United States v. Bryan Bailey, Calvin Bailey, Sandra Bailey (6th Cir. September 2020)

The Federal Docket

October 6, 2020

Sentencing – The district court cannot attribute a co-conspirator’s actions to a defendant in calculating loss amount if the defendant did not jointly agree to participate or conspire in that specific activity.

Restitution – The district court can consider conspiracy principles in calculating restitution regardless of defendant’s particular contribution to losses under 18 U.S.C. § 3664(e).

Calvin Bailey was convicted and sentenced to 45 months imprisonment for conspiring to commit health care fraud and other related crimes together with his wife, Sandra, and son, Bryan.  The loss amount attributed to Calvin was over $2.1 million, leading to a 16-level increase in Calvin’s offense level.  Calvin was also ordered to jointly pay over $1.3 million restitution with Sandra.

The Court reviewed whether the sentencing court erred in calculating the loss amount under U.S.S.G. § 1B1.3(a)(1)(B) to increase Calvin Bailey’s sentencing offense level by 16.  The Court held that the district court abused its discretion in applying losses to Calvin that were attributable to Sandra’s fraudulently selling medically unnecessary medical equipment since Calvin did not jointly agree to forge prescriptions for durable medical equipment.  The Court also held that the amount of loss caused by the entire conspiracy can be used to calculate restitution since its purpose is to make the victim whole despite a defendant’s minor role in the victim’s loss.  The Court vacated Calvin’s sentence and remanded for re-sentencing but upheld the restitution order.

The Court also reviewed challenges for insufficient evidence, use of video evidence and Sandra’s sentencing enhancements.  View the full opinion for more information.

Appeal from the Western District of Tennessee at Jackson

Opinion by Gibbons, joined by Siler and Readler.

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

Scroll to Top