                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 14 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    13-50169

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00679-GHK-1

 v.
                                                 MEMORANDUM*
UBEN RUSH,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                     Argued and Submitted November 10, 2016
                               Pasadena, California

Before: SCHROEDER and BYBEE, Circuit Judges, and SMITH, Chief District
Judge.**




       *    This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **     The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
      Uben Rush (“Rush”) was convicted of eleven counts of healthcare fraud in

violation of 18 U.S.C. § 1347 and three counts of illegal remunerations involving a

federal healthcare program in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). Rush

appeals from her convictions, claiming that (1) the Government’s peremptory

strike of a black juror on the jury panel violated Batson v. Kentucky; (2) the

admission of her prior trial testimony and the subsequent issuance of a cautionary

instruction was plain error; and (3) her convictions under both statutes violated the

Fifth Amendment’s double jeopardy clause. Rush also appeals from her 156-

month sentence of imprisonment, claiming that (1) the district court erred when it

applied a 20-level enhancement to her sentencing calculation after finding that the

total loss to Medicare exceeded $8,000,000; (2) the 151-188 month sentencing

range calculated was a violation of her Sixth Amendment right to a fair jury trial;

and (3) the district court erred when it applied a 2-level enhancement based on its

finding that she abused a position of trust pursuant to U.S. Sentencing Guidelines

Manual (“U.S.S.G.”) § 3B1.3. In addition, Rush claims that the district court erred

when it ordered her to pay Medicare $8,184,356 in restitution. We affirm.

      1. The district court did not err when it concluded that the Government had

not committed a Batson error by exercising a peremptory strike on the jury panel’s

only black juror. The Government’s proffered race-neutral explanation for its


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exercise of the peremptory strike is sufficiently race-neutral. See Stubbs v. Gomez,

189 F.3d 1099, 1105–06 (9th Cir. 1999); United States v. Changco, 1 F.3d 837,

840 (9th Cir. 1993). Rush did not meet her burden of showing the peremptory

strike was for an improper purpose.

      2. The district court did not plainly err by either allowing Rush’s testimony

from her first trial to be read into the record or by issuing a cautionary instruction

to the jury instructing them that, during their deliberations, they could consider

Rush’s prior testimony as evidence but they could not consider the fact that a

previous trial had occurred. Rush specifically assented to the admission of the

prior trial testimony, the issuance of the cautionary instruction, and the substance

of the cautionary instruction, thereby waiving any substantive objections. See

Puckett v. United States, 556 U.S. 129, 135 (2009).

      3. Rush’s claim that her convictions for healthcare fraud and illegal

remunerations were multiplicitous because the latter is a lesser included offense of

the former is reviewed de novo. “To determine whether two statutory provisions

prohibit the same offense, we must examine each provision to determine if it

‘requires proof of a[n additional] fact which the other does not.’” United States v.

Davenport, 519 F.3d 940, 943 (9th Cir. 2008) (alteration in original) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)). Both 18 U.S.C. § 1347


                                           3
and 42 U.S.C. § 1320a-7b(b)(2)(A) relate to federal healthcare programs.

Healthcare fraud alone requires proof of a scheme to either defraud a benefit

program or to obtain a program’s money or property by means of false or

fraudulent pretenses, whereas illegal remunerations alone requires proof of a

remuneration to induce a referral for any item or service from a program.

Convictions for violations of both statutes are, therefore, not multiplicitous. See

Davenport, 519 F.3d at 943.

      4. Rush claims that the district court erred by basing the loss calculation

applied in the sentencing process on Medicare’s entire loss instead of basing the

loss calculation solely on the specific counts in the indictment. When fraud is

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

n.3(A). The district court “need only make a reasonable estimate of the loss.” Id. at

cmt. n.3(C). “In health care fraud cases, the amount billed to an insurer shall

constitute prima facie evidence of intended loss for sentencing purposes.” United

States v. Popov, 742 F.3d 911, 916 (9th Cir. 2014) (citing U.S.S.G. § 2B1.1 cmt.

n.3(F)(viii)). The district court’s loss determination is entitled to deference

because “[t]he sentencing judge is in a unique position to assess the evidence and

estimate the loss based upon that evidence.” U.S.S.G. § 2B1.1 cmt. n.3(C). The




                                           4
district court did not abuse its discretion by including Medicare’s entire loss in

determining the applicable loss calculation during sentencing.

      5. Rush claims that her Sixth Amendment right to a fair trial was violated

when the district court found that all of the claims that her companies submitted to

Medicare were fraudulent, thus exposing her to a sentencing range of 151-188

months. This Court has been clear, however, that “extra-verdict findings” are only

problematic in a mandatory guidelines system, United States v. Ameline, 409 F.3d

1073, 1078 (9th Cir. 2005), and that “judicial consideration of facts and

circumstances beyond those found by a jury or admitted by the defendant does not

violate the Sixth Amendment right to jury trial.” United States v. Treadwell, 593

F.3d 990, 1017 (9th Cir. 2010) (citations omitted). Rush’s sentence of 156 months

is not substantively unreasonable because it is at the low end of the range

calculated using the sentencing guidelines and does not exceed the statutory

maximum for either offense of conviction. See United States v. Laurienti, 731 F.3d

967, 976 (9th Cir. 2013); Treadwell, 593 F.3d at 1015. The district court,

therefore, did not abuse its discretion in sentencing Rush to 156 months’

imprisonment.

      6. The district court did not err by applying a 2-level enhancement based on

Rush’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. See United States


                                           5
v. Adebimpe, 819 F.3d 1212, 1219-20 (9th Cir. 2016) (holding that this abuse-of-a-

position-of-trust enhancement could apply to a Medicare equipment supplier).

      7. Rush challenges the amount of restitution that she was ordered to pay to

Medicare as improperly including claims paid by Medicare that were not

specifically alleged in the indictment. 18 U.S.C. § 3664(f)(1)(A) mandates that,

“[i]n each order of restitution, the court shall order restitution to each victim in the

full amount of each victim’s losses as determined by the court . . . .” The district

court did not abuse its discretion when it ordered Rush to pay the full amount of

Medicare’s loss in restitution because it carefully determined the total loss

sustained by Medicare and subtracted the amount of money that Rush voluntarily

refunded to Medicare.

      AFFIRMED.




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