NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0529n.06

                                       Nos. 19-1385/1453

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Sep 10, 2020
                                                                             DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                               )
                                                         )
        Plaintiff-Appellee,                              )
                                                         )    ON APPEAL FROM THE
 v.                                                      )    UNITED STATES DISTRICT
                                                         )    COURT FOR THE WESTERN
 BABUBHAI RATHOD,                                        )    DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellant.                             )


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

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Babubhai Rathod admitted

to violating several conditions of his supervised release and pleaded guilty to new charges of

healthcare fraud and aggravated identity theft. The district court sentenced Rathod to 144 months

of imprisonment on the new charges and to a consecutive term of 10 months of imprisonment on

the supervised-release violations. Rathod challenges both sentences and, for the first time on

appeal, argues that there was a jurisdictional defect in the Information. We AFFIRM.

                                                I.

                                    A. Factual Background

       Rathod was a physical therapist. In 2002, the State of Michigan charged him and one of

his healthcare entities, Emerald Physical Therapy, with eight counts of falsifying medical records,

four counts of healthcare fraud, two counts of fraud or larceny over $1,000.00, and one count of

conspiracy to commit fraud or larceny for billing Medicare and Medicaid for physical therapy
19-1385/1453, United States v. Rathod


services that were never provided. Emerald Physical Therapy, acting through Rathod, pleaded

guilty in 2003, and Rathod’s license was revoked and he was ordered to pay restitution.

       In 2011, the federal government discovered that Rathod was participating in a scheme to

acquire patient referrals for his healthcare companies by paying kickbacks to healthcare

practitioners and disguising those payments as mileage expenses or bonuses. The government

charged Rathod with conspiracy to pay and receive healthcare kickbacks, and Rathod pleaded

guilty to that charge in 2012. He was sentenced to 48 months in prison to be followed by two

years of supervised release. Prior to going into custody, Rathod sold his medical practice to Dr.

Richard MacAuley. As a consequence of his conviction and as part of a related civil settlement,

Rathod agreed to a 20-year exclusion from participating in federal healthcare programs. The

district court also required, as a condition of Rathod’s future supervised release, that he refrain

from “operating, partnering with, or overseeing any business that billed services to Blue Cross

Blue Shield of Michigan (“BCBSM”), Medicaid, or Medicare.” R. 55, PID 315. Rathod was

released from custody on June 24, 2016.

       On December 28, 2017, BCBSM received a complaint on its anti-fraud hotline alleging

that Advanced Sleep Diagnostics of Michigan (“ASD”) was changing prior-authorization forms

so that patients qualified for more expensive in-lab sleep tests, rather than home sleep tests, and

that ASD’s owner, Jackie Patel, and its billing coordinator, Cathy Younknan, submitted forms with

false information, and without physician consent, to get the authorizations approved.

       BCBSM’s subsequent investigation revealed that Rathod had resumed participating in

federal healthcare programs—in violation of his exclusion and the special condition of his

supervised release—by concealing his control of several healthcare providers, including Advanced

Medical Services, P.L.L.C. (d/b/a/ ASD), Sleep Diagnostics of Michigan, P.C. (“SDM”), EZ Sleep



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19-1385/1453, United States v. Rathod


Supplies, L.L.C. (“EZ Sleep”), and Paramount Home Care, Inc. (“PHC” or “Paramount”).

Although these companies were nominally “owned” by Rathod’s friend, Jackie Patel, on paper,

Rathod operated them and controlled their accounts and activities.         As relevant here, the

investigation also revealed that:

    •   Rathod directed a convicted felon, Wavy Curtis Shain, to organize AMS to take over Dr.
        MacAuley’s failing company, SDM. Rathod “enrolled AMS in Medicare and Medicaid
        in the name of another physician colleague, Abid Agha, M.D.” R. 55, PID 316. “Dr Agha
        knew Mr. Rathod enrolled in Medicare and Medicaid using his name.”

used the aliases ‘Chuck,’ ‘Chuck Agha,’ ‘Chuck Patel,’ ‘Babu Ahir,’ and
        ‘Dr. Ahir,’ to interact with AMS employees and third-party vendors. Mr. Rathod also
        assumed Dr. Agha’s and Jackie Patel’s identities and created e-mail addresses for those
        identities . . . to conduct business without their knowledge.”

2016 to May 2017, Rathod used Dr. Agha’s identity, including his name,
        address, date of birth, Social Security number, and driver’s license number, along with yet
        another false email address to seek financing from thirteen funding sources. Rathod, “as
        Dr. Agha, signed a loan agreement with Greenbox Capital” and then used a fictitious
        notary to forge Dr. Agha’s name on a Confession of Judgment that rendered Dr. Agha
        personally liable in the event of a default.

PID 317.

    •   In fall 2016, Jackie Patel and an individual named “Chuck” approached Barry and Lori
        Gaukel, the owners of EZ Sleep, to negotiate the purchase of the business. Chuck, later
        identified by the Gaukels in a photo lineup as Rathod, led the negotiation for the purchase
        of the business. “Rathod directed another individual, Chandu Patel, to organize a holding
        company, SAM Business Solutions, Inc. with Chandu Patel acting as the registered agent.”

PID 318. Rathod funded his acquisition of EZ Sleep through purchase agreements
        in the name of Jackie Patel, acting on behalf of SAM Business Solutions.

    •   At some point, Rathod “participated in negotiations with his wife, Shaila Rathod, to
        purchase Paramount Home Care, Inc. in Farmington, Michigan, from its owner.”

        PID 319. Rathod, using the identity of Chandu “Chuck” Patel, “signed a non-disclosure
        agreement with Vallexa, Inc., a Las Vegas-based home health care and hospice broker, to
        explore the possibility of buying Affiliated Home Health Care, LLC, in Southfield,
        Michigan.”

real Chandu Patel to create “Fafi Business Solutions,
        LLC, with Chandu Patel acting as the registered agent” and “knowingly misrepresented to
        Mr. Patel that Fafi Business Solutions was the holding company for Subway restaurants
        that Mr. Patel would manage.”

Business Solutions existed solely as the
        holding company for Paramount Home Care.”

2017, Rathod
        acquired Paramount Home Care “under a stock purchase agreement . . . that was signed
        by his wife . . . on behalf of Fafi Business Solutions. [Although] that contract required


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19-1385/1453, United States v. Rathod


         Mrs. Rathod to report the change of ownership to the Center for Medicare and Medicaid
         Services (CMS), she never did.”

of the investigation, Medicare and Medicaid suspended payments to and revoked the

billing privileges of AMS, Sleep Diagnostics, EZ Sleep, and Paramount.

                                          B. Procedural Background

         In May 2018, the U.S. Probation Office filed a revocation petition seeking a warrant for

Rathod’s arrest on suspicion that he violated several provisions of his supervised release.1 Rathod

and the government agreed to a global resolution whereby Rathod would waive indictment and

plead guilty to an Information charging him with healthcare fraud (Count 1) and aggravated

identity theft (Count 2), and also admit to the alleged supervised-release violations. In return, the

government agreed not to oppose Rathod’s request to receive a reduction for acceptance of

responsibility, not to prosecute Rathod for any other crimes arising out of his activities with these

healthcare agencies, not to prosecute Rathod’s wife, and not to oppose Rathod’s request for the

sentence on the supervised-release violations to run concurrently with the sentence on the new

criminal charges. Pursuant to this agreement, Rathod waived indictment and pleaded guilty to the

Information.

         The U.S. Probation Officer prepared the initial Pre-Sentence Report (“PSR”). The PSR

calculated Rathod’s offense level as 27, which included a four-level aggravating-role enhancement

and a reduction for acceptance of responsibility. Rathod and the government both objected to the




         1
           The petition was based on Rathod’s suspected violation of Special Condition #2, which prohibited him from
applying for or entering into any loan or credit transaction without prior approval; Special Condition #3, which
required Rathod to maintain legitimate full-time employment as approved by his probation officer (Rathod had
reported to his probation officer that Jackie Patel was his supervisor at a business called Elite Global Group. However,
investigators observed him working at several of the above-mentioned healthcare providers during working hours);
Special Condition #4, which prohibited Rathod from operating or overseeing any business where services are billed
to BCBSM, Medicare, or Medicaid; and Standard Condition #9, which prohibited him from associating with a felon.


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19-1385/1453, United States v. Rathod


guideline calculations.      Rathod contended that the aggravating-role enhancement was

inappropriate.   The government contended that an obstruction-of-justice enhancement was

warranted because Rathod falsely informed his probation officer that he had no authority to

liquidate assets that were not in his name and failed to disclose his involvement with, or control

over, other businesses during the presentence investigation.        The final PSR applied the

aggravating-role enhancement, added an obstruction-of-justice enhancement and, because of that

enhancement, removed the three-level reduction for acceptance of responsibility, resulting in a

total offense level of 30.

        During sentencing, Rathod renewed his objections to the role enhancement and objected to

the obstruction enhancement and to the denial of the acceptance-of-responsibility reduction. The

district court overruled Rathod’s objections. With an offense level of 30 and a criminal-history

category of III, Rathod’s Guideline range was 121 to 151 months, but the statutory maximum

sentence capped the Guideline range at 120 months on Count 1. The aggravated-identity-theft

charge carried a mandatory 24-month consecutive sentence. The district court imposed a sentence

of 120 months on Count 1 and a consecutive 24-month sentence on Count 2.

        The district court took a short recess and re-convened for the sentencing hearing on the

supervised-release violations. Rathod admitted that he violated the conditions of his supervised

release, and the government, pursuant to its agreement, did not object to Rathod’s request for a

concurrent sentence on the supervised-release violations. The district court revoked Rathod’s

supervised release and sentenced him to ten months’ imprisonment on the supervised-release

violations, to run consecutively to the sentence imposed on the new criminal charges.

        On appeal, Rathod contends that the district court erred by imposing an obstruction

enhancement, denying him a reduction for acceptance of responsibility, imposing a four-level role



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19-1385/1453, United States v. Rathod


enhancement, and running his revocation sentence consecutive to his sentence on the new criminal

charges. Finally, he raises a new argument for the first time on appeal that the criminal information

on Count 1 was insufficient, rendering his conviction on that count invalid because the court lacked

jurisdiction.

                                                 II.

                             A. Jurisdictional Defect in Information

        We first consider Rathod’s newly raised argument that Count 1 of the Information failed

to charge the essential elements of the offense of healthcare fraud. In order to avoid the rule that

“[a] voluntary and unconditional guilty plea waives all non-jurisdictional defects in the

proceedings,” United States v. Ormsby, 

, 848 (6th Cir. 2001), Rathod contends that

the failure to charge that his scheme “affected commerce” was a jurisdictional defect that deprived

the district court of subject-matter jurisdiction to adjudicate the charge. United States v. Schaffer,

, 421 (6th Cir. 2009) (“[E]ven if presented for the first time on appeal, claims of

jurisdictional defects in the indictment are not waived.”).

        In order to succeed, however, Rathod must demonstrate that his argument is truly a

jurisdictional one, i.e., an argument that “alleges that the face of the defendant’s indictment

discloses that the count to which he pleaded guilty failed to charge a federal offense, such that the

district court lacked the power to entertain the prosecution.” United States v. Bastian, 

, 217 (2d Cir. 2014). Although we review such challenges de novo, “where a defendant does

not challenge an [information] until appeal, the ‘[information] must be construed liberally in favor

of its sufficiency.’” United States v. Davis, 

, 411 (6th Cir. 2002) (quoting United

States v. Gatewood, 

, 986 (6th Cir. 1999)). “Furthermore, unless the defendant can

show prejudice, a conviction will not be reversed where the [information] is challenged only after



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19-1385/1453, United States v. Rathod


conviction unless the [information] cannot within reason be construed to charge a crime.”

F.3d at 986).

        To obtain a conviction for healthcare fraud under 18 U.S.C. § 1347:

       [T]he Government must prove 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. Hunt, 

, 645 (6th Cir. 2008) (citation omitted). Count 1 of the

Information charged that Rathod “knowingly and willfully executed a scheme and artifice to

defraud and to obtain money from health care benefit programs, by means of false and fraudulent

pretenses and representations.” R. 1, PID 1. Rathod now argues that, because a “health care benefit

program” is defined elsewhere in the criminal code as “any public or private plan or contract,

affecting commerce,” 18 U.S.C. § 24(b), the Information was jurisdictionally deficient because the

“affecting commerce” language was not incorporated into the Information and the Information

therefore failed to charge a crime. We disagree.

       Because Rathod did not challenge the validity of the charging instrument until this appeal,

we must construe the Information “liberally in favor of its sufficiency.” 

.

We have held that charging documents that track the statutory language defining the offense

contain the requisite elements of the offense. See, e.g., United States v. Anderson, 

,

411 (6th Cir. 2010) (“Anderson’s indictment clearly tracked the language of the statute and thus

contained the elements of the offense.”). The government is correct that although 18 U.S.C. §

1347 does not contain the “affecting commerce” language, that language is used in another part of

the code to define a term—"health care benefit program”—that does appear in 18 U.S.C. § 1347.

The Information alleged that Rathod defrauded such “health care benefit programs” and



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19-1385/1453, United States v. Rathod


specifically listed Medicare and Medicaid in the accompanying factual description. Therefore, the

Information tracked the language that appears in the statute of conviction.                         The failure to

additionally import into the charging instrument part of the definition of a health care benefit

program does not make the Information defective or fail to charge a federal crime.2

         If, however, the omission of the “affecting commerce” language from the Information was

erroneous, it did not deprive the district court of jurisdiction. Rathod appears to concede in his

reply brief that we have recently rejected this very argument. See Reply Br. at 20. In United States

v. Hobbs, 

(6th Cir. 2020), we interpreted a Supreme Court decision, United States v.

Cotton, 

(2002), as confirming our pre-Cotton precedent rejecting the argument that

“the failure of an indictment to allege an element of an offense charged prevents a district court

from having subject-matter jurisdiction.”

856 (quoting United States v. Cor-Bon Custom

Bullet Co., 

, 581 (6th Cir. 2002)). Because Rathod makes only a jurisdictional

argument, our decision in Hobbs that indictment omissions do not deprive a court of jurisdiction

forecloses Rathod’s challenge.

  B. Obstruction Enhancement and Denial of an Acceptance-of-Responsibility Reduction

         Rathod contends that the district court erred in applying a two-level enhancement for

obstruction of justice.




         2
            To the extent that the failure to include this language was error, we nevertheless find it harmless. Rathod
does not contend that Medicare and Medicaid do not qualify as “health care benefit programs” that affect commerce,
and he in fact admitted during his change-of-plea hearing that the Information and his plea agreement contained
sufficient factual bases to support the healthcare-fraud charge. Therefore, Rathod cannot plausibly claim that he was
prejudiced or deprived of notice of the nature of the charge against him, which is the purpose behind the requirement
that the charging document recite the essential elements of the crime. See, e.g., United States v. Lentsch, 

, 952 (6th Cir. 2004) (noting that the requirement that a charging instrument contain the elements of the offense is
“designed to ensure that defendants have sufficient notice of the charges against them to permit them to prepare a
defense”).


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19-1385/1453, United States v. Rathod


       Under U.S.S.G. § 3C1.1, an enhancement for obstruction of justice is warranted if:

       (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
           impede, the administration of justice with respect to the investigation,
           prosecution, or sentencing of the instant offense of conviction, and (2) the
           obstructive conduct related to (A) the defendant’s offense of conviction and any
           relevant conduct; or (B) a closely related offense . . . .

       We note at the outset that the appropriate standard of review is not clear. A panel of our

court recently explained that, while we review legal conclusions de novo and factual findings for

clear error, we have sent mixed messages about how we review “the application of the guidelines

to the facts—that is, the decision whether the historical facts rise to the level of obstruction under

§ 3C1.1.” United States v. Thomas, 

, 608 (6th Cir. 2019). Our past cases have

sometimes applied clear-error review, de novo review, or a hybrid of the two.

parties dispute the proper standard: Rathod argues for de novo review and the government

contends that, as a fact-intensive inquiry, clear-error review is appropriate. The Thomas court did

not resolve the question because it determined that, even applying de novo review, the

enhancement was proper.

610. We also need not reach the question because we too conclude

that, even under de novo review, the obstruction enhancement was warranted.

       The district court relied on two separate factual predicates to justify the enhancement:

Rathod’s allegedly false statement to the probation officer that he did not have the ability to

liquidate assets that were not in his name, and Rathod’s failure to disclose another entity, New

Vision, during the presentence investigation. Either is sufficient to justify the enhancement, and

both warrant it.

                    1. False Statement to Probation Officer about Shakti Estate

       Rathod argued below that his statement to the probation officer that he could not liquidate

assets that were not in his name was not false. He renews that argument on appeal and also argues



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19-1385/1453, United States v. Rathod


that even if false, the statement was not materially false, and was more akin to the type of

inaccurate or misleading information that is insufficient to justify the enhancement. His arguments

are without merit.

       First, the government elicited extensive testimony proving that Rathod did have the ability

to unilaterally dispose of assets not in his name. The government focused its proof on Shakti

Estate, LLC, a company that owned commercial properties and was, like many of Rathod’s

businesses, registered in his wife’s name. The government proved that Rathod had access to the

Shakti Estate bank account on his phone, frequently moved Medicare or Medicaid reimbursements

into the Shakti Estate’s account as “rent” payments, and used the Shakti Estate account to pay for

his own personal expenses and, in one instance, to make a tuition payment for his son. Moreover,

as Shakti Estate’s CEO, Rathod attempted to liquidate Shakti Estate’s assets. In 2017, for instance,

he contacted an auctioneer in California to inquire about auctioning one of the Estate’s commercial

buildings in Edmore, Michigan. Even while in jail awaiting resolution of the current charges,

Rathod placed an additional call to this same auctioneer seeking to liquidate the property. This

evidence proves Rathod’s authority to liquidate assets of entities not in his name.

       Further, the record belies Rathod’s argument that the statement was an innocent omission

and supports the district court’s conclusion that Rathod “lied to the probation officer about

probably a whole lot of things, but particularly his ownership, his control of Shakti Estates [sic] .

. . .” R. 106, PID 805-06. Indeed, Rathod made his representation in response to the probation

officer’s attempts to identify what assets Rathod had that could be liquidated to pay an impending

fine and restitution award. Moreover, Rathod’s argument that he legitimately believed he had no

ability to liquidate assets not in his name is undermined by his history of disposing of assets




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19-1385/1453, United States v. Rathod


belonging to several entities involved in this case that were not in his name, including Shakti

Estate.

          For similar reasons, we conclude that the statement was material. Application Note 6 to

U.S.S.G. § 3C1.1 defines a “material” statement as one that, “if believed, would tend to influence

or affect the issue under determination.” The probation officer’s question about Rathod’s income

and assets sought to determine his financial condition and ability to pay the substantial restitution

amount he faced in addition to the potential Guideline fine that could have been—but was not—

imposed by the district court. Because of Rathod’s statement, none of Shakti Estate’s assets were

included in the PSR’s financial summary. We have upheld obstruction enhancements based on

similar omissions. See, e.g., United States v. Wilson, 630 F. App’x 422, 430 (6th Cir. 2015)

(affirming an obstruction enhancement because the defendants’ omission of several assets “alone

supports the obstruction of justice enhancement”); United States v. Schneider, 72 F. App’x 369,

371 (6th Cir. 2003) (concluding that obstruction enhancement was warranted because the

defendant’s “failure to accurately disclose his assets interfered with the sentencing court’s capacity

to gauge his ability to pay restitution”). In short, the materiality of Rathod’s false statement to the

probation officer was evident.

                                 2. Failure to Disclose New Vision

          For similar reasons, Rathod’s failure to disclose New Vision also justified the

enhancement.      Rathod contends that his failure to disclose New Vision cannot support an

obstruction enhancement because New Vision was also owned by someone else. The evidence

showed that while Rathod’s wife owned New Vision, Rathod held himself out as New Vision’s

CEO and exercised control over New Vision’s finances. Moreover, Rathod’s argument that his

failure to disclose New Vision was not material because New Vision had no assets that could be



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19-1385/1453, United States v. Rathod


liquidated to pay a fine or restitution ignores the government’s evidence that in April 2018,

approximately a month before he was detained, Rathod unilaterally sent $70,000 from another of

his businesses, Advanced Business Management Services, LLC, to New Vision. Rathod’s failure

to disclose New Vision during the presentence investigation, and the resulting omission of New

Vision’s assets from the PSR, support the application of the enhancement.

                     3. Denial of an Acceptance-of-Responsibility Reduction

       Because we conclude Rathod’s conduct justified an obstruction-of-justice enhancement,

we affirm the district court’s denial of a reduction for acceptance of responsibility. Application

Note 4 to U.S.S.G. § 3E1.1 explains that “[c]onduct resulting in an enhancement under § 3C1.1

[for obstruction of justice] . . . ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” And Rathod makes no attempt to argue that this is an

“extraordinary case[] in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.”

Role Enhancement

       Rathod next argues that the district court erred in imposing a four-level enhancement for

his role in the offense. A four-level enhancement applies under § 3B1.1 where “the defendant was

an organizer or leader of a criminal activity that involved five or more participants or was otherwise

extensive.” The Guidelines define a participant as a “person who is criminally responsible for the

commission of the offense, but [who] need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n.1.

The “guideline offers no further definition of ‘participant’ or what it means to be ‘criminally

responsible,’ but cases applying the guideline uniformly count as participants persons who were

(i) aware of the criminal objective, and (ii) knowingly offered their assistance.” United States v.

Anthony, 

, 698 (6th Cir. 2002). We review the district court’s application of this

enhancement de novo.

United States v. Rathod


       The government argued at sentencing that there were five participants: Rathod, Mrs.

Rathod, Dr. MacAuley, Jackie Patel, and Wavy Curtis Shain. Rathod’s counsel conceded that the

government could demonstrate that the first three qualified as participants. We conclude that Patel

and Shain also qualify as participants and that the four-level enhancement was appropriate.

       The district court remarked at sentencing that Jackie Patel’s “extensive involvement. . .

was so integral to the schemes that Mr. [Rathod] was carrying out that one could I think

circumstantially infer her criminal involvement in this case.” R. 106, PID 793-94. In support of

this conclusion, the government cites extensive record evidence demonstrating Patel’s knowing

involvement in Rathod’s scheme, including “her knowledge that Rathod was using different aliases

(including identifying himself as her godfather) [to patients], her knowledge that Rathod wanted

to avoid any associations with his last federal case, her willingness to nonetheless serve as a straw

owner (including by purchasing EZ Sleep at Rathod’s direction, with funds Rathod provided, on

behalf of a shell holding company), or her willingness to act, for years, as the nominal manager of

AMS, SDM, and EZ Sleep, subject to Rathod’s ultimate authority.” Gov’t Br. at 36. We agree

that such evidence implies Patel’s knowledge of Rathod’s criminal activity and qualifies her as a

participant.

       As for Wavy Curtis Shain, the government’s evidence demonstrated that Rathod directed

Shain to organize AMS, that Shain did so and then sent the charter documents to “Dr. Ahir,” one

of Rathod’s aliases, and that Shain was aware of Rathod’s fraud because Shain was cc’ed on loan

applications for AMS where Rathod listed Shain as the landlord. This evidence establishes Shain’s

knowledge of Rathod’s criminal activity and active participation in it.

       Moreover, even if we were to conclude that Patel and Shain did not qualify as participants,

we nevertheless agree with the district court that Rathod’s crime qualifies as “otherwise extensive”



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19-1385/1453, United States v. Rathod


because it was the “functional equivalent of a crime involving five or more participants.” 

. In addition to the aforementioned individuals, Rathod directed several other

unknowing participants, including Dr. Agha and Chandu Patel, and their actions aided Rathod’s

criminal objective by allowing Rathod to conceal his ownership of at least two healthcare

companies and evade his 20-year exclusion from working with companies that bill Medicare or

Medicaid. Therefore, the district court properly applied the four-level role enhancement.

                              D. Reasonableness of the Sentence

       Rathod additionally contends that the district court’s sentence on the new criminal charges

was “procedurally and substantively unreasonable” because “the statutory maximum sentence was

imposed without regard to the sentencing guidelines.” Appellant Br. at 38. Rathod argues that

because the district court stated unambiguously that it “would sentence this case exactly the same

way even if [it] had granted [Rathod’s] objections and we were looking at lower guideline ranges,”

R. 106, PID 827-28, it would have imposed the statutory maximum sentence regardless of what

the Guideline range was. The problem, Rathod contends, is that had all of his objections been

sustained, his offense level would have been reduced from 30 to 21, which, when combined with

his criminal-history category of III, would have resulted in a Guideline range of 46-57 months,

making a sentence of 120 months harder to justify.

       Rathod’s argument that his Guideline-range sentence is procedurally and substantively

unreasonable because the range could have been much lower misses the mark. Procedural and

substantive reasonableness review concerns the reasonableness of the sentence actually imposed.

Rathod’s actual sentence is procedurally reasonable because the district court entertained oral

argument on the disputed Guideline enhancements, confirmed with Rathod’s counsel that the

Guideline range had been calculated correctly, given the court rulings, discussed the 18 U.S.C. §



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19-1385/1453, United States v. Rathod


3553(a) factors, and listened to Rathod’s allocution before explaining why a Guideline sentence

was appropriate. United States v. Hammadi, 

, 1047 (6th Cir. 2013).

         The sentence is also substantively reasonable. A sentence that is within the properly

calculated Guidelines range is “afforded a rebuttable presumption of reasonableness on appeal.”

United States v. Haj-Hamed, 

, 1025 (6th Cir. 2008). The district court adequately

explained the basis of its conclusion that this case “stands out like a sore thumb as really needing

the utmost sentence” for several reasons: This was Rathod’s third conviction for similar fraudulent

conduct, Rathod almost immediately reoffended upon being released from prison, and his scheme

was so extensive and elaborate that the district court was “almost without words in describing the

seriousness of this offense.” R. 106, PID 825. The district court did not abuse its discretion in

sentencing Rathod on the new criminal charges.

                               E. Consecutive Revocation Sentence

         Finally, Rathod contends that the district court erred in imposing a consecutive sentence

for Rathod’s supervised-release violations. We review this decision for an abuse of discretion.

United States v. Polihonki, 

, 322 (6th Cir. 2008). In deciding whether to exercise its

discretion to run a revocation sentence consecutively or concurrently, a district court must consider

the 18 U.S.C. § 3553(a) factors. See 18 U.S.C. § 3584(b). And we require the court to “indicate

on the record its rationale, either expressly or by reference to a discussion of relevant

considerations contained elsewhere.” United States v. Cochrane, 

, 346 (6th Cir.

2012).

         Rathod argues that although the district court analyzed some of the relevant factors, “it did

not discuss any of these factors in connection with running that sentence consecutively.” Appellant

Br. at 41. We disagree.



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19-1385/1453, United States v. Rathod


       In explaining why a consecutive sentence was appropriate, the district court explained that

“when you look at these violations they are so in your face really . . . and so immediate, and so

similar to what happened before, that I think they really do justify consecutive sentencing. I think

we should recognize that supervised release should have some integrity also.” R. 588, PID 4633-

34. These statements followed shortly after the district court explained why the 18 U.S.C. §

3553(a) factors justified the harshest sentence possible. The court appropriately referred back to

its earlier explanations that “the offenses . . . mirror the conduct which led to the guilty pleas in

the underlying case”; that they are “exactly the same or very nearly exactly the same as the offense

which he committed back in 2012, and an earlier offense in state court which he committed I

believe around 2003”; and that “clearly supervised release did not address his characteristics

because he violated almost as soon as he got out.”

PID 4632-34. Thus, the district court

adequately explained its conclusion that Rathod’s conduct warranted a severe sentence. That is

all that our cases require. See, e.g., United States v. Johnson, 

, 998 (6th Cir. 2009)

(concluding that the district court must only make “generally clear the rationale under which it has

imposed the consecutive sentence”); United States v. Massey, 758 F. App’x 455, 468 (6th Cir.

2018) (affirming a consecutive supervised release sentence where the district court gave only a

“brief” statement about the need for additional punishment).

       For the foregoing reasons, we AFFIRM.




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