RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0042p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 16-2611 v. │ │ │ HATEM ATAYA, M.D., │ Defendant-Appellant. │ ┘ On Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cr-20351-3—Sean F. Cox, District Judge. Decided and Filed: March 2, 2018 Before: MERRITT, MOORE, and BUSH, Circuit Judges. _________________ COUNSEL ON BRIEF: Michael J. Stengel, STENGEL LAW FIRM, Memphis, Tennessee, for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. MOORE, J., delivered the opinion of the court in which MERRITT, J., joined. BUSH, J. (pp. 11–16), delivered a separate dissenting opinion. _________________ OPINION _________________ KAREN NELSON MOORE, Circuit Judge. Hatem Ataya pleaded guilty to one count of conspiracy to commit healthcare fraud and wire fraud. His plea agreement included a waiver of his appeal rights. During his plea colloquy, Ataya acknowledged that he understood that he was waiving these rights. The district court, however, failed to comply with Federal Rule of Criminal No. 16-2611 United States v. Ataya Page 2 Procedure 11(b)(1)(J), (K), (L), and (O) during the colloquy. Ataya now seeks to vacate his conviction on the grounds that his plea was unknowing due to these Rule 11 omissions, and asserts that the appellate-waiver provision in his plea agreement is unenforceable because of these same errors. For the following reasons, we hold that Ataya’s appellate waiver is unenforceable, deny the government’s motion to dismiss, and REVERSE his conviction. We REMAND for further proceedings consistent with this opinion. I. BACKGROUND In March 2016, Ataya pleaded guilty to one count of conspiracy to commit healthcare fraud and wire fraud, in violation of 18 U.S.C. § 1349. R. 145 (Plea Agreement at 1) (Page ID #979). Ataya was a doctor in Michigan who operated Hatem M. Ataya, M.D., P.C. R. 245 (Plea Hr’g Tr. at 12) (Page ID #1943). Between 2009 and 2015, Ataya would refer Medicare beneficiary patients to entities owned or controlled by one of his co-defendants, purportedly for home health and hospice services that were, at times, “neither medically necessary nor provided.” Id. at 12–13 (Page ID #1943–44). These referrals enabled Ataya’s co-defendant to submit false and fraudulent claims to Medicare. Id. at 13 (Page ID #1944). In exchange for his referrals, Ataya received kickbacks. Id. at 12 (Page ID #1943). At Ataya’s plea hearing, the district court failed to address a number of considerations that are required under Federal Rule of Criminal Procedure 11(b)(1). First, “the district court did not inform Ataya, as Rule 11 requires, that the plea agreement required him to pay restitution and a special assessment and to forfeit the proceeds of his fraud.” United States v. Ataya, 869 F.3d 401, 402 (6th Cir. 2017) (citing Fed. R. Crim. P. 11(b)(1)(J), (K), and (L)). Second, “neither the plea agreement nor the district court seems to have mentioned that Ataya, who became ...
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