                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 07-3752

                                    ______________

                           UNITED STATES OF AMERICA

                                           v.

                                 BORIS MALINSKY,
                                            Appellant.
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                     (D.C. Crim. Action No. 06-CR-00298-1)
                    District Judge: Honorable Berle M. Schiller
                                  ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 15, 2010

                                    ______________

        Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

                           (Opinion Filed: August 19, 2010 )

                                    ______________

                                       OPINION

GREENAWAY, JR., Circuit Judge

      Boris Malinsky pled guilty to one count of health care fraud under 18 U.S.C. §

1347. The United States District Court for the Eastern District of Pennsylvania sentenced
him to 57 months’ imprisonment. Malinsky appealed to this Court for the purpose of

challenging the sentence imposed. Malinsky’s counsel (“Counsel”) petitions this Court

for permission to withdraw from representing Malinsky on appeal, pursuant to Anders v.

California, 386 U.S. 738 (1967). For the reasons addressed below, we will grant

Counsel’s petition and affirm the sentence imposed by the District Court.

                                  I. BACKGROUND

      We write solely for the benefit of the parties and recount only the essential facts.

      The health care fraud charge against Malinsky stemmed from Malinsky’s

involvement, with his partner Shlomo Kaufman, in the operation of the 13050 Medical

Center (“Medical Center”) in Philadelphia.1 The facts underlying the indictment alleged

that from December 1999 through January 2002 Malinsky and Kaufman caused the

Medical Center to submit fraudulent claims for reimbursement to insurance companies.

An undercover FBI investigation of the Medical Center in 2000 revealed that ninety-five

to ninety-nine percent of the claims submitted for reimbursement by the Medical Center

during the investigation were fraudulent.

      On March 22, 2005, after waiving his Miranda rights, Malinsky provided a

statement to the FBI, which is recounted in the Presentence Investigation Report (“PSR”).

In that statement, Malinsky admitted that none of the Medical Center’s patients received




  1
    Kaufman was charged separately with the same offense. Kaufman, like Malinsky,
pled guilty.

                                             2
all of the treatments billed by the Medical Center. He also admitted that approximately

fifty percent of the bills submitted for reimbursement by the Medical Center to insurers

were “fake.”

       On June 21, 2006, a grand jury in the Eastern District of Pennsylvania returned an

indictment charging Malinsky with one count of health care fraud. On December 19,

2006, Malinsky pled guilty to the charge. There was no plea agreement. In the plea

allocution, Malinsky neither waived his right to appeal his sentence, nor stipulated to the

amount of overpayment to the Medical Center by the defrauded insurance companies. On

February 2, 2007, Senior United States Probation Officer Robert Weinberger submitted

the PSR to the District Court. The PSR stated that the fraud perpetuated by Malinsky and

Kaufman caused more than thirty insurance companies to overpay approximately

$560,000. This amount was based on Malinsky’s testimony during his probation

interview that about fifty percent of the medical billing during the applicable time period

was fraudulent, and the determination by an FBI special agent that $560,000 constituted

fifty percent of the Medical Center’s billings during the applicable time period.

       Thus, the base offense level of six was subject to two enhancements: a fourteen-

level enhancement, pursuant to U.S. S ENTENCING G UIDELINES M ANUAL (“U.S.S.G.”) §

2F1.1(b)(1)(H), because the loss exceeded $400,000 but was not more than $1,000,000;

and a two-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(A), because the offense

involved more than ten but less than fifty victims. The total offense level was determined


                                             3
to be nineteen.2

       On September 11, 2007, at Malinsky’s sentencing hearing, Malinsky’s counsel

confirmed with the District Court that he discussed the PSR with Malinsky, and stated

that the only matter in dispute was the amount of loss. Counsel relayed to the District

Court that Malinsky’s own estimate of the overpayment was more than $200,000, but less

than $400,000. Based on that estimate, Malinsky argued that the total offense level

should be reduced from nineteen to seventeen.3

       The District Court determined that the total offense level was seventeen, based on

its determination that the losses tallied $211,318.28. The District Court then determined

that the applicable guidelines range, based on that total offense level and Malinsky’s

criminal history category of V, was forty-six to fifty-seven months. The District Court

also noted, parenthetically, that the guidelines range, based on a total offense level of

nineteen, would have been fifty-seven to seventy-one months. The District Court

imposed a sentence of fifty-seven months, noting that it imposed the same sentence it

would have imposed if the total offense level was nineteen, because it thought that fifty-



  2
    The offense level of nineteen also accounted for two downward adjustments: a
negative two level adjustment for the acceptance of responsibility, pursuant to U.S.S.G. §
3E1.1(a), and a negative one level adjustment for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1(b).
  3
     Compare U.S.S.G. § 2B1.1(b)(1)(H) (suggesting an increase of 14 to the offense
level where the loss is more than $400,000, but less than $1,000,000), with U.S.S.G. §
2B1.1(b)(1)(G) (suggesting an increase of 12 to the offense level where the loss is more
than $200,000, but less than $400,000).

                                              4
seven months was an appropriate sentence.

        On September 14, 2007, Malinsky filed a notice of appeal in this Court. On

January 5, 2009, Counsel filed the Anders brief (the “Brief”) at issue in this opinion.




                                   II. JURISDICTION

        The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                             III. STANDARD OF REVIEW

        “In Anders v. California, 386 U.S. 738 (1967), the Supreme Court explained the

general duties of a lawyer representing an indigent criminal defendant on appeal when the

lawyer seeks leave to withdraw from continued representation on the grounds that there

are no nonfrivolous issues to appeal.” United States v. Marvin, 211 F.3d 778, 779 (3d

Cir. 2000). Under Anders, counsel seeking to withdraw from representation must “satisfy

the court that he or she has thoroughly scoured the record in search of appealable issues,”

and “explain why the issues are frivolous.” Id. at 780. “The Court’s inquiry when

counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled

[Third Circuit Local Appellate Rule 109.2's] requirements;4 and (2) whether an



  4
      Local Appellate Rule 109.2 provides, in pertinent part:

        Where, upon review of the district court record, counsel is persuaded that the
        appeal presents no issue of even arguable merit, counsel may file a motion to
        withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738

                                              5
independent review of the record presents any nonfrivolous issues.” United States v.

Youla, 241 F.3d 296, 300 (3d Cir. 2001). Where frivolousness is patent, however, “we

will not appoint new counsel even if an Anders brief is insufficient to discharge current

counsel’s obligations to his or her client and this court.” United States v. Coleman, 575

F.3d 316, 321 (3d Cir. 2009) (quotation marks omitted).

                                      IV. ANALYSIS

       The Brief identifies two appealable issues, which Counsel believes to be frivolous:

(1) that Malinsky’s sentencing was not legal; and (2) that the two-point enhancement,

based on more than ten but less than fifty victims, was improper. Malinsky filed, pro se,

an informal brief in which he states his belief that there are four appealable issues in this

case: (1) whether the Government improperly withheld evidence favorable to Malinsky,

in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether any of the amount of

loss taken into account by the District Court in calculating Malinsky’s total offense level

under U.S.S.G. § 2B1.1(b)(1)(G) occurred outside of the time frame of the offense of

which he is convicted; (3) whether Malinsky’s total offense level was incorrectly

enhanced under U.S.S.G. § 2B1.1(b)(2)(A); and (4) whether Malinsky’s total offense

level was incorrectly calculated under U.S.S.G. § 2B1.1(b)(1)(G). The Government filed



       (1967), which must be served upon the appellant and the United States. The
       United States must file a brief in response. Appellant may also file a brief in
       response pro se. . . . If [the court] finds arguable merit to the appeal, or that the
       Anders brief is inadequate to assist the court in its review, it will appoint substitute
       counsel, order supplemental briefing and restore the case to the calendar.

                                              6
a brief concurring with Counsel’s conclusion that Malinsky’s appeal is wholly frivolous.5

       We find that the Brief is insufficient to satisfy Anders’s requirements. However,

because the frivolousness of Malinsky’s appeal is patent, we will discharge Counsel’s

obligations to Malinsky and this Court. Coleman, 575 F.3d at 321.

       The Brief contains only two pages of legal argument. Those two pages do not cite

to any legal authority, other than the Sentencing Guidelines, in support of Counsel’s

arguments. This scant effort does not satisfy this Court that Counsel has “explain[ed]

why the issues are frivolous.” Marvin, 211 F.3d at 780. The requirements imposed on

Counsel seeking to withdraw from representation under Anders are “grounded in the

Constitutional requirement of substantial equality and fair process, which the [Supreme]

Court notes ‘can only be attained where counsel acts in the role of an active advocate in

behalf of his client.’” Youla, 241 F.3d at 299 (quoting Anders, 386 U.S. at 744).

Counsel’s brief argument, supported by the almost complete absence of any authority,

hardly represents the “conscientious examination” required by Anders. Marvin, 211 F.3d

at 780; see also Youla, 241 F.3d at 300 (finding counsel’s two-page analysis of the merits

of the potential appealable issues, which cited no case law, insufficient).

       The inadequacy of the Brief is made more profound by its failure to “satisfy the

court that [Counsel] scoured the record in search of appealable issues.” Id. The




  5
     Malinsky also filed a supplemental brief to which the Government, but not Counsel,
filed a response.

                                              7
statement of appealable issues in the Brief is arguably broad enough to encompass all of

Malinsky’s stated grounds for appeal, but the Brief does not “assure us that [Counsel] has

considered them and found” all of the issues raised by Malinsky to be “patently without

merit.” Id. at 781; see also Youla, 241 F.3d at 300-01 (contrasting the defendant’s

twenty-six page pro se brief, which presented three issues for appeal, with counsel’s two-

page discussion of fewer appealable issues). For instance, the Brief does not respond to

the new information presented to this Court by Malinsky in his supplemental brief,

regarding a civil complaint against Malinsky by one of the defrauded insurers, which

Malinsky argues supports his argument that the District Court erred in its determination of

the losses caused by his fraud.

       The presentation of “what amounts to a no-merit letter devoid of analysis will not

suffice” to fulfill counsel’s obligations under Anders. Youla, 241 F.3d at 299 (citing

Anders, 386 U.S. at 745). The Brief is, essentially, just such a “no-merit” letter.

       Even though we hold that the Brief is insufficient to discharge Counsel’s

obligations to Malinsky and to this Court, we will not appoint new counsel where, as

here, the frivolousness of the appeal is patent. Marvin, 211 F.3d at 781. Regarding the

calculation of the enhancement to Malinsky’s sentence based on the losses suffered by the

defrauded insurers, the District Court substantially adopted Malinsky’s own estimate of

the losses suffered by the defrauded insurance companies. Malinsky argued that the

losses were about $200,000, rather than, as specified in the PSR, more than $400,000.


                                              8
The District Court determined that the losses were $211,318.28, and, based on that

determination, reduced the total offense level by two points from that recommended in

the PSR. This renders moot Malinsky’s first, second, and fourth grounds of review stated

in Malinsky’s brief.

       The District Court’s decision to base the losses on Malinsky’s proposed amount

also undermines Malinsky’s argument that the Government violated Brady. Under Brady,

“the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373

U.S. 83, 87 (1967). Malinsky alleges that the Government improperly withheld a copy of

its correspondence with the defrauded insurance companies. The correspondence,

however, stated losses of only $211,318.28—essentially the same amount as the $200,000

in losses Malinsky argued should be considered.

       Additionally, while Malinsky claims that he had no way to determine how much of

the $211,318.28 claimed by those four companies was related to fraud, as opposed to

services actually rendered, Malinsky did not challenge the PSR’s finding that he admitted

to the FBI that he received approximately $250,000 as a result of the fraudulent billing

scheme. Failure to object to a fact in the PSR is an admission of that fact. United States

v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007).

       Malinsky’s other stated ground for appeal—that the total offense level was


                                             9
wrongly enhanced based on the District Court’s finding that it was a crime involving

more than ten but fewer than fifty victims—is also frivolous. He failure to object to the

PSR’s finding that thirty insurance companies were defrauded is an admission of that fact.

Id.

                                  IV. CONCLUSION

       For the foregoing reasons, we will affirm the judgment of the District Court and

grant Counsel’s motion to withdraw from the representation of Malinsky.




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