     Case: 16-41315      Document: 00514046101         Page: 1    Date Filed: 06/23/2017




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

                                    No. 16-41315                              FILED
                                  Summary Calendar                        June 23, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TARIQ MAHMOOD, M.D.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:13-CR-32-1


Before KING, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Tariq Mahmood, M.D., engaged in a scheme to defraud Medicare by
instructing his employees to manipulate the diagnosis and treatment
information that the hospitals he owned provided to Medicare in order to
obtain higher reimbursements than they were entitled to receive.                          A jury
convicted Mahmood of conspiring to commit health care fraud, seven counts of
health care fraud, and seven counts of aggravated identity theft. The district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-41315

court imposed a total prison sentence of 135 months—63 months on the
conspiracy and health care fraud counts to run concurrently, 24 months on
each of three identity theft counts to run consecutively, and 24 months on the
remaining identity theft counts to be served concurrently. This court vacated
the sentence and remanded for resentencing, finding that the district court
miscalculated the amount of the loss.             On remand, the district court
recalculated the loss amount and imposed the same prison sentence, varying
upward from the guidelines range.
      Now,    Mahmood      challenges       the    procedural   and    substantive
reasonableness of his sentence. Our review is for abuse of discretion. See Gall
v. United States, 552 U.S. 38, 51 (2007).
      At resentencing, the district court explained that, with the exception of
the loss amount, it adopted the rationale supporting the initial sentence. At
the first hearing, the court explained, among other things, that the fraud
“implicated thousands of claims” and Mahmood “controlled the proceeds of the
fraud, and those proceeds were not directed toward the operation of the
hospitals,” noting that Mahmood “failed to adequately fund the hospitals he
was entrusted with administering.” Mahmood takes issue with these findings,
arguing that there was no evidence to support them.
      The court’s findings are plausible in light of the record as a whole and
thus are not clearly erroneous. See United States v. Romans, 823 F.3d 299, 317
(5th Cir.), cert. denied, 137 S. Ct. 195 (2016); see also United States v. Gomez-
Alvarez, 781 F.3d 787, 796 (5th Cir. 2015) (explaining that to overcome factual
findings in the presentence report, a defendant must establish that they are
materially untrue, inaccurate, or unreliable). Moreover, any error would be
harmless. The district court reiterated in both sentencing proceedings that it
wished to impose a 135-month prison sentence and that it would have imposed



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                                 No. 16-41315

this sentence even absent the Guidelines because, given all of the facts of the
case, this particular sentence was warranted.      The court listed numerous
sentencing considerations to support this sentence, noting that its
“overarching concern” was the pervasiveness of the scheme and citing several
other factors, including that this sentence would deter others and that
Mahmood directed the scheme, stole tax money, and instructed otherwise law-
abiding citizens to break the law. The court did not specifically mention at
resentencing that the fraud implicated thousands of claims nor did it note how
Mahmood used the proceeds of the fraud. Any error did not affect the district
court’s selection of the sentence. See United States v. Delgado-Martinez, 564
F.3d 750, 753 (5th Cir. 2009).
      Mahmood also argues that the sentence is substantively unreasonable
on the grounds that the district court misstated the importance of the loss
amount in determining the sentence and relied on unsubstantiated facts that
were not sufficiently particularized. As the district court made clear, though,
the pervasiveness of the fraud scheme was the most important consideration
at sentencing. Moreover, the factors the court relied on were particularized to
Mahmood—the court looked to, among other things, the scope of his fraud, the
impact it had on the particular hospitals and their communities, and the fact
that Mahmood directed his employees to participate. The court appropriately
considered the 18 U.S.C. § 3553(a) factors including the seriousness of the
crime, the need to promote respect for the law, and need for deterrence.
Though the sentence was substantially above the guidelines range, the district
court gave thorough reasons supporting it.      See Gall, 552 U.S. at 50-51.
Mahmood has not shown that his sentence “(1) does not account for a factor
that should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in



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                                 No. 16-41315

balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).     Moreover, we will not reverse simply because we might
reasonably conclude that a different sentence would also be proper. Gall, 552
U.S. at 51; United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
     AFFIRMED.




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