               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0563n.06

                                       Case No. 15-2001

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Oct 06, 2017
UNITED STATES OF AMERICA,                             )                   DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE EASTERN
RAJAN PATEL,                                          )        DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                      )                            OPINION


BEFORE:        COLE, Chief Judge; ROGERS and GRIFFIN, Circuit Judges.

       COLE, Chief Judge. Rajan Patel appeals his sentence for conspiring to commit health

care fraud, in violation of 18 U.S.C. § 1349; for health care fraud, in violation of 18 U.S.C.

§§ 1347 and 2; and for making false statements relating to health care matters, in violation of 18

U.S.C. §§ 1035 and 2. Patel argues that the district court erred in imposing restitution without

making factual findings and that his sentence is procedurally unreasonable because the district

court failed to make the factual findings required by Rule 32 of the Federal Rules of Criminal

Procedure. For the following reasons, we affirm Patel’s sentence.

                                      I. BACKGROUND

       Rajan Patel was employed at Angle’s Touch home health care agency, a company that

purported to provide health services for homebound individuals. In reality, Angle’s Touch
Case No. 15-2001, United States v. Patel


defrauded Medicare by submitting health care claims for persons who were not homebound or in

need of medical services. For his part, Patel, as a licensed physical therapist, would create fake

patient files showing that purportedly homebound patients received physical therapy.

       On March 6, 2014, Patel was charged with one count of conspiracy to commit health care

fraud, three counts of health care fraud, and three counts of making false statements relating to

health care matters. A jury convicted Patel on all counts.

       The presentence investigation report (“PSR”) recommended that Patel be held

responsible for the entire amount that Medicare paid to Angle’s Touch during the course of the

conspiracy, which the PSR calculated to be $952,913.27. The PSR accordingly found that the

amount of loss was more than $400,000 but less than $1,000,000, which increased Patel’s

offense level by 14.     The PSR recommended two-level enhancements each for (1) fraud

involving sophisticated means and (2) abuse of a position of trust or use of a special skill,

resulting in a total offense level of 24. According to the PSR, Patel’s guidelines range was

therefore 51–63 months of imprisonment.

       Both parties objected to the amount of loss in the PSR, and Patel objected to the

enhancements recommended in the PSR. Patel argued that the amount of loss should be limited

to the loss in the substantive counts of the indictment—between $30,000 and $70,000. The

government argued that the amount of loss to Medicare for patients for whom Patel was a

caregiver was over $1.3 million and that Patel’s offense level should be increased by two levels

because he was convicted of a health care offense involving a government health care program

and the loss was more than $1 million.

       The district court adopted the PSR except for the enhancement for sophisticated means

and did not otherwise grant either party’s objection. The district court sentenced Patel to



                                               -2-
Case No. 15-2001, United States v. Patel


concurrent sentences of 24 months of imprisonment. The district court also imposed a special

assessment of $700 and ordered restitution to the Medicare trust fund, jointly and severally with

all codefendants, in the amount of $952,913.27. Patel did not object to the order of restitution

but filed a timely notice of appeal.

                                         II. ANALYSIS

       A. Procedural Reasonableness of Sentence

       Patel argues that his sentence is procedurally unreasonable because the district court

failed to make the factual findings required by the Sentencing Guidelines. See Gall v. United

States, 552 U.S. 38, 51 (2007) (holding that a district court commits procedural error if it fails to

calculate or improperly calculates the Guidelines range); U.S.S.G. § 2B1.1(b)(1). In a fraud

case, we review the amount of loss calculated by the district court for clear error and the

methodology used to calculate the loss de novo. United States v. Washington, 715 F.3d 975, 984

(6th Cir. 2013).

       Under Rule 32 of the Federal Rules of Criminal Procedure, a sentencing court “must—for

any disputed portion of the presentence report or other controverted matter—rule on the dispute.”

Fed. R. Crim. P. 32(i)(3)(B). We require “‘literal compliance’ with Rule 32, so when matters are

contested the court must explain its calculation methods.” United States v. Poulsen, 655 F.3d

492, 512–13 (6th Cir. 2011) (quoting United States v. Nelson, 356 F.3d 719, 722 (6th Cir.

2004)). However, in this calculation, a court “need only make a reasonable estimate of the loss.”

U.S.S.G. § 2B1.1 cmt. n.3(C). In other words, a court “does not have to establish the value of

the loss with precision; it simply needs to publish the resolution of contested factual matters that

formed the basis of the calculation.” Poulsen, 655 F.3d at 513 (quotation marks omitted). So,

we must determine “(1) whether the amount was in dispute; (2) if it was in dispute, whether the



                                                -3-
Case No. 15-2001, United States v. Patel


district court adequately ruled on the disputed amount; and (3) if the district court ruled, whether

the factual findings indicate clear error.” Id.

       Both parties acknowledge that the district court failed to make factual findings on the

amount of loss. Accordingly, this case depends on whether Patel put the amount of loss in

dispute. A defendant can put the amount in dispute by introducing “some evidence beyond a

bare denial that calls the reliability or correctness of the alleged facts into question.” United

States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003) (quotation marks omitted). Patel claims to

have done so, and a significant part of both parties’ sentencing memoranda and the sentencing

hearing revolved around the amount of loss. However, the government contends that Patel made

only legal arguments about why the amount of loss should be lower and failed to put any facts in

dispute, and therefore failed to trigger Rule 32.

       Patel failed to put any specific fact regarding the amount of loss in dispute. To put a fact

in dispute so as to trigger Rule 32, a defendant must actively dispute the veracity of a fact. See

United States v. McGee, 529 F.3d 691, 700–01 (6th Cir. 2008) (concluding that facts were not

put in dispute where the defendant challenged their relevancy rather than their veracity). The

defendant must then produce some evidence to call the reliability of the contested fact into

question. See Lang, 333 F.3d at 681. Patel challenged the government’s argument that the

amount of loss was over $1.3 million, but he never produced any evidence to counter the amount

of loss recommended by the PSR, as he was required to do under Lang. In fact, Patel barely

mentioned the PSR at all in his sentencing memorandum. Where Patel did challenge the amount

of loss, he made legal, not factual, arguments. He argued that the amount of loss should have

been between $30,000 and $70,000 because “‘intended loss’ means ‘a loss that the defendant

purposely sought to inflict.’” (Def.’s Sentencing Mem., R. 316, PageID 2142–43 (quoting



                                                  -4-
Case No. 15-2001, United States v. Patel


United States v. Manatau, 647 F.3d 1048, 1056–57 (10th Cir. 2011).) But Patel failed to

challenge the veracity of any fact relied on by the PSR in its recommendation of the amount of

loss. Accordingly, the district court was not required to make factual findings under Rule 32.

       Patel also argues that his sentence was procedurally unreasonable because the district

court did not make factual findings or specifically rule on his objection to the two-level

enhancement for abuse of a position of trust or use of a special skill. See U.S.S.G. § 3B1.3. At

the sentencing hearing, the district court asked, “What about his training as a physical therapist?

Isn’t that a special skill?” (Sentencing Hr’g Tr., R. 409, PageID 4000–04.) Later, the district

court seemingly, but not explicitly, accepted the enhancement for use of a special skill. (Id. at 34

(“So that gives me [] 41 to 51 months. And I am going to start there without going to any of the

other disputed points--the abuse of a special skill and so on.”).) This is evident from the fact that

the district court arrived at a range of 41–51 months of imprisonment, which corresponds to an

offense level of 22 given Patel’s criminal history category, and the district court had already

explicitly withdrawn the two-level enhancement for sophisticated means. Patel’s actual sentence

of 24 months was thus below the Guidelines range.

       A sentence below the Guidelines range may be the product of harmful error where a

decrease in the Guidelines range would have led the district court to impose a lower sentence.

See United States v. Randolph, 794 F.3d 602, 615 (6th Cir. 2015). However, here it is clear that

the district court “based the sentence . . . on factors independent of the Guidelines.” Molina-

Martinez v. United States, 136 S. Ct. 1338, 1346–47 (2016). The district court noted that courts

“give . . . too much weight to the guidelines” and that “they are not outcome determinative.”

(Sentencing Hr’g Tr., R. 409, PageID 4024.) Much of the sentencing hearing was dedicated to

comparisons between Patel and other defendants, with the district court endeavoring to find a



                                                -5-
Case No. 15-2001, United States v. Patel


valid comparison between Patel and similarly situated defendants. Finally, the sentence—terms

of 24 months of imprisonment to run concurrently—was reached with little reference to Patel’s

Guidelines range. Accordingly, even if the district court committed an error in not ruling on

Patel’s objection to the special skill enhancement, such an error was harmless.

       B. Restitution

       The amount of restitution is ordinarily reviewed for abuse of discretion, United States v.

Williams, 612 F.3d 500, 509 (6th Cir. 2010), and the findings of fact underlying the restitution

calculation are ordinarily reviewed for clear error, United States v. Triana, 468 F.3d 208, 321

(6th Cir. 2006).

       A district court has wide latitude to determine the amount of a victim’s losses. See

18 U.S.C. § 3664(f)(1)(A) (“[T]he court shall order restitution to each victim in the full amount

of each victim’s losses as determined by the court . . . .”) (emphasis added). “[T]he court can

order restitution for damage resulting from any conduct that was part of the conspiracy and not

just from specific conduct that met the overt act requirement of the conspiracy conviction.”

United States v. Sawyer, 825 F.3d 287, 295 (6th Cir. 2016) (quoting United States v. Elson,

577 F.3d 713, 723 (6th Cir. 2009)).

       The district court did not err in ordering restitution totaling the amount of loss

recommended by the PSR. Patel relies on his unsuccessful arguments about the amount of loss

in challenging the amount of restitution, buttressed by his claim that the district court failed to

make factual findings regarding the amount of restitution. However, “[s]pecific findings in the

imposition of restitution are not required.” United States v. Jackson-Randolph, 282 F.3d 369,

386 (6th Cir. 2002). Instead, the district court must rely on information with “a sufficient indicia

of reliability to support” the “probable accuracy” of the amount of restitution. Id. (quotation



                                               -6-
Case No. 15-2001, United States v. Patel


marks omitted). The information relied upon by the district court has “sufficient indicia of

reliability.” Id. The district court “reviewed . . . the PSR [and] the objections and memoranda of

the parties.” Id. It declined to impose the higher restitution amount requested by the prosecutor

and instead imposed an amount consistent with the PSR. See id. “Most importantly,” the district

judge “presided over [Patel’s] trial and thus had extensive exposure to the facts of the case.” Id.

       Finally, Patel’s argument that “intended loss” under the Guidelines means “a loss that the

defendant purposefully sought to inflict” is suspect. See U.S.S.G. § 2B1.1 cmt. n.3(F)(viii)

(“[T]he aggregate dollar amount of fraudulent bills submitted to the Government health care

program shall constitute prima facie evidence of the amount of the intended loss.”).

Accordingly, the district court did not err in imposing restitution.

                                          III. CONCLUSION

       Because Patel’s sentence was not procedurally unreasonable and the district court did not

err in imposing restitution, we affirm.




                                                -7-
