                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 19, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-60946
                          Summary Calendar




     UNITED STATES OF AMERICA,


                                          Plaintiff-Appellee,


          versus


     STEVEN SCOTT MCLEMORE,


                                          Defendant-Appellant.




           Appeal from the United States District Court
             for the Northern District of Mississippi
                       USDC No. 1:05-CR-60-1



Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Steven Scott McLemore appeals his conviction and sentence for

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

McLemore was ineligible to participate in Medicare, Medicaid, or

any other federal health care benefit program due to a prior


     *
      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opinion should not be published and is not precedent except under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.
conviction for Medicare fraud, he nonetheless obtained employment

with Medicare provider Medical South, Inc.       McLemore fraudulently

applied for and obtained a Medicare provider number for Medical

South, Inc., which used the provider number to submit to Medicare

and Medicaid reimbursement claims for medical services.

     McLemore argues that the evidence is legally insufficient to

support his conviction because there is no evidence that any of the

reimbursement claims he submitted on behalf of Medical South were

substantively   false.    McLemore    contends   that   the   indictment

“overcharged” his conduct because there is no evidence that he

fraudulently obtained or sought to obtain money or property from a

federal health care benefit program.      McLemore argues the trial

court lacked jurisdiction to enter judgment because the Government

failed to allege or to prove that his offense had an effect on

interstate commerce.     Alternatively, McLemore suggests that his

conviction is invalid because there was a material variance between

the allegations in the indictment and the proof at trial.       Finally,

McLemore argues that his sentence is unreasonable because the

district court erroneously held him responsible for a loss equal to

the amount of the reimbursement claims that he submitted on behalf

of medical South using the fraudulently-obtained Medicare provider

number.   McLemore argues that although he submitted $612,142 in

claims, only $322,236 in claims were actually paid and all of those

payments reimbursed actual services.    Indeed, McLemore argues that



                                  2
there was no “loss” to be considered in the calculations required

by the sentencing guidelines.

     Our review of the evidence shows that a rational trier of fact

could have reasonably convicted McLemore of health care fraud.

United States v. Guerrero, 234 F.3d 259, 262 (5th Cir. 2000); see

18 U.S.C. § 1347(2).   We find no error in the indictment.   United

States v. Arlen, 947 F.2d 139, 145 (5th Cir. 1991).   Any variance

between the indictment and the proof at trial was harmless. United

States v. Thomas, 12 F.3d 1350, 1357 (5th Cir. 1994); United States

v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983).

     Although the general rules for computing loss provide for

crediting the value of any services actually rendered or property

returned by the defendant against the amount of loss, see U.S.S.G.

§ 2B1.1, comment. (n.3(E)(i)), more specific rules govern frauds

involving government agencies:

     “In a case involving a scheme in which . . . goods for
     which regulatory approval by a government agency was . .
     . obtained by fraud, loss shall include the amount paid
     for the property, services or goods transferred, rendered
     or misrepresented, with no credit provided for the value
     of the those items or services.” U.S.S.G. § 2B1.1,
     comment. (n.3.(F)(v)) (emphasis added).

     There is no setoff for the value of any services actually

rendered or products provided.   Furthermore, the determination of

the amount of loss for calculations under U.S.S.G. § 2B1.1(b)(1)

require the use of the greater of actual loss of intended loss.

U.S.S.G. §2B1.1, comment. (n.3.(A)(i)–(ii)).


                                 3
     We conclude that McLemore’s sentence, which was properly

calculated under the advisory Sentencing Guidelines and is within

the applicable guideline range, is reasonable.     United States v.

Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006).1


     1
      During the Sentencing Hearing, McLemore argued that he did
not actually intend to defraud Medicare of claim amounts because he
never actually expected to receive the amounts he for which he
filed claims. The district court dismissed this contention:

     Defense Counsel: “So even though a claim was
     submitted for more than the allowable,
     everybody knows when the claim’s submitted,
     there’s no intention or expectation that
     they’re going to pay anything but the
     allowable.”

     Court: “Are you saying the      whole   Medicare
     program is built on fraud?”

     Defense Counsel: “I’m not saying it’s built on
     fraud at all, Your Honor.       I’m saying if
     somebody submits a bill for a thousand dollars
     for a pair of shoes, they know Medicare is
     only going to pay what Medicare’s reasonable
     and allowable is for a pair of shoes.       So
     [McLemore] never intended to get what he
     submitted [$612,142], he only intended to get
     what was the allowable under Medicare rules
     [$322,236].   That’s the real fact of what
     happened here.”

     Court: “That’s preposterous. . . . I don’t
     believe he can do that.       I don’t think
     Medicare and Medicaid would do that. . . . I
     don’t think you have sufficient proof to
     establish that point. I’m going to go with
     the intended loss, which is what he actually
     billed them and y’all can take it up with a
     higher authority as to whether or not that’s
     the way everybody does it in Medicare or
     Medicaid. I don’t have any proof of that. I
     suspect you may be right. It disappoints me.
     That’s part of the problem with the whole

                                 4
                            AFFIRMED.




     program, I think.”   5 R. 381–83.

Mr. McLemore does not argue this point on appeal.

                                5
