United States v. Ben Bane, 720 F.3d 818

Bane was convicted after a jury trial of conspiracy to commit health care fraud, five counts of health care fraud, and four counts of making false claims against the government.
BMS and ORT provided durable medical equipment including portable oxygen to Medicare patients; patients qualified for reimbursement if an independent lab performed pulse oximetry testing.
Bane directed testing in-house and falsely represented labs performed the tests; two labs were used to stamp results.
Bane’s scheme involved falsified test results, falsified medical necessity certificates, forged doctor signatures, and destruction of data when investigated.
PSI valued loss between $7,000,001 and $20,000,000, applied a 20-level loss increase and a 6-level victims enhancement, plus a 2-level sophisticated-means enhancement; total offense level 42 with a guidelines sentence of 360 months (max)
District court downward variance yielded 151 months, restitution of $7,031,050.68, and a $3 million fine; restitution to be recalculated on remand due to offset issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Loss calculation including medically necessary oxygen	Bane argues oxygen actually provided should be excluded	Bane contends the loss should exclude medically necessary oxygen	Loss inclusion upheld; application note requires counting paid-for items with no credit for value of those items.
Victims enhancement for >250 victims	Bane argues not all payors were victims because oxygen was medically necessary	Medicare, Medicaid, and insurers who paid counts as victims under loss	Correctly applied 6-level enhancement for 270 victims.
Sophisticated-means enhancement	Offense conduct was simple misrepresentation	Offense involved multiple steps and concealment across entities	Upheld; district court found repetitive, coordinated conduct across corporations.
Restitution offset for medically necessary oxygen	Court should offset value of medically necessary goods	Restitution should reflect loss without offset for necessity	Remanded to recalculate restitution with offsets for medically necessary goods; district court erred by not offsetting.
Apprendi/limits on fines	Fine may exceed statutory maximum based on loss fact found by court	Jury verdict did not authorize the higher fine	Vacated $3 million fine; remanded for resentencing consistent with Apprendi/Southern Union.

Ellisor v. United States, 522 F.3d 1255 (11th Cir.2008) (guidelines interpretation and de novo review of legal questions; factual findings reviewed for clear error)
Willis v. United States, 649 F.3d 1248 (11th Cir.2011) (burden to show sentence unreasonable)
Barrington v. United States, 648 F.3d 1178 (11th Cir.2011) (sophisticated means may be shown by multiple actions and concealment)
Vaghela v. United States, 169 F.3d 729 (11th Cir.1999) (kickback restitution measure; loss defined by amount paid to victims)
Medina v. United States, 485 F.3d 1291 (11th Cir.2007) (distinguishable; applies to kickbacks where fraud disrupted government payment)
Huff v. United States, 609 F.3d 1240 (11th Cir.2010) (restoration of offset value; restitution goals to make victims whole)
Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (Apprendi applies to criminal fines)