460 F. App'x 414
5th Cir.2012Background
- Usman owned Royal Ambulance Services and First Choice EMS; Royal operated until 2006 and First Choice until 2007 due to Medicare/Medicaid issues.
- Usman was indicted for conspiracy, health care fraud, and monetary transactions related to unlawful activity; co-defendants McNac and Outen pled guilty to conspiracy.
- Evidence at trial showed Royal and First Choice transported dialysis patients non-emergency, with at least eighteen claims not meeting Medicare criteria.
- First Choice and Royal billed Medicare/Medicaid $3,644,464.90 for the eighteen patients; narratives were altered to disguise patient conditions.
- At sentencing, the district court applied an 18-level loss enhancement based on $3,644,464.90, plus mass-marketing, abuse-of-trust, organizer-leader, and obstruction enhancements; total offense level 35; after variance, sentence 180 months and restitution $1,317,179.30.
- Usman timely appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Loss amount method de novo review, intended loss, and prima facie evidence | Usman argues lower intended loss ($1,317,179.30) | Usman contends lack of knowledge of billing formulas negates higher intended loss | Loss amount affirmed as $3,644,464.90 |
| Mass-marketing enhancement application | Usman challenges marketing as pen/mouse pads insufficient for mass-marketing | Government shows face-to-face marketing and targeting of nursing homes | Mass-marketing enhancement affirmed |
| Abuse-of-position-of-trust enhancement | Usman argues no trust relationship with Medicare/Medicaid | Circuit precedent bars this challenge | Enhancement upheld |
| Substantive reasonableness of sentence | Sentence was excessively higher than co-defendants’ | Disparities allowed due to differing culpability; no error in analysis | No plain error; sentence reasonable |
| Disparities among co-defendants under 3553(a)(6) | Need to avoid unwarranted disparities | Disparities permitted for not similarly situated defendants | No error; court correctly treated co-defendants as not similarly situated |
Key Cases Cited
- Isiwele v. United States, 635 F.3d 196 (5th Cir. 2011) (guideline loss determinations and prima facie evidence of intended loss)
- Mauskar v. United States, 557 F.3d 219 (5th Cir. 2009) (definition of mass-marketing and related enhancement)
- Magnuson v. United States, 307 F.3d 333 (5th Cir. 2002) (extensive discussion of mass-marketing)
- United States v. Miller, 607 F.3d 144 (5th Cir. 2010) (abuse-of-trust and related sentencing considerations)
- United States v. Peltier, 505 F.3d 389 (5th Cir. 2007) (standard for plain error in sentence review and 3553(a) considerations)
- United States v. Guillermo Balleza, 613 F.3d 432 (5th Cir. 2010) (3553(a) factors and disparity considerations)