                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                               FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                        U.S.
                                ________________________ ELEVENTH CIRCUIT
                                                                     MAY 3, 2011
                                       No. 10-11779                  JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                            D.C. Docket No. 0:98-cr-06118-JEM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,


                                            versus

MAHENDRA PRATAP GUPTA,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                        (May 3, 2011)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

         This appeal is the third occasion that this Court has been asked to review the
amount of loss attributed to Mahendra Gupta for conspiring to defraud Medicare.

18 U.S.C. § 286. In two previous appeals by the United States we held that the

district court erred in finding a loss amount of zero, United States v. Gupta (Gupta

II), 463 F.3d 1182, 1199–1200 (11th Cir. 2006), and in selecting arbitrarily $1.5

million as the amount of loss, United States v. Gupta (Gupta III), 572 F.3d 878,

888–89 (11th Cir. 2009). The district court attributed to Gupta a loss amount of

$3.4 million. We affirm.

      Gupta argues that the district court failed to make findings of fact to support

its selection of $3.4 million as the loss amount and that the procedural error caused

the district court to miscalculate the amount of restitution, but we disagree. The

district court was presented with two opinions about the amount of loss and ruled

that it was “going to go with the 3.4 figure” provided by Jeff Litvak, the expert for

the United States. The district court rejected Gupta’s arguments that the loss

amount was zero and that $1.4 million in expenses that Allegheny incurred should

not be included in the amount of loss. Gupta criticizes Litvak’s calculations and

argues that the district court should have credited the testimony of the defense

expert witness, but the district court was presented with two means of calculating

the amount of loss and its “choice between them cannot be clearly erroneous.”

United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010) (internal

                                          2
quotation marks omitted).

      Gupta argues, for the first time on appeal, that Litvak was not qualified to

provide an expert opinion, but his argument fails. Gupta did not challenge

Litvak’s qualifications in the district court, and he does not argue that Litvak’s

experience in making hospital valuations rendered his testimony inadmissible.

Gupta fails to cite any authority to establish that Litvak, a certified public

accountant, was incapable of examining the operations of Allegheny Management

Company and quantifying the amount of loss caused to Medicare. See Fed. R.

Evid. 702.

      Gupta also argues that the district court erroneously believed it was required

to find some amount of loss, but we disagree. Although the district court stated

that “it would appear . . . that the Eleventh Circuit has made it very clear that they

feel there is a loss, and it’s my responsibility to pick what the loss was,” the court

explained it knew it “couldn’t pick a number” and had to base its calculation on

evidence and the burden of proof about the amount of loss rested with the United

States. The district court fairly assumed that the only way it could find a loss

amount of zero was if the United States failed to satisfy its burden of proof.

      The district court did not err when it calculated the amount of restitution.

The parties agreed that the amount of restitution is dependent on the amount of

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loss and that the district court had to “subtract[] $1,208,763 . . . from its loss

finding.” The district court correctly ordered Gupta to pay $2,191,237 in

restitution.

       We AFFIRM Gupta’s sentence.




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