USA v. Carie Lyn Beetle

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12677
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARIE LYN BEETLE,
a.k.a. Carie Lyn Douglas,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cr-80234-KAM-1
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2 Opinion of the Court 22-12677
____________________
Before R OSENBAUM , GRANT and H ULL , Circuit Judges
PER CURIAM:
After a jury trial, Carie Beetle appeals her total sentence of
60 months’ imprisonment for conspiracy to commit health care
and wire fraud, in violation of 18 U.S.C. § 1349, and money
laundering, in violation of 18 U.S.C. §§ 1957 and 2. On appeal,
Beetle argues the district court erred: (1) in applying a 22-level
increase in her offense level under U.S.S.G. § 2B1.1(b)(1) based on
the amount of loss; and (2) in awarding $17,242,910.95 in
restitution. After review, we affirm Beetle’s sentence and the
restitution amount.
I. BACKGROUND
A. Offense Conduct
Beetle’s convictions arose out of fraud associated with a
substance abuse treatment center and a sober home in Florida
owned and managed by Beetle and Eric Snyder. Beetle and Snyder
conspired to defraud insurance companies by submitting claims for
urinalysis and treatment that was either medically unnecessary or
not provided.
At trial, the government presented evidence, including
testimony from Snyder, that patients submitted to drug testing
several times per week even though the drug tests were not
reviewed by a doctor or used to guide patients’ treatment. Beetle
and Snyder also had employees and patients forge patients’
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22-12677 Opinion of the Court 3
signatures on sign-in sheets, backdate forms, and create fraudulent
documents to make it appear as though patients attended therapy
sessions or submitted to drug testing when they did not. And they
paid kickbacks and bribes to individuals with private insurance who
agreed to reside at the sober homes, attend therapy sessions, and
submit to regular testing for purposes of billing the individuals’
insurance plans.
Employees lacking the necessary licenses conducted the
therapy sessions. Patients skipped therapy and tested positive
without consequences. Patients signed each other in for therapy
sessions and then did not attend. Doctors did not review drug tests
or reviewed them only after ordering another drug test.
A forensic accountant testified that Beetle and her co-
conspirators submitted insurance claims totaling $49,503,037.12
and were paid $17,242,910.95.
B. Presentence Investigation Report
Beetle’s presentencing investigation report (“PSI”) stated
that Beetle and Snyder submitted claims of approximately
$58,209,385 for substance abuse treatment and received
$20,209,691 in reimbursements from insurance companies. The
PSI recommended a total offense level of 39 consisting of: (1) a base
offense level of seven, pursuant to U.S.S.G. § 2B1.1(a)(1); (2) a 22-
level increase for an “intended loss amount of $58,209,385,”
pursuant to the table in § 2B1.1(b)(1); (3) a two-level increase for
the number of victims, pursuant to § 2B1.1(b)(2)(A)(i); (4) a two-
level increase for sophisticated means, pursuant to
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4 Opinion of the Court 22-12677
§ 2B1.1(b)(10)(C); (5) a two-level increase for vulnerable victims,
pursuant to § 3A1.1(b)(1); and (6) a four-level increase for her role
as a leader, pursuant to § 3B1.1(b)(1).
While the table in § 2B1.1(b)(1) uses the term “loss,” the
commentary explains that the loss amount is “the greater of actual
loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). And “intended
loss” is defined as “the pecuniary harm that the defendant
purposely sought to inflict . . . .” Id. § 2B1.1 cmt. n.3(A)(ii).
With Beetle’s total offense level of 39 and her criminal
history category of I, the PSI recommended: (1) an advisory
guidelines range of 262 to 327 months’ imprisonment; and (2) a
restitution amount of $17,242,910.95.
Beetle objected to the PSI’s factual statement that she and
Snyder submitted approximately $58,209,385 in insurance claims
and received $20,209,691 in insurance payments. Beetle contended
that she and Snyder submitted approximately $10,801,140 in claims
and received $3,974,151, during the nine months she was “present”
on a day-to-day basis, and that amount should be her relevant
conduct. Beetle also contended that some urinalysis was
legitimate, some therapy took place, and the government
identified only $39,064 in payments for unattended group therapy
sessions.
Beetle also objected to the 22-level increase based on loss
amount. Beetle disputed the PSI’s “intended loss amount” of
$58,209,385. Beetle contended she should be held responsible for
only “the amount of urine testing that was paid through August
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22-12677 Opinion of the Court 5
2013, minus a percentage for the urinalysis testing that was
arguably medically necessary.” Beetle requested a loss amount of
$4,756,444, which was the amount actually paid for drug testing
during that time, with adjustments for properly billed urinalysis
and improperly billed group therapy. She also pointed out that
Snyder and another co-conspirator were held accountable for only
the amount insurance companies actually paid and that it was
“only just that Ms. Beetle’s relevant conduct be determined
similarly.”
The government argued that the loss amount should reflect
the entire amount billed up to December 2014, which was around
$49.5 million. Although in August 2013, Beetle transferred her
ownership interests in the businesses to Snyder, Beetle maintained
a financial interest in them through December 2014.
C. Sentencing
At Beetle’s July 29, 2022 sentencing hearing, the district
court stated that the jury found Beetle participated in the
conspiracy through December 2014 and that facts up to that time
were “relevant for and should remain in the presentence report.”
Beetle reiterated her argument that her loss amount should
reflect only what the insurance companies actually paid. She also
argued the amount should be reduced because (1) some patients
attended group therapy and (2) one third of the urinalysis (or once
per week) “would be a proper amount” and could be considered
medically necessary. Beetle read from shift notes indicating that
Snyder sometimes spoke with patients after a positive drug test.
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During the hearing, the district court discussed Application
Note 3(F) to § 2B1.1, which sets forth “Special Rules” about loss
determination. The district court focused on subsection (viii),
which applies to “Federal Health Care Offenses Involving
Government Health Care Programs,” and provides that “the
aggregate dollar amount of fraudulent bills submitted to the
Government health care program shall constitute prima facie
evidence of the amount of the intended loss . . . if not rebutted.”
U.S.S.G. § 2B1.1 cmt. n. 3(F)(viii) (emphasis added).
The district court pointed out that this “guideline
commentary says . . . the presumptive loss amount is the amount
billed, not the amount paid” and that it was the defendant’s burden
“to show that the amount billed is inappropriate.” The district
court asked why Beetle was relying on the amount paid. Beetle
responded that her co-conspirators were sentenced based on the
amount paid, and it was wrong to punish her for going to trial. The
district court stated that her co-conspirators’ guidelines
calculations were based on negotiated loss amounts in their plea
agreements. The district court explained that it was required first
to calculate Beetle’s advisory guidelines range before it could
consider whether to vary downward based on how she was treated
compared to other defendants.
Beetle also argued that insurance companies routinely pay
less than the full amount billed. Beetle stressed that trial evidence
showed the total amount billed for urinalysis was $19 million, but
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the total amount paid was only $4,756,044, and for most of that
time, “Beetle wasn’t even there.”
The government argued that Beetle should be held
accountable for the entire billed amount up to December 2014,
which trial evidence showed was $49.5 million for both urinalysis
and therapy sessions. The government pointed out that the
urinalysis tests were tainted because they were procured through
kickbacks and that the $19 million billed for urinalysis did not
account for the evidence of hundreds of unattended therapy
sessions billed to the insurance companies.
After consulting Application Note 3(F)(viii) in the
commentary to U.S.S.G. § 2B1.1, the district court found that the
government presented sufficient evidence of the intended loss and
that Beetle failed to sufficiently rebut that evidence. Beetle pointed
out that the commentary in Application Note 3(F)(viii) was for
government programs and Beetle’s offense conduct related to
private insurance companies. The district court determined that
Application Note 3(F)(viii) still provided guidance that was
applicable in Beetle’s case, overruled her objection, and adopted
the loss amount in the PSI. The district court stated that it would
take Beetle’s arguments about the loss amount into account in
considering a variance.
The district court sustained Beetle’s objection to the two-
level increase for the number of victims, lowering the total offense
level to 37. The district court confirmed with the prosecutor that
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the $49.5 million dollar loss amount was based on six victim
insurance companies Beetle agreed were proven.
The district court calculated a total offense level of 37, which
with a criminal history category I, resulted in an advisory
guidelines range of 210 to 262 months. The district court then
heard the parties’ arguments. The government agreed that a
downward variance was warranted and asked for a sentence
between 72 and 80 months. Upon inquiry from the district court,
Beetle’s counsel said, and the government agreed, that the range
would have been 57 to 71 months had the court sustained Beetle’s
objections and adopted her proposed loss amount. Beetle asked for
“a little less” than that range.
As to restitution, Beetle reiterated that it should reflect the
amount of loss actually caused by her own conduct and limited to
the amount paid for only medically unnecessary urinalysis, which
was $4,756,444. After confirming that the $17,242,910.95 in the PSI
was based on the amount insurance providers paid for both
urinalysis and therapy from the conspiracy’s inception to
December 2014, when Beetle left the conspiracy, the district court
overruled Beetle’s objection and adopted that amount as
restitution “for the reasons essentially that [it] overruled” Beetle’s
offense level objections.
The district court explained that a downward variance was
warranted by the 18 U.S.C. § 3553 sentencing factors and imposed
a 60-month sentence for her health care and wire fraud conspiracy
conviction and a concurrent 22-month sentence for her money
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22-12677 Opinion of the Court 9
laundering conviction, for a total sentence of 60 months. The
district court ordered $17,242,910.95 in restitution, to be paid joint
and several with her co-conspirators.
II. LOSS AMOUNT
A. General Principles
Section 2B1.1 applies to theft and fraud offenses. Under
U.S.S.G. § 2B1.1(b)(1), a defendant’s offense level increases with
the amount of “loss” caused by the offense. In Beetle’s case, for
instance, the base offense level was increased by 22 levels because
the district court found that the loss amount was more than $25
million but less than $65 million. See id. § 2B1.1(b)(1)(L).
Although the government must support its loss calculation
with specific, reliable evidence, the Guidelines do not require a
precise determination of loss. United States v. Barrington, 648 F.3d
1178, 1197 (11th Cir. 2011). The district court need make only a
reasonable estimate of the loss based on the available information.
Id.; see also U.S.S.G. § 2B1.1 cmt. n.3(C).
Section 2B1.1 itself does not define the term “loss.” Rather,
as noted earlier, the commentary to § 2B1.1 “explains that the ‘loss’
is the greater of the actual or intended loss.” United States v.
Verdeza, 69 F.4th 780, 793 (11th Cir. 2023); U.S.S.G. § 2B1.1 cmt.
n.3(A). Further, actual loss is defined as “reasonably foreseeable
pecuniary harm,” and intended loss is defined as “pecuniary harm
that the defendant purposely sought to inflict.” U.S.S.G. § 2B1.1
cmt. n.3(A)(i)-(ii).
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B. New Issue on Appeal
On appeal, Beetle argues that the term “loss” in U.S.S.G.
§ 2B1.1(b)(1) unambiguously refers to only actual loss when it is
given its plain and ordinary meaning. Therefore, Beetle contends,
the district court erred in considering and deferring to the
Sentencing Commission’s definition of “loss” in the commentary
to include both actual loss and intended loss. To make her
argument, Beetle relies on this Court’s recent en banc decision in
United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc),
issued while her appeal was pending.
In Dupree, this Court “overruled our precedent” holding that
commentary to the Guidelines was binding unless it was plainly
erroneous or inconsistent with the guideline itself, a federal statute,
or the Constitution. Verdeza, 69 F.4th at 793-94. Dupree concluded
that, after Kisor v. Wilkie, 588 U.S.—, 139 S. Ct. 2400, (2019),
sentencing courts should defer to guidelines commentary only
when, after first exhausting all the traditional tools of construction,
the regulation is “genuinely ambiguous.” Dupree, 57 F.4th at 1274-
75; Verdeza, 69 F.4th at 794. Applying this new rule in Dupree, the
Court held that U.S.S.G. § 4B1.2, the career offender guideline,
unambiguously excluded inchoate offenses, and therefore the
commentary including inchoate offenses within the definition of
“controlled substance offense” was not binding and was entitled to
no deference. Dupree, 57 F.4th at 1277-79.
The problem for Beetle is that in the district court she never
claimed the term “loss” in the guidelines provision was plain and
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22-12677 Opinion of the Court 11
unambiguous, and she did not challenge the definition of “loss” as
including both actual and intended loss in the guidelines
commentary. Rather, she claimed the intended loss amount
should be calculated based on the amount billed versus the amount
paid. Thus, we review Beetle’s new legal issue for plain error.
United States v. Rogers, 989 F.3d 1255, 1261-63 (11th Cir. 2021). To
be plain, an error must have been specifically and directly resolved
by the explicit language of a statute, rule, or on point precedent
from the Supreme Court or this Court. United States v. Sanchez, 940
F.3d 526, 537 (11th Cir. 2019).1
Our Court in Verdeza already held that Dupree “did not
specifically and directly resolve the question of whether § 2B1.1’s
definition of loss is ambiguous,” and thus Dupree cannot establish
plain error. 69 F.4th at 794 (quotation marks omitted).
Accordingly, under our precedent, Beetle cannot show the district
court plainly erred by deferring to the definition of loss in the
guidelines commentary.
C. Preserved Error Review
Beetle makes two additional claims as to loss amount that
arguably are subject to preserved error review. We ordinarily
review a district court’s determination of the loss amount for clear
error. United States v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015).
A guideline calculation error requires remand unless it was
1 Beetle does not dispute that plain error review applies.
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harmless, that is, it did not affect the sentence imposed. United
States v. Mathews, 874 F.3d 698, 710 (11th Cir. 2017).
Beetle argues that the correct intended loss amount was
only $49,503,037.12, which the government conceded at
sentencing, rather than the $58,209,385 stated in the PSI. On
appeal, the government agrees that the intended loss amount
should have been the $49 million figure. But this error had no
effect on the calculation of Beetle’s total offense level or her
advisory guidelines range. Under § 2B1.1(b)(1)’s loss amount table,
either intended loss amount would have resulted in the same 22-
level increase in Beetle’s offense level. See U.S.S.G. § 2B1.1(b)(1)(L)
(providing for a 22-level increase if the loss involved more than $25
million but less than $65 million).
Beetle also contends the district court improperly relied on
Application Note 3(F)(viii) in the commentary, which applies only
to government health care programs and not to private insurance
companies. See U.S.S.G. § 2B1.1 cmt. n.3(F)(viii) (stating that the
aggregate dollar amount of fraudulent bills submitted to a
government health care program constitutes prima facie evidence
of the amount of intended loss unless rebutted). But at sentencing
the district court did not apply Application Note 3(F)(viii). Indeed,
it acknowledged Beetle’s point that the commentary was not
applicable to her offense, and merely found it provided some
“guidance” on the issue of whether the intended loss amount for
Beetle’s conspiracy should include the total amount billed to the
private insurance companies or some lesser amount, as Beetle had
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22-12677 Opinion of the Court 13
argued. We cannot say the district court’s reference to Application
Note 3(F)(viii) was reversible error, especially given that the
applicable commentary, Application Note 3(A), also instructed the
district court to use the intended loss amount.2
III. RESTITUTION
A defendant convicted of fraud must pay restitution to the
victims of her offense. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). A
restitution award must be based on the amount of actual losses the
victim suffered as a result of the defendant’s conduct. United States
v. Huff, 609 F.3d 1240, 1247-48 (11th Cir. 2010). The government
bears the burden of proving the victims’ loss amount by a
preponderance of the evidence. 18 U.S.C. § 3664(e). The
government need not “calculate the victim’s actual loss with laser-
like precision, but may instead provide a reasonable estimate of
that amount.” United States v. Martin, 803 F.3d 581, 595 (11th Cir.
2015) (quotation marks omitted).
In cases of healthcare fraud, restitution amounts must be
offset by the value of medically necessary goods and services that
were actually provided. United States v. Bane, 720 F.3d 818, 828
(11th Cir. 2013). The defendant bears the burden of proving the
value of medically necessary goods or services should be deducted
from the restitution amount. Id. at 829 n.10. That burden includes
showing “that the services [she] provided were medically
2 Because Beetle failed to show reversible error as to the district court’s use of
intended loss, we do not address her arguments regarding the proper
determination of the actual loss attributable to her.
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necessary.” United States v. Moss, 34 F.4th 1176, 1193 (11th Cir.
2022).
We review de novo the legality of a restitution order and the
factual findings supporting it for clear error. Id. at 1192. “We will
find a clear error if, after reviewing all the evidence, we are left with
the definite and firm conviction that a mistake has been
committed.” Id. (quotation marks omitted).
Here, Beetle failed to show the district court’s restitution
amount of $17,242,910.95 was clear error. First, the district court
based restitution on the amount actually paid by the insurance
companies, not, as Beetle argues, on the intended loss. Beetle does
not dispute that the victim insurers paid $17,242,910 for drug
testing and therapy billed by her sober home and treatment center
during the conspiracy period. The government carried its burden
to prove the victim insurers’ actual losses of $17,242,910.95. See
Huff, 609 F.3d at 1247-48; Martin, 803 F.3d at 595.
Second, Beetle failed to prove the value of any medically
necessary services that reduced the restitution award. See Bane, 720
F.3d at 829 n.10. The district court considered and rejected her
argument that the urinalysis and therapy were medically necessary,
and that determination is supported by the evidence. Any
treatment provided at the sober home and treatment center was
procured through kickbacks and prescribed by bribed doctors.
While shift notes showed that employees sometimes looked at
urinalysis results and occasionally spoke with a patient, the notes
did not show that any medical professional used those results in
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determining a treatment course. And trial evidence established
that even if some patients attended therapy sessions, they were not
conducted by qualified professionals. See Moss, 34 F.4th at 1193
(affirming the district court’s restitution amount where the
defendant failed to prove visits to patients were medically
necessary).
IV. CONCLUSION
For the foregoing reasons, we affirm Beetle’s 60-month
sentence and the award of restitution in the amount of
$17,242,910.95.
AFFIRMED.
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