IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20894

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IRA KLEIN,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CR-56-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

In August 2007, Dr. Ira Klein was convicted by jury verdict of 18 counts

of mail fraud and 26 counts of health care fraud. In his first appeal, we affirmed

Klein’s convictions, but vacated the sentence and the restitution order because

the district court’s loss calculation neglected to discount the intended loss by the

average wholesale price (AWP) of the drugs that had been dispensed for selfadministration. United States v. Klein, 543 F.3d 206, 214-16 (5th Cir. 2008). 

After a second vacatur and remand, the district court sentenced him to a total

United States Court of Appeals

Fifth Circuit

F I L E D

November 12, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-20894

of 135 months of imprisonment, three years of supervised release, and

$6,212,618.35 in restitution.

Klein filed a motion in this court seeking leave to file an out-of-time

addendum to his reply brief in order to include a list of his objections from the

second resentencing hearing into the appellate record. Because the transcript

of that hearing has been included in the appellate record, that motion is denied

as unnecessary.

In his first claim in this appeal, Klein argues that the district court

violated his right to a timely sentencing hearing under the Sixth Amendment

and Federal Rule of Criminal Procedure 32(a)(1). In Juarez-Casares v. United

States, 496 F.2d 190, 192 (5th Cir. 1974), this court stated that a trial judge is

bound by both Rule 32 and the Sixth Amendment’s Speedy Trial Clause in

sentencing a defendant in a timely manner. We review a Speedy Trial Clause

claim de novo. United States v. Green, 508 F.3d 195, 202 (5th Cir. 2007). The

parties differ as to whether the relevant period for Speedy Trial Clause purposes

should be measured cumulatively or only from the last remand. Even if the

period is measured cumulatively, thereby triggering the full four-step analysis,

Klein’s claim fails because he has not shown that the first three factors weigh in

his favor or that he has suffered actual prejudice. See United States v. Parker,

505 F.3d 323, 330 (5th Cir. 2007). Similarly, his Rule 32(a)(1) claim also fails

because he has not shown actual prejudice. See United States v. James, 459 F.2d

443, 444-45 (5th Cir. 1972).

Klein next asserts that the district court violated Rule 32(c)-(g) by failing

to require the Government to produce its sentencing evidence in a timely

manner. It is not clear that any of the documents submitted by the Government

or the probation officer regarding Klein’s second resentencing hearing were

subject to Rule 32's disclosure requirements. However, even if there was a Rule

32 error regarding disclosure, it was harmless because Klein had an adequate

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No. 11-20894

opportunity to object to those documents. See United States v. Arthur, 432 F.

App’x 414, 431 (5th Cir. 2011).

In his next issue, Klein contends that the district court erred by accepting

the Government’s loss calculations and that the methods used in those

calculations violated the mandate rule. We review the district court’s

application of the Guidelines de novo and its findings of fact for clear error. 

Klein, 543 F.3d at 213. Examination of the record shows that the district court

did not err when determining the intended, rather than actual, loss and followed

this court’s instructions when calculating the amount of credit due to Klein for

the self-administered drugs including the date on which his offense was

detected. Similarly, the district court also did not err in determining the amount

of restitution.

Also, Klein asserts that he is actually innocent of his crimes of conviction

because the victim insurance companies did not actually incur any actual losses

and the insurance companies instigated these false charges against him to

obfuscate their own fraudulent practices. Despite his argument to the contrary,

his claim does not meet the exception to the mandate rule for a miscarriage of

justice. See United States v. McCrimmon, 443 F.3d 454, 460 (5th Cir. 2006). To

the extent that he alleges in his reply brief that he is actually innocent because

nothing in his alleged scheme to defraud was published in the Federal Register,

we will not consider arguments first raised in a reply brief. See United States

v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).

The judgment of the district court is affirmed.

MOTION TO FILE AN OUT-OF-TIME ADDENDUM DENIED; AFFIRMED.

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