                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 10 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30129

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05703-RBL-1

  v.
                                                 MEMORANDUM*
ANTOINE DOUGLASS JOHNSON,
M.D.,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-30134

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05703-RBL-2

  v.

LAWANDA JOHNSON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted August 27, 2013
                                Seattle, Washington

Before: McKEOWN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.**

      Defendants Antoine and LaWanda Johnson were convicted by jury of

multiple counts of health care fraud and filing a false tax return, and Antoine

Johnson was also convicted on charges of illegal distribution of a controlled

substance. On appeal, they challenge their convictions and sentences on a variety

of grounds. We affirm.

I.    Joint Challenges

      Both defendants ask for reversal of their convictions because the district

court refused to give a jury instruction stating that Elizabeth Hughes was an

accomplice and warning the jury to consider her testimony with caution. But even

if the district court erred in failing to give such an instruction, that error would not

warrant reversal. The failure to give an accomplice credibility instruction requires

reversal if the accomplice testimony “supplies the only strong evidence of guilt.”

United States v. Moore, 700 F.2d 535, 536 (9th Cir. 1983), amended, 730 F.2d 558



       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.


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(9th Cir. 1984). In this case, there was plenty of strong evidence proving that the

Johnsons were guilty of health care fraud. For example, state and federal agencies

sent complaints and audit results to the clinic, refuting the defense that the

Johnsons were unaware that upcoding was occurring. Moreover, Barbara Phillips

testified that she told Ms. Johnson that certain insurance claim forms indicated a

higher level of service than had been performed. When Phillips refused to sign the

forms, Ms. Johnson replied that she would use a stamp with Dr. Johnson’s

signature instead. And the ample evidence that upcoding occurred in the clinic for

years was by itself enough for the jury to infer that those responsible for managing

the clinic, and who stood the most to profit from overcharging for claims, were

behind the practice.

      The Johnsons also challenge their orders of forfeiture, arguing that a

forfeiture order based on judicial factfinding violates the Sixth Amendment. In

Libretti v. United States, the Supreme Court held that the Sixth Amendment does

not require a jury determination on forfeitability. 516 U.S. 29, 49 (1995). In a

recent case in which the defendant challenged an order of forfeiture based on

judicial factfinding, we concluded that Libretti was still good law. See United

States v. Phillips, 704 F.3d 754, 769–70 (9th Cir. 2012) (“Because Libretti has

direct application in this case, we are bound by its holding even if it might appear


                                           3
to rest on reasons rejected in some other line of decisions.” (internal quotation

marks omitted)), cert. denied, 133 S. Ct. 2796 (2013). The Johnsons urge us to

reconsider in light of Alleyne v. United States, 133 S. Ct. 2151 (2013), in which the

Court held that any fact increasing a mandatory minimum sentence must be

submitted to a jury. Even if some of the reasoning underlying the two cases is in

tension, however, Alleyne did not purport to overrule Libretti. Therefore, we

remain bound by the specific holding in Libretti concerning forfeiture. See Phillips,

704 F.3d at 769–70. Accordingly, the Johnsons’ challenge to their orders of

forfeiture fails.

       The district court imposed a supervised release condition on each of the

Johnsons requiring that they “not frequent places where controlled substances are

illegally sold, used, distributed, or administered,” which the Johnsons challenge as

impermissibly vague. Because neither defendant raised this issue before the district

court, we review it on appeal for plain error. United States v. Vega, 545 F.3d 743,

747 (9th Cir. 2008). In Phillips, defendant argued that the same condition of

supervised release was vague for the same reasons set forth by the Johnsons. 704

F.3d at 767–68. There, we concluded that the district court did not plainly err in

imposing the condition, holding that a reasonable person would construe the

condition as only prohibiting knowingly going to a specific place where drugs are


                                           4
used or sold, and as not forbidding incidental contact with such places. Id. at 768.

For the same reasons, we hold that the district court did not plainly err in imposing

the supervised release condition here.

II.   LaWanda Johnson’s Sentencing

      LaWanda Johnson also challenges two of the enhancements applied to her

sentencing calculation. We review the district court’s interpretation of the

Sentencing Guidelines de novo, application of the Guidelines to the facts for abuse

of discretion, and factual findings for clear error. United States v. Armstead, 552

F.3d 769, 776 (9th Cir. 2008). Generally, the standard for finding facts at

sentencing is a preponderance of the evidence. United States v. Dare, 425 F.3d

634, 642 (9th Cir. 2005).

      Ms. Johnson argues for the first time on appeal that the enhancements must

be supported by clear and convincing evidence, so we review for plain error

whether it was proper to apply a preponderance of the evidence standard. See

Armstead, 552 F.3d at 776. We conclude that it was not error of any kind to apply a

preponderance of the evidence standard to either of the sentencing enhancements.

While a clear and convincing standard is proper when the sentencing factor “has an

extremely disproportionate effect on the sentence relative to the offense of

conviction,” Dare, 425 F.3d at 642, the two-level enhancement based on the


                                          5
number of victims is not such a factor. See Armstead, 552 F.3d at 777–78 (“[A]

two-level enhancement is not an exceptional circumstance that could warrant a

higher standard of proof.” (internal quotation marks and alteration omitted)). The

sixteen-level enhancement for loss amount had a much more significant impact on

her sentence, but even an enhancement with a larger impact on the sentence is

satisfied by a preponderance of the evidence when the enhancement is “based on

criminal activity for which the defendant has already been convicted” rather than

“uncharged or acquitted conduct.” Id. at 777. Ms. Johnson was convicted of thirty-

four counts of health care fraud all arising from the same scheme, which were

grouped together for the purposes of calculating her sentence. Because the loss

amount depended on the extent of the scheme rather than on conduct distinct from

the crimes of conviction, the district court did not err in applying a preponderance

of the evidence standard.

      We further conclude that the district court did not clearly err in finding that

the enhancements were supported by a preponderance of the evidence. The two-

level enhancement for ten or more victims was supported by an analysis of clinic

patient records demonstrating that dozens of insurance companies had suffered

losses on account of the clinic’s fraudulent billing. Though fewer than ten of these

companies asked for restitution, a victim for the purposes of sentencing is “any


                                          6
person who sustained any part of the actual loss” included in the loss calculation.

Armstead, 552 F.3d at 780–81 (quoting U.S.S.G. § 2B1.1 cmt. n.1). Ms. Johnson

cites no authority for the proposition that an entity must request restitution to be

counted as a victim. And even though the government conceded that a few of the

insurance companies on its list were not victims because they did not pay the bills,

this concession does not make a finding of more than ten victims error, given that

the original list contained several dozen companies.

      Nor did the district court clearly err in finding a loss amount of over

$1,000,000 in support of the sixteen-level enhancement. The government presented

a loss estimate of $1,869,492, based on trial testimony and clinic billing records.

Though this figure was an extrapolation from reasoned assumptions, rather than a

precise calculation of the amount of loss, the district court did not err in relying

upon it. The district court “need only make a reasonable estimate of the loss.”

Armstead, 552 F.3d at 778 (quoting U.S.S.G. § 2B1.1 cmt. n.3(C)); see also United

States v. Scrivener, 189 F.3d 944, 950 (9th Cir. 1999) (affirming an estimate that

extrapolated total loss from a small sample of victims). While Ms. Johnson

presented her own calculations resulting in a much smaller sum at sentencing, the

government pointed out errors in her methodology to which she provides no

response even on appeal. Ms. Johnson has not demonstrated why the district court


                                           7
was not entitled to adopt the government’s methodology over her own. See

U.S.S.G. § 2B1.1 cmt. n.3(C) (“The sentencing judge is in a unique position to

assess the evidence and estimate the loss based upon that evidence.”).

III.   Antoine Johnson’s Motion to Dismiss

       Finally, Antoine Johnson challenges the district court’s denial of his pretrial

motion to dismiss the indictment, arguing that the district court failed to consider a

pertinent piece of evidence—the waiver notification form—when ruling upon that

motion. By Dr. Johnson’s own admission, however, that evidence was never before

the district court when it ruled upon the original motion to dismiss the indictment

or Dr. Johnson’s motion to reconsider that ruling. According to him, the waiver

notification form was subsequently introduced into evidence at trial. But we cannot

fault the district court for failing to consider evidence not before it at the time it

ruled upon a motion, and we decline to consider it now. See Kirshner v. Uniden

Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers submitted to the

district court after the ruling that is challenged on appeal should be stricken from

the record on appeal.”).

       Even were we to consider the waiver notification form, it would not

convince us that the district court erred in concluding that Dr. Johnson was not a

drug abuse treatment program. A drug abuse treatment program is an individual or


                                            8
entity that not only provides drug abuse treatment, but also “holds itself out as

providing” treatment. See 42 C.F.R. § 2.11. The district court’s conclusion was

based on a finding that Dr. Johnson did not hold himself out as providing drug

abuse treatment, which we review for clear error. United States v. Hinojosa-Perez,

206 F.3d 832, 835 (9th Cir. 2000). Even had the district court considered the

evidence at issue, which according to Dr. Johnson shows that he consented to be

listed on a registry of doctors certified to provide a particular type of drug abuse

treatment, this evidence does not make the district court’s finding “illogical,

implausible, or without support in the record.” In re Retz, 606 F.3d 1189, 1196 (9th

Cir. 2010). Taken together, the evidence in the record supported a finding that he

did not advertise or market himself as a drug abuse treatment program, instead only

providing treatment to current patients that tested positive for drug use.

      AFFIRMED.




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