                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1133
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               John Alemoh Momoh

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                             Submitted: June 15, 2012
                              Filed: August 8, 2012
                                  [Unpublished]
                                 ____________

Before MURPHY, BRIGHT, and COLLOTON, Circuit Judges.
                           ____________

PER CURIAM.

      John Alemoh Momoh pled guilty to health-care fraud in violation of 18
U.S.C. § 1347. The district court1 sentenced Momoh to 24 months (2 years) in


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
prison plus three years of supervised release and adopted the government’s loss
finding of $656,876.59. In his appeal, Momoh contends the district court: (1)
committed procedural error by refusing him an evidentiary hearing to rebut the
government’s determination of the loss amount, (2) incorrectly relied on the
government’s proposal relating to two factors in the Sentencing Guidelines to
arrive at his sentence, and (3) should have departed downward from the
Sentencing Guidelines because this case lies outside the heartland of health-care
fraud cases. We affirm.

                                BACKGROUND

       Momoh owned and operated a home-care agency called HopeCare Services,
Inc. (“HopeCare”), located in Brooklyn Park, Minnesota. HopeCare’s mission was
to provide personal-care services to those who require assistance to remain in their
homes. These services included feeding, bathing, and caring for the sick and
disabled. Momoh employed individuals, known as personal-care assistants, to
provide services to HopeCare’s clients.

      In 2003, Momoh enrolled HopeCare as a personal-care-assistance agency with
the Minnesota Department of Human Services (“Minnesota DHS”) and signed a
Provider Agreement (“the Agreement”). The Agreement provides, in part:

      As a participating provider in health service programs administered by
      the Minnesota Department of Human Services, the provider agrees to
      the terms and conditions as set forth below.
      ...
      C. To comply with all federal and state statutes and rules relating to
      the delivery of services to individuals and to the submission of claims
      for such services.
      ...



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      F. To assume full responsibility for the accuracy of claims to the
      Department of Human Services in accordance with the certification
      requirements of 42 Code of Federal Regulations, section 455.18 and
      Minnesota Statutes, section 256B.27, subd. 2.
      ...
      H. To submit claims only for services . . . that are medically necessary,
      that meet professionally recognized standards of health care, that the
      provider knows or has reason to know are properly reimbursable under
      federal and state statutes and rules.

(CR 253.)

       In May 2007, the Minnesota DHS sent Momoh a Notice of Agency Action
regarding his billing of personal-care-assistance services. The notice informed
Momoh he had improperly billed Medicaid for 783.50 hours of personal-care-
assistance services, worth $12,160.50, for one of his clients, K.B.2 The notice
revealed other problems with Momoh’s billing practices, which included: (1)
overbilling Medicaid for undocumented personal-care-assistance services, (2)
discrepancies in the personal-care assistant identified as the treating provider and the
one actually performing the services, (3) timecards lacking the hours worked by the
personal-care assistant and client signatures, and (4) changing hours on the timecards
after the personal-care assistant faxed them to HopeCare.

       Thereafter, members of the Minnesota DHS’s Surveillance and Integrity
Review Section (“SIRS”) met with Momoh. The SIRS personnel informed Momoh
of his billing problems, as noted in the May 2007 notice. In response, Momoh repaid
the overbilled amount of unsupported claims in the K.B. matter. However, a


      2
       Medicaid is a state and federal health care benefit program for the poor and
disabled. Minnesota Medicaid pays for personal-care-assistance services for
qualifying recipients. See generally Minn. Stat. §§ 256B.0625, subd. 19a;
256B.0659.

                                          -3-
subsequent SIRS audit showed Momoh continued to falsely bill Medicaid.
Consequently, the SIRS withheld all future payment from HopeCare and referred the
case for prosecution.

       In April 2011, a federal grand jury issued a 41-count indictment against
Momoh for health-care fraud in violation of 18 U.S.C. § 1347 and identity theft
related to the fraud in violation of 18 U.S.C. § 1028A. Pursuant to a plea agreement
with the government, Momoh pled guilty to count 2 of the indictment and the
remaining 40 counts were dismissed. The parties agree, per the plea agreement, that
the offense conduct summarized in the indictment could be considered relevant
conduct at sentencing. The parties did not, however, agree on the loss amount
attributable to Momoh’s conduct, reserving that issue for sentencing.

       The parties also executed and filed a stipulation regarding sentencing, which
states, “[t]he Parties, by and through their counsel, stipulate and agree that they will
file affidavits in lieu of oral testimony in support of their respective sentencing
positions and the contested issue of loss amount.” The stipulation further provides
the government’s sentencing exhibits “are admissible in evidence.”

       Before sentencing, Momoh requested an extension of time to file his sentencing
brief because “defense counsel need[ed] additional time to obtain affidavits in lieu
of live testimony . . . .” The district court granted Momoh’s request. The parties then
filed sentencing briefs, including affidavit testimony regarding the loss amount.
Along with its sentencing brief, the government submitted a spreadsheet reflecting
its analysis of the loss attributable to Momoh’s conduct, which totaled $656,876.59.
The total loss amount was determined by a senior investigator at the Minnesota Office
of the Attorney General’s Medicaid Fraud Control Unit by comparing HopeCare’s
timesheets for the Indictment period with HopeCare’s billings to Medicaid. The
results are also reflected in the Presentence Report (“PSR”).



                                          -4-
       The district court heard oral argument on the loss issue and found the
government had shown by a preponderance of the evidence that the loss attributable
to Momoh’s conduct amounted to $656,876.59, as set forth in the PSR. Using this
loss figure, the district court applied a fourteen-level loss enhancement under
U.S.S.G. § 2B1.1(b)(1)(H) and subtracted three levels for acceptance of
responsibility, arriving at an offense level of seventeen, with a criminal history
category I. The district court denied Momoh’s request for a downward departure
under U.S.S.G. § 5K2.0 for lack of criminal intent, and sentenced Momoh to 24
months (2 years) in prison, with three years of supervised release, and ordered him
to pay $656,876.59 in restitution to Minnesota DHS.

       Momoh appeals the district court’s refusal to grant him an evidentiary hearing,
its determination of the loss amount, and its refusal to depart downward in imposing
the sentence.

                                   DISCUSSION

I. Request for Evidentiary Hearing

      This court reviews a district court’s decision to deny an evidentiary hearing for
abuse of discretion. United States v. Granados , 202 F.3d 1025, 1027 (8th Cir. 2000).

       Momoh contends the district court’s refusal to hold an evidentiary hearing at
sentencing precluded admission of evidence that would have lowered the loss amount
and resulted in a smaller enhancement. At sentencing, the district court may permit
the parties to introduce evidence regarding their objections. Fed. R. Crim. P. 32(i)(2).
The Sentencing Guidelines also advise the district court to give the parties “an
adequate opportunity to present information” regarding a disputed factor important
to the sentencing. U.S.S.G. § 6A1.3(a).



                                          -5-
       However, we need not review the district court’s decision as Momoh expressly
waived this argument by virtue of the parties’ stipulation. A waiver extinguishes a
claim altogether. See United States v. Jones, 662 F.3d 1018, 1027 (8th Cir. 2011)
(waived claims are unreviewable on appeal). As set forth in the stipulation, the
parties agreed “that they will file affidavits in lieu of oral testimony in support of their
respective sentencing positions and the contested issue of loss amount.” Momoh,
therefore, agreed to submit the loss amount issue on the papers rather than via an
evidentiary hearing.

       Momoh’s contention that he should have been allowed to put forth witness
testimony at sentencing is also belied by the district court’s consideration of the
record, which shows Momoh submitted affidavits of two personal-care assistants, a
software engineer, and a HopeCare client. At sentencing, the district court stated it
had “reviewed the matter,” which it considered “substantially briefed.” The district
court acknowledged the difficulty of the accounting involved before adopting the loss
amount of $656,876.59.

      Based on the record as stated above, we affirm the district court’s decision not
to hold an evidentiary hearing at sentencing.

II. Loss Amount

       This court reviews the imposition of a sentence under a deferential abuse-of-
discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(quotation omitted) (en banc). We first ask whether the district court committed a
“significant procedural error.” Id. In doing so, the district court’s interpretation and
application of the Sentencing Guidelines is reviewed de novo, and its factual findings
for clear error. United States v. Rivera-Mendoza, 682 F.3d 730, 733 (8th Cir. 2012)
(citation omitted).



                                            -6-
      Application Notes 3(F)(v) and (viii) of U.S.S.G. § 2B1.1 state, respectively:

      (v) Certain Other Unlawful Misrepresentation Schemes.—In a case
      involving a scheme in which (I) services were fraudulently rendered to
      the victim by persons falsely posing as licensed professionals; (II)
      goods were falsely represented as approved by a governmental
      regulatory agency; or (III) goods for which regulatory approval by a
      government agency was required but not obtained, or 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 those items or services.

      ...

      (viii) Federal Health Care Offenses Involving Government Health
      Care Programs.—In a case in which the defendant is convicted of a
      Federal health care offense involving a Government health care
      program, the aggregate dollar amount of fraudulent bills submitted to
      the Government health care program shall constitute prima facie
      evidence of the amount of the intended loss, i.e., is evidence sufficient
      to establish the amount of the intended loss, if not rebutted.

U.S.S.G. § 2B1.1 cmt. n.3(F)(v), (viii) (emphasis added). Momoh contends the
district court erred by applying notes 3(F)(v) and 3(F)(viii) in determining the loss
amount. Specifically, Momoh argues note 3(F)(v) is inapplicable under the
circumstances and note 3(F)(viii) was not in effect at the time of his conduct.

       The record reflects no reliance by the district court on notes 3(F)(v) and
3(F)(viii) in determining the loss amount. The district court explained at sentencing
it would adopt the government’s loss amount based on the “forensic accounting—
that’s occurred in this matter, because it is very, very difficult to bring these numbers,
and so forth, into place and to make rationality out of them when the original
documentation is incomplete and inaccurate, at best.”


                                           -7-
      The district court did not commit clear error in determining the loss amount and
we therefore affirm. See United States v. Miell, 661 F.3d 995, 1001 (8th Cir. 2011)
(giving “particular deference to the loss determination because of the district court’s
unique ability to assess the evidence and estimate the loss”).

III. Request for Downward Departure

      This court reviews de novo a district court’s interpretation and application of
the Sentencing Guidelines, and its findings of fact for clear error. Rivera-Mendoza,
682 F.3d at 733. A decision to depart from the Guidelines range is reviewed for
abuse of discretion. Id.

       The district court is not required to impose a sentence within the Guidelines
range if “there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from that
described.” 18 U.S.C. § 3553(b)(1). “If a factor is unmentioned in the Guidelines,
the court must, after considering the structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole, decide whether it is sufficient to take
the case out of the Guideline’s heartland.” United States v. Rodriguez, 414 F.3d 837,
848 (8th Cir. 2005) (citing Koon v. United States, 518 U.S. 81, 96 (1996)). Momoh
contends the district court should have departed from the Sentencing Guidelines,
pursuant to § 5K20, because this case falls outside the heartland.3 However, this
court has held “[t]he discretionary denial of a motion for downward departure


      3
         Momoh also contends the district court should have applied U.S.S.G. § 2B1.1,
cmt. n.3(E), which provides credit against loss in certain circumstances. Note 3(E)
provides credit for services rendered “to the victim before the offense was detected
. . . .” The victim in this case is Medicaid and not HopeCare’s clients. Therefore,
note 3(E) is inapplicable.


                                         -8-
[pursuant to § 5K2.0] is unreviewable unless the court failed to recognize its authority
to depart.” United States v. Cubillos, 474 F.3d 1114, 1120 (8th Cir. 2007) (quotation
omitted).

      At sentencing, the district court acknowledged its authority to depart, stating:

      a number of very eloquent arguments have been made on your behalf
      relating to the 3553(a) factors. I’m not going to go into them
      individually or detail them because they’re very well known by
      everybody in the room. But I’m going to tell you that your case does not
      fall out of that heartland. Your case does not fall into those 3553(a)
      factors that should cause this case to depart from that which is
      considered to be just what it is, the violation of law, based upon the loss
      that resulted and that lead to the numbers that are involved in
      establishing of a guideline sentence.

Further, there is no argument the district court had an unconstitutional motive in
refusing to depart downward. United States v. Sykes, 356 F.3d 863, 865 (8th Cir.
2004) (“Absent an unconstitutional motive, the extent to which a district court
exercises its discretionary authority to depart downward is not subject to review.”).

       As the record reflects, Momoh received a Notice of Agency Action regarding
his billing of personal-care-assistance services. The notice informed Momoh he had
improperly billed Medicaid for 783.50 hours of personal-care-assistance services for
one of his clients, K.B. The notice also informed Momoh that the Minnesota DHS
investigators found numerous problems with his billing. After meeting with Momoh,
the SIRS personnel informed Momoh of his billing problems, as noted in the May
2007 notice. Nonetheless, a subsequent SIRS audit showed Momoh continued to
falsely bill Medicaid. In light of Momoh’s conduct, the district court chose to
sentence Momoh at the bottom of the Guidelines range, stating:




                                          -9-
      Based on the facts set forth in the PSR and those noted above . . . . The
      Court finds that, pursuant to § 3553(a), a sentence within the guidelines
      range is appropriate in this case because it is sufficient, but not greater
      than necessary, to meet the goals of § 3553(a), including just
      punishment, deterrence, public safety, and the promotion of the law. In
      imposing this sentence, the Court rejects Defendant’s challenge to the
      Government’s amount-of-loss calculation, which was corroborated by
      the Probation Office in the [PSR]. Defendant’s challenge provided no
      supported basis upon which to undermine the amount as set forth by the
      Government.

The district court carefully considered the facts and circumstances and determined the
crime did not merit a sentence outside the Guidelines range.

       On these facts, we conclude the district court did not abuse its discretion in
refusing to depart downward.

                                  CONCLUSION

      For the foregoing reasons, we affirm the district court’s judgment.
                      ______________________________




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