                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                          ________________________   ELEVENTH CIRCUIT
                                                                JULY 15, 2010
                                 No. 09-16149                    JOHN LEY
                             Non-Argument Calendar                 CLERK
                           ________________________

                      D. C. Docket No. 08-00136-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

BONNIE FAYE WEBB,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         _________________________

                                  (July 15, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

      Bonnie Faye Webb appeals the nine-month sentence she received after

pleading guilty to one count of conspiracy to commit health-care fraud in violation
of 18 U.S.C. §§ 1343, 1347, and 1349, and five counts related to the illegal

dispensing of prescription drugs in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 841(b)(1)(D), 841(b)(2), and 846, and 18 U.S.C. § 2. The sentence

imposed was at the mid-point of the applicable guideline range of 6 to 12 months.

On appeal, Webb challenges on two grounds the district court’s calculation of the

loss amount used to determine her total offense level under U.S.S.G. § 2B1.1.

First, she argues that the district court erred by calculating intended loss with

reference to the total amount fraudulently billed to benefits programs. Second, she

argues that the district court erred by failing to reduce the loss amount by the value

of the services rendered to patients. Upon review of the record, and consideration

of the parties’ briefs, we affirm the district court’s sentence.

      We review “the determination of the amount of loss involved in the offense

for clear error.” United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009).

Section 2B1.1 provides a base offense level of seven for health care fraud and

includes an enhancement based on the dollar value of the loss. If the loss was

more than $10,000 but less than $30,000, the base offense level increases by four

levels; if the loss was more than $30,000, the base offense level increases by six

levels. U.S.S.G. §§ 2B1.1(b)(1)(C), (D), and (E). Under the guidelines, the

amount of loss “is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1,



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cmt. n.3(A) (2008) (emphasis added). Actual loss is “the reasonably foreseeable

pecuniary harm that resulted from the offense.” Id., cmt. n.3(A)(i). Intended loss

is “the pecuniary harm that was intended to result from the offense,” and it

“includes pecuniary harm that would have been impossible or unlikely to occur

(e.g., as in a government sting operation, or an insurance fraud in which the claim

exceeded the insured value).” Id., cmt. n.3(A)(ii).

      We will uphold on appeal a district court’s reasonable estimate of the

intended loss, unless the court “speculate[d] concerning the existence of a fact

which would permit a more severe sentence under the guidelines.” United States v.

Grant, 431 F.3d 760, 762 (11th Cir. 2005) (quotation omitted). Where a district

court has stated that it would have applied the same sentence even if the guidelines

issue had been decided in the defendant’s favor, we affirm the sentence despite any

sentencing error unless the sentence is unreasonable. United States v. Keene, 470

F.3d 1347, 1348-50 (11th Cir. 2006). When we review a final sentence for

reasonableness under United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738,

767 (2005), the defendant will bear the burden of proving that the sentence

imposed is unreasonable in light of the record and 18 U.S.C. § 3553(a). Keene,

470 F.3d at 1350. Pursuant to § 3553(a), a sentence should be “sufficient, but not

greater than necessary, to comply with the purposes set forth in paragraph (2) of



                                          3
this subsection,” namely, to reflect the seriousness of the offense, promote respect

for the law, provide just punishment for the offense, deter criminal conduct, protect

the public from future crimes of the defendant, and provide the defendant with

needed educational or vocational training or medical care. See 18 U.S.C. §

3553(a)(2). The sentencing court must also consider the following factors in

determining a particular sentence: the nature and circumstances of the offense and

the history and characteristics of the defendant, the kinds of sentences available,

the guidelines range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted disparities, and the need to provide

restitution to victims. See § 3553(a)(1), (3)-(7).

      The district court estimated intended loss based on the amount billed to

patients’ benefits programs. Webb argues that her clinic did not intend or expect to

collect more than what the health benefits programs actually paid following

submission of fraudulent claims. Therefore, she claims that the court erroneously

speculated when it used the full billed amount to calculate intended loss, resulting

in a higher sentencing range.

      We have previously held that a district court did not clearly err when it

calculated the amount of loss based on the amount a doctor billed to Medicare

instead of the amount paid to the doctor by Medicare, upon concluding that the



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doctor intended to receive the full amount billed. United States v. Hoffman-Vaile,

568 F.3d 1335, 1343 (11th Cir. 2009). Here, in contrast, Webb presented evidence

(1) that the clinic did not intend or expect to collect more than the actual amount

paid by benefits programs, and (2) that the clinic never attempted to collect from

patients the difference between the billed amount and the paid amount. The district

court discounted that evidence by expressing doubt that the clinic would have

turned down full reimbursement if it had been forthcoming. Given the evidence

presented by Webb, the district court’s use of the billed amount to calculate loss

might constitute erroneous speculation.

      Nevertheless, even if we assume, arguendo, that the court erred by

concluding that the intended amount of loss was the total amount billed by the

clinic, any such error was harmless. The court indicated that Webb’s sentence

would have been the same regardless of its loss amount rulings. See Keene, 470

F.3d at 1348-50. Moreover, Webb’s 9-month sentence was not unreasonable. See

id. Webb’s 9-month sentence only slightly exceeded a guideline range of two to

eight months, which would have been applied if the district court had assigned a

total offense level of six and a criminal history category of III. See id. at 1350

(analyzing whether the sentence was reasonable “assuming exactly the same

conduct and other factors in the case,” but applying the new guideline range).



                                           5
Additionally, Webb was a willing participant in her physician husband’s scheme to

defraud health care programs and unlawfully dispense prescription drugs, which

harmed not only the programs but also the persons who arguably should not have

been prescribed medicine. Accordingly, the district court reasonably concluded

that a nine-month sentence was warranted in order to reflect the seriousness of the

offense, to promote respect for the law, to provide just punishment, and to deter

others from committing similar crimes. 18 U.S.C. § 3553(a)(1), (a)(2)(A) and (B).

      Webb also challenges the loss calculation on the ground that the district

court misapplied the guidelines by failing to reduce the loss amount by the value of

the services rendered to patients. The commentary to § 2B1.1 provides that the

loss amount shall be reduced by the fair market value of the services rendered by

the defendant, or other person acting jointly with the defendant, to the victim

before the offense was detected. U.S.S.G. § 2B1.1, cmt. n.3(E)(i).

      Arguably, because Dr. Webb was ineligible to receive any program funds,

the benefits programs involved in this case would not have paid claims under Dr.

Webb’s identification number if they had known that his medical license had been

suspended and that Dr. Cooper had actually rendered the services. Thus,

regardless of whether Dr. Copper provided some services to patients, the claims

paid by the benefits programs were attributable loss because a suspended physician



                                          6
fraudulently claimed he performed those services. Cf. United States v. Medina,

485 F.3d 1291, 1304-05 (11th Cir. 2007) (concluding that Medicare claims were

fraudulent, and therefore constituted attributable loss, because the patients or

doctors received kickbacks). Thus, we cannot say that the district court erred by

declining to reduce the loss amount by the value of the services which were

rendered by Dr. Cooper.

      Even if the district court had erred in this respect, however, such error would

be harmless because the district court indicated that it would have imposed the

same sentence regardless of its loss amount decisions. Keene, 470 F.3d at

1348-50. If the district court had determined a loss amount of zero, Webb’s

revised guideline range would be zero to six months’ imprisonment. While her

nine-month sentence would have been fifty percent higher than the upper end of

the range, Webb’s sentence was otherwise reasonable, for the reasons discussed

above. See Id. at 1350. Accordingly, we affirm.

      AFFIRMED.




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