UNITED STATES of America, Plaintiff-Appellee v. Tariq MAHMOOD, M.D., Defendant-Appellant.
No. 15-40521.
United States Court of Appeals, Fifth Circuit.
April 14, 2016.
820 F.3d 177
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
Finally, Diaz argues that the district court erred by (1) considering the affidavits of Canchola and Laura Bledsoe, Kaplan’s Director of Operations, because they are “interested witnesses”; (2) “discounting and finding irrelevant” the affidavit of Julio Lopez; and (3) “discounting and finding irrelevant” the student allegation that Zatarain fraudulently altered attendance records. Each of these arguments lacks merit.
First, the district court properly considered Canchola and Bledsoe’s affidavits. We previously held that “[t]he definition of an interested witness cannot be so broad as to require us to disregard testimony from a company’s agents regarding the company’s reasons for discharging an employee.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir.2002). To hold otherwise “would foreclose the possibility of summary judgment for employers, who almost invariably must rely on testimony of their agents to explain why the disputed action was taken.” Id.
Second, Diaz is mistaken when he claims that the district court “seem[ed] to completely disregard” Lopez’s affidavit, which Diaz claims is evidence that Zatarain “was unqualified by education to either serve as an instructor or be the internship coordinator.” The district court was clear that it considered Lopez’s affidavit, but found it “irrelevant” because “the reduction-in-force occurred in 2012” while the affidavit “alleged that Zatarain was unqualified to teach in 2010 or 2011.” The district court did not err.
Third, Diaz argues that the district court “seem[ed] to ignore the fact that evidence was offered by Diaz that Zatarain had committed clear fraud with respect to attendance records.” As discussed above, however, Diaz neither raised pretext in the district court nor “articulate[d] the precise manner in which [his] evidence” of alleged attendance fraud—consisting solely of a single student allegation—supports his claim of pretext. Ragas, 136 F.3d at 458.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Franklyn Ray Mickelsen, Jr. (argued), Broden, Mickelsen, Helms & Snipes, L.L.P., Dallas, TX, Amy M. Adelson, Esq., Law Offices of Amy Adelson, L.L.C., New York, NY, for Defendant-Appellant.
CARL E. STEWART, Chief Judge:
Following an investigation into billing practices at several of his hospitals, a jury convicted Defendant-Appellant Tariq Mahmood (“Mahmood”) of one count of conspiracy to commit health care fraud, seven counts of health care fraud, and seven counts of aggravated identity theft. After denying his motion for new trial, the court sentenced Mahmood to 135 months’ imprisonment and ordered him to pay $599,128.02 in restitution. Mahmood now appeals, challenging the sufficiency of the evidence supporting most of his convictions, the denial of his motion for new trial, and the district court’s calculation of his sentence and restitution. We AFFIRM Mahmood’s convictions and the new trial ruling. However, we VACATE Mahmood’s sentence and the restitution order, and REMAND for resentencing.
I.
All relevant facts produced at trial and discussed here are taken in the light most favorable to the jury’s verdict. See, e.g.,
A. Background
Mahmood was a licensed physician who owned a number of Texas hospitals, each of which was an authorized Medicare and Medicaid provider. The events leading to Mahmood’s run-in with the law focus on Medicare and Medicaid’s billing procedures1 and Mahmood’s efforts to persuade employees at his hospitals to manipulate those procedures to increase insurance reimbursements.
A key part of Medicare’s reimbursement process involves the manner in which hospitals communicate to Medicare what services the hospital has rendered to patients. Part of this process involves hospital employees known as “coders.” Coders cull through a patient’s medical record and document the condition that treating physicians have labeled as a patient’s principal diagnosis, i.e., the condition established after study of the medical record to be the primary reason that the patient was admitted to the hospital for treatment, and any secondary diagnoses, i.e., conditions that render a patient’s stay longer or more difficult, such as those requiring increased diagnostic procedures, testing, or medication. Coders translate these diagnoses into what are essentially standardized billing codes, which the hospital then sends to Medicare on a reimbursement claim form. Crucial here, the sequencing or order of the codes submitted on a hospital’s claim form—particularly the designation of which diagnosis code is primary as opposed to which diagnosis codes are secondary—often affects the payment that Medicare will make as reimbursement for the claim. As one might expect, more complex primary diagnosis codes often trigger increased reimbursements from Medicare.
Mahmood’s efforts to manipulate Medicare-billing procedures at his hospitals began in 2005, when he instructed Ruth Ann Crow (“Crow”), former Medical Records Director at Lake Whitney Medical Center (“Lake Whitney”), to fax him the “diagnosis code sheet”2 for all of Lake Whitney’s inpatient Medicare patients. Without treating these patients or reviewing their medical records, Mahmood would then fax back the code sheets with handwritten changes or telephone Crow and advise her how he wanted the diagnosis codes resequenced. Most commonly, Mahmood instructed Crow to switch a patient’s primary diagnosis with a secondary diagnosis—e.g., recoding a urinary tract infection with a coinciding bacterial infection to a bacterial infection with a coinciding urinary tract infection—or to add complications to a patient’s primary diagnosis—e.g., recoding chronic renal failure to acute renal failure with necrosis. In either case, Crow would access the hospital’s billing system, switch the codes the way Mahmood wanted, and then submit the resequenced codes as reimbursement claims to Medicare.
Eventually Mahmood sought to extend the same ploy to some of his other hospitals, but employees at those hospitals were not as willing as Crow to participate. After two employees were unable or unwilling to assist Mahmood, he targeted Norma Longley (“Longley”), former inpatient coder for Renaissance Hospital Terrell (“RH
Once snubbed by Longley, Mahmood’s plan spiraled. From early 2010 through early 2012, Mahmood instructed Longley to fax him the diagnosis code sheets for Medicare patients at RH Terrell and at Cozby Germany. Mahmood did not request the medical records that accompanied these coding sheets, nor did he respond to Longley’s faxes with further instructions. Before sending Mahmood the codes, Longley documented them on a separate sheet for her records and entered them into the hospital’s billing system using her username, RHNORMA.
At some point, Longley began receiving audit letters indicating that Medicare had reviewed and denied many of the claims that she had coded and entered into the hospital’s billing system. Each time she received such a letter, Longley compared her original code sheets to the audit letters and determined that her original coding matched what the Medicare auditor said should have been coded. Longley would then pull the medical records for the audited claims, at which time she learned that Charlotte Wyatt (“Wyatt”), former Health Information Management Supervisor at Cameron Hospital, Inc. (“Cameron”), had accessed the system and changed the codes using the usernames RHCHARLOTTE or CAMERON.
At trial, Wyatt testified that Mahmood tasked her with not only resequencing her own coding for patients at Cameron, but also surreptitiously accessing and resequencing claim forms entered by other coders on behalf of patients at other hospitals. Specifically, Wyatt testified that, at times, she received faxed code sheets from Longley. Per Mahmood’s instructions, Wyatt would fax these code sheets on to Mahmood. Mahmood would then telephone Wyatt and tell her which sheets needed to be changed or resequenced to increase Medicare reimbursements. To pad an expected Medicare reimbursement, Wyatt would either add complications to a patient’s primary diagnosis, switch a patient’s primary diagnosis with one of their secondary diagnoses, or change a patient’s primary diagnosis completely by adding a new diagnosis that was not documented in the patient’s medical record.
In January 2011, the United States Department of Health and Human Services (“HHS”) joined an ongoing state investigation into billing practices at Mahmood’s hospitals. At trial, HHS Special Agent Jack Geren (“Geren”) explained the methodology of the Government’s investigation. Based on Longley’s original coding sheets and a federal search warrant executed on computer servers at Mahmood’s hospitals, the Government was able to identify eighty-five claims that had been accessed by multiple users, i.e., claims that Longley had originally coded and that Wyatt had thereafter secretly accessed and resequenced at Mahmood’s direction. The Government also obtained faxes that corresponded with fifty of the eighty-five identified claims.
Geren explained how the evidence extracted from the hospital’s billing system and the faxes demonstrated Wyatt’s resequencing of Medicare claims at Mahmood’s direction. For example, on one occasion, the hospital’s billing system reflected that username RHNORMA (Longley) entered diagnosis codes for a patient at 7:45 am. At 8:43 am the same morning, Longley faxed the patient’s diagnosis code sheet—without the rest of the patient’s medical
During the Government’s investigation, expert witness and HHS auditor Paul Porrier (“Porrier”) “repriced” the eighty-five claims where Wyatt had resequenced Longley’s codes to determine what Medicare would have reimbursed Mahmood’s hospitals had the claims been submitted to Medicare as originally coded by Longley. Geren then subtracted this repriced figure from the amount that Medicare actually reimbursed based on the claims as resequenced and submitted by Wyatt. Based on this methodology, Geren testified that, with respect to the eighty-five identified claims, Medicare had collectively overpaid Mahmood’s hospitals $143,608. Specifically, Mahmood’s hospitals billed $1,926,307.80 to Medicare in connection with the eighty-five claims, Medicare actually reimbursed Mahmood’s hospitals $574,247.67, and Medicare would have reimbursed Mahmood’s hospitals only $430,639 if the claims had been billed as originally coded by Longley.
B. Proceedings Below
Following the Government’s investigation, a federal grand jury returned a fifteen-count superseding indictment, charging Mahmood with one count of conspiracy to commit health care fraud in violation of
Mahmood opted for trial. At the close of evidence, he moved for a judgment of acquittal on the conspiracy count and the aggravated identity theft counts, which the court denied. Thereafter, the jury found Mahmood guilty on all fifteen counts in the superseding indictment.
Between the jury’s verdict and sentencing, Mahmood obtained new counsel and filed a motion for new trial. Therein, he represented that his trial counsel was in possession of a report from Christina Melnykovych (“Melnykovych”) and Tina Pelton (“Pelton”), two experts who had audited the medical records of the patients named in the superseding indictment. Mahmood then argued, inter alia, that trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), by failing to call either expert to testify at trial. In a written order, the district court denied Mahmood’s motion.
At sentencing, and over Mahmood’s objection, the district court calculated the total loss caused by Mahmood’s fraud to be $599,128.02, which was the aggregate amount that insurance companies reimbursed Mahmood’s hospitals, and which resulted in a 14-point enhancement to Mahmood’s base offense level pursuant to
Following argument from the parties, the district court sentenced Mahmood to a total of 135 months’ imprisonment, consisting of: 63 months’ imprisonment on the conspiracy and health care fraud convictions, to run concurrently; 24-month sentences on three of the aggravated identity theft convictions, each to run consecutive to one another and to the sentence imposed on all other counts; and 24-month sentences on the remaining aggravated identity theft convictions, to run concurrently to all other sentences. In addition to his sentence, the district court ordered Mahmood to pay restitution to Medicare, Medicaid, and a private insurer in the total amount of $599,128.02 pursuant to the Mandatory Victims Restitution Act (“MVRA”),
DISCUSSION
Mahmood raises a host of arguments on appeal. He first challenges the sufficiency of the evidence on each of his health care fraud and aggravated identity theft convictions. He next asserts that the district court erred in denying his motion for new trial without first holding an evidentiary hearing. Finally, he raises several issues related to his sentence and the district court’s restitution order. We address each argument in turn.
I. Health Care Fraud
We first consider Mahmood’s challenge to the sufficiency of the evidence on his health care fraud convictions. Mahmood concedes that he failed to preserve this challenge by including his health care fraud convictions in his motion for acquittal. Accordingly, we may vacate Mahmood’s convictions for want of evidence only if he demonstrates “a manifest miscarriage of justice,” meaning “the record is devoid of evidence pointing to guilt or contains evidence on a key element of the offense that is so tenuous that a conviction would be shocking.” United States v. Vasquez, 766 F.3d 373, 377 (5th Cir.2014) (citations and internal quotation marks omitted), cert. denied, — U.S. —, 135 S.Ct. 1453 (2015).
To prove health care fraud in violation of
Mahmood does not dispute that Medicare is a health care benefit program or that his alleged scheme, if proven, occurred in connection with the delivery of health care benefits or services. Rather, he argues that the trial evidence was insufficient to support his convictions because the Government never attempted to prove that the Medicare claims, though resequenced, were false, or that the patient’s medical records did not support the resequencing.5 Mahmood’s argument focuses exclusively on the “false or fraudulent pretenses” theory of health care fraud in
The court instructed the jury that executing a scheme to defraud Medicare means “to engage in a plan, pattern, or course of action intended to deprive Medicare ... of money or property with the intent to deceive or cheat Medicare.” Mahmood did not object to this instruction, and he does not challenge it on appeal. The Government offered substantial evidence of Mahmood’s plan to cheat Medicare. Mahmood’s own trial evidence reflected that proper coding or recoding of Medicare claims could not be done absent study of a patient’s medical record.6 Yet, for over six years, and at numerous hospitals, Mahmood directed his employees to ignore medical records and to change primary diagnosis codes to reflect acute and chronic conditions that triggered higher Medicare reimbursements but that were unsupported by patients’ medical records. Mahmood had not treated these patients or reviewed their records; rather, the tes-
A reasonable juror could have relied upon this evidence to find that Mahmood knowingly and willfully executed a plan to cheat Medicare. Accordingly, the record is not “devoid of evidence” of Mahmood’s guilt, see Vasquez, 766 F.3d at 377, and we affirm each of his health care fraud convictions.
II. Aggravated Identity Theft
We next consider Mahmood’s challenge to the sufficiency of the evidence on his aggravated identity theft convictions. Mahmood preserved his sufficiency challenge as to these convictions by orally moving for acquittal at trial. See United States v. Thompson, 811 F.3d 717, 725 (5th Cir.2016). Accordingly, our review is de novo. See id. In assessing a preserved “challenge to the sufficiency of the evidence, we must determine whether, viewing all the evidence in the light most favorable to the verdict, a rational jury could have found that the evidence established the elements of the offense beyond a reasonable doubt.” United States v. Ollison, 555 F.3d 152, 158 (5th Cir.2009) (citation and internal quotation marks omitted). We draw all reasonable inferences and make all credibility determinations in favor of the verdict. See id.
To establish aggravated identity theft in violation of
Mahmood’s argument presents an issue of first impression in this circuit—whether actual theft or misappropriation of a person’s “means of identification” is required to satisfy the “without lawful authority” element of aggravated identity theft proscribed in
In interpreting
Because the plain language of
Second, Mahmood invites the court to follow the Seventh Circuit’s en banc decision in United States v. Spears, 729 F.3d 753 (7th Cir.2013), and read the “without lawful authority” element of
On rehearing, the defendant conceded that he lacked “lawful authority” to transfer the counterfeit permit; instead, he argued, inter alia, that he did not transfer a means of identification to “another person” within the meaning of
Mahmood essentially asks that we interpret the “without lawful authority” element of
Even assuming arguendo that Spears should somehow influence our interpretation of the “without lawful authority” element, the Seventh Circuit’s reasoning would still be inapplicable here. As district courts have aptly noted, the core reasoning of Spears centers on the Seventh Circuit’s understanding that a
In sum, nothing in the plain language of
III. Motion for New Trial
Sufficiency challenges aside, Mahmood next argues that the district court erred in denying his motion for new trial without first holding an evidentiary hearing to consider the merits of his ineffective assistance claim. We review the district court’s denial of Mahmood’s motion for new trial, as well as the court’s decision not to hold an evidentiary hearing, for abuse of discretion. See United States v. Bishop, 629 F.3d 462, 469-70 (5th Cir.2010).
A.
Federal Rule of Criminal Procedure 33(a), provides, inter alia, that a district court may grant a new trial in the interest of justice. See United States v. Poole, 735 F.3d 269, 272 (5th Cir.2013) (citing
“The law of this circuit is well established that a motion for new trial may ordinarily be decided upon affidavits without an evidentiary hearing.” United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir.1977) (citing United States v. Curry, 497 F.2d 99, 100 (5th Cir.1974); see also Simmons, 714 F.2d at 30 (“A motion for a new trial can ordinarily be ruled upon without conducting an evidentiary hearing.”)). “Where evidentiary hearings are ordered, it is because of certain unique situations typically involving allegations of jury tampering, prosecutorial misconduct, or third party confession.” Hamilton, 559 F.2d at 1373; see also MMR Corp., 954 F.2d at 1046.
Mahmood’s Rule 33 motion was predicated upon an argument that his trial counsel rendered ineffective assistance. We analyze ineffective assistance of counsel claims using the two-prong inquiry articulated in Strickland, 466 U.S. at 687, 694. To satisfy the Strickland standard, Mahmood must show (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced Mahmood’s defense, meaning “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result [at trial] would have been different.” Id. at 687, 694. We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks and citation omitted).
B.
In his motion for new trial, Mahmood argued that trial counsel rendered ineffective assistance by failing to solicit testimony from Melnykovych and Pelton, two experts who had reviewed the medical records of the patients named in the indictment, and who would have testified that: (1) changes to Longley’s initial coding were medically justified, i.e., the claims submitted to Medicare were accurate and supported by patients’ medical
None of the unsolicited expert testimony advanced by Mahmood implicates the unique situations noted in Hamilton, in which evidentiary hearings are commonly necessary. See Hamilton, 559 F.2d at 1373; see also United States v. Fields, 58 Fed.Appx. 597, at *2 (5th Cir.2003) (unpublished table decision) (citing Hamilton and affirming the denial of a Rule 33 motion without a hearing where the defendant did “not demonstrate[ ] that his situation was sufficiently unique to warrant an evidentiary hearing”). More telling, most of the potential testimony would not have bolstered Mahmood’s defense. The gist of the experts’ report and Melnykovych’s affidavit is that Mahmood’s resequencing of Medicare claims was accurate in light of the conditions and diagnoses documented in patients’ medical records. However, as discussed supra, Mahmood’s convictions are predicated on the trial evidence establishing that he never reviewed a single patient’s medical record in this case; rather, he directed his employees to disregard such records and code acute and chronic conditions based solely on how much money Medicare would reimburse his hospitals.
In light of Mahmood’s failure to review any medical records, the experts’ post-hoc review of those records does not exculpate Mahmood from the jury’s verdict that he executed a scheme to defraud Medicare. Trial counsel certainly was not ineffective for failing to present non-exculpatory expert evidence to the jury,8 cf. United States v. Logan, 861 F.2d 859, 864 (5th Cir.1988), just as allowing new counsel an evidentiary hearing to explore such non-exculpatory testimony would have been an exercise in futility, cf. Eghobor, 812 F.3d at 364 (affirming the denial of a Rule 33 motion where a defendant failed to explain how evidence “could probably produce an acquittal”).
Mahmood also argues that trial counsel was ineffective for failing to offer the experts’ alleged testimony that his resequencing of diagnosis codes without reviewing patients’ medical records was not improper. Although Mahmood highlighted this argument in his appellate brief, his briefs below, and a post-oral argument Rule 28(j) letter, he cites no portion of his expert proffer in which one of the experts testified to a specific circumstance where medical coding could be completed absent some review of a patient’s medical record. Indeed, the experts’ analysis of the medi-
Having carefully considered the briefing and the record below, we conclude that Mahmood’s arguments rest on either non-exculpatory testimony or conclusory assertions, neither of which is sufficient to show that the district court abused its discretion in denying his motion without an evidentiary hearing. Accordingly, we affirm the district court’s denial of Mahmood’s motion for new trial.
IV. Loss Calculation
This brings us to the first of several of Mahmood’s arguments related to the district court’s sentencing determinations. It is undisputed that at sentencing the district court sustained, in part, Mahmood’s objection and reduced the PSR’s calculation of the total loss suffered by the victims of his fraud to $599,128.02. Consistent with his objection below, Mahmood now argues that the district court erred in refusing to go one step further and credit him for the fair market value of services that his hospitals rendered to patients. We agree.
“Though we review a sentence for abuse of discretion, we review the district court’s application of the guidelines de novo and its findings of fact at sentencing for clear error.” United States v. Klein, 543 F.3d 206, 213 (5th Cir.2008) (internal citations omitted). The district court’s loss calculation is generally a factual finding that we review for clear error. See id. at 214. However, we review “de novo how the court calculated the loss, because that is an application of the guidelines, which is a question of law.” Id.
Generally,
Two cases guide our analysis of Mahmood’s arguments: United States v. Klein, 543 F.3d 206 (5th Cir.2008), and United States v. Jones, 664 F.3d 966 (5th Cir.2011). In Klein, the defendant was a physician who committed health care fraud in several ways, including submitting claims for in-office administration of certain medications when, in fact, patients were self-administering those medications at home. See Klein, 543 F.3d at 208-09. In calculating the total loss inflicted by the defendant’s fraud, the district court totaled the face amount that the defendant billed to insurance companies for the in-office visits without crediting the defendant for the value of the medications that patients self-administered on those dates. See id. at 209, 213-14. We held that this was error—even though the defendant fraudulently billed services related to the medications, neither party disputed that the patients needed those medications or that the insurance companies would have had to pay for the medications had the defendant not fraudulently billed them. Id. We therefore vacated the defendant’s sentence and remanded for the district court to recalculate the loss considering the fair market value of the medications pursuant to
By contrast, we reached a different result on the facts of Jones. There, the defendants billed Medicare for the provision of certain services, fraudulently misrepresenting that licensed professionals had rendered those services. See Jones, 664 F.3d at 971-72, 984. The district court calculated the loss amount without crediting the defendants for the alleged value of the services. See id. at 984. We affirmed based on the district court’s factual finding that the services “had no monetary value insofar as the Medicare and Medicaid laws are concerned.” Id. As a preliminary matter, we held that Medicare, not the defendants’ patients, was the victim of the defendants’ fraud for purposes of the fair-market-value credit in
Together, Klein, Jones, and their progeny illuminate the path we take to resolve the particular issues in this case. We must consider that Medicare is the victim of Mahmood’s fraud and that Medicare receives “value” within the meaning of
We hold that Mahmood carried his burden at sentencing to show that his hospitals rendered legitimate services to patients and that Medicare would have paid substantial sums for those services had he not fraudulently billed them. At trial, the Government’s entire theory of Mahmood’s guilt was that coders at his hospitals accurately coded Medicare claims and that these claims were tainted only when Mahmood fraudulently switched the order of diagnosis codes on the claims. The Government’s own expert “priced” the eighty-five identified claims and testified that Medicare would have reimbursed Mahmood’s hospitals $430,639 if the claims had been submitted without Mahmood’s fraud.11 Mahmood pointed to this “pricing” evidence at sentencing, and the Government proffered no rebuttal evidence tending to suggest that Medicare would not have paid for the services underlying the expert’s pricing calculation or that the services were not actually provided. Absent such contrary evidence, the district court’s refusal, without explanation, to credit Mahmood for the $430,639 that Medicare would have reimbursed his hospitals but for his fraud was a legally unacceptable method of calculating the loss. See Klein, 543 F.3d at 213-15 (applying
The Government cites Jones and argues that we should affirm the district court because Medicare is the victim of Mahmood’s fraud for purposes of
As discussed supra, the district court here made no factual finding akin to that made in Jones indicating that the services rendered to Mahmood’s hospitals were of no value to Medicare. See Jones, 664 F.3d at 984. Moreover, Jones does not require that we read
The Government also contends that Mahmood is not entitled to a credit because his fraud was pervasive and difficult to detect. Implicit in this argument is that the district court’s loss calculation did not capture the full extent of Mahmood’s fraud and possibly even underestimated the impact of Mahmood’s fraud. Similar to the situation in Klein, the district court was certainly free to make a factual finding that Mahmood’s fraud was pervasive or that the $599,128.02 loss figure underestimated the victims’ actual loss for any number of reasons. See Klein, 543 F.3d at 214. But, no such factual finding was made by the court.13 Accordingly, these arguments are not relevant in this appeal.
All said, based on the record at sentencing, the Guidelines and Klein required the district court to credit Mahmood for the fair market value of legitimate health care services that his hospitals rendered to patients. The district court’s failure to do so was a procedural error and an abuse of discretion. See Klein, 543 F.3d at 214-15. Because this procedural error affected the applicable Guidelines-sentencing range on Mahmood’s conspiracy and health care fraud convictions, we vacate the sentence imposed on those convictions and remand for resentencing.
V. Restitution
Mahmood next challenges the district court’s restitution order. He argues that the district court made the same error in imposing the amount of restitution as it did in calculating the loss amount, i.e., that restitution should have been offset by the value of the services that his hospitals rendered to patients. We agree.
The court ordered Mahmood to pay $599,128.02 in restitution pursuant to the MVRA. “The MVRA authorizes restitution to a victim directly and proximately harmed by a defendant’s offense of conviction but limits restitution to the actual loss directly and proximately caused by the defendant’s offense of conviction.” Echols, 574 Fed.Appx. at 359 (emphasis added) (quoting United States v. Sharma, 703 F.3d 318, 322-23 (5th Cir.2012)). “[I]n health care-fraud cases, an insurer’s actual loss for restitution purposes must not include any amount that the insurer would have paid had the defendant not committed the fraud.” Sharma, 703 F.3d at 324. The MVRA places the burden on the Government to prove a victim’s actual loss. See
Even assuming Mahmood had the burden to show the victims’ actual loss, we hold that he carried that burden. As discussed supra, at sentencing, Mahmood relied upon the Government’s own valuation of the services rendered to patients at his hospitals, which indicated that Medicare would have reimbursed the hospitals all but $143,608. Absent evidence to the contrary, the failure to consider this amount as the victims’ actual loss was an abuse of discretion. See, e.g., Klein, 543 F.3d at 215. Accordingly, we vacate the restitution order and remand for the district court to reconsider the victims’ loss.
VI. Substantive Reasonableness
Mahmood’s final challenge is to the substantive reasonableness of his sentence. Specifically, he argues that the district court abused its discretion in imposing the sentence on his aggravated identity theft convictions. We need not reach this issue. In considering an appropriate sentence on the aggravated identity theft convictions, the district court considered, inter alia, “the financial loss borne by the United States taxpayers.” As discussed supra, the district court erred in calculating the loss caused by Mahmood’s fraud. Accordingly, we vacate the sentence imposed on Mahmood’s aggravated identity theft convictions, and remand for the district court to resentence Mahmood on those convictions after recalculating the loss.
CONCLUSION
In summary, we AFFIRM in part, and VACATE and REMAND in part. We AFFIRM each of Mahmood’s health care fraud convictions, each of his aggravated identity theft convictions, and the district court’s denial of his motion for new trial. We VACATE Mahmood’s sentence in total and the district court’s restitution order, and REMAND for resentencing.