Sua Sponte Downward Variance Requires Remand

US v. Blatstein: Blatstein was a podiatrist who concocted a scheme to bill his patients insurance carriers for outpatient surgical procedures in a facility that didn't exist. He pleaded guilty to one count of mail fraud, based largely in documents seized pursuant to a search warrant based on information provided by former employees and patients. Blatstein moved to suppress those documents, arguing that the agent obtaining the warrant failed to tell the magistrate about a Virginia statute allowed the types of procedures he billed for to be performed in his office and not in a separate facility. That motion was denied. At sentencing, both Blatstein and the Government agreed that a 24-month sentence, within the Guideline range, was appropriate. However, on its own motion, the district court varied and imposed a sentence of 12 months in prison.

Blatstein appealed the denial of the motion to suppress and the Government cross-appealled the sentence. The Fourth Circuit easily rejected Blatstein's argument, noting that the Virginia statute at issue was irrelevant to his billing practices, which lead to the mail fraud. As to the sentence, the Fourth recognized that because the Government did not object to the district court's failure to provide notice of intent to vary, it was stuck with plain error review. However, the court found that there was error, the error was plain (per Davenport), that the Government's fundamental rights were violated, and that it appeared the Government could make a valid argument against the 12-month sentence on remand. Thus, Blatstein's conviction was upheld, his sentence vacated, and the case remanded for further proceedings.