                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4255



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus

ABDORASOOL JANATI; FOROUZANDEH JANATI,

                                           Defendants - Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (CR-03-433)


Argued:   March 13, 2007                   Decided:   August 1, 2007


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stuart Alexander Sears, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia; Matthew William Greene, SMITH & GREENE,
P.L.L.C., Fairfax, Virginia, for Appellants.       David Benjamin
Joyce, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: John K. Zwerling, ZWERLING, LEIBIG & MOSELEY, P.C.,
Alexandria, Virginia, for Appellant Forouzandeh Janati. Paul J.
McNulty, United States Attorney, Steve A. Linick, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Dr. Abdorasool Janati and his wife, Mrs. Forouzandeh Janati,

were convicted of one count of conspiracy to defraud the United

States, in violation of 18 U.S.C. § 371, and 61 substantive counts

of health care fraud, in violation of 18 U.S.C. § 1347.             They

challenge both their convictions and sentences.        We affirm.



                                 I

     For over ten years, Dr. Janati and his wife, Mrs. Janati, ran

the Neurological Institute of Northern Virginia.       Dr. Janati was

a neurologist, and the Neurological Institute was his practice.

Mrs. Janati was the office manager.

     Between 1996 and 2003, the Janatis defrauded Medicare and

private insurance companies, overbilling them in three ways.

First, in billing insurers for nerve conduction tests, they

inflated the number of tests actually performed.         Second, they

billed insurers for brain wave studies that were never conducted.

Third, they “upcoded” office visits, meaning that when they billed

insurers, they represented that an office visit was more involved

or complex than it actually was, justifying a higher billing rate.

     The Janatis submitted bills to insurers, coding the work

performed in accordance with the Physicians’ Current Procedural

Terminology (CPT) manual. The CPT manual lists standardized codes

which   correlate   to   procedures   and   services    performed    by


                                -2-
physicians.     The CPT manual has five codes for office visits,

which are at issue in this case, ranging from Code 99211 to Code

99215, in increasing order of complexity and comprehensiveness.

Code 99211, the lowest level for such visits, is used when “the

presenting problem(s) are minimal. Typically, 5 minutes are spent

performing or supervising these services.”                   Code 99215, the

highest level for office visits, applies to visits that have at

least two of the following three components: (1) “a comprehensive

history”; (2) “a comprehensive examination”; and (3) “medical

decision making of high complexity.”           The “presenting problem(s)”

are   usually   of    moderate   to    high    severity,      and   physicians

“typically spend 40 minutes face-to-face with the patient and/or

family.”

      At   trial,    the   evidence   showed    that   the    Janatis   billed

virtually all office visits using the highest code, Code 99215,

without regard to the seriousness of the patient’s problem or the

complexity of the visit.         The government’s expert on medical

billing codes examined 471 office visits, including the visits

which were the subject of the indictment, and determined that

every one of the office visits was billed using Code 99215.               When

asked if the use of that billing code was justified for any of the

office visits, the expert replied, “Not a one.”

      While the Janatis correctly pointed out that selecting the

proper billing code for a given visit required some judgment, the


                                      -3-
government’s expert reiterated that the visits that she examined

were “[n]ot even close” to being properly classified at the Code

99215 level. Additionally, the government presented evidence that

Mrs. Janati had removed all billing codes below the Code 99214

level from the standard billing form used in the office.                Former

employees testified that the Janatis instructed them to bill all

follow-up visits under Code 99215, even though representatives of

Medicare and other insurance plans had warned them that this was

improper.

       Following conviction, the government offered another expert

on medical billing to support the forfeiture order.             He testified

by affidavit that of 364 billing records reviewed, 358 had been

billed using Code 99215 (six records were missing), and that each

of the records reviewed involved an inappropriate upcoding.

       At sentencing, the government and Dr. Janati (but not Mrs.

Janati) stipulated to the appropriate sentencing factors for

calculating the offense level under U.S.S.G. § 2B1.1 (offenses

involving fraud or deceit).      To the base offense level of 6, they

agreed to add 14 levels, based on a calculation of the insurers’

economic losses from the fraud of between $400,000 and $1 million.

See U.S.S.G. § 2B1.1(b)(1)(H).              The calculation resulted from

adding    overpayments   made    by     insurers    ($136,110     for   nerve

conduction tests that were never performed and $37,583 for brain

wave   tests   that   were   never    performed)    to   losses   caused   by


                                      -4-
overbilling for office visits (estimated by statistical sampling

to be $359,468.58).           While the calculation resulted in a figure

greater than $530,000, Dr. Janati and the government stipulated to

the somewhat smaller figure of $445,598.66.                     In addition, they

agreed that the number of victim insurers was between 10 and 50,

resulting     in    another      2-level     increase.          Thus,      under    the

stipulation,       the   final    offense     level       was   22,    although     the

government remained free to argue for an additional 2-level

enhancement for abuse of a position of trust.

       In sentencing Dr. Janati, the district court found that “the

loss and role in the offense that was agreed to by the parties

here    [was]      properly    assessed.”           Declining      any     additional

enhancement,       the   court    sentenced        Dr.    Janati   to     41   months’

imprisonment, the bottom of a Guidelines range.                       The court also

entered, by consent of Dr. Janati and the government, an order of

restitution,       requiring      payment     to     the    victim       insurers   of

$445,598.66 (the same as the stipulated economic losses).

       In   sentencing     Mrs.     Janati,   who        represented      herself    at

sentencing,     the      district    court    imposed       the    same     sentence.

Incorporating the findings that the court made with respect to Dr.

Janati, the district court found Mrs. Janati’s “Guideline factors

to be properly assessed at a range of 41 to 51 months as well.”

The court also entered a restitution order making Mrs. Janati




                                       -5-
jointly and severally liable for the restitution required of Dr.

Janati.



                                        II

        First,   the    Janatis   contend      that   their   convictions   for

upcoding should be overturned, because the standards for choosing

one billing code over another were “fatally vague,” in violation

of the Fifth Amendment’s Due Process Clause. They reason that the

fraud alleged in the “upcoding” counts was based on the standards

of the CPT manual, which are too “vague and ambiguous” to “provide

adequate guidance and/or notice upon which a criminal conviction

could validly exist.”

     While the Janatis focus on potential ambiguities in various

terms of the CPT manual, the fact remains that they were charged

with violating the health care fraud statute, 18 U.S.C. § 1347,

not the CPT manual.         The vagueness inquiry rests on whether the

challenged law provides sufficient notice for people to conform

their     conduct      to   the   law    and    to    prevent   arbitrary    or

discriminatory enforcement.         See Hill v. Colorado, 530 U.S. 703,

732 (2000); Kolender v. Lawson, 461 U.S. 352, 357 (1983) (noting

due process requires that “a penal statute define the criminal

offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does

not encourage arbitrary and discriminatory enforcement”). The CPT


                                        -6-
manual simply does not contain mandates backed by legal sanctions,

such   that    officials    must   enforce    them    or   that   people   need

sufficient notice of them so as to avoid penalties. Any vagueness

in the CPT manual itself cannot be the basis for a due process

challenge to the fraud violations in this case.

       The Janatis were convicted under the health care fraud

statute, 18 U.S.C. § 1347, which punishes one who

       knowingly and willfully executes . . . a scheme or
       artifice . . . to obtain, by means of false pretenses,
       representations, or promises, any of the money or
       property owned by, or under the custody or control of,
       any health care benefit program, in connection with the
       delivery or payment for health care benefits.

This provision is not overly vague.            It gives ample notice that

criminal      liability    attaches   to    those    who   knowingly   give    a

representation that could be shown to be objectively false about

services performed for the purpose of obtaining money.                     These

specific, particular elements more than satisfy the demands of due

process.   It is therefore unsurprising that courts have uniformly

rejected vagueness challenges to the parallel mail, bank, and

securities fraud statutes, see 18 U.S.C. §§ 1341-48.               See, e.g.,

United States v. Welch, 327 F.3d 1081, 1109 n.29 (10th Cir. 2003);

United States v. Szur, 289 F.3d 200, 209 n.5 (2d Cir. 2002).

       The Janatis’ contention that the CPT manual supports a

vagueness claim would merit more serious consideration if the

government failed to prove scienter, thereby undermining the legal

basis for their convictions.               The health care fraud statute

                                      -7-
requires a specific intent to defraud, see 18 U.S.C. § 1347, and

the indictment charged that the Janatis knowingly misrepresented

that Dr. Janati had performed services that qualified for billing

at the Code 99215 level.    Any opacity of the CPT manual would have

to be so great that one could not know the proper code and

therefore could not knowingly record an improper code.      But then,

the Janatis’ vagueness challenge would be no more than a challenge

to the sufficiency of the evidence of their mental states.

      The evidence overwhelmingly demonstrates, however, that the

Janatis knowingly used improper CPT codes if for no other reason

than the fact that they altered their forms to eliminate even the

option of billing at a level lower than Code 99214.      In addition,

before 1996, the Janatis billed the majority of their services at

the Code 99213 level, which demonstrates their knowledge of the

proper codes.   After 1996, they billed every visit at the highest

level, showing a lack of any good faith concern with how to bill

at the proper level.   The government’s expert testified at trial

that none of the charged visits came “even close” to warranting

the Code 99215 billing level.     Finally, there was evidence that

the   Janatis   continued   to   bill   falsely   even   after   being

specifically warned by Medicare officials and other insurers that

their billing was improper.      The evidence that the government

presented was thus incompatible with the Janatis’ claim that the




                                 -8-
CPT manual was too vague to understand, and we therefore reject

the vagueness challenge.



                                        III

       Mrs. Janati contends that, in sentencing her, the district

court failed to make findings on the record relating to the

sentencing factors of economic loss and the number of victims,

claiming that she was improperly saddled with the stipulation

entered into by her husband and the government.              We conclude that

her    contention    is    without     merit.      The   loss    figure,    while

stipulated to by her husband, was actually based on the scrupulous

calculation by government experts and was agreed to be the actual

loss by the presentence report. Moreover, the district court made

an independent finding of the loss figure, stating, “I find the

Guideline factors in this case to be properly assessed [with

respect to Dr. Janati’s sentence] at a range of 41 to 51 months.

I find that the loss and role in the offense that was agreed to by

the parties here to be properly assessed.”               He then incorporated

that    independent        finding     into     Mrs.     Janati’s      Guidelines

calculation:        “I    find   the   Guideline   factors      to   be   properly

assessed at a range of 41 to 51 months as well.”                     Because Mrs.

Janati’s participation in the conspiracy gave no basis for a

different calculation and she provided no information suggesting

the calculation was wrong, the district court was undoubtedly


                                        -9-
correct, and certainly did not commit clear error. This procedure

satisfied    the    district      court’s       obligation   to     make    factual

determinations on the record.             See United States v. Bolden, 325

F.3d 471, 497 (4th Cir. 2003) (permitting district court to

resolve disputed issues of fact simply by making findings on the

record or adopting findings contained in the record).



                                          IV

      Mrs.   Janati     similarly         contends    that        the   amount    of

restitution was improperly ordered by the district court based on

her husband’s stipulation. For the reasons discussed in Part III,

the   district     court    did    not    clearly     err    in    assessing     the

restitution amount, which was simply the actual loss determined by

the government, probation office, and district court.                      She also

contends that the probation officer and the district court failed

to comply with the procedural requirements for entering her

restitution order.         See 18 U.S.C. §§ 3663A, 3664.                But she has

presented no evidence of such a failure, and we therefore find

this argument without merit.



                                          V

      Both of the Janatis contend that their sentences of 41

months’ imprisonment plus three years’ supervised release are

unreasonable.      They claim that reason required the district court


                                         -10-
to impose a lower, variance sentence in light of their commitment

to medicine; the destruction of their medical practice; Dr.

Janati’s age and health problems; their responsibilities to their

adult children; and Dr. Janati’s continuing to treat patients

after their insurers stopped reimbursing him.

       We disagree.     First, we observe that the sentences fell at

the bottom of the Guidelines range. Second, any sentence within

the Guidelines enjoys a presumption of reasonableness. See United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006); see also Rita

v. United States, ___ S. Ct. ___ (June 21, 2007) (approving this

court’s presumption of reasonableness for a sentence within the

Guidelines).      Third, the reasons advanced by the Janatis for a

variance sentence are actually discouraged in most instances. See

U.S.S.G. § 5H1.1 (age); U.S.S.G. § 5H1.2 (education and vocational

skills); U.S.S.G. § 5H1.5 (employment record); U.S.S.G. § 5H1.6

(family ties and responsibilities); U.S.S.G. § 5H1.11 (prior good

works).      To the extent that the Guidelines already take them into

account, consideration of such factors would tend to undermine the

sentencing goals of fairness and uniformity.

       The reasonableness of these sentences is bolstered by the

fact   the    Janatis   benefited   from   several   decisions   that   the

district court made in calculating the Guidelines range.                An

argument could have been made that the loss amounts upon which the

offense levels rested should have been substantially higher.


                                    -11-
Similarly,   the    number      of   victims      defrauded   may   have   been

substantially greater than 50, which would have triggered a

further two-point enhancement. In addition, Dr. Janati could have

received a 2-level enhancement for abuse of a position of trust,

and Mrs. Janati could have received a 2-level enhancement for

obstruction of justice, as the presentence report recommended.

Finally, both could have received enhancements for aggravated

roles in the offense.           In relation to the provisions of the

Sentencing Guidelines, the Janatis received relatively lenient

sentences.

     Given the far-reaching nature of the Janatis’ fraudulent

scheme, involving many victims and large sums of money over many

years, the sentences appear to fulfill the purposes of sentencing.

See United States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) (“A

sentence   that    does   not    serve      the   announced   purposes     of   §

3553(a)(2) is unreasonable”).          They “reflect the seriousness of

the offense, [] promote respect for the law, and [] provide just

punishment for the offense,” 18 U.S.C. § 3553(a)(2)(A), as well as

“afford    adequate   deterrence         to    criminal   conduct,”      id.    §

3553(a)(2)(B).



                                       VI

     Finally, we reject the Janatis’ argument that the district

court failed to provide an adequate explanation of the basis for


                                      -12-
their sentences.      See United States v. Johnson, 445 F.3d 339, 345

(4th   Cir.   2007)   (noting   that   the   district   court   need   not

“robotically tick through § 3553(a)’s every subsection”); see also

United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006).

                            *    *       *

       The Janatis’ convictions and sentences are

                                                                AFFIRMED.




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