                   REVISED APRIL 8, 2009
         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                  Fifth Circuit

                                                                FILED
                               No. 08-10287                    March 18, 2009
                             Summary Calendar
                                                           Charles R. Fulbruge III
                                                                   Clerk
UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

EMMANUEL BOBBY EDET, ALSO KNOWN AS BOB EDET

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:07-CR-46-2


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
     Emmanuel Bobby Edet (“Edet”) appeals the sentence imposed following
his guilty plea conviction for conspiracy to commit health care fraud and pay
illegal remuneration. In pleading guilty, Edet admitted participating in a
scheme in which a recruiter solicited Medicare beneficiaries to see Dr. Lloyd
McGriff (“Dr. McGriff”).   Dr. McGriff then signed Certificates of Medical
Necessity (“CMNs”) certifying that the beneficiaries needed a K0011 power


     *
      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should not be published and is not precedent except under the limited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.
                                   No. 08-10287

wheelchair. Edet paid Dr. McGriff a kickback for each CMN Dr. McGriff
provided. Edet would then provide the beneficiary with the K0011 power
wheelchair and accessories and bill Medicare. Edet admitted that he “falsely
represented to Medicare that the beneficiaries were qualified to receive” the
power wheelchairs and accessories. In at least one instance, Edet provided a
beneficiary with a less expensive scooter but billed Medicare for a K0011 power
wheelchair.
      We review a sentencing decision for reasonableness, applying the
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). This standard applies whether the sentence is inside or
outside the guidelines range. Id. We must first ensure that the district court did
not commit procedural error. Id. This review includes an assessment of whether
the district court improperly calculated the guidelines range. Id. A district
court’s interpretation or application of the Guidelines is reviewed de novo, and
its factual findings are reviewed for clear error. Id.
      For the first time on appeal, Edet argues that the district court erred by
calculating his offense level under U.S.S.G. § 2B1.1 instead of U.S.S.G. § 2B4.1.
He acknowledges that § 2B1.1 is the proper guideline for healthcare fraud, but
maintains that § 2B4.1, the guideline for commercial bribery, was the proper
guideline to apply because the loss amount evidence was based upon the
kickbacks paid to Dr. McGriff.
      Because Edet did not challenge the use of § 2B1.1 to calculate his offense
level in the district court, review of this issue is for plain error. See United
States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008). To show plain error, Edet
must show an error that is clear or obvious and that affects his substantial
rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). If he makes
such a showing, we have the discretion to correct the error but will do so only if
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.

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      Because Edet’s offense of conviction was a multiple object conspiracy, it
was treated under the Guidelines as if Edet had been convicted of separate
counts of conspiracy to commit health care fraud and conspiracy to pay illegal
remuneration. See U.S.S.G. § 1B1.2(d). Pursuant to U.S.S.G. § 2X1.1(a), the
offense level for a conspiracy offense is found by using the offense level for the
substantive offense. Edet’s substantive health care fraud offense was a violation
of 18 U.S.C. § 1347, and the proper guideline for violations of that statute was
§ 2B1.1. U.S.S.G. App’x A. Edet’s substantive payment of illegal remuneration
offense was a violation of 42 U.S.C. § 1320a-7b(b)(2), and two guidelines are
listed for violations of that statute, § 2B1.1 and § 2B4.1. U.S.S.G. App’x A.
      Appendix A provides that if two guidelines are listed for a statute, the
court should use the guideline most appropriate for the offense conduct. Edet
asserts that § 2B1.1 is only listed as an appropriate guideline for violations of
42 U.S.C. § 1320a-7b(b)(2) because § 2B4.1 cross-references the loss amount
table contained in § 2B1.1. The argument is without merit as Appendix A
specifically provides that some statutes have more than one possible guideline
and because several statutes have § 2B4.1 as their only listed guideline, belying
the contention that § 2B1.1 is only listed with § 2B4.1 due to the cross-reference
to the loss amount table contained in § 2B1.1. See U.S.S.G. App’x A.
      While the payment of kickbacks was part of Edet’s criminal activity, it was
part of a larger scheme to commit health care fraud by soliciting Medicare
beneficiaries, obtaining CMNs for K0011 power wheelchairs for the beneficiaries,
and fraudulently billing Medicare for the K0011 power wheelchairs. As Edet’s
primary offense was health care fraud, § 2B1.1 was the more appropriate
guideline for his substantive offense of payment of illegal remuneration. See
U.S.S.G. App’x A. As the proper guideline for the calculation of Edet’s offense
level for both of his substantive offenses was § 2B1.1, the district court correctly
used § 2B1.1 to calculate Edet’s offense level. See § 2X1.1(a).



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      Edet next argues that the district court’s loss amount calculation was
erroneous. He maintains that under § 2B1.1, comment. n.3(F)(ii), the loss
amount in cases involving government benefits is the amount of the benefit
received less the amount of the benefit that was intended to be given. He asserts
that because the Government did not provide evidence that the K0011 power
wheelchairs were not medically necessary for the beneficiaries who received
them, the Government did not prove that there was any benefit received more
than the amount that was intended. Edet argues that the Government was
required to prove that Medicare was fraudulently induced into paying claims
that were not medically necessary in order to enhance his sentence based upon
the amount of the payments from Medicare. Because the Government’s evidence
of loss amount was based upon the kickbacks paid to Dr. McGriff, Edet
maintains that the loss amount was limited to the amount of the kickbacks.
      From the evidence presented at sentencing and Edet’s admissions, the
district court could reasonably infer that the signed CMNs from Dr. McGriff
were fraudulent and that Dr. McGriff signed them because he received
kickbacks, not because the beneficiaries had a medical need for K0011 power
wheelchairs. See United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.
1990). Under § 2B1.1, comment. n.3(F)(ii), the amount of loss in a government
benefit case is the amount of benefit received less the amount of benefit intended
to be paid. As the claims Edet submitted based on Dr. McGriff’s CMNs were
fraudulent, the intended benefit was zero, and the district court properly
concluded that the loss amount was the total amount that Medicare paid to Edet
on those claims. See § 2B1.1, comment. n.3(F)(ii). Furthermore, pursuant to
§ 2B1.1, comment. n.3(F)(v), cases involving goods for which government agency
approval is required and obtained by fraud, the loss amount is the amount paid
for the goods without any credit for the value of the goods provided. Thus, the
full amount that Medicare paid Edet on the claims submitted on the basis of the
fraudulent CMNs signed by Dr. McGriff was properly determined to be the loss

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amount. See § 2B1.1, comment. n.3(F)(v). Edet has not shown that the district
court’s loss amount determination was clearly erroneous. See United States v.
Messervey, 317 F.3d 457, 464 (5th Cir. 2002).
      For the first time on appeal, Edet argues that the district court plainly
erred by ordering him to pay $446,404.95 in restitution. He maintains that the
amount of the restitution ordered was improper because it was not based upon
Medicare’s actual losses. Edet asserts that the Government was required to
show that the beneficiaries who received the power wheelchairs as a result of the
CMNs signed by Dr. McGriff did not have a medical need for them.
      Ordinarily, this court reviews the propriety of the amount of a restitution
award for an abuse of discretion. United States v. Mann, 493 F.3d 484, 498 (5th
Cir. 2007). As Edet concedes, however, our review is for plain error because no
objection was lodged in the district court. See United States v. Maturin,
488 F.3d 657, 659–60 (5th Cir. 2007).
      The district court awarded restitution to Medicare pursuant to the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. Under the
MVRA, the district court was required to order that Edet pay restitution to
Medicare for the full amount of Medicare’s losses. 18 U.S.C. § 3664(f)(1)(A);
United States v. Klein, 543 F.3d 206, 215 (5th Cir. 2008). If Medicare would
have been required to pay for the wheelchairs for the beneficiaries even in the
absence of Edet’s criminal offenses, the amounts Medicare paid for the
wheelchairs would not be considered an actual loss to Medicare. See Klein,
543 F.3d at 215.
      There was evidence from which the district court could determine that the
claims made by Edet based upon the CMNs signed by Dr. McGriff were
fraudulent and that Medicare would not have paid anything for power
wheelchairs to those beneficiaries in the absence of Edet’s criminal activity.
Accordingly, because Edit only speculates, without having offered evidence
below, that some of the wheelchairs might have been legitimately charged to

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Medicare, the court did not err in finding that the actual loss to Medicare was
the total amount that it paid to Edet on those claims. Cf. Klein, 543 F.3d at 215.
Based on this record, Edet has not shown that the district court committed plain
error by ordering him to pay restitution in the amount of $446,404.95. See
Mann, 493 F.3d at 498-99.
      AFFIRMED.




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