Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Melloy, Circuit Judge.
Submitted: October 21, 2011
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
Patrick Daniel Osei pled guilty to one count of illegal remuneration and two counts of false statements after being charged with conspiracy to commit health care fraud, aiding and abetting health care fraud, and illegal remuneration. The district court accepted his guilty pleas and sentenced Osei to a prison term of 63 months, an *fn1 upward variance from a Guidelines range of 46 to 57 months. Prior to sentencing,
Osei filed a motion to withdraw his plea, claiming he did not make his pleas knowingly or voluntarily and that at the plea hearings, he misunderstood the parties' agreement that conduct relevant to dropped charges could be considered for sentencing purposes. The district court denied Osei's motion. Osei now appeals, arguing the district court erred in denying his motion to withdraw his guilty pleas and in imposing a substantively unreasonable sentence.
On October 21, 2009, Osei was indicted for one count of conspiracy to commit healthcare fraud, fifteen counts of aiding and abetting health care fraud, and four counts of illegal remuneration. All charges were based on his scheme to submit fraudulent Medicaid claims through a home health care operation, including claims for services not rendered and for collecting illegal kickbacks in exchange for Medicaid referrals.
Pursuant to a written agreement between himself and the government, Osei pled guilty on April 20, 2010 to one count of illegal remuneration (Count 17 of the indictment). The parties expressly agreed the remaining conduct as alleged in the indictment could be considered as relevant conduct for sentencing purposes. At the change-of-plea hearing, the district court spoke at length with Osei about the factual basis of his guilty plea and the effect of the plea deal on his constitutional rights. The court emphasized that Osei could not plead guilty unless he testified to facts indicating his guilt "because I do not take a guilty plea from somebody who is not actually guilty."
After this questioning, the court asked Osei if he had enough time to talk with his attorney and whether he was satisfied with the representation. Osei answered affirmatively. Finally, the court discussed the effect of the plea with Osei:
So if you plead guilty at the end of today's hearing, there's no trial, there's no appeal ever of the issue of your guilt. You can't ever go up to some different court or come back to me and say I'm not really guilty. Somebody talked to me and said I got a raw deal or I changed my mind or I had a dream. I don't know whatever it would be. That's it forever more. Okay?
Again, Osei responded that he understood and still wished to enter his plea. Following this hearing, the court accepted Osei's guilty plea.
After entering his plea, Osei participated in two proffer sessions, on April 29 and 30. He was subsequently indicted and detained for false statements he made during those sessions related to the whereabouts of a $63,000 check. Though Osei and the government had agreed before these sessions that Osei would turn this check and others over as restitution, Osei instead turned over only half of this check, and negotiated its remainder into smaller cashier's checks payable to himself and his family. When asked about the whereabouts of the check in the proffer sessions, Osei lied and told agents the check had been sent to Ghana to pay for an adoption.
After these proffer sessions, Osei agreed to plead guilty to two counts of false statements based on his conduct in the sessions. At the plea hearing following this agreement, the district court engaged Osei in a colloquy, much like at the first change-of-plea hearing, regarding the factual basis of the plea, whether Osei had sufficient time to consult with his attorneys, whether Osei was satisfied with his representation, and whether Osei had agreed to the plea freely and voluntarily. Osei provided the factual details and answered affirmatively to the district court's questions. After this hearing, Osei returned the remainder of the $63,000 check to the government.
In October 2010, after obtaining new counsel and being taken into custody, Osei moved to withdraw his guilty pleas, claiming that he had acted "like a robot" during the first change-of-plea hearing, that he did not understand the relevant conduct underlying his plea due to ineffective assistance of counsel, and that his counsel did not adequately investigate and advise him about the consequences of his guilty plea. At a hearing on this motion, Osei testified that he held a master's degree and was highly ...