Sentencing; Enhancement for “mass marketing”; USSG § 2B1.1(b)(2); United States v. Heckel (7th Cir.); United States v. Olshan (11th Cir.); United States v. Fredette (10th Cir.); § 2B1.1 cmt. n.4(A); “Other means”; United States v. Mauskar (5th Cir.); “Leadership" enhancement (§ 3B1.1(a)); United States v. Anthony; United States v. Myers; United States v. Garcia; United States v. Olive; “Obstruction of justice” enhancement (§ 3C1.1); United States v. Thomas; United States v. Huntley (Unpub. 6th Cir.); Loss attributable to a defendant; §§ 2B1.1(b)(I) & 1B1.3(a)(1)(B); United States v. Moody (Unpub. 6th Cir.); United States v. Swiney; United States v. Donadeo; Statements by a co-conspirator; FRE 801(d)(2)(E); United States v. Adams (Unpub. 6th Cir.); United States v. Conrad; Testimony from a witness three times during the trial; FRE 611(a); United States v. Blankenship; Sufficiency of the evidence; Healthcare fraud; 18 USC § 1347(a); Conspiracy to commit healthcare fraud; United States v. Hughes; Illegal remuneration involving healthcare fraud; 42 USC § 1320a-7b(b)(2)(A); Wire fraud; 18 USC § 1343; Playing of an edited audio recording during the government’s case-in-chief; FRE 1006; United States v. Bray; United States v. Anderson (10th Cir.); Harmless error; United States v. Rayborn; Variance; United States v. Kuehne; United States v. Smith; Restitution; United States v. Bogart; 18 USC § 3664(e)

In an issue of first impression in this circuit, the court held that “word-of-mouth solicitation” cannot be considered when applying the two-level sentencing enhancement for “mass marketing.” It also held that the district court incorrectly calculated the loss amount for which defendant-Calvin Bailey was responsible—and by extension, his USSG range—by holding him responsible for losses beyond those he agreed to jointly undertake. But it rejected defendants’ other challenges to their convictions and sentences. Defendant-Sandra Bailey, Calvin, and their son defendant-Bryan Bailey were convicted of conspiring to commit healthcare fraud and other related crimes. The court affirmed their convictions, but reversed on two sentencing issues. It upheld Sandra’s sentencing enhancements for a leadership role and obstruction of justice, but reversed the enhancement for mass marketing, holding that word-of-mouth solicitation cannot support it. The court found that “[f]raudulent face-to-face marketing proceeds at the normal pace of fraud and is already accounted for in the statutes criminalizing fraud; no enhancement is necessary." Calvin also challenged his sentence, arguing that the district court incorrectly calculated the amount of loss he was responsible for, and by extension, his USSG sentence range and his restitution amount. The court affirmed the restitution order, but agreed that the district court miscalculated his offense level. A district court is required to impose a 16-level increase if loss caused by the conduct exceeds $1,500,000. Calvin argued that, in calculating his loss amount, the district court considered conduct outside his relevant conduct. The court concluded that it used too broad a standard in determining his relevant conduct. It held in Donadeo that “‘jointly undertaken criminal activity for Sentencing Guidelines purposes is not as broad as conspiracy liability.’” Under the USSG, a “defendant can only be held accountable for the ‘the criminal activity that the particular defendant agreed to jointly undertake.’” But the district court did not err by considering the amount of loss caused by the entire conspiracy in determining his restitution. Thus, the court vacated these two defendants’ sentences and remanded for resentencing.