Do you know how hard it is to get an appellate court to grant rehearing? Well, take it from someone who's done that, it ain't easy. Well, the United States government got rehearing, and they still managed to lose. (I've done that, too, but that's a story for another day.) In United States v. Lauersen, the defendant, convicted of health care fraud, was sentenced to 87 months, the minimum of the applicable sentencing range. On the original appeal, the Second Circuit agreed with the government that the District Court had erred in ont increasing the adjusted offense level by an additional 4 levels because the offense derived more that $1,000,000 in gross receipts from the offense. This enhancement would increase the minimum sentence by four years. The Second Circuit ruled that the additional enhancement created a new circumstance that might justify a downward departure. The new enhancement overlapped with another 13 level enhancer (amount of loss) and, hence presented a circumstance that is present to a degree not adequately considered by the Sentencing Commission. It, therefore, permitted the District Court to exercise its discretion to mitigate the effect of the enhancement by making a downward departure. The Government moved for rehearing on the issue of the possible downward departure. Since the issue was not briefed, the Court granted rehearing and held to its original ruling. The Court held that "when the addition of substantially overlapping enhancements results in a significant increase in the sentencing range minimum . . . , a departure may be considered." Its not such a bad loss for the government. The good doctor will be out of circulation for more than seven years. Not a bad day's work. The decision can be found at the Second Circuit site.