     Case: 12-41410      Document: 00512642028         Page: 1    Date Filed: 05/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 12-41410                                FILED
                                  Summary Calendar                          May 27, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VALENTE ALANIZ, III,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:11-CR-1672-2


Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
       Valente Alaniz, III, appeals following his guilty plea and sentence for
conspiracy to commit health care fraud. In agreement with his sister and
through her company, Alaniz submitted fraudulent claims to Medicare and
Medicaid for power wheelchairs and other medical supplies.
       Alaniz contends that there was not a sufficient factual basis for the plea
because there was no showing that the use of the mail was essential to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 12-41410

success of the scheme. He fails to explain the relevance of this mail-fraud
argument to a violation of the health care fraud statute that says nothing about
the use of the mail. Alaniz’s conviction for health care fraud required only that
the scheme affect interstate commerce, and it did. See United States v. Klein,
543 F.3d 206, 210 11 (5th Cir. 2008) (citing 18 U.S.C. §§ 24(b), 1347). This
argument is frivolous.
      Alaniz contends that the loss calculation of more than $200,000 was
incorrect. We review for clear error. See United States v. Njoku, 737 F.3d 55,
75 76 (5th Cir. 2013). A loss calculation is not clearly erroneous if it is plausible
in light of the record as a whole. United States v. Taylor, 582 F.3d 558, 564
(5th Cir. 2009). “The district court need only make a reasonable estimate of
the loss.”   Njoku, 737 F.3d at 75 (internal quotation marks and citation
omitted).    Although Alaniz argues about “actual loss,” the district court
properly based the sentence on the greater figure of intended loss. See U.S.S.G.
§ 2B1.1, comment. (n.3(A)); Njoku, 737 F.3d at 75. The amount fraudulently
billed was prima facie evidence of intended loss. United States v. Isiwele, 635
F.3d 196, 203 (5th Cir. 2011). But the district court made a conscientious
assessment of evidence and arguments before finding that the intended loss
was equal to only 80% of the billed amount. This finding is plausible and not
clearly erroneous. See Njoku, 737 F.3d at 75 76; Taylor, 582 F.3d at 564.
      We also review for clear error the court’s finding that Alaniz used
sophisticated means in committing the crime. See United States v. Conner, 537
F.3d 480, 492 (5th Cir. 2008). Alaniz created multiple false documents to
support his fraudulent claims. This is similar to other acts that have been held
to support the enhancement. See United States v. Wright, 496 F.3d 371, 378
79 (5th Cir. 2007) (fraudulent cashier’s checks to help borrowers falsely appear
creditworthy); United States v. Clements, 73 F.3d 1330, 1340 (5th Cir. 1996)



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(cashier’s checks and a separate bank account that made it more difficult for
the Government to detect tax evasion).
      We also find no clear error in the district court’s increase of Alaniz’s
offense level for abusing a position of trust. As a medical equipment provider,
Alaniz occupied a position of trust with regard to Medicare and Medicaid. See
United States v. St. Junius, 739 F.3d 193, 209-10 (5th Cir. 2013). We have
“consistently affirmed the position of trust enhancement’s application to
Medicare and Medicaid providers when sufficient evidence supported a finding
that they had substantial discretion to submit claims they knew would likely
not be scrutinized.” United States v. Read, 710 F.3d 219, 233 (5th Cir. 2012).
Alaniz played a major role in the business; he was responsible for billing and
operations; and he used his position to commit fraud.
      The record also fully supports a two-level increase for obstruction of
justice, another claim we review for clear error. See United States v. Martinez,
263 F.3d 436, 441 (5th Cir. 2001). When investigators requested files, Alaniz
placed false and backdated documents into the files with the intent to deceive
investigators into thinking that the fraudulent bills were simply errors that
had been corrected by voluntary refunds, though no such refunds were made.
Moreover, the district court found that Alaniz continued to mislead
investigators concerning the fake documents until he admitted their falsity six
months later.     The record refutes Alaniz’s naked assertions that the
obstruction occurred contemporaneously with the arrest and was not willful or
an impediment to the investigation.
      The record also soundly refutes Alaniz’s contention that the offense level
should have been reduced by three levels because the conspiracy was
incomplete.     Alaniz spuriously cites the fake forms meant to mislead
investigators as evidence of his withdrawal from the conspiracy. He also says



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without any factual or legal support that the conspiracy was not completed
until he received all of the money that he billed. This claim is frivolous.
      Alaniz’s challenge to the restitution order is also frivolous. He asserts
falsely that the district court used “intended loss” rather than “actual loss” in
calculating restitution. The restitution amount was less than the intended loss
and was based on actual loss.
      The judgment of the district court is AFFIRMED.
      We must also note that Alaniz’s appeal brief is remarkably poor. First,
retained counsel, Larry Warner, made two unnecessary and wasteful
arguments. He argued that Alaniz was permitted to appeal because he had
been released from a plea agreement containing an appeal waiver. But nothing
in the record suggests that Alaniz ever waived his right to appeal or that he
was released from the terms of his simple plea agreement. Counsel also argued
that Alaniz should have been given credit for acceptance of responsibility
though he had already received the maximum credit. In addition, some of
counsel’s arguments were based on significant misunderstandings or
misrepresentations of the record. And his “arguments” generally consisted of
large block quotations and extensive transcript excerpts that were not even
modified to remove the line numbers that appear in the transcript margins.
      Sanctions may be warranted where counsel’s arguments are “totally
without merit and his briefing . . . sloppily prepared.” Macklin v. City of New
Orleans, 293 F.3d 237, 241-42 (5th Cir. 2002). We have imposed sanctions
under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927 for the
filing of a “‘slap-dash’ excuse for a brief” after noting that “poor quality of
briefing is inexcusable.” Carmon v. Lubrizol, 17 F.3d 791, 795 96 (5th Cir.
1994). Counsel is therefore WARNED that we will impose sanctions for future




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                                No. 12-41410

frivolous filings. See Cilauro v. Thielsch Engineering, 123 F. App’x 588, 590-
91 (5th Cir. 2005) (warning).




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