     Case: 18-20650    Document: 00515236863      Page: 1   Date Filed: 12/16/2019




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

                                                                      FILED
                                   No. 18-20650               December 16, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


             Plaintiff-Appellee,

v.

RIYAZ MAZKOURI, also known as Riaz Mazcuri,

             Defendant-Appellant.


                Appeal from the United States District Court
                     for the Southern District of Texas


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      A jury convicted Dr. Riaz Mazcuri for his role in a massive conspiracy to
commit healthcare fraud at Riverside General Hospital. The jury also
convicted him of fraudulently billing Medicare by exploiting five nursing-home
residents with severe dementia. Mazcuri challenges his conviction and
sentence. We affirm.
                                        I.
      From 2006 to 2012, Mazcuri was the attending physician at two partial-
hospitalization programs at Riverside General Hospital (“Riverside”)—
Riverside Central (“Central”) and Devotions Care Solutions (“Devotions”).
Partial-hospitalization programs are outpatient psychiatric services designed
to provide intensive, daily treatment to patients who have been discharged
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                                 No. 18-20650
from inpatient treatment or who suffer from an acute exacerbation of a chronic
mental disorder. Mazcuri orchestrated a conspiracy at these facilities to bill
Medicare for unprovided or unnecessary services.
      Count 1 of the indictment charged Mazcuri with conspiracy to commit
healthcare fraud. At trial, Mazcuri’s co-conspirator Regina Askew testified
that Mazcuri admitted large numbers of patients to Central after speaking
with them for only about five minutes. When he was in a rush, Mazcuri
sometimes admitted patients after seeing them in a group or talking to them
briefly on the sidewalk.
      Kristen Behn Courtney, who worked as a van driver and technician at
Central, testified that she picked up patients with Alzheimer’s disease or other
forms of severe dementia from a nursing home called Mission Care. She
observed that those patients often had to be coaxed into entering her van
because they didn’t understand where they were going. Courtney also prepared
Central’s patients for “doctor days,” when Mazcuri would visit the facility to
see his patients. On those days, Mazcuri spent “maybe a minute, minute and
a half,” with each patient. He visited groups of patients in wheelchairs and
never talked to them individually. Sometimes, Mazcuri left the facility without
having seen all of his patients. Robert Crane, another co-conspirator, testified
that similar practices occurred at Devotions. Askew, Courtney, and Crane were
just a few of the many witnesses who testified about Mazcuri’s role in the
conspiracy.
      Counts 2–6 of the indictment charged Mazcuri with aiding and abetting
healthcare fraud involving five specific patients at the Mission Care nursing
home. Mazcuri admitted these five patients to Central, but they all had severe
dementia and could not have benefited from treatment. For example, the
patient involved in Count 3 believed the year was 1938 when it was 2009 and
thought he lived in a casino. When the Mission Care psychiatrist asked the
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                                 No. 18-20650
patient involved in Count 4 where she was, she responded, “October, October.”
Her dementia was so advanced that the psychiatrist recommended her for
hospice care one year before Mazcuri authorized her treatment at Central. The
patient involved in Count 5 had Alzheimer’s and could not understand why a
driver was picking her up from Mission Care each day. These patients’ illnesses
were so severe that they were not eligible for partial-hospitalization programs.
But Mazcuri admitted them anyway and sent the bill to Medicare.
      These were not the only patients with severe dementia that Mazcuri
exploited. Courtney testified that Government’s Exhibit 67 contained a list of
patients with post-admission instructions such as, “Take off dementia” and
“Take off Alzheimer’s.” She explained: “[I]f they had those diagnoses, they were
not appropriate for the [partial-hospitalization] program. So, we had to take
[them] off.”
      With respect to the five patients involved in Counts 2–6, Mazcuri
personally billed Medicare for 382 visits, totaling $44,500, and Riverside billed
Medicare for 2,713 days of services, totaling $1,555,100. Over the course of the
conspiracy from 2006 to 2012, Mazcuri and Riverside together billed Medicare
for $69,512,730.25. Medicare paid $22,922,199.91 on those claims.
      A jury found Mazcuri guilty on all six counts. The district court
calculated a final offense level of forty-three under the Sentencing Guidelines.
That typically results in a recommendation of life in prison. But Mazcuri’s
counts each carried a maximum penalty of ten years. Under the Guidelines,
that meant his recommended sentence was sixty years. U.S.S.G. § 5G1.2(d).
The district court varied downward from the Guidelines recommendation and
imposed a sentence of 150 months. It also ordered restitution of $22,922,199.91
and forfeiture of $500,000. Mazcuri timely appealed.




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                                 No. 18-20650
                                      II.
      Mazcuri challenges his conviction based on three alleged errors by the
district court. He argues that these errors were so prejudicial that we must
grant him a new trial. We reject each argument in turn.
                                      A.
      Mazcuri argues that the district court violated Federal Rule of Evidence
1006 when it admitted into evidence certain summary charts, marked as
Government’s Exhibits 93–97. Those exhibits summarize fraudulent activity
found in two voluminous spreadsheets, Government’s Exhibits 3 and 5. The
summary charts show that Mazcuri sometimes billed more than twenty-four
hours of services in a single day. For example, one chart shows that Mazcuri
reported 58.9 hours of service for 106 patients on July 22, 2008.
      Rule 1006 permits the use of “a summary, chart, or calculation to prove
the content of voluminous writings” that “cannot be conveniently examined in
court.” The district court has broad discretion to admit these sorts of summary
charts. See Irons v. Aircraft Serv. Int’l, Inc., 392 F. App’x 305, 314 (5th Cir.
2010). The parties dispute whether Mazcuri preserved his Rule 1006
arguments in the trial court and hence whether plain-error review applies. See
Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Sanchez-
Hernandez, 931 F.3d 408, 410–11 (5th Cir. 2019). We need not resolve the
disagreement, however, because Mazcuri’s arguments are meritless under any
standard of review.
      First, Mazcuri is wrong to claim that the Government should have
disclosed the summary charts earlier. Rule 1006 says that a chart’s “proponent
must make the originals or duplicates available . . . at a reasonable time and
place.” But the rule says nothing about when the summary chart itself must
be disclosed to other parties. See, e.g., Colón-Fontánez v. Municipality of San
Juan, 660 F.3d 17, 30 (1st Cir. 2011); United States v. Bakker, 925 F.2d 728,
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                                       No. 18-20650
736 (4th Cir. 1991); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir.
1985). Mazcuri’s argument about the timing of the charts’ disclosure has no
basis in Rule 1006, so we reject it.
       Second, Mazcuri cannot challenge the summary charts on the basis that
they included claims submitted by Cadwalder Behavioral Clinics. We have
held that for Rule 1006, the “essential requirement is not that the charts be
free from reliance on any assumptions, but rather that these assumptions be
supported by evidence in the record.” United States v. Armstrong, 619 F.3d 380,
384 (5th Cir. 2010) (quoting United States v. Buck, 324 F.3d 786, 791 (5th Cir.
2003)). Here, there is no dispute that the summary charts accurately reflect
the claims data in Exhibits 3 and 5. And the Government proved at trial that
Mazcuri was the medical director for Cadwalder and had submitted bills using
Cadwalder’s provider number. If Mazcuri nonetheless thought the particular
presentation of otherwise-accurate information was “terribly misleading,” his
proper objection sounded in Rule 403, not Rule 1006. 1
                                              B.
       Mazcuri next argues that the district court should not have admitted into
evidence the criminal convictions of his co-conspirators. Mazcuri says the
information is either irrelevant or unduly prejudicial. See FED. R. EVID. 402,
403. We review the district court’s evidentiary rulings for abuse of discretion.


       1 Even if the district court erred, it would be harmless. See United States v. Spalding,
894 F.3d 173, 186 (5th Cir. 2018); United States v. Winn, 948 F.2d 145, 159 (5th Cir. 1991).
All four of the Winn factors are present here: (1) the charts were based on data in two
spreadsheets that the court admitted into evidence; (2) the Government made the underlying
spreadsheets available to the defense well in advance of the trial; (3) the FBI agent who
prepared the summaries testified at trial and the defense cross-examined him on issues that
mirror Dr. Mazcuri’s issues on appeal; and (4) the court gave the jury a proper limiting
instruction, which stated: “Certain charts and summaries have been received into evidence.
These charts and summaries have been admitted solely as an aid to help explain the facts
disclosed by other exhibits in the case. You should give them only such weight as you think
they deserve.” Our Court has previously endorsed similar instructions. See Spalding, 894
F.3d at 186 n.18; United States v. Whitfield, 590 F.3d 325, 365 n.29 (5th Cir. 2009).
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                                  No. 18-20650
United States v. Lewis, 796 F.3d 543, 545 (5th Cir. 2015). Any mistakes are
subject to harmless-error review. United States v. Yanez Sosa, 513 F.3d 194,
201 (5th Cir. 2008).
      Mazcuri’s co-conspirators, Askew and Crane, testified at trial about
Mazcuri’s healthcare-fraud conspiracy. Over the defense’s objections, the
district court allowed both of them to testify that they were convicted for their
roles in the conspiracy and were cooperating with the Government to receive a
potentially favorable sentencing recommendation. A witness-accomplice’s
guilty plea may generally be admitted into evidence if it serves a legitimate
purpose and a proper limiting instruction is given. See United States v. Valuck,
286 F.3d 221, 228 (5th Cir. 2002). Legitimate purposes include blunting the
potential effects of impeachment and clarifying the nature of the arrangement
between the Government and the witness for purposes of determining
credibility. See id. at 228–29.
      Both of those legitimate purposes exist here. And the court gave the jury
an appropriate limiting instruction:
      You have been told that the witnesses Regina Askew and Robert
      Crane were convicted of conspiracy to commit healthcare fraud
      and paying kickbacks. A conviction is a factor you may consider in
      deciding whether to believe that witness, but it does not
      necessarily destroy the witness’s credibility. It has been brought to
      your attention only because you may wish to consider it when you
      decide whether you believe the witness’s testimony. It is not
      evidence of the defendant’s guilt or anything else.
The district court did not abuse its discretion by admitting evidence of the
convictions of Askew and Crane.
      Mazcuri also challenges the admissibility of the convictions of three co-
conspirators who did not testify at trial: Mohammad Khan, Earnest Gibson III,
and Earnest Gibson IV. We have previously noted that admitting such
convictions can be “troubl[ing].” United States v. Ramos-Cardenas, 524 F.3d

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                                 No. 18-20650
600, 611 (5th Cir. 2008) (per curiam). As in Ramos-Cardenas, however, we need
not determine whether the district court erred. Here, as there, the Government
produced “substantial evidence of the defendants’ guilt, as recounted earlier.”
Ibid. Therefore, any error was harmless.
                                       C.
      Mazcuri’s final guilt-phase argument is that the district court erred
when it issued a jury instruction on deliberate ignorance for Count 1, which
charged him with conspiracy to commit healthcare fraud. We review jury
instructions for abuse of discretion, affording substantial latitude to the
district court in describing the law to the jury. United States v. Wright, 634
F.3d 770, 774 (5th Cir. 2011). Our task is to assess whether the district court’s
charge was a correct statement of the law applicable to the factual issues
confronting the jury. United States v. Conner, 537 F.3d 480, 486 (5th Cir.
2008). The district court may not instruct the jury on a charge the evidence
does not support, but we view the evidence in the light most favorable to the
Government. See ibid.
      A deliberate-ignorance instruction informs the jury “that it may consider
evidence of the defendant’s charade of ignorance as circumstantial proof of
guilty knowledge.” United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir.
1990). It is appropriate when “the evidence shows (1) subjective awareness of
a high probability of the existence of illegal conduct, and (2) purposeful
contrivance to avoid learning of the illegal conduct.” United States v.
Threadgill, 172 F.3d 357, 368 (5th Cir. 1999). Even if the district court erred
by instructing the jury on deliberate ignorance, substantial evidence of actual
knowledge would render any error harmless. United States v. St. Junius, 739
F.3d 193, 204–05 (5th Cir. 2013).
      In this case, knowledge is an essential element of the crime of healthcare
fraud, 18 U.S.C. § 1347, and Mazcuri denied knowledge of the Riverside fraud.
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                                  No. 18-20650
The Government put on substantial evidence showing that if Mazcuri lacked
such knowledge, he at least acted with deliberate ignorance. Mazcuri certified
patients for unnecessary services, including those with severe dementia who
were ineligible for treatment. This included the patient who thought he lived
in a casino and the other who answered “October, October” when asked where
she was. Mazcuri’s role in the fraud was so important that Khan told staff at
Riverside to “make sure that he stayed happy because we had to have the
signatures.” And even after it was brought to Mazcuri’s attention that his
patients were not appropriate for partial-hospitalization programs, Mazcuri
continued to certify them improperly without inquiring further. The district
court did not abuse its discretion in issuing a jury instruction on deliberate
ignorance. 2
                                       III.
      We now turn to Mazcuri’s sentencing arguments. He raises three
challenges to the district court’s calculation of his recommended sentence
under the Guidelines. He also challenges the court’s calculations of restitution
and forfeiture. We review and reject each argument in turn.
                                        A.
      Mazcuri challenges the calculation of his offense level. The district court
said it was forty-three. Mazcuri says it should have been thirty-one. He reaches
that conclusion by challenging the factual basis for his sentence. In such a
challenge, we ask whether the district court relied on “clearly erroneous facts.”
Gall v. United States, 552 U.S. 38, 51 (2007). A factual finding is clearly
erroneous only if, after reviewing the entirety of the evidence, we have a
definite and firm conviction that the district court erred. United States v. Mata,



      2 And in all events, any error was harmless because the Government introduced
substantial evidence of Mazcuri’s actual knowledge. St. Junius, 739 F.3d at 204–05.
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                                 No. 18-20650
624 F.3d 170, 173 (5th Cir. 2010). The district court’s factual findings at
sentencing need only be found by a preponderance of the evidence. United
States v. Dinh, 920 F.3d 307, 310 (5th Cir. 2019).
      “Generally, a PSR ‘bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations.’ ” United
States v. Sparks, 941 F.3d 748, 756 (5th Cir. 2019) (quoting United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012) (per curiam)). A district court may
adopt facts contained in the PSR “without further inquiry if those facts have
an adequate evidentiary basis with sufficient indicia of reliability and the
defendant does not present rebuttal evidence or otherwise demonstrate that
the information in the PSR is unreliable.” Harris, 702 F.3d at 230 (quotation
omitted).
                                       1.
      Mazcuri first challenges the loss amount. Section 2B1.1(b)(1) of the
Guidelines provides for an increase in offense level based on the amount of
financial loss caused by the defendant’s fraud. The Guidelines “emphasize the
deference that must be shown to the sentencing judge, who is in a unique
position to assess the applicable loss.” United States v. Hebron, 684 F.3d 554,
560 (5th Cir. 2012). The sentencing judge “need only make a reasonable
estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).
      Application Note 3 states that the applicable loss amount is “the greater
of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A); see United States v.
Harris, 821 F.3d 589, 602 (5th Cir. 2016); United States v. Valdez, 726 F.3d
684, 696 (5th Cir. 2013). For healthcare fraud, the amount fraudulently billed
to Medicare is prima facie evidence of the intended loss, though it is not
conclusive, and the parties may introduce evidence to suggest that the amount
billed overstates or understates the billing party’s intent. See United States v.
Isiwele, 635 F.3d 196, 203 (5th Cir. 2011).
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                                  No. 18-20650
      When fraud is so pervasive that separating legitimate from fraudulent
conduct “is not reasonably practicable,” “the burden shifts to the defendant to
make a showing that particular amounts are legitimate.” Hebron, 684 F.3d at
563. In the absence of such evidence from the defendant, “the district court
may reasonably treat the entire claim for benefits as intended loss.” Ibid.; see
also United States v. Ezukanma, 756 F. App’x 360, 371–74 (5th Cir. 2018) (per
curiam); United States v. Murthil, 679 F. App’x 343, 352 (5th Cir. 2017) (per
curiam); United States v. St. John, 625 F. App’x 661, 668 (5th Cir. 2015) (per
curiam); United States v. Age, 614 F. App’x 141, 144 (5th Cir. 2015) (per
curiam); United States v. Martin, 555 F. App’x 358, 368–69 (5th Cir. 2014) (per
curiam).
      We are persuaded that this is a case where the fraud is so pervasive that
separating legitimate from fraudulent conduct is not reasonably practicable.
The PSR’s distillation of the facts shows that Mazcuri conspired to commit
extensive Medicare fraud from 2006 to 2012. The district court found as a
matter of fact that Mazcuri oversaw the “systematic manipulation” of
hundreds of vulnerable patients, “who were fraudulently committed to
inpatient treatment” at Central and Devotions for no other purpose than to
generate revenue. Given the reliable evidence of extensive fraud, Mazcuri
bears the burden of showing which portions of the claims are legitimate.
Hebron, 684 F.3d at 563.
      The PSR calculated an intended loss of $69,512,730.25 based on the
amount Mazcuri and Riverside billed to Medicare. Using that loss amount, the
PSR calculated an offense level of forty-seven. The district court nevertheless
used only the actual loss paid out by Medicare, which was $22,922,199.91. This
resulted in an offense level of forty-three, which is still high enough to lead to
the longest possible sentencing recommendation under the Guidelines.


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                                       No. 18-20650
       Mazcuri argues at least some of the money paid by Medicare was not
based on fraud. He contends we should look at only the actual loss resulting
from the five patients with severe dementia involved in Counts 2–6. He says
that if we look at only these five patients, the actual loss to Medicare is
$536,326.
       We disagree. The district court could have used the $69,512,730.25
intended loss. See U.S.S.G. § 2B1.1, cmt. n.3(A). Mazcuri has not shown that
the district court’s decision to use less than one-third of that amount resulted
in an unreasonable estimate of the loss. See id. § 2B1.1 cmt. n.3(C). After
reviewing Mazcuri’s arguments and the record, we are not left with a definite
and firm conviction that the district court erred.
                                              2.
       Next, Mazcuri says his fraud did not involve ten or more victims. Under
§ 2B1.1(b)(2)(A)(i) of the Guidelines, fraud involving ten or more victims
requires a two-point increase in offense level. Application Note 4(E) states that
“in a case involving means of identification,” a “victim” includes “any individual
whose means of identification was used unlawfully or without authority.”
U.S.S.G. § 2B1.1 cmt. n.4(E). Our Court has held that Application Note 4(E)
can apply in a Medicare-fraud case and that individuals whose identities are
used to file fraudulent claims are “victims” for purposes of § 2B1.1(b)(2). See
United States v. Ainabe, 938 F.3d 685, 689 (5th Cir. 2019); United States v.
Kalu, 936 F.3d 678, 683 (5th Cir. 2019); United States v. Barson, 845 F.3d 159,
167 (5th Cir. 2016) (per curiam). 3



       3 Some of our colleagues have questioned whether Application Note 4(E) is appropriate
for Medicare-fraud cases. In a partial dissent in Barson, Judge Jones argued that in such
cases, the “victim” for § 2B1.1(b)(2) is the Government rather than the individuals whose
identities were used to fraudulently bill the Government. 845 F.3d at 168–70 (Jones, J.,
concurring in part and dissenting in part). This approach makes sense, given that
§ 2B1.1(b)(2) follows § 2B1.1(b)(1), and the loss calculation for § 2B1.1(b)(1) is based on the
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                                        No. 18-20650
       Mazcuri contends the record reveals only six victims—the five
individuals with severe dementia involved in Counts 2–6, plus the United
States. Mazcuri did not raise this objection in the trial court, so we review his
forfeited objection for plain error. See Sanchez-Hernandez, 931 F.3d at 410–11.
       The reliable evidence summarized in the PSR provides ample basis to
find by a preponderance of the evidence that, of the nearly 1,000 patients for
whom Mazcuri filed claims, at least ten of them were victims of his fraudulent
scheme. Defense counsel practically conceded as much at the sentencing
hearing about the loss calculation:
       I don’t think we can extrapolate from five to everyone, and so there
       is another way to do it. The—all five of these patients came from
       [Mission Care,] one pretty crummy nursing home in Houston.
       There were a total of 36 patients from that nursing home.
                                  *      *     *
       And so I think that when you can’t determine loss, we look at gain,
       gain to Dr. Mazkouri; and I’m sorry it was so late, but we finally
       figured out what his particular gain was from treating all 36
       patients.
                                  *      *     *
       He made $60,000 treating all of the patients from that nursing
       home. If you include all the money that Riverside made on all of
       those 36 patients, you come up with $1.5 million.
It was not plain error for the district court to conclude that there were 10 or
more victims.



amount of money fraudulently billed to Medicare. Judge Jones also noted that, depending on
the facts of the case, it may be implausible to describe the individuals whose identities were
used to bill Medicare as “victims” of identity theft. For example, in Barson, some of the alleged
beneficiaries were paid kickbacks. Id. at 169. Judge Jones argued that these individuals were
more appropriately described as co-conspirators than victims. Ibid. Judge Dennis recently
echoed Judge Jones’s concerns in Ainabe. 938 F.3d at 693–95 (Dennis, J., specially
concurring). Of course, our case is different from Barson because the Mission Care residents
could reasonably be characterized as victims given the abhorrent way Mazcuri manipulated
them for financial gain. Regardless, we are bound by our Court’s precedents in Barson, Kalu,
and Ainabe, which hold that individuals whose identities are used to fraudulently bill the
Government are “victims.”
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                                       No. 18-20650
                                              3.
       Mazcuri also says his case does not involve a “large number” of
“vulnerable victims.” The Guidelines impose a two-point offense-level increase
when “the defendant knew or should have known that a victim of the offense
was a vulnerable victim.” U.S.S.G. § 3A1.1(b)(1). A “vulnerable victim” is
defined as “a victim of the offense of conviction and any conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct),” who is “unusually
vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt. n.2. An
additional two-point increase applies if the offense involved a “large number”
of vulnerable victims. Id. § 3A1.1(b)(2). The district court found that Mazcuri
harmed a “large number” of “vulnerable victims” and increased his offense
level by four points.
       Mazcuri argues on appeal that there wasn’t a “large number” of
vulnerable victims because the Government could show only five vulnerable
victims—the five individuals with severe dementia involved in Counts 2–6. He
does not argue that his victims weren’t “vulnerable,” so he disputes only two of
the four points added to his offense level under § 3A1.1(b). 4
       The Guidelines do not define what constitutes a “large number” for
purposes of § 3A1.1(b)(2). See United States v. Kaufman, 546 F.3d 1242, 1268–



       4 As with the “ten or more victims” provision, § 3A1.1(b) raises questions about
whether patients in a Medicare-fraud case can be characterized as “victims.” See supra note
3. Circuit precedent tells us that they can. In applying § 3A1.1(b), our Court has “previously
recognized that a physician’s patients can be victimized by a fraudulent billing scheme.”
Valdez, 726 F.3d at 693 (quotation omitted). Our precedents distinguish between fraud
schemes that benefit patients and those that harm them. Ibid. Examples of harm include
keeping patients in medical facilities unnecessarily or subjecting them to unnecessary
treatments. Ibid. Patients that are harmed count as victims for § 3A1.1(b). Ibid. In this case,
defense counsel conceded at sentencing that Mazcuri provided unnecessary treatment to
Mission Care nursing-home patients with severe dementia. Those patients are victims under
§ 3A1.1(b).
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                                  No. 18-20650
69 (10th Cir. 2008). But Valdez affirmed a finding of a “large number” of
vulnerable victims in a healthcare-fraud case without addressing the
minimum threshold for a “large number.” 726 F.3d at 694. We adopt the same
approach here. Given the pervasiveness of Mazcuri’s fraud and the defense’s
concession that Mazcuri exploited at least thirty-six nursing-home patients,
we hold that the district court reasonably found Mazcuri responsible for
harming a “large number” of vulnerable victims.
                                        B.
      Finally, we review the district court’s calculations of restitution and
forfeiture. “The Government bears the burden to establish amounts for
restitution and forfeiture, at which point the burden shifts to the defendant to
prove the inaccuracy of the loss calculation.” United States v. Dickerson, 909
F.3d 118, 129–30 (5th Cir. 2018) (footnotes omitted), cert. denied, 139 S. Ct.
2685 (2019). We review the district court’s factual findings for clear error. See
United States v. Fisch, 851 F.3d 402, 412 (5th Cir. 2017) (forfeiture); United
States v. Read, 710 F.3d 219, 231 (5th Cir. 2012) (per curiam) (restitution).
      The Mandatory Victims Restitution Act requires restitution not
exceeding the “actual loss directly and proximately caused by the defendant’s
offense of conviction.” United States v. Sharma, 703 F.3d 318, 323 (5th Cir.
2012). In this case, the district court ordered restitution equal to the actual loss
to Medicare, $22,922,199.91. That is the same figure it used in its loss
calculation for § 2B1.1(b)(1). Mazcuri’s challenge to the restitution order
mirrors his challenge to the loss calculation. We reject this argument here for
the same reasons we did there. See supra Part III.A.1.
      Turning to criminal forfeiture, we have held that forfeiture in a
healthcare-fraud case under 18 U.S.C. § 982(a)(7) is limited to the property the
defendant acquired as a result of the crime. United States v. Sanjar, 876 F.3d
725, 749 (5th Cir. 2017). In this case, the district court imposed a personal
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    Case: 18-20650    Document: 00515236863       Page: 15   Date Filed: 12/16/2019



                                No. 18-20650
money judgment of $500,000, but it did not elaborate on its method for
calculating that figure. Nevertheless, we can affirm on any ground supported
by the record. See United States v. Castaneda-Lozoya, 812 F.3d 457, 460 (5th
Cir. 2016).
      In its sentencing memorandum before the trial court, the Government
noted that Mazcuri admitted to personally receiving $2,421,604 from Medicare
for claims involving Riverside patients. The Government then “conducted its
own calculation to confirm that number,” and arrived at a “conservative
measure” of $1,126,775.46. In a revised sentencing memorandum, Mazcuri
claimed that he received only $892,155. Having reviewed these calculations,
we conclude that the district court’s order of $500,000 is, if anything, an
underestimate of the amount Mazcuri personally gained from his fraud.
Numerous cases have upheld reasonable estimates for calculating criminal
forfeiture. See, e.g., United States v. Ayika, 837 F.3d 460, 467–68 (5th Cir.
2016); United States v. Bogdanov, 863 F.3d 630, 634 (7th Cir. 2017); United
States v. Vilar, 729 F.3d 62, 95–96 (2d Cir. 2013); United States v. Iacaboni,
363 F.3d 1, 7 (1st Cir. 2004). The district court did not clearly err in its
forfeiture calculation.
                                *     *       *
      Mazcuri’s conviction and sentence are AFFIRMED.




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