result,

the district court considered Dr. Stoddard’s past criminal history of medical fraud;

his poor health, drug abuse, and family responsibilities; the seriousness of his

offense; the need for deterrence; and provision of medical and substance abuse

treatment. For these reasons, the record provides a clear “indication” the district

court considered the requisite factors. See Sanchez-Juarez, 446 F.3d at 1115-16.

As to any factors not explicitly discussed by the district court, we agree with

counsel, based on the record before us, that none of those factors warrant remand

for resentencing. It is also clear the district court stated its reasons for imposing

the twelve-month sentence and, in so doing, stressed the need to deter Dr.

Stoddard from further criminal conduct. M oreover, because the district court

properly considered the relevant Guidelines range and sentenced Dr. Stoddard

within that range, his sentence is presumptively reasonable, and he has not

rebutted this presumption by demonstrating the sentence is unreasonable in light

of the sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1055. In other

words, Dr. Stoddard has not shown the circumstances he describes, when viewed

in light of the § 3553(a) factors, are sufficient to transform his presumptively

reasonable sentence into an unreasonable one. Thus, in making our review as to

      4
       (...continued)
      (6) the need to avoid unwarranted sentence disparities among
      defendants with similar records who have been found guilty of
      similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

                                          -9-
the substantive reasonableness of Dr. Stoddard’s twelve-month sentence, we find

no abuse of discretion occurred.



                                   III. Conclusion

      For these reasons, no meritorious appellate issues exist. Accordingly, w e

grant counsel’s motion to withdraw and DISM ISS Dr. Stoddard’s appeal.



                                       Entered by the C ourt:

                                       W ADE BRO RBY
                                       United States Circuit Judge




                                        -10-
