Case: 19-20098     Document: 00515617836        Page: 1   Date Filed: 10/27/2020




           United States Court of Appeals
                for the Fifth Circuit                             United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                  October 27, 2020
                                 No. 19-20098
                                                                    Lyle W. Cayce
                                                                         Clerk
   United States of America,

                                                          Plaintiff—Appellee,

                                     versus

   John P. Ramirez, Medical Doctor,

                                                       Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:16-CR-258-1


   Before Smith, Clement, and Oldham, Circuit Judges.
   Andrew S. Oldham, Circuit Judge:
          Dr. John Ramirez committed healthcare fraud. The district court
   sentenced him to 300 months in prison. Ramirez argues that his sentence is
   unlawful because the district court miscalculated his offense level. We
   disagree and affirm.
                                       I.
         Ramirez defrauded Medicare. He falsely certified that Medicare
   beneficiaries needed a specialized form of nursing care called “home health
   services.” Medicare pays for such services only where a physician certifies
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   that he evaluated the patient face-to-face and determined that home health
   services were medically necessary. Ramirez signed hundreds of those
   certifications. But he did so without meeting the patients, much less
   evaluating them.
         Ramirez’s fraud caused two different types of financial loss to
   Medicare. First, Medicare paid for each certification that Ramirez falsely
   made. At the Amex Medical Clinic, for example, Ramirez falsely certified
   that he evaluated almost 4,000 patients. Amex requested almost $650,000 in
   Medicare reimbursements for those evaluations. Medicare paid Amex more
   than $200,000. Ramirez signed similarly fraudulent certifications at two
   other clinics, named EverBright and QC.
         The second form of financial loss to Medicare was more astonishing.
   Amex, EverBright, and QC sold Ramirez’s fraudulent certifications to
   hundreds of home health agencies, and those agencies in turn used the
   certifications to bill Medicare for home health services that were medically
   unnecessary, never provided, or both. For example, the certifications
   Ramirez fraudulently signed for Amex cost Medicare $14,577,715.91. Similar
   certifications at EverBright and QC cost Medicare $11,943,808.93.
         A jury found Ramirez guilty. The Pre-Sentence Report (“PSR”)
   recommended a Guidelines offense level of 43. The PSR premised that
   recommendation on three findings that are relevant to this appeal.




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          First, the PSR calculated that Ramirez’s fraud cost Medicare more
   than $25 million. The PSR explained that calculation in this table 1:




   That loss amount triggered a 26-point increase to Ramirez’s offense level.
   See U.S.S.G. § 2B1.1(b)(1)(L) (imposing a 22-level increase for an offense
   causing loss of more than $25 million);

   (imposing a 4-level increase for defrauding a government healthcare program
   of more than $20 million).
          Second, the PSR determined that Ramirez’s offense involved “the
   unauthorized transfer or use of any means of identification unlawfully to
   produce     or    obtain     any     other       means   of    identification.”

triggered another 2-point increase to Ramirez’s
   offense level.



          1
              The Medicare program consists of multiple “parts.” As relevant here, Part A
   covers home healthcare; Part B covers physician services. The PSR loss-calculation table
   separates the two different losses to Medicare—the amounts paid for Ramirez’s
   certifications (Part B) and the amounts paid for home healthcare services predicated on
   Ramirez’s certifications (Part A).




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          Third, the PSR determined that Ramirez’s offense involved 10 or
   more victims. That triggered another 2-point increase to his offense level
   under U.S.S.G. § 2B1.1(b)(2)(A)(i).
          The district court accepted the PSR over Ramirez’s objections. It
   therefore assigned Ramirez an offense level of 43 and a criminal history
   category of I. That generated a recommended Guidelines sentence of life in
   prison. But because no count of conviction prescribed a statutory maximum
   sentence of life, the Guidelines automatically adjusted the recommended
   sentence to 300 months. See

district court imposed that
   recommended sentence. Ramirez timely appealed.
                                          II.
          Ramirez challenges three aspects of his offense-level calculation.
   Then he complains that the district court denied his request for an
   evidentiary hearing. We explain and reject each of his arguments.
                                          A.
          Ramirez first contests the factual basis for the loss amount, which
   added 26 points to his offense level. “In such a challenge, we ask whether the
   district court relied on ‘clearly erroneous facts.’” United States v. Mazkouri,
   

, 303 (5th Cir. 2019) (quoting Gall v. United States, 

,
   51 (2007)). We find clear error only if the evidence, taken in its entirety,
   leaves us with a firm conviction the district court erred.

loss amount, the sentencing court looks to the
   greater of “actual loss or intended loss” resulting from the defendant’s
   crime. U.S.S.G. § 2B1.1 cmt. n.3(A). The Guidelines say that “actual loss”
   means “the reasonably foreseeable pecuniary harm that resulted from the
   offense.”

calculating that harm, the sentencing judge
   “need only make a reasonable estimate.”

because the




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   sentencing judge is best able to weigh the evidence and estimate loss based
   upon that evidence, his “loss determination is entitled to appropriate
   deference.” Ibid.; accord 

.
           Loss-amount calculations aren’t limited to the offense of conviction.
   The Guidelines tell us to consider “other offenses in addition to the acts
   underlying the offense of conviction, as long as those offenses constitute
   relevant conduct as defined in the Guidelines.” United States v. Barfield, 

, 762 (5th Cir. 2019) (quotation omitted), cert. denied, 

   (2020). Relevant conduct includes “acts and omissions” that are “part of
   the same course of conduct or common scheme or plan as the offense of
   conviction.” U.S.S.G. § 1B1.3(a)(2). To establish that conduct is “relevant,”
   the Government may show another offense is connected to the offense of
   conviction “by at least one common factor, such as common victims, common
   accomplices, common purpose, or similar modus operandi.”

added).
           Here, the sentencing court calculated the “actual loss” resulting from
   Ramirez’s fraudulent activity as $26,729,041.39. It determined that amount
   by aggregating the total amount Medicare paid on two categories of
   fraudulent claims: (1) $14,785,232.46 that Medicare paid for home health and
   physician services based on Ramirez’s certifications at Amex; and
   (2) $11,943,808.93 that Medicare paid for home health and physician
   services based on Ramirez’s certifications at EverBright and QC. 2


           2
             In calculating the loss amount, the district court relied on Ramirez’s PSR.
   “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the
   sentencing judge in making factual determinations.” United States v. Harris, 

,
   230 (5th Cir. 2012) (per curiam) (quotation omitted). The court also can adopt facts
   contained in the PSR so long as those facts have an “adequate evidentiary basis” and the
   “defendant does not present rebuttal evidence or otherwise demonstrate that the
   information . . . is unreliable.”

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                                          1.
          Ramirez first argues that the district court shouldn’t have held him
   accountable for category (1), the $14.8 million in Amex-related losses. That
   is so, Ramirez contends, because he didn’t personally bill the Government
   for $14.8 million. Ramirez further contends that he didn’t know others were
   using his certifications to bill Medicare.
          The record at sentencing showed otherwise. Ramirez spent an hour or
   two at Amex each week. During that time, he signed huge stacks of
   certification forms that enabled providers to falsely bill Medicare for home
   health services. And there is no reasonable basis for doubting whether these
   stacks of forms were part of a fraudulent scheme. For example, many were
   blank when Ramirez signed them. One was entitled “FACE TO FACE
   ENCOUNTER.” And it contained the following certification:




   Yet beneficiaries testified they never met Ramirez.
          Moreover, Ramirez himself appeared to recognize the (obvious) fact
   that his false certifications were illegal. He cautioned Amex’s owner that if
   he signed more than 100 certification forms per week, or more than 500 per
   month, Medicare might catch on and raise a “red flag.” Not only could the
   district court find the Amex-related losses to Medicare “reasonably
   foreseeable,” U.S.S.G. § 2B1.1 cmt. n.3(A)(i), it also could find Ramirez did
   in fact foresee them.




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          We find no clear error in holding Ramirez responsible for the Amex-
   related losses to Medicare.
                                         2.
          Second, Ramirez argues his loss-amount calculation shouldn’t include
   approximately $12 million for losses related to his fraudulent certifications at
   EverBright and QC. In Ramirez’s view, the district court should have
   excluded those sums from the loss amount because “the Government
   provided no evidence to link Dr. Ramirez” to EverBright, QC, or their
   fraudulent activities.
          There was ample evidence. Ramirez’s co-conspirator and former
   Amex employee, Trondelyn Brown, explained in interviews with federal
   agents that Ramirez told her to open EverBright, helped her obtain a DBA
   through LegalZoom, and walked her through the process of applying to
   become a Medicare services provider. Ramirez admitted to encouraging
   Brown to open EverBright. In fact, he told her to open the clinic in the same
   building as Amex so she could service some of Amex’s home health agencies.
          Ramirez also helped another former Amex employee, Brenda
   Rodriguez, open QC. Ramirez admitted that he “may have signed
   [certification forms] for Rodriguez” at QC. And in his objections to the PSR,
   Ramirez straightforwardly admitted that he worked at both clinics, but “only
   showed up periodically.” Of course, he only showed up periodically at Amex
   too—and Ramirez’s merely periodic appearances are part of the
   Government’s proof that he did not in fact evaluate thousands of patients he
   certified for Medicare. He also conceded that Amex, EverBright, and QC “all
   implemented the same scheme of using pre-signed blank forms” to provide
   home healthcare.
          Given all this, the district court did not clearly err in concluding that
   EverBright and QC shared “common accomplices, common purpose[s], or




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   similar modus operandi” with Amex. United States v. Ainabe, 

,
   690 (5th Cir. 2019) (emphasis and quotation omitted), cert. denied, No. 19-
   1407, 

(2020) (mem). In fact, they may have shared all
   three. These schemes therefore constitute relevant conduct within the
   meaning of the Guidelines. See U.S.S.G. § 1B1.3(a)(2); 

.
             Taking the Amex and QC/EverBright schemes together, the district
   court correctly calculated the loss amount. And it therefore correctly
   increased Ramirez’s offense level by 26 points: 22 points for causing a loss in
   excess of $25 million and 4 points for causing a loss to a government
   healthcare program in excess of $20 million. See U.S.S.G. § 2B1.1(b)(1)(L),
   (b)(7).
                                          B.
             Next, Ramirez argues the district court erroneously added 2 points to
   his offense level under U.S.S.G. § 2B1.1(b)(11)(C)(i). That Guideline applies
   where the offense involved “the unauthorized transfer or use of any means
   of identification unlawfully to produce or obtain any other means of
   identification.” Ramirez argues “the use of patients’ information . . . did not
   result in the production of any other means of identification.”
             Not so. Every Medicare reimbursement claim—fraudulent or
   otherwise—“bears a unique, Medicare-issued claim number tied to a
   particular beneficiary.” United States v. Kalu, 

, 681 (5th Cir.
   2019). So whenever Amex, EverBright, QC, or an affiliated home healthcare
   provider fraudulently billed Medicare for services purportedly rendered to a
   beneficiary, it (1) used that beneficiary’s information unlawfully, and
   (2) produced a unique Medicare-issued claim number (another means of
   identification). Thus, the district court did not err in increasing Ramirez’s
   offense level by 2 points under § 2B1.1(b)(11)(C)(i).




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                                         C.
          Next, Ramirez argues the district court erroneously added 2 points to
   his offense level under U.S.S.G. § 2B1.1(b)(2)(A)(i). That Guideline applies
   where the offense “involved 10 or more victims.” Ramirez appears to argue
   that his offense involved only one victim: Medicare.
          Our precedent forecloses that argument. We’ve said elsewhere the
   “victims” in Guideline 2B1.1 include “any individual whose means of
   identification was used unlawfully or without authority.” United States v.
   Barson, 

, 167 (5th Cir. 2016) (per curiam) (quoting U.S.S.G.
   § 2B1.1 cmt. n.4(E)); accord 

(quoting 

); 

–05. And we’ve also held that
   submitting a fraudulent Medicare claim is an unlawful use of a beneficiary’s
   information. See 

. Our precedent therefore dictates that
   each Medicare beneficiary whose information was used in a fraudulent claim
   is a “victim” within the meaning of § 2B1.1(b)(2)(A)(i). The district court
   reasonably concluded that Ramirez bore responsibility for thousands of
   fraudulent claims and hence had thousands of victims.
                                         D.
          Finally, Ramirez argues the district court erred in denying him a
   hearing at sentencing. Ramirez sought an evidentiary hearing to submit five
   categories of “evidence and testimony that [his] trial attorneys . . . failed to
   submit as evidence at trial.”
          There’s no doubt that a district court “may permit the parties to
   introduce evidence on [] objections” to a PSR. Fed. R. Crim. P. 32(i)(2);
   see also U.S.S.G. § 6A1.3(a) (providing that parties “shall be given an
   adequate opportunity to present information to the court” regarding any
   sentencing factor in dispute). When a court refuses to hold a full hearing on
   that evidence, we review its decision for an abuse of discretion. United States




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   v. Hass, 

, 751 (5th Cir. 1999). But as a general matter, “there is
   no abuse of discretion when a defendant has an opportunity to review the
   PSR and submit formal objections to it.” United States v. Tuma, 

,
   693 (5th Cir. 2013).
          Here, the district court did not abuse its discretion in refusing to hold
   an evidentiary hearing. Ramirez had the opportunity to review the PSR and
   submit formal objections to it. His counsel used that opportunity. And the
   probation office properly resubmitted the PSR with Ramirez’s objections and
   the Government’s responses. See Fed. R. Crim. P. 32(g). The district
   court acknowledged each objection and adopted the Government’s answers
   to each. The court also offered defense counsel and the Government an
   opportunity to make additional objections. Neither party did so. The district
   court was well within its discretion in concluding a more extensive
   evidentiary hearing was unnecessary.
          The district court’s judgment is therefore AFFIRMED.




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