     Case: 10-20650     Document: 00511652601         Page: 1     Date Filed: 11/02/2011




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

                                                                            FILED
                                                                         November 2, 2011
                                     No. 10-20650
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FRED JESSIE COLE, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-26-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Fred Jessie Cole, Jr., challenges the restitution order imposed following
his guilty-plea conviction for health-care fraud, aiding and abetting. Cole
contends the district court committed reversible plain error by ordering him to
pay $937,567.54 because that amount was not based on Medicaid’s actual loss.
Cole contends the court failed to consider the number of units he actually
delivered. See United States v. Klein, 543 F.3d 206, 215 (5th Cir. 2008) (“[Cole’s]
gross is not equivalent to [Medicaid’s] loss” (citing 18 U.S.C. § 3663A)). The



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
  Case: 10-20650     Document: 00511652601   Page: 2   Date Filed: 11/02/2011

                                No. 10-20650

Government concedes error and requests our court vacate the restitution order
and remand for resentencing.
      CONVICTION AFFIRMED; SENTENCE IN PART AFFIRMED;
RESTITUTION ORDER VACATED; REMANDED for resentencing consistent
with this opinion.




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