United States v. San Juanita Lozano, 791 F.3d 535

Lozano pled guilty to Count Two, a conspiracy to defraud Medicare/Medicaid, under an oral plea agreement after six days of trial.
Count Two pertains to La Hacienda Clinic (began on or about April 30, 2005) and Count One to Mission Clinic (began on or about September 20, 2001), with the factual basis stating the conspiracy began April 30, 2005.
The district court ordered restitution for losses traceable to both clinics beginning September 20, 2001, over Lozano’s objection.
Lozano argued restitution error because losses before April 30, 2005 were included; the government agreed the court erred but contended Mission Clinic losses were properly included.
The court vacated the restitution order and remanded for recalculation; conviction and sentence otherwise affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether restitution may be limited to the temporal scope of the offense	Lozano argues pre- April 30, 2005 losses cannot be restitutionary.	The government contends the scheme included Mission Clinic losses; pre-2005 losses may be included.	Restitution must be limited to April 30, 2005–January 10, 2006; pre-2005 losses were improperly included (remanded).
Whether Mission Clinic losses were properly included given the mutual understanding of the scheme	Lozano asserts she did not understand the plea to include Mission Clinic.	The mutual understanding of the parties encompassed Mission Clinic.	The evidence supports inclusion of Mission Clinic losses; not plain error to include them (majority view).
Whether the restitution error qualifies as a plain error warranting correction on appeal	Lozano contends the error was plain and should be corrected.	The government argues discretion to correct plain error is limited and not warranted here.	Even if plain error, the court vacates and remands; discretion to correct not exercised in Lozano’s favor.

United States v. Cothran, 302 F.3d 279 (5th Cir. 2002) (restitution for actions pursuant to a fraudulent scheme; define scheme by mutual understanding in plea contexts)
United States v. Inman, 411 F.3d 591 (5th Cir. 2005) (temporal scope of the indictment defines restitution scope; plea context considered)
United States v. Sharma, 703 F.3d 318 (5th Cir. 2012) (restitution limited to the proper temporal scope; pre-scope losses barred)
United States v. Mason, 722 F.3d 691 (5th Cir. 2013) (plain error where restitution included outside temporal scope; remand for correction)
United States v. De Leon, 728 F.3d 500 (5th Cir. 2013) (indictment temporal scope governs restitution when records exclude earlier periods)
United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc; discretionary corrective standards for plain error)
Puckett v. United States, 556 U.S. 129 (2009) (fourth prong of plain-error review; exceptional circumstances)
United States v. Adams, 363 F.3d 363 (5th Cir. 2004) (plea agreements and scope; mutual understanding guiding scheme)