                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0612n.06

                                            No. 12-2559

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                           FILED
                                                                                        Aug 08, 2014
UNITED STATES OF AMERICA,                            )                              DEBORAH S. HUNT, Clerk
                                                     )
     Plaintiff-Appellee,                             )    ON APPEAL FROM THE
                                                     )    UNITED STATES DISTRICT
     v.                                              )    COURT FOR THE EASTERN
                                                     )    DISTRICT OF MICHIGAN
JONATHAN AGBEBIYI,                                   )
                                                     )
     Defendant-Appellant.                            )
                                                     )
________________________________


     BEFORE: GRIFFIN and DONALD, Circuit Judges; GRAHAM, District
Judge.*

     GRAHAM, District Judge. Defendant-Appellant Jonathan Agbebiyi

was charged by a third superseding indictment returned in the

United States District Court for the Eastern District of Michigan

with one count of conspiracy to commit health care fraud in

violation of 18 U.S.C. §§ 1349 and 1347 (Count 1), and six counts

of health care fraud in violation of § 1347 (Counts 2 through 7).

Other co-conspirators also named in the original indictment filed

in this case pleaded guilty.                     The case against Agbebiyi was tried

to a jury, and he was convicted on five counts of health care fraud

and the conspiracy charge.                    He now appeals his conviction on the




           *
             The Honorable James L. Graham, Senior United States District Judge for the Southern District
   of Ohio, sitting by designation.
No. 12-2559, United States v. Agbebiyi


conspiracy charge and his sentence. For the reasons that follow, we

AFFIRM the judgment and sentence of the district court.

                                 I. Background

         Medicare Part B is federal health insurance which covers

physician charges and diagnostic tests. In Michigan, Medicare Part

B   is    administered   by    Wisconsin   Physician    Service    (“WPS”),   a

Medicare contractor.          Medicare contractors are responsible for

processing     and    reimbursing     claims     on    behalf     of   Medicare

beneficiaries, and for enrolling physicians and group clinics as

providers.     The provider application form includes a certification

that the applicant will submit claims truthfully and accurately.

Medicare claims must be for services which are medically necessary.

Providers are responsible for knowing the Medicare rules and

regulations, and for submitting claims in accordance with those

regulations.     Physicians commonly reassign their billed Medicare

benefits to the clinic or entity for which they work.              A physician

who becomes a Medicare provider must sign a form which puts him on

notice of Medicare rules and regulations, and attests that the

physician is responsible for the truth and accuracy of any claims

submitted under his Medicare provider number. A physician provider

is responsible for the billing of services under his provider

number even if someone else prepares the billing.                 WPS provides

welcome     packets   to      providers,   advises    them   about     provider

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No. 12-2559, United States v. Agbebiyi


accountability for claims submitted on their behalf and how to

report suspected fraud, and offers documents, educational programs,

newsletters, and a toll-free phone number for questions.                       If

fraudulent activity is detected, WPS refers the matter to Trust

Solutions for investigation.

     In 2007, Karina Hernandez moved from Miami, Florida, to the

Detroit,       Michigan,    area.       Hernandez,   who   had   a   high-school

education, planned to open a clinic for the purpose of providing

diagnostic testing which could be billed to Medicare.                 Hernandez

admitted that she opened the clinic for the purpose of defrauding

Medicare.        Marieva     Briceno    (Hernandez’s   mother),      Juan   Villa

(Hernandez’s brother-in-law), Dora Binimelis and Emilio Haver were

also involved in this scheme.

     Hernandez first opened Blessed Medical Clinic (“Blessed”), in

Livonia, Michigan, with the assistance of her mother and Dora

Binimelis. Hernandez later opened the Alpha & Omega Medical Clinic

(“Alpha    &    Omega”)     and   the   Manuel   Medical   Clinic    (“Manuel”).

Binimelis provided the diagnostic equipment that was used in the

clinic.     All three clinics were located in the same building and

shared equipment.          The Medicare application submitted for Blessed

listed Juan Villa as the contact person.             Hernandez was listed as

the contact person on the Medicare application for Alpha & Omega,

and Henry Briceno was listed as the contact person on the Medicare

                                          3
No. 12-2559, United States v. Agbebiyi


application for Manuel.       Juan Villa was approached by Hernandez

about being the owner of Blessed on paper because he had no prior

involvement with a clinic and no criminal record, thereby reducing

the risk that Medicare would investigate them.

      In order to bill Medicare, the clinics were required to employ

doctors to work at the clinics.         The clinics provided the doctors

with forms to order diagnostic tests, such as EKGs and nerve

conduction tests.      Dr. Alfonso Acosta, a general family physician,

worked briefly at Blessed in the fall of 2007.          He was interviewed

for   the   position   by   Hernandez,   who   showed   him   the   clinic’s

diagnostic equipment, including machines for administering the

Doppler test and nerve conduction tests.         Hernandez pressured him

to order tests.     Acosta also observed Alejandro Haver, the son of

Emilio Haver, instruct clinic employees to conduct additional tests

which he had not ordered.       As a general practitioner, Acosta had

asked a specialist on two or three occasions to do a nerve

conduction test, but had not previously performed these specialized

tests himself, and had never ordered a Doppler test.

      Doctor   Agbebiyi,     who   specialized     as    a    gynecologist,

obstetrician and general family doctor, worked for the clinics from

April, 2008, through January 15, 2010.            Hernandez interviewed

Agbebiyi for the position and gave him a tour of the clinic to show

him the diagnostic equipment. Hernandez explained to Agbebiyi that

                                    4
No. 12-2559, United States v. Agbebiyi


after he had seen a patient, the patient would be referred for

diagnostic tests.   According to the Government, Agbebiyi ordered

numerous diagnostic tests without any legitimate medical purpose so

that the clinic could generate profits from Medicare reimbursement

revenues.   Agbebiyi worked for the clinics on a part-time basis

from April of 2008 to January of 2010, and was paid $100 per hour.

After Hernandez opened Manuel, Agbebiyi agreed to work there for

his hourly rate plus fifteen percent of the total amount being

billed by the three clinics.

     The clinics employed drivers who were paid to find patients

who were Medicare-eligible and bring them to the clinics. The goal

was to make money for the clinics when the clinics’ doctor referred

patients for diagnostic tests.       The drivers were organized by

Hernandez’s husband, Santiago Villa.       Isaac Carr, one of the

drivers used by the clinics, testified that he would go to soup

kitchens and recruit persons who had a Medicare card to go to the

clinics for cash.   Carr was paid $50 for every patient he brought

to the clinic, and the patient was also paid $50.    Patients were

delivered to the clinics in groups, and were at the clinics from

two to eight hours, where Juan Villa would provide fast food to

these individuals while they were waiting to see the doctor.

Agbebiyi knew that the clinics paid a driver to bring in patients.



                                 5
No. 12-2559, United States v. Agbebiyi


     The patients were coached to say they had certain symptoms,

such as lower back pain, headaches, or swollen knees.                   Onthaus

Madden, a patient at Alpha & Omega, went to the clinic once a month

because she was paid money by the driver, was given food, and

received   paid   prescriptions.         Madden   testified      that   she   was

instructed by the receptionist to complain about her knees.                    At

trial, Madden stated that a doctor with an African name told her

that she was required to take the diagnostic nerve tests as her

treatment.      Dr.   Agbebiyi   billed    Medicare   for     eighteen    nerve

conduction studies administered to Madden.          No one from the clinic

ever called Madden to talk to her about the results of these tests.

     Ultrasound tests were performed at the clinics by Kim Seung

Hee, a certified ultrasound technician who worked at the clinics

for seven to eight months until June, 2009.            Hee testified that

some patients stated they came to the clinic for prescriptions, and

objected   or   threatened   her   when    she    started   to    perform     the

ultrasound tests ordered by Agbebiyi. On those occasions, Agbebiyi

instructed her to go ahead and do the tests. Occasionally when she

informed Agbebiyi that a patient had received ultrasound tests

within the past two or three months for which no results had been

received, Agbebiyi instructed her to go ahead and perform the test

anyway.    Hee observed diagnostic tests being performed at the

clinic even when no doctor was present.           Hernandez and Juan Villa

                                     6
No. 12-2559, United States v. Agbebiyi


forced her to perform ultrasounds even when Agbebiyi was not there.

When Hee informed Agbebiyi about this, he would look at the chart,

see the patient, and tell her to do the ultrasound.

     The diagnostic test results were sent to a group of doctors in

Miami, Florida, for interpretation.          Hee observed ultrasound test

results from Florida in cases where the pictures were not taken

properly by another technician.           She cited two examples involving

test result reports which stated that a kidney or the thyroid

looked normal, but the corresponding ultrasound pictures              were not

of those organs.      Agbebiyi told Hee not to let Lynn, the other

technician, do the ultrasounds.

     Jasmine Oliver also worked at the clinics.             She had a high-

school education, and her sole medical training consisted of one

phlebotomy (blood-drawing) class in trade school.                Oliver’s job

included interviewing patients about their health complaints,

taking their vital signs, and doing blood pressure readings.

Oliver also administered transcranial Doppler tests, pulmonary

function tests, nerve conduction velocity tests, and vestibular

tests.   Oliver had no prior training in administering diagnostic

tests, and was taught by Juan and Santiago Villa how to use the

diagnostic equipment.       When test results came back from Florida,

Oliver   put   them   in   the   patient    files   and   put   the   files   on



                                      7
No. 12-2559, United States v. Agbebiyi


Agbebiyi’s desk, and after Agbebiyi had reviewed the files, which

she often observed him do, she put them away.

        The clinic used a form prepared by Alejandro Haver which

listed symptoms corresponding to the various diagnostic tests

available at the clinics.     Oliver used a complaint sheet to record

the patients’ symptoms, which almost always included radiating back

pain.    She noted the tests which a patient had not yet had or was

eligible to have on a sticky note, then attached the note to the

patient’s chart before giving the chart to Agbebiyi.              Agbebiyi

commonly    ordered   diagnostic   tests,   and   agreed   with   the   test

recommendations she wrote on the sticky notes more than half the

time.     Oliver was sometimes told by Agbebiyi to go ahead and

perform the diagnostic tests even if he was going to be late in

arriving at the clinics. Tests were administered based on Oliver’s

initial assessment before Agbebiyi arrived at the clinic in the

afternoon.     Hernandez would also ask Agbebiyi to order certain

tests, and the majority of the time, Agbebiyi would then order

those tests.    On one occasion, Oliver informed Agbebiyi that she

had seen Hernandez mark an “X” on the complaint sheet as Oliver was

taking the file to the doctor, and Agbebiyi responded that he would

make a mental note of it.      Juan Villa would also ask Agbebiyi to

order tests, and would call his attention to tests he had not yet



                                    8
No. 12-2559, United States v. Agbebiyi


ordered, and most of the time, Agbebiyi would agree to order the

tests.

       After seeing a patient, Agbebiyi would tell Oliver which tests

were ordered for the patient, and would give her the patient’s

prescriptions.      The prescriptions were given to her rather than to

the patients because the patients would leave before taking the

tests if the prescriptions were given to them directly.                     Many

patients also complained to Agbebiyi about having to take the

tests.      They received their prescriptions for drugs such as

Vicodin, Metformin, and Xanax after taking the tests.

       At trial, the government presented the testimony of Dr. James

Teener,     M.D.,   a   neurologist       with     board   certifications     in

neuromuscular and electrodiagnostic medicine. Dr. Teener explained

that a nerve conduction test involves placing electrodes on the

skin   at   the   location   of   specific       muscles   under   study.    The

electrodes are connected to a computer.              The nerve is stimulated

with an electrical impulse, and the result of exciting the nerve is

recorded.     The study is designed by the physician, although the

test can be performed by a technologist.               The technologist must

complete six months of observational training and another three to

four months of work with intense supervision before being permitted

to give the test independently.            Usually obstetricians are not

trained in nerve conduction studies. Teener’s usual practice is to

                                      9
No. 12-2559, United States v. Agbebiyi


remain in or near the room to observe the administration of the

test and to explain the results to the patient.

      Teener testified that, as a nerve specialist, he orders a

nerve conduction study for one-half to two-thirds of his patients,

but that it is very uncommon to administer a nerve conduction study

repeatedly to the same patient.      He examined nerve conduction test

results in fifteen to twenty patient files from the clinics, and

found that none of the tests were done properly.       Nerve conduction

studies are almost always done in conjunction with a needle

electromyography test, which is typically done at the same visit as

the nerve conduction test and involves the discomfort of inserting

a needle into the muscle.     The needle examination was not done in

any of the patient files he reviewed.

      Teener also testified that the transcranial Doppler test, an

ultrasound test used to evaluate the velocity of blood flow within

the   brain,   is   infrequently   administered   because   the   test   is

inaccurate and CAT scans and MRIs give a picture of what the blood

vessels look like.     The transcranial Doppler test would not be an

appropriate test for someone complaining of a headache.

      Medicare records showed that the three clinics billed Medicare

for approximately $6.7 million during the total time of their

operation.     Medicare was billed for 537 patients under Agbebiyi’s

provider number for services dating from April 29, 2008, through

                                    10
No. 12-2559, United States v. Agbebiyi


January 29, 2010. Ninety-three percent of Agbebiyi’s patients (499

patients) received surface nerve conduction tests.                Medicare was

billed $2,265,665 for these tests, and Medicare reimbursed the

clinics for $1,125,634.           Claims were submitted to Medicare for

sixty-nine   percent       of   Agbebiyi’s   patients   (372   patients)   for

transcranial Doppler tests in the amount of $178,702, and Medicare

reimbursed those claims in the amount of $88,171. Only one patient

out of the 537 patients seen by Agbebiyi did not receive either the

nerve conduction or transcranial Doppler test.             Medicare was also

billed under Agbebiyi’s provider number for H-Reflex studies in the

amount of $97,650, and Medicare reimbursed these claims in the

amount of $38,686.         The claims submitted for these three tests

totaled $2,542,017, and Medicare reimbursed the clinics for the

three tests in the amount of $1,252,491.

     These three tests were just a fraction of the types of tests

ordered by Agbebiyi.        For example, the record indicates that from

July 1, 2008, through November 23, 2009, Blessed and Manuel billed

Medicare $14,540.24 under Agbebiyi’s provider number for office

visits and tests which included venipuncture, electrocardiogram,

nystagmus    tests,    a    caloric   vestibular   test,    and    oscillating

tracking test, a sinusoidal rotational test, and an electro-

oculography test.



                                       11
No. 12-2559, United States v. Agbebiyi


      In April of 2008, Agbebiyi received his first payment from the

clinics, made payable in his name. From May, 2008, through January,

2010,      the   payments   were    made       by   the   clinics   to   Harmony

International.       Agbebiyi is the agent for Harmony Health Choice,

and   he    worked   at   the   Harmony    International     Clinic.     In   his

individual capacity and in his capacity with Harmony International,

Agbebiyi was paid a total of $183,476.69 by the clinics from April,

2008, through January, 2010.         A chart showing a combination of the

payments to Agbebiyi and Harmony International from bank records

along with the payments by Medicare to the three clinics showed

that Medicare paid $1,258,277.18 to Blessed, $1,043,948.64 to Alpha

& Omega, and $679,803.37 to Manuel, resulting in a total of

$2,982,029.19.

      On May 11, 2012, the jury returned a verdict of guilty on

Counts 1 through 5 and Count 7, and Count 6 was dismissed upon the

government’s motion.

      A sentencing hearing was held on November 6, 2012.                 In the

presentence investigation report (“PSR”), the probation officer

concluded that Agbebiyi joined the conspiracy in April, 2008, and

was employed by the clinics for approximately eighteen months.                In

calculating the base offense level under the advisory United States

Sentencing Guidelines (“the Guidelines”) the probation officer

determined that the amount of actual loss was $2,982,029.19,

                                          12
No. 12-2559, United States v. Agbebiyi


stating that this was the amount paid to the three clinics “as a

result of the fraudulent claims attributed to the defendant.”             PSR

¶¶ 26-27. The probation officer’s calculations resulted in a total

offense level 28, Criminal History Category I, with a sentencing

range of 78 to 97 months.            Defense counsel agreed with the

probation officer’s calculation of the applicable range.               After

addressing the sentencing factors contained in 18 U.S.C. §3553(a),

the district court deviated downward from the range established

under the Guidelines, and imposed a sentence of sixty months

incarceration on each count to be served concurrently.                    The

district court also ordered the payment of restitution in the

amount of $2,982,029.19, as a joint and several obligation with

Agbebiyi’s co-conspirators.         The judgment filed on November 14,

2012, also directed the forfeiture of $183,476.69 from Agbebiyi,

representing the amount of unlawful proceeds which he personally

profited from the fraud.

      A timely notice of appeal was filed on November 28, 2012.

                              II. ARGUMENTS

      In this appeal, Agbebiyi asserts three claims of error:

(1)   the   trial   court    committed    plain   error   in    failing    to

specifically find the amount of loss attributable to him after he

joined   the   conspiracy;    (2)   his   sentence   violated    the   Sixth

Amendment because the amount of loss used in determining the

                                     13
No. 12-2559, United States v. Agbebiyi


Guidelines   base   offense   level    enhancement   and   the   amount   of

restitution was not found by the jury; and (3) he is entitled to a

judgment of acquittal on the conspiracy charge.

                    A. Calculation of Amount of Loss

     In the PSR, the probation officer noted that the total amount

billed by the three clinics to Medicare exceeded $5.4 million. The

probation officer further found that Medicare suffered a loss in

the amount of $2,982,029.19, which was the amount paid by Medicare

to the three clinics, as documented in Government’s Exhibit 18. In

calculating the Guidelines sentencing range, the probation officer

used the $2,982,029.19 figure as representing “the amount that

Medicare actually paid out as a result of the fraudulent claims

attributed to the defendant.”     PSR, ¶ 27.    This loss determination

resulted in an eighteen-level enhancement of the base offense level

pursuant to U.S.S.G. § 2B1.1(b)(1)(J), which is applicable where

the amount of loss is over $2.5 million but less than $7 million.

In commenting on the statutory sentencing factors, the probation

officer observed, “The nearly three million dollars in loss[] is a

direct result[] of the defendant’s billings to Medicare.”             PSR,

¶ 86.   At sentencing, Agbebiyi did not object to the probation

officer’s loss determination or to the application of the eighteen-

level enhancement. He now argues for the first time on appeal that



                                      14
No. 12-2559, United States v. Agbebiyi


the district court erred in failing to determine the amount of loss

specifically attributable to him after he joined the conspiracy.

       Agbebiyi    argues   that    the    amount     of   loss    should     be   the

$1,265,543 paid to the clinics for three types of tests (nerve

conduction, transcranial Doppler, and H-Reflex) which he ordered.

The    probation   officer   based       the   loss   determination         on     the

$2,982,029.19 figure in Government’s Exhibit 18, concluding that

this    figure    represented      the    amount    Medicare      paid   on      claims

submitted under Agbebiyi’s provider number.                  Although both the

government and Agbebiyi raised no objection below to the probation

officer’s use of this amount actually paid to the clinics by

Medicare as the loss figure, the probation officer could have based

loss on the amount of the bills, i.e., the intended loss.                           See

U.S.S.G. § 2B1.1 cmt. n. 3(A) (loss is typically the greater of

actual loss or intended loss). See also United States v. Martinez,

588 F.3d 301, 326-27 (6th Cir. 2009)(holding that actual loss

consisting of payments actually made to doctor and intended loss in

the amount of bills submitted by doctor were properly included in

the loss calculations).

       Although the government states that the amount of the claims

was $5.4 million, there was also testimony that the total amount

billed by the clinics during the total time of their operation was

$6.7 million.      The $5.4 million figure may be the amount billed

                                          15
No. 12-2559, United States v. Agbebiyi


during the twenty months Agbebiyi worked at the clinics.    As noted

by the government, the amount claimed by the clinics for the nerve

conduction, transcranial Doppler and H-Reflex tests ordered by

Agbebiyi was $2,542,017.     This amount alone is sufficient to

satisfy the $2.5 million threshold required for the eighteen-level

enhancement.   Agbebiyi also ordered other types of tests.    Where

losses are not easy to quantify, the court is only required to make

a reasonable estimate of the loss, given the available information,

and such estimates need not be determined with precision.    United

States v. Triana, 468 F.3d 308, 320 (6th Cir. 2006); see also

United States v. Greco, 734 F.3d 441, 446-447 (6th Cir. 2013)(a

reasonable estimate of loss is sufficient, and the court’s loss

determination is entitled to appropriate deference).    The amount

that Agbebiyi was paid while he worked for the clinics (his

personal financial gain) is not the preferred measure of loss

because it ordinarily underestimates the loss. Triana, 486 F.3d at

323; U.S.S.G. § 2B1.1 cmt. n. 3(B).

     We note, moreover, that Agbebiyi has waived his right to

challenge the eighteen-level loss-amount-based sentence enhancement

on appeal because he failed to present his current argument in

objections to the district court at sentencing.   This court “will

generally not consider an argument not raised in the district court

and presented for the first time on appeal.”      United States v.

                                16
No. 12-2559, United States v. Agbebiyi


Ellison, 462 F.3d 557, 560 (6th Cir. 2006)(citing                  Foster v.

Barilow, 6 F.3d 405, 408 (6th Cir. 1993)).          If appellate review is

to be meaningful, it is absolutely essential that a defendant raise

all objections to the sentence before his sentencing judge in the

first instance.       United States v. Callin, 83 F.App’x 776, 777 (6th

Cir. Dec. 9, 2003)(internal quotation marks and citation omitted).

In United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir.

2002), we held that where defendant explicitly agreed at sentencing

that his prior convictions qualified as aggravated felonies, as

reported in the PSR, he waived his claim on that issue.            In United

States   v.   Nagi,    947   F.2d   211,   213-14   (6th   Cir.   1991),   the

defendants argued for the first time on appeal that the district

court erred in not applying an earlier version of the Guidelines in

calculating their base offense level.          Defense counsel urged the

court to impose a sentence within the ranges contained in the

defendants’ plea agreements, which were based on a later version of

the Guidelines.       Id. at 214.   This court found that defendants had

waived their arguments by failing to raise them in the lower court.

Id. at 213-14.        Similarly, in United States v. Sloman, 909 F.2d

176, 182 (6th Cir. 1990), this court held that the defendant waived

an issue concerning application of Guidelines where defense counsel

not only failed to object to the application of the Guidelines, but

affirmatively agreed with the court’s decision to sentence under

                                      17
No. 12-2559, United States v. Agbebiyi


the Guidelines.       As this court noted, “An attorney cannot agree in

open court with a judge’s proposed course of conduct and then

charge the court with error in following that course.”           Id. at 214.

        At the sentencing hearing in this case, defense counsel made

no objection to the application of the eighteen-level enhancement

to the base offense level.            The district court asked defense

counsel if he agreed with the calculations in the PSR, and he

responded, “With the calculations themselves, yes.”              R. 328, ID

2646.      The district court then stated, “The calculations are

Criminal History Category I and total offense level 28, resulting

in a range of 78 months to 97 months.              That’s what you’re all

agreeing to as being accurate?”        R. 328, ID 2646.     Defense counsel

responded, “We agree on the range, Your Honor, yes.”             R. 328, ID

2646. At the conclusion of the proceedings, defense counsel stated

that he had “[n]o additional objections.”          R. 328, ID 2666.

        Defense counsel not only failed to object to the calculations

in the PSR, he also affirmatively agreed with them.                   Because

defense counsel failed to give the court “any inkling that [he]

disagreed” with the district court’s sentencing determination,

United States v. Barajas-Nunuez 91 F.3d 826, 830 (6th Cir. 1996),

the district court had no opportunity to examine the merits of the

issue     defendant    now   raises   for   the   first   time   on   appeal.

Accordingly, we also find that Agbebiyi’s failure to object to the

                                      18
No. 12-2559, United States v. Agbebiyi


district court’s loss amount calculation at sentencing amounted to

a constructive waiver of his right to appeal this issue.

                    B. Sixth Amendment Violation

       Agbebiyi further argues that the loss-amount question should

have been submitted to the jury instead of being decided by the

judge.     Agbebiyi argues that the Supreme Court’s decision in

Apprendi v. United States, 530 U.S. 466 (2000), and its subsequent

decisions in Alleyne v. United States,           U.S.      , 133 S.Ct. 2151

(2013), and Southern Union Co. v. United States,              U.S.     , 132

S.Ct. 2344 (2012), stand for the proposition that he was entitled

to a jury finding as to the loss amount because it was a factor

that increased the length of his sentence and established the

amount of his restitution obligation.           Agbebiyi did not object

below to the failure to submit the issue of the amount of loss to

the jury during his trial.      Thus, the plain-error test under Rule

52(b) as outlined in United States v. Olano, 507 U.S. 725, 733-34

(1993), applies.    Under that test, before an appellate court can

correct an error not raised in the trial court, there must be

“(1)   ‘error,’   (2)   that   is   ‘plain,’   and   (3)   that   ‘affect[s]

substantial rights.’ If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error,

but only if (4) the error ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’” Johnson

                                     19
No. 12-2559, United States v. Agbebiyi


v. United States, 520 U.S. 461, 466-67 (1997)(internal quotation

and citation omitted).           Plain error review has been applied to an

enhanced penalty argument under Apprendi.                   See United States v.

Cotton, 535 U.S. 625, 631 (2002).

        No error has been shown in this case.                  Apprendi and its

progeny    do    not     apply   here,   as    those   cases   dealt    with   Sixth

Amendment       rights    with   regard   to     legally    proscribed    criminal

penalties imposed by statutory minimums and maximums, while the

sentence imposed here was based on the Sentencing Guidelines.

Neither Apprendi nor Alleyne or Southern Union eliminated the

general fact-finding discretion granted to the district courts

under    the    advisory     Sentencing       Guidelines.      United    States   v.

Osborne, 545 F.3d 440, 445 (6th Cir. 2008)(citing United States v.

Booker, 543 U.S. 220, 233 (2005)). The district court can find the

facts, including the amount of loss, necessary to calculate the

appropriate Guidelines range.             United States v. Keller, 498 F.3d

316, 328 (6th Cir. 2007); see also United States v. Gross, 626 F.3d

289, 299 (6th Cir. 2010)(because the Guidelines range is only

advisory, the district court was permitted to make factual findings

concerning the amount of tax loss at sentencing). In United States

v. Smith, 749 F.3d 465 (6th Cir. 2014), the defendants argued that

the district court violated Apprendi and Alleyne when it based

their Guidelines ranges on its own findings of the amount of loss

                                          20
No. 12-2559, United States v. Agbebiyi


and number of victims rather than submitting those issues to a

jury.    This court noted that although Alleyne held that facts that

increase mandatory minimum sentences must be submitted to a jury,

“both Apprendi and Alleyne took care not to disturb the district

court’s discretionary fact-finding in other circumstances.” Smith,

749 F.3d at 487.            Where a defendant does not face a statutory

maximum or statutory minimum sentence, Apprendi and Alleyne are

inapplicable.        Id.    The statutory maximum for Agbebiyi’s offenses

was ten years imprisonment. 18 U.S.C. § 1347(a). Accordingly, the

district court’s imposition of a sixty-month sentence, well below

that statutory maximum, does not give rise to any claim of error

under Apprendi or Alleyne.

        Booker also does not require a jury to determine restitution.

United States v. Johnson, 440 F.3d 832, 849 (6th Cir. 2005); United

States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005).                        The statute

governing restitution provides that the amount of restitution

should    be    equal      to   the   “amount         of   each   victim’s     losses    as

determined by the court.”              18 U.S.C. § 3664(f)(1)(A).                Where a

statute mandates the exercise of judicial discretion, “Booker

provides       no   impediments       to   a        judicial    determination    of     the

necessary       underlying       facts.”             Sosebee,     419   F.3d    at    462.

Restitution orders are also unaffected by the Supreme Court’s

ruling in Apprendi, which required that facts enhancing a sentence

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No. 12-2559, United States v. Agbebiyi


above a statutory maximum penalty be found by the jury, “because

the restitution statutes do not specify a statutory maximum.”

United States v. Lay, 612 F.3d 440, 448 (6th Cir. 2010).

     Agbebiyi relies on Southern Union, in which the Supreme Court

held that facts that increase the amount of a criminal fine beyond

the statutory maximum must be found beyond a reasonable doubt. 132

S.Ct. at 2350. Agbebiyi argues that the Supreme Court’s holding in

Southern Union should logically extend to restitution.       As several

other circuits have noted after Southern Union, however, criminal

fines are fundamentally different from restitution—fines are purely

pecuniary measures proscribed by statute whereas restitution is

intended   to   remedy   victims   of   crimes’   economic   injuries.

Accordingly, the holding in Southern Union, which dealt exclusively

with criminal fines, does not apply.     See United States v. Green,

722 F.3d 1146, 1150-51 (9th Cir. 2013); United States v. Wolfe, 701

F.3d 1206, 1216-17 (7th Cir. 2012); United States v. Day, 700 F.3d

713, 732 (4th Cir. 2012); see also United States v. Jarjis, 551

F.App’x 261, 261-62 (6th Cir. Jan. 24, 2014).

     Agbebiyi had no Sixth Amendment right to have a jury decide

the amount of loss used to calculate his Guidelines range and to

establish his restitution obligation, and no plain error has been

shown in this case.



                                   22
No. 12-2559, United States v. Agbebiyi


             C. Judgment of Acquittal on Conspiracy Charge

     Agbebiyi argues that his conviction for conspiracy to commit

health care fraud is not supported by sufficient evidence, and that

he is entitled to a judgment of acquittal on that charge. Agbebiyi

did not move for a judgment of acquittal during or after trial.

The standard of review on appeal for an insufficient-evidence

challenge is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.”   Jackson v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in

original).    However, the failure to make a motion for judgment of

acquittal under Fed. R. Crim. P. 29 constitutes a waiver of

objections to the sufficiency of the evidence.     United States v.

Jordan, 544 F.3d 656, 670 (6th Cir. 2008). Where a defendant fails

to make the requisite Rule 29 motions, review is “limited to

determining whether there was a manifest miscarriage of justice.

A miscarriage of justice exists only if the record is devoid of

evidence pointing to guilt.”    Id. (quoting United States v. Price,

134 F.3d 340, 350 (6th Cir. 1998)); see also United States v.

Kennedy, 714 F.3d 951, 957 (6th Cir. 2013).    Although Rule 29 now

states that “a defendant is not required to move for a judgment of

acquittal before the court submits the case to the jury as a

prerequisite for making such a motion after jury discharge[,]” see

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No. 12-2559, United States v. Agbebiyi


Fed. R. Crim. P. 29(c)(3), Agbebiyi not only failed to move for a

judgment of acquittal during trial, he also failed to so move after

the return of the guilty verdict, as permitted under Fed. R. Crim.

P. 29(c)(1).     Therefore, the “manifest miscarriage of justice”

standard applies in this case.

     The offense of health care fraud under 18 U.S.C. § 1347 is

committed by one who “knowingly and willfully executes, or attempts

to execute, a scheme or artifice– (1) to defraud any health care

benefit program; or (2) to obtain, by means of false or fraudulent

pretenses, representations, or promises, any of the money or

property owned by, or under the custody or control of, any health

care benefit program in connection with the delivery of or payment

for health care benefits, items, or services[.]”                § 1347.     To

establish a violation under § 1347, the government must prove

beyond a reasonable doubt that the defendant “(1) knowingly devised

a scheme or artifice to defraud a health care benefit program in

connection    with   the   delivery   of   or   payment   for   health    care

benefits, items, or services; (2) executed or attempted to execute

this scheme or artifice to defraud; and (3) acted with intent to

defraud.”    United States v. Martinez, 588 F.3d 301, 314 (6th Cir.

2009); see also United States v. Semrau, 693 F.3d 510, 525 (6th

Cir. 2012).    Proof of intent to defraud does not require direct

evidence; a jury may consider circumstantial evidence and infer

                                      24
No. 12-2559, United States v. Agbebiyi


intent from evidence of efforts to conceal the unlawful activity,

from misrepresentations, from proof of knowledge, and from profits.

United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007).

       The law also penalizes “[a]ny person who attempts or conspires

to commit any offense under this chapter[.]”     18 U.S.C. § 1349.   A

conspiracy charge requires the government to prove an agreement

between two or more persons to act together in committing an

offense, and an overt act in furtherance of the conspiracy. United

States v. Hunt, 521 F.3d 636, 647 (6th Cir. 2008).    The government

is not required to show a formal written agreement.    Id.   “Instead,

it is sufficient to demonstrate a tacit or mutual understanding

among the parties.”    Id.   Direct evidence of the conspiracy is not

necessary; rather, “[i]t is enough to present ‘[c]ircumstantial

evidence which a reasonable person could interpret as showing

participation in a common plan....’” Id. (quoting United States v.

Crossley, 224 F.3d 847, 856 (6th Cir. 2000)).

       The government need not prove that the defendant knew every

detail of the conspiracy, but only that the defendant knew the

object of the conspiracy and voluntarily associated himself with

the conspiracy to further its objective.       Crossley, 224 F.3d at

856.     A defendant’s participation in the conspiracy’s common

purpose and plan may be inferred from the defendant’s actions and

reactions to the circumstances. United States v. Salgado, 250 F.3d

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No. 12-2559, United States v. Agbebiyi


438, 447 (6th Cir. 2001).         “Although an agreement must be shown

beyond a reasonable doubt, the connection between the defendant and

the conspiracy need only be slight, and the government is only

required to prove that the defendant was a party to the general

conspiratorial agreement.”        Id.

      Agbebiyi argues that the government failed to prove that he

knowingly and voluntarily became a participant in the conspiracy

organized   by    Hernandez     and   her    cohorts.      He    claims   that   he

performed valid services for patients, and that he was unwittingly

involved in the clinics’ scheme as a pawn. Agbebiyi argues that he

legitimately visited with patients, ordered tests and prescribed

medications; that he was never told by the clinic owners that they

intended to defraud Medicare; that he never ordered tests which his

co-workers thought to be unnecessary; that he was not involved in

the   actual     billing   of   Medicare;     and   that    he    received   only

reasonable compensation for his services.

      The government’s theory was that Agbebiyi participated in the

conspiracy to defraud Medicare by ordering medically unnecessary

tests.   The government presented evidence that Agbebiyi worked at

the clinics for a period spanning twenty months of the twenty-nine

months during which the clinics were in operation.                When Hernandez

interviewed Agbebiyi, she explained what his role would be, namely,

to see patients and then to refer them for diagnostic tests.

                                        26
No. 12-2559, United States v. Agbebiyi


Agbebiyi never expressed any concerns about ordering the tests or

the fact that the tests would be sent elsewhere for interpretation.

     Agbebiyi was originally paid a salary of $100 per hour.

However, when Hernandez opened the Manuel Clinic, Agbebiyi told her

he wanted an additional fifteen percent of the total billed by the

three clinics.     Although Agbebiyi did not process the Medicare

claims at the clinics, he signed a certificate which put him on

notice of Medicare rules which rendered him responsible for claims

submitted under his provider number.     Because the clinics were

required to have a doctor on site in order to bill Medicare, it was

Agbebiyi’s signature on the test orders which allowed the clinics

to submit the claims.     See Hunt, 521 F.3d at 648 (noting that

because the health care benefit programs would not have paid for

the procedures but for the doctor’s signature on the orders, the

doctor was the direct and proximate cause of the harm suffered by

those entities).

     Dr. Teener testified that as a neurologist specializing in

nerve problems, he only referred one-half to two-thirds of his

patients for nerve conduction studies, and that the unreliable

Doppler test was used only in rare circumstances.        The nerve

conduction and transcranial Doppler tests are used by neurologists

and physiatrists specializing in rehabilitative medicine.      The

nerve conduction study is given in conjunction with a painful

                                 27
No. 12-2559, United States v. Agbebiyi


needle electromyography test.       Teener is also typically present

when the test is being given so that he can monitor the test and

explain the results to the patient immediately after the test. Dr.

Acosta, a general practitioner like Agbebiyi, testified that he

always referred patients to a specialist for tests such as the

nerve conduction study.

     In contrast, Agbebiyi, a general practitioner, ordered the

nerve conduction study for ninety-three percent of his patients.

All but one of the 537 patients seen by Agbebiyi were referred

either for a nerve conduction study or a transcranial Doppler test.

There is no evidence that Agbebiyi ever referred anyone for the

painful needle electromyography test.           He was occasionally absent

from the building when the tests were administered; Agbebiyi

informed Oliver that the tests could be given before he arrived for

the afternoon.

     Teener’s technicians typically trained for nine to ten months

before   they   were   permitted   to    give    a   nerve   conduction   test

independently.    Oliver, who had no medical training other than a

phlebotomy class, received ten to twelve hours of training from

Juan and Santiago Villa, who also had no medical training, on how

to operate the clinics’ equipment.              There is no evidence that

Agbebiyi ever expressed any concern about the fact that Oliver, who

interviewed patients, took their vital signs, and administered

                                    28
No. 12-2559, United States v. Agbebiyi


tests, had no medical training in these areas.                      Dr. Acosta, who

only worked at the clinics a few months, was quickly troubled by

the fact that Hernandez and other clinic employees pressured him to

order tests.      In contrast, Agbebiyi readily ordered the tests

suggested by Oliver, Juan Villa, and Hernandez.

      Teener also testified concerning a sample of patient records

he reviewed, where the test results for the nerve conduction

studies were physiologically impossible, indicating that the test

procedures were invalid.          He stated that even a family practice

doctor who received these results would be worried and request

additional testing. Agbebiyi was given the patient files to review

after test results came in, yet he never expressed concern about

the   practice    of    sending       the        test    results    to   Florida   for

interpretation.    Agbebiyi directed Hee to give ultrasound tests to

patients whose test results from previous ultrasounds had not yet

come back.     Agbebiyi also ordered her to perform ultrasounds on

patients who objected to taking the tests.

      Agbebiyi contends that there is no evidence that he knew that

patients were being paid to come to the clinics. However, there is

evidence that Agbebiyi knew that food was being provided for the

patients, as he was present when Juan Villa delivered the food and

would eat some of the food himself.                        After he had seen the

patients,    Agbebiyi    gave     a     list        of    ordered    tests   and   any

                                            29
No. 12-2559, United States v. Agbebiyi


prescriptions to Oliver, rather than giving the prescriptions to

the patients after he visited them, because if the patients

received the prescriptions directly, they would leave without

taking the tests.    Madden, a patient who received eighteen nerve

conduction studies at Alpha & Omega, testified that she went to the

clinic not because she was sick, but because she received food and

prescriptions.    When she objected to taking the tests, Agbebiyi

told here that it was part of her treatment, although he and other

people at the clinic never called her to talk about her test

results. Isaac Carr, one of the drivers for the clinics, testified

that Agbebiyi stated on one occasion that he wanted to get out once

he found out what they were doing at the clinics, yet Agbebiyi

worked at the clinics over a twenty-month period.

     Based on the government’s evidence, a rational trier of fact

could come to the conclusion that Agbebiyi tacitly agreed to the

scheme to defraud Medicare, and committed overt acts in furtherance

of the scheme by ordering tests which were not medically necessary.

This is not a case in which there was no evidence of guilt of

Agbebiyi’s knowing and voluntary participation in the conspiracy.

Agbebiyi   has   failed   to   show   grounds   for   setting   aside   his

conspiracy conviction.




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No. 12-2559, United States v. Agbebiyi


                         III. Conclusion

     In accordance with the f§oregoing, the judgment and sentence

of the district court are AFFIRMED.




                               31
