McKEE, Circuit Judge.
China Scott appeals the sentence that was imposed after she pled guilty to one count of healthcare fraud. For the reasons that follow, we will affirm.
Scott's nursing license had previously been revoked based on a 2005 conviction for healthcare fraud. Close to ten years later, in September 2015, Scott pled guilty to one count of making false statements related to health care matters under 18 U.S.C. § 1035 (a)(2) (MDPA 1:15-CR-00191).
Despite the prohibition, Scott entered employment with a home healthcare services agency in November 2015. As part of her employment duties with that agency, Scott served as a home healthcare aide for at least one recipient of both Medicaid and Medicare (federally-funded healthcare benefit programs) in violation of that condition for release.
Consequently, in March 2016, Scott was indicted by a grand jury, and again charged with health care fraud in violation of 18 U.S.C. § 1347 (MDPA No. 1:16-CR-00079). The Presentence Report for the March 2016 indictment calculated a total offense level of six and a criminal history category of III.
In July 2016, the District Court conducted a combined change of plea and sentencing hearing in this case (MDPA 1:16-CR-00079), together with the sentencing hearing for her September 2015 case (MDPA No. 1:15-CR-00191). The judge explained at the hearing that the Sentencing Guidelines were the "starting point," but that she could "vary or depart from [them] upward or downward depending on what [it] finds as a result of the pre-sentence report."
As to MDPA 1:16-CR-00079, the District Court stated that it "relied pretty much on the pre-sentence report that was filed. . . ."
MDPA 1:16-CR-00079 by departing upward from the Sentencing Guidelines.
Scott now appeals the sentence in MDPA No. 1:16-CR-00079.
A. Acceptance of Responsibility and Restitution
1. Acceptance of Responsibility
A court's determination of a defendant's acceptance of responsibility is a factual matter that we review for clear error.
As we have already noted, the court clearly explained why it was not impressed with Scott's claim that she was accepting responsibility and entitled to a sentencing reduction. Based on our review of the record and the circumstances of this case, the District Court did not err in concluding that Scott was not entitled to a reduction for acceptance of responsibility. The District Court concluded that Scott was "still . . . not learning her lesson" and had "continued to be involved in fraud."
2. Restitution Judgment
Scott next argues that the District Court imposed $114,537.80 restitution "for no reason" and characterizes the District Court's judgment as a "clerical error" that this Court should correct. However, the record demonstrates that the District Court set the restitution in this case, MDPA No. 1:16-CR-00079, at $2,103.
B. Upward Departure
Generally, a district court follows a three-step process in sentencing: 1) calculate a defendant's Guidelines sentence; 2) formally rule on the parties' respective motions and state on the record whether it is granting a departure as well as how that departure affects the Guidelines calculation—an analysis that should account for this Circuit's case law before United States v. Booker;
Although this process is intended to ensure an adequate record for an appeals court to verify that the district court considered the parties' arguments,
Scott argues that her sentence is procedurally unreasonable.
We do find the District Court's procedure for imposing a sentence on MDPA No. 1:16-CR-00079 troubling. A district court can, of course, impose upward departures if, for example, "reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes."
Here, in its Statement of Reasons—filed several days after the July 28, 2016 sentencing —the District Court explained its rationale for the upward departure. It discussed, among other things, that Scott's criminal history was "replete with activities involving fraud and/or theft" and that she "has shown no regard for the law and has not been deterred by previous contacts with law enforcement." The District Court recognized that a twelve-month sentence "contemplates a one level upward departure," and it further explained that the departure was "sufficient yet not greater than necessary to impress upon [Scott] the seriousness of her conduct, and will protect the public from further crimes."
However, it does not appear that the court ever explained that rationale for the upward departure in open court, or in Scott's presence. During the sentencing proceeding, the Court failed to mention any of the § 3553(a) factors, much less give them any "meaningful consideration"
We nonetheless find that the District Court's error did not satisfy the plain error standard.
The Statement of Reasons that the court did finally provide demonstrates that the District Court considered the nature of Scott's crime; Scott's individual characteristics and criminal history; the sentence's potential deterrent effect; the applicable guideline range; and Scott's recidivism with regard to fraud and/or theft. Based on these factors, the twelve-month sentence was not unreasonable. Accordingly, despite our displeasure with the fact that these reasons were not offered in open court, we cannot conclude that Scott has shown plain error. There is simply no way for us to find "that the District Court would have imposed a lesser sentence had defense counsel been given the required notice."
We nonetheless note our strong discouragement with the procedure adopted here. We have previously explained: "[T]he mandate of § 3553(c) and the presumption in our case law [is] that all issues pertaining to the pronouncement of sentence will be addressed at the sentencing hearing while the defendant is present."
Thus, despite our conclusion that the District Court's error did not violate Scott's substantial rights, we take this opportunity to reiterate "the principle that a contemporaneous explanation of the rationale should accompany the pronouncement of sentence."
Because we find the District Court's error harmless, we will affirm the judgment.
The District Court's Judgment ultimately entered further indicates that the restitution amount entered for this case was $2,103. App. 7.