                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 24 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



    UNITED STATES OF AMERICA,                    No.    14-10517

                 Plaintiff-Appellee,             D.C. No.
                                                 2:08-cr-00427-MCE-7
      v.

    RAMANATHAN PRAKASH,                          MEMORANDUM*

                 Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                           Submitted October 18, 2016**
                             San Francisco, California

Before: CALLAHAN and HURWITZ, Circuit Judges, and MOLLOY,*** District
Judge.




*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
       The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
      Ramanathan Prakash was convicted of health care fraud and conspiracy to

commit health care fraud in violation of 18 U.S.C. §§ 1347 and 1349, and sentenced

to 120 months in prison. We previously vacated Prakash’s sentence and remanded

to allow Prakash to present evidence that the intended loss from the fraud was less

than the amount billed to Medicare. United States v. Popov, 742 F.3d 911, 916 (9th

Cir. 2014). On remand, the district court resentenced Prakash to 120 months. We

affirm.

      1. In the prior appeal, we held that the amount billed to Medicare is prima

facie evidence of intended loss for purposes of calculating the offense level under

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B1.1, but that “the parties may

introduce additional evidence to support arguments that the amount billed

overestimates or understates the defendant’s intent.” Popov, 742 F.3d at 916.

Prakash does not deny that the district court allowed the introduction of such

evidence, but argues that our instructions in Popov violated the Ex Post Facto Clause

because the opinion relied on 2011 amendments to the Sentencing Guidelines while

his crimes occurred in 2006-08.

      2. The argument fails. Popov noted that its approach was consistent with the

2011 amendments, but expressly relied on opinions of three sister circuits

interpreting prior versions of U.S.S.G. § 2B1.1, including the version in effect at the

time of Prakash’s offenses. 742 F.3d at 915–16; see also U.S.S.G. § 2B1.1. cmt.


                                          2
n.3(A)(ii) (2007) (providing that intended loss can include “intended pecuniary harm

that would have been impossible or unlikely to occur (e.g., as in . . . an insurance

fraud in which the claim exceeded the insured value)”).

      3. Contrary to Prakash’s argument, Popov does not change the burden of

proof with respect to intended loss. See United States v. Howard, 894 F.2d 1085,

1090 (9th Cir. 1990) (placing burden on the government). Rather, Popov simply

gives the defendant the opportunity to rebut the government’s evidence of intended

loss. 742 F.3d at 916.

      4. Prakash also argues that he was denied effective assistance of counsel

because his counsel did not seek rehearing in Popov. Even assuming review of the

ineffective assistance claim is properly before us on direct appeal, but see United

States v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005) (limiting review of

ineffective assistance claims on direct appeal), overruled on other grounds by United

States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), the argument

fails given our holding that Prakash’s resentencing pursuant to Popov was

constitutional. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that

prejudice requires a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different”).

      AFFIRMED.




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