Opinion
01 Cr. 835 (RWS).
April 19, 2006
SENTENCING OPINION
Defendant Kailash Singhvi ("Singhvi") has pleaded guilty to the following Counts: (1) conspiracy to pay kickbacks to doctors for Medicare patient referrals, in violation of 18 U.S.C. § 371, a Class D Felony; (2) payment of kickbacks to doctors for Medicare patient referrals, in violation of 18 U.S.C. § 1320a-7b (b) 2, a Class D Felony; (3) conspiracy to defraud the Medicare Program, in violation of 18 U.S.C. § 371, a Class D Felony; and (4) defrauding the Medicare Program, in violation of 18 U.S.C. § 371, a Class C Felony. Under the Guidelines, Singhvi would be sentenced to 21 months and three years supervised release. His sentence is subject to modification at the sentencing hearing currently scheduled for April 19, 2006. Prior Proceedings
On August 27, 2001, an information was filed in the Southern District of New York charging the above conduct. Singhvi also was arrested by authorities on August 27, 2001. On that same date, he was released on $250,000 personal recognizance bond, surrender of travel documents and travel restricted to the Southern and Eastern Districts of New York and extended to Connecticut, New Jersey, and Pennsylvania. On September 25, 2002, Singhvi appeared before this Court and pleaded guilty as charged, pursuant to a cooperation agreement entered into with the Government. Singhvi is scheduled to be sentenced on April 19, 2006.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553 (a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(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;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(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.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111. The Defendant
Singhvi was born on September 22, 1955 in Jodhpur Rasatan, India. He related that he was raised in an intact family and that he currently maintains a good relationship with his family.
In 1978, Singhvi immigrated to the United State from India, settling in Dallas, Texas. In 1979, he relocated to New Jersey. In 1980, the defendant moved to New York, where he continues to reside. He became a naturalized United States citizen in 1985.
Singhvi was married in 1981. He remains married and has two children, both of whom are currently college students.
The defendant currently suffers from intermittent pain in both knees, pain in his neck, and shortness of breath. He also suffers from hypertension and asthma. He currently takes the prescription medications Advair, Motrin, Lipitor, and Diovan.
The defendant related that in late 2004, he participated in mental and emotional health counseling. He stated that he suffered from anxiety and needed to do some "soul searching." Singhvi related no additional history of mental or emotional disorders.
In 1978, Singhvi obtained a medical degree from Dr Essen Medical College University of Rajasthan, located in India. He specialized in internal medicine and gastroenterology. Between 2002 and 2005 Singhvi participated in over 1,000 hours of continuing medical education courses and conferences.
From 1984 until 2001, Singhvi operated a private medical practice in Brooklyn, New York. The practice earned between $400,000 and $500,000 annually, and he personally earned between $200,000 and $300,000. Since May 2005, Singhvi has been employed by the Garden Medical Daycare Center, a medical facility for impoverished persons, where he earns $35,000 annually.
Since May 2003, the defendant has performed over 1,571 hours of volunteer service at North Shore Hospital. In addition, he has performed over 2,000 hours of community service for the Rajasthan Association of North America. Throughout 2005, Singhvi also performed 500 hours of community service for the Rajasthan Foundation. Finally, from February 2004 through 2005, Singhvi performed over 800 hours of community service at Inner City Newark, an inner city medical clinic located in Newark, New Jersey.
The Offense Conduct
Singhvi was involved in a conspiracy to commit Medicare fraud, in which, among other things, he paid and directed kickbacks to be paid in exchange for Medicare referrals and submitted fraudulent claims to Medicare and private medical insurers. The specific facts of the offenses charged are adopted as set forth in the Presentence Investigation report dated April 7, 2006.
Relevant Statutory Provisions
Under Counts One through Three, the the maximum term of imprisonment that may be imposed for each count is 5 years. See 18 U.S.C. §§ 371, 1320a-7b (b) (2). The maximum term of imprisonment that may be imposed under Count Four is ten years.See 18 U.S.C. § 1347.
A term of not more than three years' supervised release on each count, if a sentence of imprisonment is imposed. See 18 U.S.C. § 3583 (b) (2).
The defendant is eligible for not less than one nor more than five years' probation by statute. See 18 U.S.C. § 3561 (c) (1). Because the instant offenses are felonies, one of the following must be imposed as a condition of probation unless extraordinary circumstances exist: a fine, restitution, or community service.See 18 U.S.C. § 3563 (a) (2).
The maximum fine that may be imposed under Counts One through Four is $1 million. See 18 U.S.C. § 3571. A special assessment of $100 per count is mandatory. See 18 U.S.C. § 3013.
Full restitution to the victim is required pursuant to 18 U.S.C. §§ 3663A and 3664.
The Guidelines
The 2000 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case for calculation purposes, in accordance with Guidelines § 1B1.11 (b) (1).
Counts One through Four will be grouped pursuant to U.S.S.G. § 3D1.2 (d) as the offense level largely will be determined by the total amount of harm or loss.
The guideline for a violation of 18 U.S.C. § 1347 is found in U.S.S.G. § 2F1.1 (a), which provides for a based offense level of 6. See U.S.S.G. § 2F1.1 (a). Pursuant to U.S.S.G. § 2F1.1 (b) (1) (b), the offense level is increased by 11 levels, as the amount of loss in this case is at least $840,000. See U.S.S.G. § 2F1.1 (b) (L). Additionally, because the scheme involved more than minimal planning and was a scheme to defraud more than one victim, the offense level is increased by 2 levels. See U.S.S.G. § 2F1.1 (b) (2) (A) and (B). The resulting offense level is 19.
Singhvi has shown recognition of responsibility for his offense. Therefore, because his base offense level is 16 or greater, his offense level is reduced by three levels. See § 3E1.1 (a) and (b). The resulting adjusted offense level is 16.
Criminal History
The defendant has no prior criminal convictions. Therefore he has zero criminal history points and a Criminal History Category of I.
Sentencing Options
Based upon a total offense level of 16 and a Criminal History Category of I, the guideline range for imprisonment is 21 to 27 months.
The guideline range for a term of supervised release for the instant offense is at least two years but not more than three years, the minimum required by statute. See § 5D1.2 (a) (2). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required, but is optional.See § 5D1.1(b).
Because the applicable guideline range is in Zone D of the Sentencing Table, the defendant is not eligible for probation, pursuant to § 5B1.1, Application Note #2.
The fine range for the instant offenses is from $5,000 to $50,000. See § 5E1.2(c) (3) (A) and (c) (4). Subject to the defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release. See § 5E1.2(d) (7).
Pursuant to § 5E1.1(a) (1), in a case with an identifiable victim, the Court shall enter a restitution order in the full amount of the victim's loss if such order is authorized under 18 U.S.C. § 3663A.
The Remaining Factors of Section 3553 (a)
Having engaged in the Guideline analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553 (a) in order to impose a sentence "sufficient, but not greater than necessary" as is required in accordance with the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005). In particular, section 3553 (a) (1) asks that the sentence imposed consider both "the nature and circumstances of the offense and the history and characteristics of the defendant," while section 3553 (a) (2) (A) demands that the penalty "provide just punishment for the offense" that simultaneously "afford[s] adequate deterrence to criminal conduct" as required by § 3553 (a) (2) (B). Furthermore, pursuant to § 3553 (a) (6), the Court is also mindful of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Taking the aforementioned factors into account, as well as the fact that the government has submitted a 5K1 letter to reflect Singhvi's assistance to the government, Singhvi will be sentenced to time served as set forth below.
The Sentence
In view of the Government's letter and Singhvi's prior history, he is sentenced to time served. A term of supervised release of three years is also imposed on each count, to run concurrently. Singhvi shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, the standard conditions (1-13) are imposed. In addition, as a special condition of supervision, Singhvi shall be required to continue to perform community service as directed by his probation officer.
Singhvi shall be required to forfeit his interest in the following property to the United States: $1,605,000. He shall also pay to the United States a special assessment in the amount of $400, which shall be due immediately. Finally, Singhvi shall pay a fine of $5,000, which shall be paid in full not later than May 17, 2006.
It is noted that Singhvi has previously made a payment to the United States in the amount of $800,000 in January, 2006.
It is so ordered.