     Case: 13-20560      Document: 00512916175         Page: 1    Date Filed: 01/27/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20560
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 27, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellee,                                               Clerk

v.

OLUSOLA ELLIOTT,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-249-1


Before KING, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Olusola Elliott was convicted of health care fraud and conspiracy to
commit health care fraud under 18 U.S.C. §§ 2, 1347 and 1349. The district
court sentenced Elliott to 84 months of imprisonment and ordered restitution
in the amount of $561,934.12. Elliott contends that he has a constitutional
right to have a jury find the amount of restitution beyond a reasonable doubt.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-20560

He additionally contends that the district court’s finding of the intended loss
was clearly erroneous. We affirm.
                                       I
      Elliott owned and operated Double Daniels, LLC, which provided non-
emergency care ambulance services.         He was charged with one count of
conspiracy to commit health care fraud and six counts of health care fraud.
The superseding indictment alleged that Elliott submitted approximately
$1,713,716 in fraudulent claims to Medicare.
      The evidence adduced at trial indicated that Elliott directed Double
Daniels employees to falsify claims sheets submitted to Medicare.           Elliott
instructed Double Daniels emergency medical technicians to indicate, for
example, that a patient required restraint when he or she did not, or that
patients were transported individually when they were in fact transported
together. The jury convicted Elliott on all seven counts.
      The jury was not asked to make a finding regarding restitution or the
amount of loss sustained by Medicare. At the sentencing hearing, the district
court ordered Elliott to pay $561,934.12 in restitution, and the district court
found that the loss Elliott intended to cause was the amount of the claims that
he submitted to Medicare, which totaled $1,713,716. Because the intended loss
exceeded $1,000,000, the court imposed a 16-level enhancement to Elliott’s
base offense level pursuant to USSG § 2B1.1(b)(1)(I). The court sentenced
Elliott to serve a term of 84 months of imprisonment.
      Elliott now appeals.




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                                                II
       Relying on Apprendi v. New Jersey, 1 Southern Union Co. v. United
States 2 and Alleyne v. United States, 3 Elliott contends that the restitution order
violates the Sixth Amendment because the amount of the award was found by
the district court judge, not the jury, and the district court based its finding on
a preponderance of the evidence rather than finding the amount beyond a
reasonable doubt. In Apprendi, the Supreme Court held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 4 In Southern Union, the Court held that Apprendi
applies to the imposition of criminal fines, 5 and in Alleyne, the Court extended
Apprendi to any fact that increases a defendant’s mandatory minimum
sentence. 6
       Elliott acknowledges in his reply brief that a decision of this court, 7
issued after the initial briefing in this case was submitted, forecloses his Sixth
Amendment argument before this panel. We agree that our court’s decision in
Rosbottom is binding on this panel. We additionally conclude that we are
bound by this court’s decision in United States v. Read, in which a panel of this
court held that the requirements of Apprendi do not apply to restitution



       1   530 U.S. 466 (2000).
       2   132 S. Ct. 2344 (2012).
       3   133 S. Ct. 2151 (2013).
       4 Apprendi, 530 U.S. at 490; see also Blakely v. Washington, 542 U.S. 296, 303 (2004)
(“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” (emphasis omitted)).
       5   S. Union, 132 S. Ct. at 2357.
       6   Alleyne, 133 S. Ct. at 2158.
       7   United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014).
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orders. 8 Under the well-settled Fifth Circuit rule of orderliness, “one panel of
our court may not overturn another panel’s decision absent an intervening
change in the law, such as by a statutory amendment, or the Supreme Court,
or our en banc court.” 9
      We recognize that there is some tension between statements of the
Supreme Court in Southern Union Co. v. United States 10 and our court’s
conclusion that the Sixth Amendment does not require a jury to find the
amount of restitution. In Southern Union, the Supreme Court noted that
under some statutes, the amount of a fine “is the amount of the defendant’s
gain or the victim’s loss.” 11 The Court then concluded, “[i]n all such cases,
requiring juries to find beyond a reasonable doubt facts that determine the
fine’s maximum amount is necessary to implement Apprendi’s ‘animating
principle’: the ‘preservation of the jury’s historic role as a bulwark between the
State and the accused at the trial for an alleged offense.’” 12 The Supreme Court
continued, explaining that “[i]n stating Apprendi’s rule, we have never
distinguished one form of punishment from another. Instead, our decisions
broadly prohibit judicial factfinding that increases maximum criminal
‘sentence[s],’ ‘penalties,’ or ‘punishment[s]’—terms that each undeniably
embrace fines.” 13 It is arguable that when a statute requires restitution based
on the amount of loss to the victim, restitution is part of a “sentence” and comes
within the Supreme Court’s rationale that led to its decision in Southern




      8   United States v. Read, 710 F.3d 219, 231 (5th Cir. 2012).
      9   Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
      10   132 S. Ct. 2344 (2012).
      11   Id. at 2351.
      12   Id. (quoting Oregon v. Ice, 555 U.S. 160, 168 (2009)).
      13   Id. (alterations in original).
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Union. That is not a matter for this panel to resolve, however, in light of this
circuit’s precedent.
       In Rosbottom, a panel of this court considered whether Southern Union
extended Apprendi to restitution but nonetheless affirmed Read’s reasoning
that “Apprendi is inapposite because no statutory maximum applies to
restitution.” 14 Our decision in Rosbottom was also decided after Alleyne. 15 We
are therefore bound by our court’s rule of orderliness to reject Elliott’s
contention that restitution orders cannot be supported by judge-found facts. 16
Though the present case concerns restitution, not forfeiture, we also note that
the Supreme Court has not expressly overruled its holding in Libretti v. United
States, which held that “the right to a jury verdict on forfeitability does not fall
within the Sixth Amendment’s constitutional protection.” 17
                                              III
       The district court assessed a 16-level enhancement to Elliott’s base
offense level because it found the intended loss to be $1,713,716, the amount
of Elliott’s fraudulent billings to Medicare. Elliott contends that he did not
intend to recoup the full amount he billed, given Medicare’s practice of
regularly reimbursing providers at amounts below the amount billed.


       14United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014) (quoting United States
v. Read, 710 F.3d 219, 231 (5th Cir. 2012)); accord United States v. Green, 722 F.3d 1146,
1149-51 (9th Cir. 2013) (holding Apprendi does not apply to restitution); United States v. Day,
700 F.3d 713, 731-32 (4th Cir. 2012) (same); United States v. Milkiewicz, 470 F.3d 390, 403-
04 (1st Cir. 2006) (same); United States v. Reifler, 446 F.3d 65, 114-20 (2d Cir. 2006) (same);
Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006) (same); United States v.
Leahy, 438 F.3d 328, 338 (3d Cir. 2006) (en banc) (same); United States v. Sosebee, 419 F.3d
451, 461-62 (6th Cir. 2005) (same); United States v. May, 413 F.3d 841, 849 (8th Cir. 2005)
(same); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005) (same); United States v.
Wooten, 377 F.3d 1134, 1144-45 (10th Cir. 2004) (same).
       15See Alleyne v. United States, 133 S. Ct. 2151 (2013) (decided June 17, 2013);
Rosbottom, 763 F.3d 408 (decided August 13, 2014).
       16   Rosbottom, 763 F.3d at 420; Read, 710 F.3d at 231.
       17   516 U.S. 29, 49 (1995).
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       “The amount of loss resulting from . . . fraud is a specific offense
characteristic that increases the base offense level under the [sentencing
guidelines].” 18 The commentary to the guidelines defines “loss” as “the greater
of actual loss or intended loss.” 19            When the amount of the loss exceeds
$1,000,000 but is not more than $2,500,000, a defendant receives a 16-level
enhancement, whereas when the amount of loss exceeds $400,000 but is not
more than $1,000,000, a defendant receives only a 14-level enhancement. 20
       We review the district court’s method of determining loss de novo and its
factual findings for clear error. 21 “Under the clear error standard, we defer to
the findings of the district court unless we are left with a definite and firm
conviction that a mistake has been committed.” 22
       In health care fraud cases, the government must “prove by a
preponderance of the evidence that the defendant had the subjective intent to
cause the loss that is used to calculate his offense level.” 23 While Elliott asserts
that “the record is devoid of any evidence” supporting the loss amount, “the
amount fraudulently billed to Medicare/Medicaid is prima facie evidence of the
amount of loss the defendant intended to cause.” 24 The “parties may introduce




       18   United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011).
       19   U.S.S.G. § 2B1.1 cmt. n.3(A).
       20   U.S.S.G. § 2B1.1(b)(1)(H)-(J).
       21Isiwele, 635 F.3d at 202 (citing United States v. Harris, 597 F.3d 242, 251 n.9 (5th
Cir. 2010)).
       22United States v. Brooks, 681 F.3d 678, 689 (5th Cir. 2012) (quoting United States v.
Avants, 367 F.3d 433, 441 (5th Cir. 2004)).
       23   United States v. Valdez, 726 F.3d 684, 696 (5th Cir. 2013) (quoting Isiwele, 635 F.3d
at 203).
       24   Valdez, 726 F.3d at 696 (quoting Isiwele, 635 F.3d at 203).
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additional evidence to suggest that the amount billed either exaggerates or
understates the [defendant’s] intent.” 25
      Prior to his sentencing hearing, but after trial, Elliott submitted an
affidavit to the district court stating that he was aware “during the operation
of the Double Daniels business” that Medicare “paid much less than what was
submitted” in claims. Elliott argued to the district court that its finding of
intended loss should reflect Elliott’s knowledge of Medicare’s reimbursement
practices.       He contended that the amount Medicare actually reimbursed
Double Daniels, $561,924.12, rather than the amount Elliott fraudulently
billed, $1,713,716, should be used to calculate his base offense level. The
district court was unpersuaded for several reasons. The court observed that
when Elliott testified at trial, “he never claimed . . . that he intended or that
he expected Medicare to pay less than the amount of the claims that he filed.”
The court was further influenced by the fact that Elliott allowed third parties
to handle his billing claim sheets.
      Elliott now argues that United States v. Valdez compels reversal. In
Valdez, this court concluded that the district court had erred because it
determined the intended loss was the amount fraudulently billed to Medicare
without considering an undercover audio recording of the defendant’s
employee that strongly indicated the defendant was aware that Medicare
would pay only a fraction of what he claimed. 26 However, in United States v.
Usman, when no witness testified at trial about the defendant’s knowledge of
Medicare’s reimbursement schedule, the defendant relied on third parties for
billing, and the defendant testified at trial that “he did not know the rules of
Medicare/Medicaid billing,” there was no clear error when the district court



      25   Id. (quoting Isiwele, 635 F.3d at 203).
      26   Id.
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found the amount fraudulently claimed was the intended loss even though the
defendant averred at sentencing to have been “abundantly aware” of the
reimbursement formula. 27
       The district court likened the present case to Usman, and we are inclined
to agree. While Elliott points to certain trial evidence that would have allowed
the district court to infer Elliott’s knowledge of Medicare’s reimbursement
schedule, such as Double Daniels’s contracts setting obligations to third parties
based on payments received from Medicare, we are not left with a definite and
firm conviction that the district court erred. This evidence does not directly
contradict the district court’s finding as the evidence in Valdez did.
Furthermore, unlike in Valdez, in which the district court ignored the
defendant’s evidence rebutting the prima facie case established by the amount
fraudulently billed, 28 the district court here explicitly gave weight to the
evidence, including Elliott’s affidavit about his knowledge of Medicare billing
practices. Whereas the district court in Valdez erred by failing to consider a
pre-trial statement captured in an undercover recording, 29 the district court in
the present case expressly found that Elliott’s “self-serving affidavit after the
fact . . . is not persuasive.”
       Because the district court’s determination of Elliott’s subjective intent
was not clearly erroneous, the imposition of the sentence enhancement was not
improper.
                                       *        *        *




       27   United States v. Usman, 460 F. App’x. 414, 417 (5th Cir. 2012).
       28Valdez, 726 F.3d at 696 (“[W]e find that it was error for the district court to calculate
the intended loss without considering the evidence in the record that rebutted the prima facie
evidence of intended loss.”).
       29   Id.
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                             No. 13-20560

    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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