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                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12366
                       ________________________

                D.C. Docket No. 1:12-cr-00489-KOB-JEO-1



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellant
                                              Cross Appellee,

versus

SEAN ERIC SLATON,

                                              Defendant-Appellee
                                              Cross Appellant.

                       ________________________

                Appeals from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (September 14, 2015)

Before ED CARNES, Chief Judge, JILL PRYOR and BLACK, Circuit Judges.

ED CARNES, Chief Judge:
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       A jury found Sean Eric Slaton guilty of 33 crimes, all of which stemmed

from his receipt of federal worker’s compensation from July 2011 through March

2013. In sentencing him for those crimes, the district court calculated his advisory

guidelines range as 18–24 months imprisonment but did not sentence him to any

incarceration time. That prompted the government to appeal the sentence as

substantively unreasonable. Slaton has cross-appealed and contends that the

evidence was insufficient to convict him on 29 of the 33 counts alleged in the

indictment. He also challenges two aspects of his sentence as procedurally

unreasonable, namely: (1) the district court’s calculation of the special assessment

amount; and (2) its calculation of the loss amount, which impacted both his

advisory guidelines range and the restitution amount.

                                               I.

       Slaton, a resident of Anniston, Alabama, was a letter carrier for the United

States Postal Service in Birmingham. 1 He injured his back in August 2001 when

another vehicle struck his mail truck. Although he initially felt “fine,” he sought

medical attention for his back nearly a year later in July 2002. Slaton’s treating

physician, Dr. Maddox, traced the source of Slaton’s pain to two torn discs in his

lower back, an injury that he thought was permanent and would grow progressively
       1
         Because the district court denied Slaton’s motion for judgment of acquittal, we recount
the facts of this case in the light most favorable to the government and draw all reasonable
inferences in favor of the jury’s guilty verdicts on all counts. See United States v. Hernandez,
743 F.3d 812, 814 (11th Cir. 2014).

                                               2
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worse. That September, Slaton applied for worker’s compensation. In December,

the Department of Labor (DOL) deemed him disabled and awarded him worker’s

compensation benefits.

       From November 2002 until September 2003, the Postal Service attempted to

return Slaton to work by offering him a number of “limited-duty” positions, or jobs

that would have accommodated his physical limitations. But one restriction in

particular was an obstacle in the way of its efforts. After Slaton had “complained

that . . . driving was bothering him,” his treating physician instructed him not to

drive for more than 30 minutes at a time. All of the work that the Postal Service

was offering, however, was located in the Birmingham area, more than 30 minutes

from Slaton’s home in Anniston. Because the Postal Service could not find him a

limited-duty position closer to his home, Slaton remained unemployed and

received worker’s compensation benefits for more than a decade. 2

       Slaton has seen Dr. Maddox on a monthly basis since he first sought

treatment in July 2002. In 2003, Dr. Maddox began to prescribe Slaton narcotics.

In February 2009, he implanted into Slaton’s back a spinal cord stimulator, a

device that stimulates the spinal cord with electricity to alleviate pain and increase

functionality. Despite Dr. Maddox’s efforts to treat his back injury, however,
       2
          To be more precise, there was one interruption in Slaton’s decade-long receipt of
benefits. In April 2005, DOL terminated his benefits based on one doctor’s opinion that Slaton’s
injury no longer prevented him from returning to work as a letter carrier. In March 2006,
however, DOL reinstated Slaton’s benefits based on Dr. Maddox’s contrary opinion.

                                               3
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Slaton continued to complain of pain. Between 2009 and 2012, he routinely

reported pain levels that interfered with his daily living. Indeed, he rated his pain

at “a seven, [a] seven and a half[,] or an eight.” Seven means “cannot concentrate,

interferes with sleep” and “[s]tronger pain killers are only partially effective”; eight

means “[n]ausea and dizziness set in as facets [of] pain” and “physical activity is

severely limited.”

      At least as of June 2011, however, Slaton’s daily life bore little or no

resemblance to the life of debilitating pain he described to Dr. Maddox. That

month, Slaton began to date a woman named Jennifer Ginn, and the two spent a lot

of time together until they broke up in March 2012. During the nine months that

they were dating, Slaton worked out with Ginn at the gym for at least an hour five

to seven times per week. Without any apparent difficulty, he performed weight-

lifting routines using both weight machines and free weights. He also did the work

of remodeling his own home and helped Ginn remodel portions of hers. And he

regularly drove long distances without problems: he attended a motocross event

with his sons in Birmingham, took a trip to the Gulf Coast, and drove Ginn round-

trip to Little Rock, Arkansas. Slaton was not increasingly dependent on his spinal




                                           4
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cord stimulator as he engaged in those physically demanding activities. Instead, he

rarely used it. 3

       In late 2011, a few months after Slaton had started dating Ginn, his file came

under scrutiny at the Postal Service Office of Inspector General (OIG). The file

caught OIG’s eye for several reasons, among them Slaton’s age at the time of his

injury (27) and how long he had been unemployed (nine years). The following

February, the Postal Service began to have an investigator surveil Slaton. The

investigator kept tabs on Slaton for four months and logged 160 hours of

surveillance. During that time, the investigator captured on video Slaton’s daily

life in Anniston. Many of the videos showed him working out without any

apparent difficulty, and one even showed him lifting well over 100 pounds. The

Postal Service also sent agents to interview Ginn, who by that time was no longer

dating Slaton.

       In March 2012, while OIG’s investigation was still underway, its agents

showed Dr. Maddox surveillance videos and still shots of Slaton’s workouts. Dr.

Maddox had not known that Slaton frequented the gym and told the agents that

“[t]he activity might have been more excessive than what was being relayed.”

After the meeting, Dr. Maddox completed a Work Capacity Evaluation in which he

       3
         A report obtained from the device’s manufacturer would later show that, in the 19,176
hours from August 5, 2010, through October 11, 2012, Slaton used the device for only 369 hours
— a usage rate of approximately 1.9%.

                                              5
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stated that, although Slaton was unable to perform the job of a letter carrier, he (Dr.

Maddox) would like to review “a modified job offer.” Additionally, he grew

“concerned enough to order a repeat [F]unctional [C]apacity [E]valuation to

reassess what [Slaton’s] capabilities were.”

      Physical therapist Rashad Pearson conducted Slaton’s Functional Capacity

Evaluation in early May 2012. Over the course of two days, Pearson interviewed

Slaton about his physical capabilities and led him through various exercises to test

his strength and range of motion. Pearson’s report summarized Slaton’s self-

assessments and made specific findings about the type of work that Slaton could do

on a daily basis. According to that report, Slaton told Pearson that he was “unable

to sit, stand, [or] lie for extended periods of time without [using his spinal cord]

stimulator.” He also said that he had started “walking regularly for exercise”

earlier that year. And he rated his pain at a seven and stated that his goal was “to

live as close to normal as [he] use[d] to.” As for Slaton’s capabilities, Pearson

reported that Slaton could handle light-demand work on a daily basis. Dr. Maddox

later reviewed the report and communicated the results of it to DOL.

      Later that month, two OIG agents interviewed Slaton. The agents

introduced themselves as case managers with the Post Office and did not identify

themselves as law enforcement. They told Slaton that they wanted to gather facts

about his worker’s compensation and see if he could return to work in some


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capacity. In response to the agents’ questions, Slaton told them that he lived in

constant pain and that he regularly used his spinal cord stimulator. He also stated

that he could not sit, stand, or sleep for long periods, and that he could not lift more

than 21–30 pounds. As for exercise, he told the agents that he walked and lifted an

18-pound bar at home. In addition to answering the agents’ questions, Slaton filled

out two forms (a Work Capacity Evaluation and a Current Capacity Evaluation)

that contained many of those same representations.

      In late 2012, OIG agents presented their findings to DOL. That November,

DOL sent Slaton a letter notifying him that it intended to terminate his benefits.

The letter stated that, based on the “medical evidence,” Slaton could perform the

job of a city letter carrier, the position he had held when he was injured. Slaton

responded that, although certain reports from his treating physician did state he

was able to perform his date-of-injury position, other reports from the same

physician indicated just the opposite. Slaton’s response arrived at DOL’s

mailroom on December 26, 2012, the day it issued its decision to terminate his

benefits. After DOL realized that its decision and Slaton’s response had crossed in

the mail, a senior claims examiner discussed with Slaton the decision to terminate

and considered his response. DOL later vacated its December 2012 decision and

reinstated Slaton’s benefits because the evidence that he could perform his date-of-

injury position “was not as clear as [DOL would have] like[d].” In reaching that


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conclusion, DOL relied on Dr. Maddox’s March 2012 Work Capacity Evaluation,

in which he stated that Slaton was unable to perform the work of a letter carrier. 4

                                             II.

       In March 2013, Slaton was charged by indictment with 33 crimes: 8 counts

of making false statements to obtain federal worker’s compensation, in violation of

18 U.S.C. §§ 1920 and 2 (Counts 1–8); 24 counts of wire fraud, in violation of 18

U.S.C. §§ 1343 and 2 (Counts 9–32); and 1 count of theft of government property,

in violation of 18 U.S.C. § 641 (Count 33). Most of the charges arose during the

time period from July 2011 through March 2013, or roughly from the beginning of

Slaton’s relationship with Ginn until a couple of months after DOL reinstated his

benefits.

       A six-day jury trial took place in July 2013. At the close of the

government’s case, Slaton moved under Federal Rule of Criminal Procedure 29(a)

for a judgment of acquittal as to all 33 counts. The district court withheld ruling on

Counts 2–4 and denied Slaton’s motion on the remaining counts. Slaton did not

present a defense case and renewed his Rule 29 motion. The court reiterated its

earlier ruling, still withholding ruling on Counts 2–4. The jury found Slaton guilty

on all 33 counts.



       4
        Slaton continued to receive benefits up to and through his trial. The payments ceased
when he was convicted.
                                             8
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      Slaton later moved for a judgment of acquittal as to all 33 counts under

Federal Rule of Criminal Procedure 29(c)(1), or, in the alternative, for a new trial

under Federal Rule of Criminal Procedure 33. The court denied that motion,

letting the convictions stand on all 33 counts.

      At Slaton’s sentence hearing, the district court calculated his advisory

guidelines range as 18–24 months imprisonment, overruling his objection to the

loss amount in the process. After considering the 18 U.S.C. § 3553(a) factors,

however, the court chose not to sentence Slaton to a term of imprisonment.

Instead, it sentenced him to a three-year term of probation, which included a six-

month period of home confinement. It also required him to pay a special

assessment of $3,300 and restitution in the amount of $100,377.25, which was

equivalent to the loss amount it had calculated under the sentencing guidelines.

      The government appealed the sentence, and Slaton cross-appealed his

convictions on 29 of the 33 counts (all but Counts 5–8) as well as his sentence.

                                         III.

      We will address Slaton’s challenge to his convictions on Counts 1–4 and 9–

33 in three parts. Part III.A addresses his sufficiency of the evidence argument

with respect to Counts 1 (making false statements to obtain worker’s

compensation) and 9–32 (wire fraud). Part III.B addresses his sufficiency of the

evidence argument with respect to Counts 2–4 (making false statements to obtain


                                          9
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worker’s compensation). Part III.C addresses his sufficiency of the evidence

argument with respect to Count 33 (theft of government property).

      We review de novo a district court’s denial of a motion for judgment of

acquittal, viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury’s verdict. See United States

v. Hernandez, 743 F.3d 812, 814 (11th Cir. 2014). We will not overturn a jury’s

verdict if there is “any reasonable construction of the evidence [that] would have

allowed the jury to find the defendant guilty beyond a reasonable doubt.” United

States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (quotation marks omitted).

                                         A.

      Slaton contends that the evidence was insufficient to convict him on Counts

1 and 9–32. Count 1 charged him with worker’s compensation fraud under 18

U.S.C. §§ 1920 and 2, alleging a scheme to defraud based on an aiding and

abetting theory. It alleged that Slaton knowingly made material misrepresentations

and omissions to DOL and the Postal Service about his physical abilities, activities,

and limitations from July 2011 through at least March 2013 (the date of the

indictment). Counts 9–32 charged Slaton with wire fraud under 18 U.S.C. §§ 1343

and 2 for using wire communications as part of a scheme to defraud the United

States during that same time period; there was a separate charge for each time




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Slaton received a payment in his bank account to which he was allegedly not

entitled.

       To convict Slaton of worker’s compensation fraud, the government had to

prove that he: (1) “knowingly and willfully”; (2) misrepresented or concealed “a

material fact”; (3) “in connection with the application for or receipt of [worker’s]

compensation.” 18 U.S.C. § 1920. To convict Slaton of wire fraud, the

government had to prove that he: (1) intentionally participated in a scheme to

defraud another of property or money; and (2) used, or caused to be used, wire

transmissions to execute that scheme to defraud. 18 U.S.C. § 1343; see United

States v. Ward, 486 F.3d 1212, 1222 (11th Cir. 2007). To prove the existence of a

“scheme to defraud,” the government had to show that Slaton misrepresented or

concealed a material fact. See United States v. Maxwell, 579 F.3d 1282, 1299

(11th Cir. 2009). A misrepresentation or omission is material “if it has a natural

tendency to influence, or is capable of influencing, the decision maker to whom it

is addressed.” Id. (alteration and quotation marks omitted); see Neder v. United

States, 527 U.S. 1, 16, 119 S. Ct. 1827, 1837 (1999).

       In making its case against Slaton on Counts 1 and 9–32, the government

relied on an aiding and abetting theory. See 18 U.S.C. § 2(b). It sought to show

that Slaton made material misrepresentations or omissions to his doctors, who in

turn innocently relayed that materially false or incomplete information to DOL and


                                          11
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the Postal Service. In other words, the government’s aiding and abetting theory

treated the doctors as direct conduits of information between Slaton and those he

allegedly defrauded. See United States v. Hornaday, 392 F.3d 1306, 1313 (11th

Cir. 2004) (observing that 18 U.S.C. § 2(b) was “designed for[] the situation in

which a defendant with the requisite intent to commit a crime gets someone else to

act in a way necessary to bring about the crime, even if that other person is

innocent”); United States v. Tobon-Builes, 706 F.2d 1092, 1099 (11th Cir. 1983)

(“[I]t is well established that [18 U.S.C.] § 2(b) was designed to impose criminal

liability on one who causes an intermediary to commit a criminal act, even though

the intermediary who performed the act has no criminal intent and hence is

innocent of the substantive crime charged.”).

      A reasonable jury could have found Slaton guilty on Counts 1 and 9–32

based on the government’s aiding and abetting theory. There was plenty of

evidence showing that he made misrepresentations to his medical providers and

that those misrepresentations could have impacted DOL’s decision to award him

worker’s compensation. For example, the evidence showed that, in May 2012,

Slaton grossly misrepresented his physical abilities and activities to the physical

therapist who conducted his Functional Capacity Evaluation. He said that he was

“unable to sit, stand, [or] lie for extended periods of time without [using his spinal

cord] stimulator” and that he had started “walking regularly for exercise” earlier


                                          12
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that year. In fact, Slaton rarely used his spinal cord stimulator and regularly

engaged in strenuous workouts at the gym, much more vigorous exercise than just

“walking regularly.” The evidence also showed that Slaton’s treating physician

adopted the results of the Functional Capacity Evaluation and communicated false

information about Slaton’s physical capabilities to DOL. And the evidence

showed that the information Slaton misrepresented was exactly the type of

information that was “capable of influencing” DOL’s decision to award him

benefits. Maxwell, 579 F.3d at 1299 (quotation marks omitted). For example, a

DOL senior claims examiner testified that the “vast majority” of documents DOL

obtains from an individual who is receiving benefits is “medical evidence,”

including “notes from physical therapists [and] physicians.” The claims examiner

also answered in the affirmative when asked if it was “important for [DOL] to

know what someone can do and cannot do” in order to evaluate a claimant’s ability

to work.

      Because a reasonable jury could have found beyond a reasonable doubt that

Slaton caused his treating physician to submit materially false information to DOL

and the Postal Service, we affirm his convictions on Counts 1 and 9–32.

                                          B.

      Slaton also contends that the evidence was insufficient to convict him on

Counts 2–4. Those three counts arose out of the May 2012 meeting between


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Slaton and OIG agents posing as Postal Service employees. Generally, they allege

that Slaton knowingly made material misrepresentations to the Postal Service in

connection with his receipt of worker’s compensation in violation of 18 U.S.C.

§§ 1920 and 2. As we have already discussed, to convict Slaton on Counts 2–4,

the government had to prove that he: (1) “knowingly and willfully”;

(2) misrepresented or concealed “a material fact”; (3) “in connection with the

application for or receipt of [worker’s] compensation.” 18 U.S.C. § 1920.

      Slaton does not dispute that he knowingly made material misrepresentations

to the Postal Service during the May 2012 meeting. Instead, he contends that those

statements were not made “in connection with the application for or receipt of”

benefits as required by 18 U.S.C. § 1920. He argues that his statements at the May

2012 meeting would have been made “in connection with” his receipt of benefits

only if those statements had been relayed to DOL, the agency with the sole

authority to administer the benefits. According to Slaton, the evidence at trial did

not show that his statements had been relayed to DOL.

      Slaton’s argument fails. Counts 2–4 charged him with knowingly making

material misrepresentations to the Postal Service in connection with his receipt of

benefits. Unlike Counts 1 and 9–32, they did not charge him with knowingly

making material misrepresentations to DOL. Nor did they need to. 18 U.S.C.

§ 1920 is a broadly worded statute that criminalizes making any false statement of


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material fact in connection with the receipt of worker’s compensation. It does not

specify that the false statement must be made to DOL. See 18 U.S.C. § 1920

(providing that “[w]hoever knowingly and willfully falsifies, conceals, or covers

up a material fact, or makes a false, fictitious, or fraudulent statement or

representation, or makes or uses a false statement or report knowing the same to

contain any false, fictitious, or fraudulent statement or entry in connection with the

application for or receipt of compensation or other benefit or payment” is guilty of

worker’s compensation fraud). As a result, to obtain convictions on Counts 2–4,

the government did not have to prove that the Postal Service relayed Slaton’s

statements to DOL. Instead, as the district court instructed the jury, it was enough

for the government to show that Slaton knowingly made material

misrepresentations to the Postal Service in connection with his receipt of benefits.

      The government did that. The evidence showed that the OIG agents told

Slaton in no uncertain terms that the purpose of the meeting was to gather facts

about his worker’s compensation and see if he could return to work in some

capacity. Slaton does not dispute that the information he gave to those agents

about his physical abilities and activities was materially false. Based on that

evidence, a reasonable jury could have found that Slaton’s materially false

statements were made “in connection with” his receipt of benefits. We affirm his

convictions on Counts 2–4.


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                                         C.

      Finally, Slaton contends that the evidence was insufficient to convict him on

Count 33, which charged him with knowingly stealing worker’s compensation

from DOL and the Postal Service from July 2011 through March 2013, in violation

of 18 U.S.C. § 641. To convict Slaton of violating 18 U.S.C. § 641, the

government had to prove three elements beyond a reasonable doubt: “(1) that the

money or property belonged to the government; (2) that the defendant fraudulently

appropriated the money or property to his own use or the use of others; [and] (3) . .

. that the defendant did so knowingly and willfully with the intent either

temporarily or permanently to deprive the owner of the use of the money or

property.” United States v. McRee, 7 F.3d 976, 980 (11th Cir. 1993) (en banc).

      A reasonable jury could have found Slaton guilty on Count 33. A DOL

senior claims examiner testified that a claimant’s worker’s compensation must

cease once he can work a limited-duty positon with the same salary as his date-of-

injury position, whether or not such a limited-duty position is available. That

means Slaton’s conviction on Count 33 was proper if he could have done that

during the offense period, and he misrepresented or concealed information that

would have allowed the Postal Service to determine that he could.

      That’s exactly what the evidence showed. The claims examiner testified

that, in September 2003, Slaton turned down an offer for a limited-duty position in


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the Birmingham area because his treating physician, Dr. Maddox, had cleared him

only for light-demand work located within 30 minutes of his home in Anniston.

Dr. Maddox testified that he imposed the driving restriction because Slaton had

“complained [that] driving was bothering him.” Slaton’s ex-girlfriend testified

that, between June 2011 and March 2012, Slaton drove to and from Birmingham,

the Gulf Coast, and Little Rock, Arkansas without any apparent difficulty. A

reasonable jury could have found beyond a reasonable doubt that driving was no

longer “bothering” Slaton during the offense period, and that, by knowingly

concealing this fact from Dr. Maddox, he obtained worker’s compensation to

which he was not entitled. We affirm Slaton’s conviction on Count 33.

                                        IV.

      Having rejected Slaton’s challenge to his convictions, we turn now to the

challenges he and the government make to his sentence.

                                        A.

      The district court imposed a $3,300 special assessment on Slaton, which it

calculated by multiplying $100 times the number of counts of conviction (33).

Slaton contends that was a miscalculation, the government agrees, and so do we.

      Imposition of a special assessment is mandatory, but the amount of it

depends on whether the conviction was for a felony or a misdemeanor and, if a

misdemeanor, what class. See 18 U.S.C. § 3013(a)(2)(A) (providing a special


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assessment of $100 for a felony conviction); id. § 3013(a)(1)(A)(iii) (providing a

special assessment of $25 for a Class A misdemeanor conviction). The district

court’s error was in treating Slaton’s eight misdemeanors as felonies for purposes

of calculating the special assessment. Slaton was convicted of 25 felony offenses

(Counts 9–33) for which special assessments totaling $2,500 (25 x $100) should

have been imposed, and he was convicted of eight Class A misdemeanor offenses

(Counts 1–8) for which assessments totaling $200 (8 x $25) should have been

imposed. Adding his felony and Class A misdemeanor assessments, the correct

amount of the special assessment is $2,700. The district court will need to correct

the error on remand.

                                                B.

      Slaton also contends that the district court erred in finding that the total loss

to the Postal Service during the offense period was $100,377.25. That amount is

the sum of three figures: (1) $70,005.16 in worker’s compensation benefits

(payments that the Postal Service made to Slaton through DOL); (2) $25,592.23 in

medical benefits (payments that the Postal Service made to Slaton’s medical

providers through DOL); and (3) $4,779.87 in administrative fees associated with

the payments made to Slaton or his medical providers (payments that the Postal

Service made to DOL). 5 We review the court’s interpretation of the loss guideline

      5
          A one-cent error crept in somewhere, but we disregard it.

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de novo and its determination of the loss amount only for clear error. See

Maxwell, 579 F.3d at 1305.

      Slaton makes four arguments about the loss amount. As a general matter, he

argues that the district court should have calculated loss by using the sentencing

guidelines’ “net loss” approach, which is found in application note 3(F)(ii) of

section 2B1.1. Titled “Government Benefits,” that application note provides as

follows:

             In a case involving government benefits (e.g., grants, loans,
      entitlement program payments), loss shall be considered to be not less
      than the value of the benefits obtained by unintended recipients or
      diverted to unintended uses, as the case may be. For example, if the
      defendant was the intended recipient of food stamps having a value of
      $100 but fraudulently received food stamps having a value of $150,
      loss is $50.

U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). Slaton asserts that the net loss approach would

properly account for the fact that he had been entitled to at least some of the

benefits he received during the offense period.

      He contends that, under the net loss approach, the loss amount the district

court arrived at was too high for three reasons. First, he argues that the loss

amount should not have included his medical benefits (and the administrative fees

associated with those benefits) because he actually was entitled to receive medical

treatment for his permanent back injury. He also argues that the loss amount
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should not have included his worker’s compensation benefits (and the associated

administrative fees) because he actually was entitled to receive those benefits as

well. Alternatively, he argues that the loss amount should not have included all of

his worker’s compensation benefits because he actually was entitled to receive

some government benefits during the offense period regardless of his fraud. Slaton

points out that, after he was injured, the Office of Personnel Management approved

him for disability retirement benefits. However, he elected to receive worker’s

compensation from the Postal Service instead. Those benefits were terminated

following his convictions, and he now receives disability retirement benefits.

Putting those pieces together, Slaton argues that the court should have reduced the

loss associated with his receipt of worker’s compensation by the amount of

disability retirement benefits he could have received without fraud during the

offense period because that was a government benefit he was entitled to receive.

Slaton’s argument depends on the proposition that the true victim in this case is not

the Postal Service, but the “United States as a whole.”

      The district court overruled Slaton’s objection to the loss amount because

there was no “legal basis on which to sustain it.” In context, the court’s statement

was directed at Slaton’s position that an offset was warranted against the loss

associated with his receipt of worker’s compensation. But the court made no

determination as to whether the sentencing guidelines’ net loss approach governed


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the loss calculation. Nor did it make any finding about whether Slaton was entitled

to the any of the benefits he received.

      The sentencing guidelines’ net loss approach “addresses how loss is to be

calculated when the [defendant’s] fraud or deceit involves a Government Benefits

program.” Maxwell, 579 F.3d at 1306. Because worker’s compensation is a

government benefit, the guidelines’ net loss approach governs the loss calculation

in a fraud case involving worker’s compensation. See United States v. Catone, 769

F.3d 866, 875–77 (4th Cir. 2014); United States v. Boring, 557 F.3d 707, 713–14

(6th Cir. 2009); United States v. Harms, 442 F.3d 367, 379–80 (5th Cir. 2006);

United States v. Tupone, 442 F.3d 145, 153–56 (3d Cir. 2006).

      Because the sentencing transcript does not indicate that the district court

calculated loss by using the net loss approach, a remand is necessary to allow the

court to do so. In applying that approach, the court should determine whether

Slaton was entitled to the medical benefits he received during the offense period.

It need not, however, determine whether he was entitled to the worker’s

compensation he received. The jury’s guilty verdict on Count 33, when considered

in conjunction with its guilty verdicts on Counts 9–32, establishes that Slaton was

not entitled to any worker’s compensation during the offense period.

      Here’s why. Counts 9–32 charged that Slaton knowingly, and with the

intent to defraud DOL and the Postal Service, made material misstatements or


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omissions in connection with each and every payment of worker’s compensation

that he received during the offense period. The court properly instructed the jury

that it could find Slaton guilty on those counts even if he did not actually succeed

in defrauding DOL and the Postal Service; it was enough for the jury to find that

his misstatements or omissions were capable of influencing their decisions. See

Neder, 527 U.S. at 16, 119 S. Ct. at 1837; Maxwell, 579 F.3d at 1299. As a result,

had the indictment ended at Count 32, Slaton might have had room to argue — and

the district court room to find — that he did not actually succeed in defrauding

DOL and the Postal Service, and that he was therefore entitled to the worker’s

compensation he received in spite of the material misstatements or omissions that

he made. But the indictment did not end there.

       The indictment also charged, in Count 33, that Slaton successfully defrauded

DOL and the Postal Service and stole “$47,120.82 of Workers’ Compensation

Benefits to which he knew he was not entitled,” which is the sum of all of the

individual amounts charged in Counts 9–32. 6 In finding Slaton guilty on Count 33,

the jury necessarily found that each and every payment of worker’s compensation

that he received during the offense period was fraudulently obtained — that Slaton


       6
          At sentencing, the court found by a preponderance of the evidence that the loss
associated with Slaton’s receipt of worker’s compensation benefits was not $47,120.82, but
$70,005.16. Slaton does not dispute that the court properly applied relevant conduct principles
to include in the loss amount $22,884.34 of additional worker’s compensation payments that
were not specifically alleged in the indictment. See U.S.S.G. § 1B1.3.

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was not entitled to any of those payments. As a result, a finding by the district

court that Slaton was entitled to any amount of worker’s compensation benefits

during the offense period would contradict the non-contradiction principle. That

principle prohibits a sentencing court from finding a fact that is inconsistent with

any of the findings that are necessarily implicit in the jury’s guilty verdict. See

United States v. Mateos, 623 F.3d 1350, 1369 (11th Cir. 2010) (opinion of

O’Connor, J.) (stating that the district court in sentencing might “have abused its

discretion if it had given [the exculpatory results of a polygraph exam] any weight

at all, insofar as they contradicted the jury’s verdict” on an element of the charged

healthcare fraud); United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2010)

(“[A] district court errs as a matter of law if it imposes a sentence based on a

finding that contradicts the jury’s verdict.”) (alteration and quotation marks

omitted); United States v. Hunt, 521 F.3d 636, 649 (6th Cir. 2008) (“[A] factual

determination is necessarily clearly erroneous where a jury has previously found to

the contrary beyond a reasonable doubt.”); United States v. Curry, 461 F.3d 452,

461 (4th Cir. 2006) (“The court erred . . . in sentencing [the defendant] based on a

conclusion that contravened the jury’s verdict.”); United States v. Rivera, 411 F.3d

864, 866 (7th Cir. 2005) (“[I]t is both unnecessary and inappropriate for the judge

to reexamine, and resolve in the defendant’s favor, a factual issue that the jury has

resolved in the prosecutor’s favor beyond a reasonable doubt.”); United States v.


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Weston, 960 F.2d 212, 218 (1st Cir. 1992) (“[A] guilty verdict, not set aside, binds

the sentencing court to accept the facts necessarily implicit in the verdict.”),

abrogated in part on other grounds by Stinson v. United States, 508 U.S. 36, 113

S. Ct. 1913 (1993). 7

       That leaves Slaton’s novel “offset” theory, which would have the court use

the net loss approach to offset the loss to the Postal Service by the money Slaton

could have received from a different federal agency during the offense period in

spite of his fraud. The district court properly rejected that theory as one with no

legal basis. The victim in this case was not, as Slaton contends, “the United States

as a whole.” The victim was the Postal Service, the specific federal agency that

employed Slaton and paid him worker’s compensation through DOL. Slaton was

convicted of scheming to defraud, and stealing from, the Postal Service. The loss

from that crime is not diminished because he was eligible for benefits from another

agency.




       7
         A court, of course, may properly take into account the relevant conduct of which a
defendant was acquitted in sentencing him for a particular crime. See United States v.
Siegelman, 786 F.3d 1322, 1332 n.12 (11th Cir. 2015); United States v. Smith, 741 F.3d 1211,
1226–27 (11th Cir. 2013); United States v. Culver, 598 F.3d 740, 752–53 (11th Cir. 2010). The
reason a court may consider acquitted conduct in sentencing is that a court’s finding that a fact
has been proven by a preponderance of the evidence is consistent with a jury’s finding that the
same fact has not been proven beyond a reasonable doubt. By contrast, a court must find that a
fact was proven by a preponderance of the evidence if the jury verdict establishes it was proven
beyond a reasonable doubt. These statements of law are consistent because the standard of proof
for conviction is higher than the standard for finding a fact at sentencing.

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       On remand, the district court should recalculate the loss amount by using the

sentencing guidelines’ net loss approach. In applying that approach, the court

should make a factual finding as to whether Slaton was entitled to any of the

medical benefits he received during the offense period and adjust the loss amount

accordingly. The court’s newly calculated loss amount will not impact Slaton’s

advisory guidelines range, because even if the court finds that he was entitled to all

of the medical benefits, the loss will still be greater than $70,000, warranting the

same 8-level sentencing enhancement that he received. See U.S.S.G.

§ 2B1.1(b)(1)(E). A new loss amount can impact only the restitution amount,

which is equivalent to the loss amount in a worker’s compensation fraud case. See

Catone, 769 F.3d at 877 (“[T]he restitution amount in a government-benefits case

depends on the loss amount calculated under the Guidelines.”); Boring, 557 F.3d at

714 (“[T]he district court may not include in its calculation of a restitution award

the worker’s compensation payments to which [the defendant] was legitimately

entitled, since those do not constitute losses to the victim and thus are not properly

the subject of restitution.”).

                                          C.

       The district court’s error in calculating the loss amount did not affect

Slaton’s advisory guidelines range, and the court told us that it would have

imposed the same non-incarceration sentence regardless of how it had resolved


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Slaton’s objection to the loss amount. Under those circumstances, we would

ordinarily move on to consider the government’s challenge to the substantive

reasonableness of the sentence. See United States v. Keene, 470 F.3d 1347, 1348–

50 (11th Cir. 2006). But we do not reach the substantive reasonableness issue here

because the district court made another procedural error that was not related to its

calculation of the advisory guidelines range but may have affected its decision to

vary downward: basing Slaton’s non-incarceration sentence on a clearly erroneous

fact. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007)

(providing several examples of procedural errors, including “selecting a sentence

based on clearly erroneous facts”); United States v. Rodriguez, 628 F.3d 1258,

1264 (11th Cir. 2010) (same).

      In explaining its decision to vary downward, the district court stated that

Slaton did not deserve to go to prison because he “has already lost the worker’s

comp benefit to which he arguably would still have been entitled if he had been

perfectly honest with his doctors and investigators.” That statement contradicts the

jury’s guilty verdict on Count 33. As we have already explained, in finding Slaton

guilty on that count, the jury necessarily found that he was not entitled to the

worker’s compensation benefits he received. See supra Part IV.B. As a result, the

district court’s statement that he “arguably” could have been entitled to any of




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those benefits violates the non-contradiction principle and is clearly erroneous.

That clear error may have affected the district court’s decision to vary downward.

      On remand, the district court should resentence Slaton without relying on

any clearly erroneous facts. We do not reach and express no view on the issue of

whether the non-incarceration sentence imposed would have been substantively

reasonable without the errors that were committed in arriving at the sentence.

                                         V.

      For the reasons discussed, we AFFIRM Slaton’s convictions on all counts,

VACATE his sentence, and REMAND for resentencing. On remand, the district

court should impose a special assessment of $2,700. It should also recalculate the

loss amount by using the sentencing guidelines’ net loss approach, U.S.S.G.

§ 2B1.1 cmt. n.3(F)(ii), and order Slaton to pay restitution in that amount,

whatever it may be. Finally, the court should resentence Slaton without relying on

findings that contradict what the jury found beyond a reasonable doubt. The court

is free to revisit any other aspect of the sentence, although we express no opinion

on what a reasonable sentence would be.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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