                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0507n.06

                                     Nos. 16-1168/16-1343


                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                               FOR THE SIXTH CIRCUIT                              Aug 30, 2017
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
SANYANI EDWARDS,                                         )      DISTRICT OF MICHIGAN
                                                         )
       Defendant-Appellant.                              )
                                                         )


BEFORE: BOGGS, BATCHELDER, and WHITE, Circuit Judges.


       ALICE M. BATCHELDER, Circuit Judge. These consolidated appeals arise from

Sanyani Edwards’s conviction for conspiring to commit health-care fraud as one participant in a

network of physicians, pharmacists, and others who engaged in a kickback scheme in the Detroit

area. Edwards asserts that the district court erred: (1) by admitting certain testimony at trial

from a federal agent who supervised the collection of wiretaps against him; (2) by allowing him

to represent himself during sentencing; (3) by selecting as the loss amount for sentencing

purposes the amount set forth in his Pre-Sentence Report (PSR); and (4) by using the same loss

amount as the restitution award. Finding no error, we affirm the judgment of the district court.
Nos. 16-1168/16-1343
United States v. Edwards

                                                 I.

        We have previously considered cases involving other members of this conspiracy and

described the scheme as follows:

        The leader of these conspiracies, Babubhai Patel, was a registered pharmacist and
        businessman who owned or controlled at least twenty pharmacies in Michigan.

                                              ****

        The conspiracies began in January 2006 and ended in August 2011 when Patel
        and his associates were arrested, effectively ending their illegal activities. The
        number of pharmacies controlled by Patel varied over time, and he changed their
        corporate structures frequently. Patel hired all of the staff and supervised the
        pharmacy operations.

        The scheme to defraud insurers depended on the participation of physicians,
        pharmacists, recruiters, and patients. Patel paid cash bribes to physicians to entice
        them to write patient prescriptions for expensive medications and controlled
        substances that could be billed to Medicare, Medicaid, or private insurers through
        the Patel pharmacies. He paid kickbacks to managers of health-related companies
        so that they would send patients to his pharmacies, and he employed “marketers”
        to recruit “patients” directly from the streets.

        Pharmacists facilitated the criminal activity by charging insurers for expensive
        medications that were ordered from wholesale distributors and held in inventory
        but not dispensed to patients. These surplus medications were later returned to the
        supplier for credit or sold on the black market. Pharmacists also billed insurers
        for controlled substances that the pharmacists knew were illegally prescribed.
        These controlled medications included hydrocodone (Vicodin, Lortab),
        oxycodone (Oxycontin), alprazolam (Xanax), and codeine-infused cough syrup.
        When filling prescriptions, the pharmacists usually “shorted” the number of
        dosage units placed in the medication vials for patients, billed the insurers for the
        full drug quantities prescribed, and then sold the excess pills on the street.

        A significant portion of the prescription fraud was perpetrated through Visiting
        Doctors for America (VDA), a physician group that purported to provide home
        doctor visits to patients. Marketers recruited “patients” from homeless shelters
        and soup kitchens by offering them small amounts of cash or controlled
        substances. The marketers transported the “patients” to a VDA physician, who
        performed cursory examinations of the “patients” while they sat together in one
        room. VDA staff provided the co-conspirators with dummy patient files and
        blank prescription pads previously signed by a physician or physician’s assistant.
        Mehul Patel and later Arpit Patel, neither of whom is a physician, wrote
        prescriptions for controlled medications and expensive non-controlled

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United States v. Edwards

        medications on these blank, pre-signed prescription pads. The prescriptions were
        taken to the Patel pharmacies, where the pharmacists used the dummy patient files
        to enter patient profiles into the computer database, billed for all of the
        medications prescribed, but filled only the controlled medications. The controlled
        substances were then distributed, or sold on the street.

        Patel paid his pharmacists salaries, bonuses, and twenty percent of pharmacy
        profits to encourage them to engage in fraudulent practices.

United States v. Patel, 579 F. App’x 449, 451–52 (6th Cir. 2014).

        The grand jury indicted Sanyani Edwards—along with more than twenty other

defendants—for health-care-fraud conspiracy in violation of 18 U.S.C. § 1349, and conspiracy to

distribute controlled substances in violation of 21 U.S.C. § 846. A superseding indictment added

a charge for conspiracy to pay and receive health-care kickbacks in violation of 18 U.S.C. § 371.

Edwards went to trial with two co-defendants, where a jury found him guilty of all three counts.

        At trial, the government’s evidence illuminated Edwards’s role in the conspiracy. First,

the evidence demonstrated that Edwards, who is a psychologist, managed the prescription-

writing activities of a psychiatrist named Dr. Mark Greenbain, who wrote prescriptions to Patel’s

pharmacies. Greenbain was licensed by the United States Drug Enforcement Administration

(DEA) to prescribe controlled substances, but Edwards was not. One of Patel’s twenty-six

pharmacies in Detroit, Care 4 U Pharmacy, was located across from the office of Dr. Pramod

Raval, whose office space Greenbain occasionally used. Edwards worked with Greenbain at that

office. The pharmacist at Care 4 U, Anish Bhavsar, testified that he had observed Edwards both

at the pharmacy and at Greenbain’s home, and that Edwards acted as Greenbain’s “personal

assistant.” Bhavsar testified that on six occasions, he collected names of patients and went with

Patel to Greenbain’s house to obtain prescriptions for the listed names from Greenbain. On one

of those visits, he saw Patel give money to Greenbain to encourage him to write prescriptions;

twice, he saw Edwards there.

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Nos. 16-1168/16-1343
United States v. Edwards

        Another pharmacist, Ashwani Sharma, also testified about Greenbain, Edwards, and

another assistant, Ms. Jackson, explaining that all three saw patients in the office of Dr. Anmy

Tran, a podiatrist. Jackson would relay verbal prescriptions to Sharma, and then Edwards would

later email or call with updated prescriptions for more expensive medications.

        Beyond Edwards’s assisting of Greenbain, the government’s evidence at trial also

demonstrated that Edwards was a marketer who recruited other individuals to engage in

Medicare back billing and to submit prescriptions to Patel’s pharmacies. Dinesh Patel, another

pharmacist who participated in Babubhai Patel’s scheme, testified that he too saw Edwards in

Greenbain’s home and that he saw Babubhai Patel pay kickbacks to Greenbain in front of

Edwards.

        Other evidence against Edwards came from a DEA agent, Tyler Parkison, who was a co-

case manager for the DEA’s investigation of this conspiracy and who worked on the case for

over two years. Agent Parkison testified that the government intercepted approximately 11,000

voice/audio calls through wiretaps on Babubhai Patel’s cell phones. He also stated that Edwards

was named in “[p]robably 30 to 40” of the wiretapped calls and was party to “[p]robably 15 to

25” of the calls.1 We will address the content of some of these calls below.

        The jury convicted Edwards of all three counts. At a pre-sentencing hearing on a motion

to withdraw filed by Edwards’s attorney, Edwards declared that he wished to proceed pro se. At

this hearing, the district court asked the required questions of a defendant who wishes to

represent himself, but the hearing ended with Edwards considering the idea of retaining a new

attorney for sentencing. The transcript of the sentencing hearing reveals that sometime before

        1
           Some of the wiretapped calls were not in English, but all of the calls that Edwards addresses on appeal
were. For the foreign-language calls, the DEA hired translators who spoke Hindi and Gujarati. The translators
summarized the calls, and one of the case agents would review the summaries and request word-for-word
transcriptions of calls pertaining to criminal activity. The translators also summarized phone calls that were in
English, but other DEA investigators transcribed those calls.

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United States v. Edwards

that hearing, Edwards apparently sent a letter to the court reaffirming his desire to represent

himself, but that letter is not in the record. At the sentencing hearing, the district court had

Edwards confirm this intent, asked further questions about his desire to represent himself, and

allowed him to proceed pro se.

        At sentencing, Edwards objected to an 18-level enhancement for a loss amount between

$2.5 million and $7 million, pursuant to USSG § 2B1.1(b)(1)(J). The district court found that the

loss amount was approximately $6 million and overruled the objection. The district court

sentenced Edwards to sixty-five months’ imprisonment and ordered him to pay $6,067,137 in

restitution jointly and severally with all convicted co-defendants. Edwards timely appealed.

                                                 II.

                                                 A.

        The first issue Edwards raises on appeal concerns certain opinion testimony of DEA

Agent Parkison, who testified about wiretapped calls collected from Patel’s phones. Edwards

failed to object to the testimony at trial, so we review for plain error the trial court’s decision to

admit the testimony. See United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009).

        Rule 701 governs lay opinion testimony and requires that the testimony is “(a) rationally

based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or

to determining a fact in issue; and (c) not based on scientific, technical, or other specialized

knowledge . . . .” Fed. R. Evid. 701; see United States v. Freeman, 730 F.3d 590, 595–96 (6th

Cir. 2013). We have held that law-enforcement officers who offer testimony under Rule 701—

i.e., by interpreting recorded phone conversations—must specify the personal experiences that

led the agent to obtain his or her information. Freeman, 730 F.3d at 596. In other words, the

agent cannot rely on the general knowledge of the investigation as a whole or of the government



                                                 -5-
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United States v. Edwards

agency investigating the crime in order to support his or her testimony. Rather, the government

must lay a proper foundation for the testimony. Id. This rule seeks to mitigate the risk “that

when an agent ‘provides interpretations of recorded conversations based on his knowledge of the

entire investigation,’ the agent could impermissibly testify ‘based upon information not before

the jury, including hearsay.’” United States v. Kilpatrick, 798 F.3d 365, 380 (6th Cir. 2015)

(quoting Freeman, 730 F.3d at 596 (citations omitted)).

        In Freeman, we held that an FBI agent provided an impermissible lay witness opinion

when he testified about the meaning of certain phone calls intercepted by wiretap in a murder

investigation when the agent “never specified personal experiences that led him to obtain his

information.” Freeman, 730 F.3d at 596. Rather, he “relied on the general knowledge of the

FBI and the investigation as a whole,” such that the jury would have to “trust that he had some

information—information unknown to them—that made him better situated to interpret the

words used in the calls than they were.” Id. at 596–97. In fact, the government conceded that

the agent did not have “first-hand knowledge required to lay a sufficient foundation for his

testimony.” Id. at 597.

        Even where an agent has firsthand knowledge, he may not “spoon-fe[e]d his

interpretations of the phone calls and the government’s theory of the case to the jury, interpreting

even ordinary English language.” Id.

        An agent qualified as an expert may interpret coded drug language . . . . And a
        lay witness who has personal knowledge of a particular drug or crime conspiracy
        may similarly testify to the meaning of coded language within his knowledge. But
        a case agent testifying as a lay witness may not explain to a jury what inferences
        to draw from recorded conversations involving ordinary language.

Id. at 598 (emphases added) (citing United States v. Hampton, 718 F.3d 978, 985 (D.C. Cir.

2013) (Brown, J., concurring)).



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United States v. Edwards

                                                B.

        Edwards contends that Agent Parkison’s testimony concerning the wiretapped calls ran

afoul of Freeman and identifies eight times the testimony may have violated Rule 701. The

government replies that all of Agent Parkison’s testimony was permissible under Kilpatrick in

light of his substantial involvement in the case and because it provided useful information to the

jury in the form of explaining code words or framing parts of the investigation.

        Kilpatrick governs here. There, the agents “established a personal-knowledge basis for

their lay opinion testimony . . . [by testifying] on multiple occasions concerning his or her years-

long personal involvement in the case.” 798 F.3d at 381. Additionally, the court found that “few

of the challenged statements could be characterized as (1) arguing the government’s case or

(2) offering interpretations of plain English language.” Id. For these reasons, the testimony was

admissible. Id.; see also United States v. Williamson, 656 F. App’x 175, 187 (6th Cir. 2016)

(“Although [the agent] testified that he had listened to ‘over thousands of phone calls’ and often

used the pronoun ‘we’ when discussing the investigation, he made clear his active role in the

surveillance. . . . He had the firsthand knowledge necessary to give lay opinion testimony.”),

cert. denied, 137 S. Ct. 1119 (2017); United States v. Smith, 609 F. App’x 340, 347 (6th Cir.

2015) (holding that agent who “interpreted the conversations based on personal knowledge as

opposed to his general involvement in the investigation” gave permissible lay witness

testimony). More recently, this court held that the district court did not err by allowing an agent

who “testified numerous times to his personal involvement in the investigation” to interpret

wiretapped phone calls. United States v. Young, 847 F.3d 328, 351 (6th Cir. 2017).

        Like the agent in Kilpatrick, Agent Parkison testified that he was intimately involved in

the investigation. He was a co-case manager for the DEA’s investigation, and he worked on this



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United States v. Edwards

matter for over two years. During that time, he reviewed the summaries of 11,000 wiretapped

calls, ordered transcriptions of relevant calls, reviewed those transcripts, and listened to many

calls. His personal involvement in this case was sufficient to establish his ability to interpret the

wiretapped phone calls. The district court did not commit plain error in admitting the testimony.

        Whether the agent was personally involved in the investigation does not end our inquiry.

An agent may “be helpful when she uses her personal knowledge of the case to interpret cryptic

language . . . [b]ut a case agent testifying as a lay witness ‘may not explain to a jury what

inferences to draw from recorded conversations involving ordinary language’ because this

crosses the line from evidence to argument.” Kilpatrick, 798 F.3d at 380–81 (quoting Freeman,

730 F.3d at 598). Therefore, we must also assess the testimony to determine, for example,

whether it explained what inferences the jury should draw, argued the government’s case,

interpreted plain language, or otherwise crossed the line from opinion to argument.

        Having reviewed the testimony of which Edwards complains, we find that Agent

Parkison did not cross this line. Agent Parkison interpreted words unique to the investigation

and deciphered ambiguous statements in a way that was useful to the jury. This testimony, based

on his perception as the case agent, was permissible under Rule 701.

        As a preliminary matter, Edwards provides very little argument as to how any of the

complained-of testimony violates the rules established in Freeman and Kilpatrick. For most of

the testimony about which he complains, he simply asserts that the government asked Agent

Parkison to interpret portions of the wiretapped calls, which we have found to be permissible

here. Edwards implies that some of the testimony was tantamount to “spoon-feeding” the

government’s theory of the case to the jury, or that the agent summarized what inferences to

draw from a particular call. For example, in one call, Patel tells Edwards that he views Edwards



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United States v. Edwards

as a “super marketer,” and Agent Parkison explains that “[a] marketer is someone who recruited

patients to fill their prescriptions at pharmacies controlled by Babubhai Patel.” This was not

spoon-feeding a theory; it was an explanation of a term and was useful to help the jury

understand what a marketer was in this conspiracy and how Edwards fulfilled that role.

           Similarly, in another call, Edwards and Patel discuss opening a “sleep clinic,” and

Edwards says that a third party will “take the money from the sleep clinic versus the rent because

it’ll be more money . . . .” When asked what Edwards and Patel were discussing, Agent Parkison

explained: “The two options are, is they’re discussing in this building that Dr. Pediway is in that

they are going to start a sleep clinic. And instead of paying Dr. Pediway through the rent, that

they’ll just pay him—he’ll just receive some of the profits from the sleep clinic as his payment

for it.”     This is not an improper interpretation, because Agent Parkison was providing an

explanation of the context and meaning of the conversation in light of his work on the

investigation, which is permissible under Kilpatrick. And he was not instructing the jury what

inference to draw from the wiretapped call, because he was simply explaining what Edwards

meant when he said this to Patel. Comparing Agent Parkison’s words with Edwards’s words

demonstrates that Agent Parkison was interpreting the meaning, not adding some sort of

impermissible gloss that pushed the jury in the direction the government wanted it to go.

           We hold that in those instances where Edwards simply points to testimony and claims

that Agent Parkison was interpreting it, there was no error in the admission of the testimony,

especially in light of the lack of any contemporaneous objection by defense counsel

           Even where Edwards does specifically argue error in the admission of the opinion

testimony, we detect none. For example, the government played a wiretapped call between

Edwards and Patel in which they discuss recruiting physicians’ assistants into the scheme. Patel



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Nos. 16-1168/16-1343
United States v. Edwards

says, “we want . . . scripts and we gonna work it, and we gonna help then that too, like Greengain

[sic] right?” The government asked Agent Parkison what it meant to work “like Greenbain,” and

he replied that the physicians’ assistants “will provide their prescriptions to pharmacies

controlled by Babubhai Patel to be filled, like Dr. Greenbain is doing.” Edwards contends that

Agent Parkison’s explanation of the phrase was feeding the government’s theory of the case to

the jury. Not so. The meaning of “like Greenbain” is not inherently clear, and it was permissible

for Agent Parkison to explain his understanding of its meaning—based on his investigation—to

the jury.

        Finally, Edwards refers to two instances when Agent Parkison indicated that he can

interpret the calls better than others. Edwards argues that the agent’s implication is that he has

background context that others—including the jurors—do not. In Freeman, we held that an

agent’s testimony implying that the agent “had some information” unknown to the jury “that

made him better situated to interpret the words used in the calls than they were” violated Rule

701. 730 F.3d at 597. But, we explained, this was because “the jury had no way of verifying his

inferences or of independently assessing the logical steps he had taken” when the agent “failed to

explain the basis of his interpretations . . . and therefore failed to lay a foundation under Rule

701.” Id. This is not the case here. As we have explained, Agent Parkison did lay the necessary

foundation for providing his opinion on the calls. Although we would not condone the regular

practice of agents implying that they have hidden context that the jury does not, we find that

there was no plain error in this instance. This is particularly so here, where the testimony to

which Edwards objects was elicited through cross-examination by Edwards’s co-defendant and

seems to have been intended either to attack the foundation for Agent Parkison’s testimony or to




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Nos. 16-1168/16-1343
United States v. Edwards

impeach his credibility as a witness. We therefore conclude that it was not plain error to admit

this testimony, and we need not reach the parties’ dispute concerning the invited error doctrine.

                                                 II.

                                                 A.

        Edwards next complains that the district court erred in allowing him to represent himself

at sentencing. This court has not clearly defined the standard of review for a trial court’s

decision allowing the waiver of counsel. See, e.g., United States v. Carmichael, 676 F. App’x

402, 407–08 (6th Cir. 2017) (explaining that we have used both plain error and “a standard akin

to de novo review” for appellate review of a district court’s decision to allow waiver of counsel).

We need not resolve this conflict here, because, as in Carmichael, Edwards’s argument fails

under either standard of review.

        Before a defendant may exercise his right to self-representation, we require the district

court to ensure that the defendant is knowingly and voluntarily waiving his right to counsel. See

Faretta v. California, 422 U.S. 806, 833–34 (1975); United States v. Cromer, 389 F.3d 662, 680

(6th Cir. 2004). “[T]o ensure that a defendant’s waiver of counsel is knowing and intelligent,”

we require the district court to engage in a Faretta inquiry, essentially a series of questions from

the Bench Book for United States District Court Judges. Cromer, 389 F.3d at 680; United States

v. Evans, 559 F. App’x 475, 480 (6th Cir. 2014). “Substantial compliance with this series of

questions is sufficient.” Cromer, 389 F.3d at 680. This substantial compliance standard means

that the district court need not conduct a formal inquiry consisting of all thirteen questions plus

the admonition against self-representation. Rather,

        [W]e have reviewed a district judge’s Faretta inquiry on appeal by focusing on
        whether the judge addressed the relevant considerations behind the model inquiry,
        such as the defendant’s familiarity with the law, . . . the gravity of the charges and
        the dangers of self-representation, and whether the defendant’s decision to waive

                                                -11-
Nos. 16-1168/16-1343
United States v. Edwards

        counsel is voluntary. Where the record shows that the defendant kn[ew] what he
        [wa]s doing and his choice [wa]s made with eyes open, we have found the Faretta
        inquiry adequate.

United States v. Bankston, 820 F.3d 215, 224 (6th Cir. 2016) (alterations in original) (internal

citations and quotations omitted). In Bankston, where we stated that literal adherence to the

Bench Book questions is not a requirement, the district court had asked only three of the

questions, but nevertheless satisfied the “relevant considerations.” Id.

                                                        B.

        The district court did not err in allowing Edwards to represent himself.2 At a motion for

withdrawal of counsel, Edwards expressed his desire to represent himself in his sentencing

hearing. The district court consulted a list of Faretta questions, proceeded to ask Edwards the

relevant questions (for example, omitting questions that applied only at the trial stage), and

indicated that “representing yourself is not easy to do.” Further, the court urged Edwards to

work with his stand-by counsel in reviewing the PSR and to reconsider his decision to represent

himself. At his sentencing hearing several months later, Edwards reiterated that he wanted to

proceed pro se.        The district court cautioned Edwards against self-representation:                     “You

understand being sentenced is a difficult time especially if you are the one being sentenced. And

you have, first of all, a right to counsel. And if you can’t afford one, one would be provided for

you for sentencing? Do you understand that?” Eventually, after further questioning Edwards,

the court said, “I find that you are voluntarily waiving your right to counsel and you are

obviously an intelligent person who understands the consequences.” By itself, the fact that this

Faretta hearing took place across two different days is not erroneous. Cf. United States v. Ross,


        2
          In his opening brief, Edwards argues that the district court failed to ask any of the Faretta questions.
Apparently, he neglected to order and to consider a hearing transcript that recorded the district court’s asking the
relevant questions. The government points out this oversight, which Edwards concedes in his reply brief while
maintaining that the district court erred.

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Nos. 16-1168/16-1343
United States v. Edwards

703 F.3d 856, 868 (6th Cir. 2012) (“Although the court did not ask Ross each of these questions

again at the June 16 hearing on Ross’s second motion, the answers to those particular questions

likely would not have changed in the intervening two weeks, and the court referred to them in its

findings at the latter hearing.”).

        The government argues that the Faretta hearing addressed the “relevant considerations”

identified by Bankston. We agree. First, the district court determined that Edwards had no legal

training but that he was highly educated and “felt qualified and thought it was in his best

interest” to proceed pro se. Second, Edwards was aware of the gravity of the charges against

him in light of an acknowledgment he signed at his arraignment, the information contained in the

PSR that he confirmed he had read, and his confirmation to the district court that he understood

the crimes charged against him. Third, the district court ensured that Edwards understood the

dangers of representing himself, and it repeated this admonition at both hearings where Edwards

sought leave to proceed pro se.      Fourth, the district court asked questions to ensure that

Edwards’s desire to represent himself was voluntary. Accordingly, we find that the district court

properly assessed Edwards’s desire to represent himself, asked him the proper questions under

Faretta, and did not err in finding that he made a voluntary, intelligent waiver of his right to

counsel.

                                              III.

                                               A.

        Edwards’s next argument on appeal is that the district court erred by adopting the loss

amount set forth in his PSR. The procedural reasonableness of a sentence is reviewed for abuse

of discretion. See United States v. Rios, 830 F.3d 403, 435 (6th Cir. 2016). The amount-of-loss

determination is reviewed for clear error, but the methodology for determining loss is reviewed



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United States v. Edwards

de novo. See United States v. Warshak, 631 F.3d 266, 328 (6th Cir. 2010). The government

must prove the loss “by a preponderance of the evidence,” and the district court “‘need only

make a reasonable estimate of the amount.’” United States v. Jones, 641 F.3d 706, 712 (6th Cir.

2011) (quoting USSG § 2B1.1, comment. (n.3(C)). The district court “does not have to establish

the value of the loss with precision; it simply needs to publish the resolution of the contested

factual matters that formed the basis of the calculation.” United States v. Poulsen, 655 F.3d 492,

513 (6th Cir. 2011) (citation and internal quotation marks omitted).

        “When a defendant fails to produce any evidence to contradict the facts set forth in the

PSR, a district court is entitled to rely on those facts when sentencing the defendant.” United

States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007). Moreover, a district court may use the

“‘aggregate dollar amount of fraudulent bills submitted to’ Medicare . . . [as] ‘prima facie

evidence of the amount of intended loss . . . if not rebutted.’” United States v. Behnan, 554 F.

App’x 394, 400 (6th Cir. 2014) (quoting USSG § 2B1.1, comment. (n.3(F)(viii))).

        Under the Federal Rules of Criminal Procedure, the district court “may accept any

undisputed portion of the presentence report as a finding of fact,” but it “must—for any disputed

portion of the presentence report or other controverted matter—rule on the dispute . . . .” Fed. R.

Crim. P. 32(i)(3)(A)–(B). Where the parties contest the loss amount, “the court must explain its

calculation methods.”      Poulsen, 655 F.3d at 512.      “[O]ur analysis proceeds as follows:

(1) whether the amount was in dispute; (2) if it was in dispute, whether the district court

adequately ruled on the disputed amount; and (3) if the district court ruled, whether the factual

findings indicate clear error.” Id. at 513.




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United States v. Edwards

                                                B.

Edwards’s PSR stated that the loss amount to Medicare, Medicaid, and Blue Cross/Blue Shield

was $6,067,137. Edwards objected to this loss amount on the ground that even if it were the

amount of loss Greenbain caused, it did not mean that Edwards himself was responsible for this

loss. Although Edwards did not produce any rebuttal evidence concerning the proper amount,

the district court entertained his objection to the PSR’s loss amount and found that the amount

was appropriate in light of the jury conviction. At sentencing, the government explained that

because the evidence demonstrated that Greenbain and Edwards were “very closely associated

with each other,” the government was seeking to hold Edwards “accountable only for the losses

associated with Doctor Greenbain and Doctor Greenbain’s fraudulent prescriptions and

fraudulent submissions to the Medicare program for services he allegedly applied for.”

Edwards’s argument at sentencing was essentially that “[t]here was no evidence,” that “most of

the information was speculation,” and that “[n]ot one of the witnesses were aware as to why I

was even involved or how or why I was even involved in the conspiracy.” The district court

disagreed: “I have to respect what the jury found . . . And under the laws of the Sixth Circuit and

the conspiracy laws, you are responsible at least for what [Dr.] Greenbain did.” The court

overruled the objection and stated, “the [loss] amount will remain at six million which is at the

high end of the [18-level]” enhancement.

        Edwards argues on appeal that the district court erred by using the PSR’s loss amount of

$6,067,137 without making a finding of fact. He asserts four problems: (1) the government was

inconsistent in its own sentencing memorandum concerning the loss amount, and none of these

numbers matched the final amount set by the court; (2) Edwards joined the conspiracy after

Greenbain, so he should not be held responsible for the full amount of Greenbain’s acts;



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United States v. Edwards

(3) some of Greenbain’s acts were not foreseeable to Edwards; and (4) it is unclear whether all of

Greenbain’s prescriptions were fraudulent. As the government notes on appeal, Edwards failed

to raise in the district court these claims of error in the method of calculating the loss amount.

        Although we construe Edwards’s pro se objection liberally, we nevertheless conclude on

these facts that his objection to the loss amount was not based on that amount’s calculation as

much as it was an argument that he was innocent or that he should not be responsible for the

same amount as Dr. Greenbain, another member of the conspiracy. That is precisely what the

district court addressed when overruling the objection, thereby satisfying Rule 32. Even if we

assume that Edwards placed the loss amount in dispute—the first step of the three-step Poulsen

analysis—the district court adequately ruled on the dispute by reiterating that a convicted

member of a conspiracy is liable for the foreseeable acts of another member of the conspiracy.

See United States v. Gravier, 706 F.2d 174, 177–78 (6th Cir. 1983). Finally, it was not clear

error to accept the loss amount set forth in the PSR when Edwards presented no rebuttal evidence

in support of his position. See Geerken, 506 F.3d at 467.

                                                 IV.

        Finally, Edwards argues that the district court erred by using the loss amount to

determine the amount of restitution, relying on the same reasons he used for his loss-amount

argument. Because we affirm the loss calculation for purposes of his Guidelines sentencing

range, we also hold that it was not an abuse of discretion for the district court to use that same

amount when calculating Edwards’s restitution amount. Cf. Behnan, 554 F. App’x at 400.

                                                 V.

        For the foregoing reasons, we AFFIRM Edwards’s conviction and sentence.




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