The Honorable Algenon L. Marbley, United States District Judge for the Southern District *

of Ohio, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0563n.06

Filed: September 17, 2008

No. 07-3462

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS J. TRIANA, Jr.,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OHIO

Before: COOK and GRIFFIN, Circuit Judges; and MARBLEY, District Judge. *

COOK, Circuit Judge. On appeal from a Booker resentencing, Nicholas Triana challenges

his 108-month sentence, arguing that the district court improperly modified his sentence to add a

forfeiture; violated his Sixth Amendment rights by increasing his sentence using judge-found facts;

erred in grouping offenses to calculate his sentence; and double-counted conduct for purposes of

three sentence enhancements. Finding these challenges to lack merit, we affirm Triana’s sentence.

I.

Triana practiced podiatry in Ohio, primarily treating nursing-home patients on Medicare. In

1998, Triana pleaded guilty to health care fraud for misusing medical billing codes. Triana’s plea
No. 07-3462

United States v. Triana

The facts are set out in greater detail at United States v. Triana, 468 F.3d 308, 311–14 (6th 1

Cir. 2006).

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agreement disqualified him from seeking reimbursement from federal health care programs, directly

or indirectly, for eight years. Triana nevertheless formed a new podiatry practice, which ultimately 1

collected more than $1.7 million from Medicare. A jury convicted him of conspiracy, health care

fraud, and bank fraud.

The district court originally sentenced Triana to 135 months. Booker resentencing reduced

his sentence to 108 months. Triana appeals once again, arguing that the district court: 1)

impermissibly modified his sentence to include a forfeiture; 2) violated his Sixth Amendment rights

by finding facts that increased his sentence; and 3) applied certain Guidelines provisions incorrectly.

II.

As for the district court’s adding a forfeiture order after entering a final judgment in excess

of its Fed. R. Crim. P. 36 authority to correct clerical errors, Triana fails to convince. Selectively

quoting the resentencing transcript, Triana contends that the district court omitted a forfeiture order

in oral sentencing and in the written judgment that followed. Not so. Although the district court

initially neglected to include forfeiture in its sentence pronouncement, when invited to object, the

Government asked that the earlier-stipulated forfeiture be incorporated in the resentencing judgment,

and the court obliged. See J.A. 292–93.
No. 07-3462

United States v. Triana

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And contrary to Triana’s reading, the written judgment aligned with the court’s oral

pronouncements. See J.A. 41. Triana mistakenly relies on an e-mail noting a clerical correction to

the Guidelines range to support this alleged forfeiture amendment, but the e-mail does not concern

forfeiture and adds nothing of substance to the judgment. Therefore, we reject Triana’s first claim.

Triana next argues that the court violated his Sixth Amendment rights by finding sentencing

facts, but “this court and others have repeatedly held since Booker that district judges can find the

facts necessary to calculate the appropriate Guidelines range using the same preponderance-of-theevidence standard that governed prior to Booker.” United States v. Ferguson, 456 F.3d 660, 665 (6th

Cir. 2006); see also United States v. Gates, 461 F.3d 703, 707–08 (6th Cir.), cert. denied, 127 S. Ct.

602 (2006).

Finally, Triana challenges the district court’s application of the Guidelines to his conduct in

two ways. First, he argues that it improperly grouped his offenses to calculate his offense level.

Second, he posits that the court double-counted conduct by imposing overlapping enhancements for

amount-of-loss, “sophisticated means,” and Triana’s leadership role in the offense. Triana’s failure

to protest these enhancements in his prior Booker appeal precludes his raising them here. United

States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000) (government forfeited an argument available,

but unpursued, in the first appeal); see also United States v. Mitchell, 232 F. App’x 513, 517 (6th

Cir. 2007) (failure to object to enhancement on Booker appeal barred defendant from further appeals

on the issue); United States v. Franks, 203 F. App’x 698, 702 (6th Cir. 2006) (defendant’s failure
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United States v. Triana

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to object to firearm enhancement in prior Booker appeal foreclosed raising it in a later appeal).

III.

For these reasons, we affirm.