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Below is the text of the 08/18/2017 SENTENCING MEMORANDUM:
08/18/2017 85 SENTENCING MEMORANDUM by Roy Heilbron (Marks, Donald) (Entered: 08/18/2017)
Case 1:15-cr-02030-WJ Document 85 Filed 08/18/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO (ALBURQUERQUE)
UNITED STATES OF AMERICA, :
:
Plaintiff, :
: Criminal No. 15-CR-2030 WJ
v. :
:
ROY HEILBRON, :
:
Defendant. :
DEFENDANT=S SENTENCING MEMORANDUM
Defendant ROY HEILBRON, through counsel, hereby and herewith submits
his Sentencing Memorandum. Defendant retains the right to make comments and
arguments at the sentencing hearing.
PLEA AGREEMENT
The defendant has entered into a plea agreement with the government
pursuant to Federal Rules of Criminal Procedure 11(c)(1)(C). The agreement
provides for a specific sentence of 24 months imprisonment.
The defendant, based on the foregoing is requesting that this court accept the
plea agreement herein.
///
Case 1:15-cr-02030-WJ Document 85 Filed 08/18/17 Page 2 of 4
2
PRESENTENCE INVESTIGATION
1. Loss Calculation
The defendant has objected to the intended loss and actual loss calculations
set forth in the PSR.
The PSR calculates the intended loss at $2,684.289.67. The probation office
arrives at this amount by taking the total sum billed to insurance companies, i.e.,
$6,039,631.50 and applying a ratio of 44.44% to determine the amount of
defendant's submitted bills that were fraudulent, i.e., $2,684.280.67 which is the
intended loss, according to the probation office.
However, this ratio is based on the premise that Dr. Heilbron worked
legitimately for only 10 hours a day for 5 days a week and an additional 8 hours per
day was fraudulently billed.
Defense counsel is advised that the defendant also worked on Saturdays
(full-time 10 hours) and employed an ultrasound technician and echo technologist,
who performed most of the testing. Thus, the calculation for intended loss by the
probation office is simply not accurate and reliable.
Similarly, the PSR determines that $1,114,973.87 was actually paid to the
defendant and applying the same ratio of 44.44% arrives at an actual loss of
$500,040.26.
Case 1:15-cr-02030-WJ Document 85 Filed 08/18/17 Page 3 of 4
3
Based on the foregoing, both the intended loss and the actual loss should be
significantly lower because the ratio of 44.44% used by the probation office does not
reflect the increased hours actually spent in treating patients. 1
2. The defendant has also objected to the Specific Offense Characteristic,
Paragraph 55 as follows:
The intended loss, for reasons set forth hereinabove, is not $2,684.280.67. It
is below $1,500.000.00 and therefore only a fourteen level increase is applicable.
3. Adjustment for Role in the Offense, Paragraph 58
The defendant was not an organizer, leader, manager, or supervisor of one or
more other participants. A participant is a person who is criminally responsible for
the commission of the offense. Here, only the defendant committed the offense and
3B1.1 does not apply.
Defendant’s Medical Condition
As previously set forth in defendant’s Motion for a Continuance, the
defendant has been diagnosed with prostate cancer and is arranging for treatment to
begin forthwith in the Santa Fe and/or Albuquerque area. The defendant is
requesting that the defendant be granted additional time to self-surrender so that he
can be able to have his treatment begin before he begins his sentence.
///
1 The ratio may well be in the range of approximately 10% - 20%. Therefore, the actual loss, it can be contended, is no more than $200,000.00 and the intended loss is below $1,500,000.00
Case 1:15-cr-02030-WJ Document 85 Filed 08/18/17 Page 4 of 4
Dated: August 18, 2017
Respectfully submitted,
MARKS & BROOKLIER
By: /s/ Donald B. Marks
DONALD B. MARKS
Attorney for Defendant
ROY HEILBRON