Case: 15-40521   Document: 00513464978        Page: 1   Date Filed: 04/14/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-40521                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            April 14, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

TARIQ MAHMOOD, M.D.,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Following an investigation into billing practices at several of his
hospitals, a jury convicted Defendant-Appellant Tariq Mahmood (“Mahmood”)
of one count of conspiracy to commit health care fraud, seven counts of health
care fraud, and seven counts of aggravated identity theft. After denying his
motion for new trial, the court sentenced Mahmood to 135 months’
imprisonment and ordered him to pay $599,128.02 in restitution. Mahmood
now appeals, challenging the sufficiency of the evidence supporting most of his
convictions, the denial of his motion for new trial, and the district court’s
calculation of his sentence and restitution.           We AFFIRM Mahmood’s
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                                    No. 15-40521
convictions and the new trial ruling.           However, we VACATE Mahmood’s
sentence and the restitution order, and REMAND for resentencing.
                                           I.
      All relevant facts produced at trial and discussed here are taken in the
light most favorable to the jury’s verdict. See, e.g., United States v. Haines, 

, 734–35 (5th Cir. 2015).
                                  A. Background
      Mahmood was a licensed physician who owned a number of Texas
hospitals, each of which was an authorized Medicare and Medicaid provider.
The events leading to Mahmood’s run-in with the law focus on Medicare and
Medicaid’s billing procedures 1 and Mahmood’s efforts to persuade employees
at his hospitals to manipulate those procedures to increase insurance
reimbursements.
      A key part of Medicare’s reimbursement process involves the manner in
which hospitals communicate to Medicare what services the hospital has
rendered to patients. Part of this process involves hospital employees known
as “coders.” Coders cull through a patient’s medical record and document the
condition that treating physicians have labeled as a patient’s principal
diagnosis, i.e., the condition established after study of the medical record to be
the primary reason that the patient was admitted to the hospital for treatment,
and any secondary diagnoses, i.e., conditions that render a patient’s stay longer
or more difficult, such as those requiring increased diagnostic procedures,
testing, or medication.       Coders translate these diagnoses into what are
essentially standardized billing codes, which the hospital then sends to
Medicare on a reimbursement claim form. Crucial here, the sequencing or


      1  Medicare and Medicaid operate in a substantially similar manner, and the
undisputed trial evidence reflects that Mahmood’s fraudulent conduct financially impacted
both programs. For simplicity, we generally refer only to Medicare.
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                                       No. 15-40521
order of the codes submitted on a hospital’s claim form—particularly the
designation of which diagnosis code is primary as opposed to which diagnosis
codes are secondary—often affects the payment that Medicare will make as
reimbursement for the claim. As one might expect, more complex primary
diagnosis codes often trigger increased reimbursements from Medicare.
       Mahmood’s efforts to manipulate Medicare-billing procedures at his
hospitals began in 2005, when he instructed Ruth Ann Crow (“Crow”), former
Medical Records Director at Lake Whitney Medical Center (“Lake Whitney”),
to fax him the “diagnosis code sheet” 2 for all of Lake Whitney’s inpatient
Medicare patients. Without treating these patients or reviewing their medical
records, Mahmood would then fax back the code sheets with handwritten
changes or telephone Crow and advise her how he wanted the diagnosis codes
resequenced. Most commonly, Mahmood instructed Crow to switch a patient’s
primary diagnosis with a secondary diagnosis—e.g., recoding a urinary tract
infection with a coinciding bacterial infection to a bacterial infection with a
coinciding urinary tract infection—or to add complications to a patient’s
primary diagnosis—e.g., recoding chronic renal failure to acute renal failure
with necrosis. In either case, Crow would access the hospital’s billing system,
switch the codes the way Mahmood wanted, and then submit the resequenced
codes as reimbursement claims to Medicare.
       Eventually Mahmood sought to extend the same ploy to some of his other
hospitals, but employees at those hospitals were not as willing as Crow to
participate. After two employees were unable or unwilling to assist Mahmood,
he targeted Norma Longley (“Longley”), former inpatient coder for Renaissance
Hospital Terrell (“RH Terrell”) and Cozby Germany Hospital (“Cozby



       2The trial evidence reflects that “diagnosis code sheets” are single pieces of paper with
notations of a patient’s primary diagnosis and any secondary diagnoses.
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                                 No. 15-40521
Germany”), and began asking her to make many of the same coding changes
that he had requested of Crow. Longley refused to make Mahmood’s requested
changes because patients’ medical records did not support them.
      Once snubbed by Longley, Mahmood’s plan spiraled. From early 2010
through early 2012, Mahmood instructed Longley to fax him the diagnosis code
sheets for Medicare patients at RH Terrell and at Cozby Germany. Mahmood
did not request the medical records that accompanied these coding sheets, nor
did he respond to Longley’s faxes with further instructions. Before sending
Mahmood the codes, Longley documented them on a separate sheet for her
records and entered them into the hospital’s billing system using her
username, RHNORMA.
      At some point, Longley began receiving audit letters indicating that
Medicare had reviewed and denied many of the claims that she had coded and
entered into the hospital’s billing system. Each time she received such a letter,
Longley compared her original code sheets to the audit letters and determined
that her original coding matched what the Medicare auditor said should have
been coded. Longley would then pull the medical records for the audited
claims, at which time she learned that Charlotte Wyatt (“Wyatt”), former
Health Information Management Supervisor at Cameron Hospital, Inc.
(“Cameron”), had accessed the system and changed the codes using the
usernames RHCHARLOTTE or CAMERON.
      At trial, Wyatt testified that Mahmood tasked her with not only
resequencing her own coding for patients at Cameron, but also surreptitiously
accessing and resequencing claim forms entered by other coders on behalf of
patients at other hospitals. Specifically, Wyatt testified that, at times, she
received faxed code sheets from Longley. Per Mahmood’s instructions, Wyatt
would fax these code sheets on to Mahmood. Mahmood would then telephone
Wyatt and tell her which sheets needed to be changed or resequenced to
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                                 No. 15-40521
increase Medicare reimbursements.           To pad an expected Medicare
reimbursement, Wyatt would either add complications to a patient’s primary
diagnosis, switch a patient’s primary diagnosis with one of their secondary
diagnoses, or change a patient’s primary diagnosis completely by adding a new
diagnosis that was not documented in the patient’s medical record.
      In January 2011, the United States Department of Health and Human
Services (“HHS”) joined an ongoing state investigation into billing practices at
Mahmood’s hospitals.     At trial, HHS Special Agent Jack Geren (“Geren”)
explained the methodology of the Government’s investigation.           Based on
Longley’s original coding sheets and a federal search warrant executed on
computer servers at Mahmood’s hospitals, the Government was able to identify
eighty-five claims that had been accessed by multiple users, i.e., claims that
Longley had originally coded and that Wyatt had thereafter secretly accessed
and resequenced at Mahmood’s direction. The Government also obtained faxes
that corresponded with fifty of the eighty-five identified claims.
      Geren explained how the evidence extracted from the hospital’s billing
system and the faxes demonstrated Wyatt’s resequencing of Medicare claims
at Mahmood’s direction. For example, on one occasion, the hospital’s billing
system reflected that username RHNORMA (Longley) entered diagnosis codes
for a patient at 7:45 am. At 8:43 am the same morning, Longley faxed the
patient’s diagnosis code sheet—without the rest of the patient’s medical
record—to Mahmood. At 12:02 pm the next day, username RHCHARLOTTE
(Wyatt) accessed the hospital’s billing system and resequenced Longley’s
original coding by switching the patient’s primary diagnosis with her
secondary diagnosis. This particular change resulted in Mahmood’s hospital
receiving a $3,503.81 overpayment from Medicare.
      During the Government’s investigation, expert witness and HHS auditor
Paul Porrier (“Porrier”) “repriced” the eighty-five claims where Wyatt had
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                                 No. 15-40521
resequenced Longley’s codes to determine what Medicare would have
reimbursed Mahmood’s hospitals had the claims been submitted to Medicare
as originally coded by Longley. Geren then subtracted this repriced figure from
the amount that Medicare actually reimbursed based on the claims as
resequenced and submitted by Wyatt.        Based on this methodology, Geren
testified that, with respect to the eighty-five identified claims, Medicare had
collectively overpaid Mahmood’s hospitals $143,608. Specifically, Mahmood’s
hospitals billed $1,926,307.80 to Medicare in connection with the eighty-five
claims, Medicare actually reimbursed Mahmood’s hospitals $574,247.67, and
Medicare would have reimbursed Mahmood’s hospitals only $430,639 if the
claims had been billed as originally coded by Longley.
                           B. Proceedings Below
      Following the Government’s investigation, a federal grand jury returned
a fifteen-count superseding indictment, charging Mahmood with one count of
conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349; seven
counts of health care fraud, all in violation of 18 U.S.C. §§ 1347 and 2; and
seven counts of aggravated identity theft, all in violation of 18 U.S.C. §§ 1028A
and 2.   As to the substantive health care fraud counts, the Government
identified seven specific patients at Mahmood’s hospitals and alleged, inter
alia, that Mahmood executed a scheme to defraud Medicare by inappropriately
resequencing diagnosis codes on Medicare claim forms submitted on behalf of
those patients. As to the aggravated identity theft counts, the Government
pointed to the same seven patients and alleged that Mahmood knowingly used
their means of identification while committing health care fraud.
      Mahmood opted for trial.      At the close of evidence, he moved for a
judgment of acquittal on the conspiracy count and the aggravated identity theft
counts, which the court denied. Thereafter, the jury found Mahmood guilty on
all fifteen counts in the superseding indictment.
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                                      No. 15-40521
       Between the jury’s verdict and sentencing, Mahmood obtained new
counsel and filed a motion for new trial. Therein, he represented that his trial
counsel was in possession of a report from Christina Melnykovych
(“Melnykovych”) and Tina Pelton (“Pelton”), two experts who had audited the
medical records of the patients named in the superseding indictment.
Mahmood then argued, inter alia, that trial counsel rendered ineffective
assistance under Strickland v. Washington, 

(1984), by failing to
call either expert to testify at trial. In a written order, the district court denied
Mahmood’s motion.
       At sentencing, and over Mahmood’s objection, the district court
calculated the total loss caused by Mahmood’s fraud to be $599,128.02, which
was the aggregate amount that insurance companies reimbursed Mahmood’s
hospitals, and which resulted in a 14-point enhancement to Mahmood’s base
offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(H). 3 After other adjustments
not at issue here, Mahmood’s total offense level became 24, along with a
criminal history category I. This resulted in a Guidelines-sentencing range of
51 to 63 months’ imprisonment on the conspiracy and health care fraud counts,



       3 Mahmood’s Presentence Investigation Report (“PSR”) calculated an initial base
offense level of 28, which included, inter alia, a 16-point enhancement for a total loss of
$1,978,531.33, i.e., the aggregate dollar amount that Mahmood’s hospitals billed to insurance
companies. Mahmood’s objection to the PSR’s loss calculation was two-fold. First, Mahmood
argued that the $1,978,531.33 figure overstated his intended loss under U.S.S.G. § 2B1.1
comment. (n.3(F)(viii)). Based on this first objection, Mahmood argued that the loss should
be reduced to $599,128.02, which was the portion of the amounts billed that Mahmood’s
hospitals expected to be reimbursed. Second, Mahmood argued that U.S.S.G. § 2B1.1
comment. (n.3(E)(i)) entitled him to an additional offset for the fair market value of the
services that his hospitals rendered to patients, such that the loss should have been further
reduced to $143,608. The district court sustained in part and overruled in part Mahmood’s
objection. The court found that the PSR’s loss calculation overstated Mahmood’s intended
loss and therefore reduced the loss amount to $599,128.02; however, the court denied
Mahmood’s request for a further offset based on the fair market value of services that his
hospitals rendered to patients. As we explain infra, only the fair-market-value credit is at
issue on appeal.
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and statutory sentences of 24 months’ imprisonment on each of the aggravated
identity theft counts.
      Following argument from the parties, the district court sentenced
Mahmood to a total of 135 months’ imprisonment, consisting of: 63 months’
imprisonment on the conspiracy and health care fraud convictions, to run
concurrently; 24-month sentences on three of the aggravated identity theft
convictions, each to run consecutive to one another and to the sentence imposed
on all other counts; and 24-month sentences on the remaining aggravated
identity theft convictions, to run concurrently to all other sentences.        In
addition to his sentence, the district court ordered Mahmood to pay restitution
to Medicare, Medicaid, and a private insurer in the total amount of $599,128.02
pursuant to the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. §
3663A.
                                 DISCUSSION
      Mahmood raises a host of arguments on appeal. He first challenges the
sufficiency of the evidence on each of his health care fraud and aggravated
identity theft convictions. He next asserts that the district court erred in
denying his motion for new trial without first holding an evidentiary hearing.
Finally, he raises several issues related to his sentence and the district court’s
restitution order. We address each argument in turn.
                              I. Health Care Fraud
      We first consider Mahmood’s challenge to the sufficiency of the evidence
on his health care fraud convictions. Mahmood concedes that he failed to
preserve this challenge by including his health care fraud convictions in his
motion for acquittal. Accordingly, we may vacate Mahmood’s convictions for
want of evidence only if he demonstrates “a manifest miscarriage of justice,”
meaning “the record is devoid of evidence pointing to guilt or contains evidence
on a key element of the offense that is so tenuous that a conviction would be
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                                      No. 15-40521
shocking.”     United States v. Vasquez, 

, 377 (5th Cir. 2014)
(citations and internal quotation marks omitted), cert. denied, 

(2014).
       To prove health care fraud in violation of 18 U.S.C. § 1347(a), the
Government was required to show that Mahmood either (1) knowingly and
willfully executed, or attempted to execute, a scheme or artifice to defraud a
health care benefit program, or (2) knowingly and willfully executed, or
attempted to execute, a scheme or artifice to obtain, by means of false or
fraudulent pretenses, money under the control of a health care benefit
program. 4 See United States v. Umawa Oke Imo, 

, 235–36 (5th
Cir. 2014) (citing 18 U.S.C. § 1347). Under either theory, the Government also
had to prove that Mahmood’s scheme occurred “in connection with the delivery
of or payment for health care benefits, items, or services.” 

U.S.C. § 1347(a)).
       Mahmood does not dispute that Medicare is a health care benefit
program or that his alleged scheme, if proven, occurred in connection with the
delivery of health care benefits or services. Rather, he argues that the trial
evidence was insufficient to support his convictions because the Government
never attempted to prove that the Medicare claims, though resequenced, were
false, or that the patient’s medical records did not support the resequencing. 5



       4 The superseding indictment also alleged that Mahmood aided and abetted others in
committing health care fraud. In light of the evidence that Mahmood directed a scheme to
cheat Medicare, we need not address the alternative aiding-and-abetting theory.
       5 Mahmood also makes much of the fact that, for one patient named in the superseding

indictment, Mahmood’s resequencing resulted in an underpayment, meaning that his
hospital received less money than it would have had he not altered Medicare claim forms.
Mahmood cites no case from this circuit, or elsewhere, holding that a defendant must have
been successful in defrauding a health care benefit program in order to commit health care
fraud. Such a requirement would be inconsistent with the plain language of the statute,
which requires only that Mahmood have executed a scheme with the intent to defraud
Medicare. Indeed, the district court instructed the jury that it was “not necessary that the
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                                      No. 15-40521
Mahmood’s argument focuses exclusively on the “false or fraudulent pretenses”
theory of health care fraud in 18 U.S.C. § 1347(a)(2), and ignores the
Government’s overwhelming evidence that he knowingly and willfully
executed a scheme to defraud Medicare in violation of § 1347(a)(1).
       The court instructed the jury that executing a scheme to defraud
Medicare means “to engage in a plan, pattern, or course of action intended to
deprive Medicare . . . of money or property with the intent to deceive or cheat
Medicare.”     Mahmood did not object to this instruction, and he does not
challenge it on appeal.        The Government offered substantial evidence of
Mahmood’s plan to cheat Medicare. Mahmood’s own trial evidence reflected
that proper coding or recoding of Medicare claims could not be done absent
study of a patient’s medical record. 6 Yet, for over six years, and at numerous
hospitals, Mahmood directed his employees to ignore medical records and to
change primary diagnosis codes to reflect acute and chronic conditions that
triggered higher Medicare reimbursements but that were unsupported by
patients’ medical records.         Mahmood had not treated these patients or
reviewed their records; rather, the testimony of the Government’s witnesses,
as corroborated by the faxes obtained during the Government’s investigation,
established that Mahmood chose these new codes based purely upon the
amount of money that he could expect to siphon from Medicare.
       A reasonable juror could have relied upon this evidence to find that
Mahmood knowingly and willingly executed a plan to cheat Medicare.



government prove . . . that the alleged scheme actually succeeded in defrauding anyone.”
Mahmood did not object to this jury instruction, and he does not challenge it on appeal.
       6 Mahmood’s trial counsel repeatedly cross-examined the Government’s witnesses

based on the following language from Medicare’s authoritative coding manual: “The
importance of consistent, complete documentation in the medical record cannot be . . . over-
emphasized. Without such documentation, accurate coding cannot be achieved. The entire
record should be reviewed to determine the specific reason for the encounter and the
conditions treated.”
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                                  No. 15-40521
Accordingly, the record is not “devoid of evidence” of Mahmood’s guilt, see

, and we affirm each of his health care fraud
convictions.
                        II. Aggravated Identity Theft
        We next consider Mahmood’s challenge to the sufficiency of the evidence
on his aggravated identity theft convictions.         Mahmood preserved his
sufficiency challenge as to these convictions by orally moving for acquittal at
trial. See United States v. Thompson, 

, 725 (5th Cir. 2016).
Accordingly, our review is de novo. See 

a preserved “challenge
to the sufficiency of the evidence, we must determine whether, viewing all the
evidence in the light most favorable to the verdict, a rational jury could have
found that the evidence established the elements of the offense beyond a
reasonable doubt.” United States v. Ollison, 

, 158 (5th Cir. 2009)
(citation and internal quotation marks omitted).       We draw all reasonable
inferences and make all credibility determinations in favor of the verdict. See

aggravated identity theft in violation of 18 U.S.C. § 1028A,
the Government was required to prove that Mahmood (1) knowingly used (2)
the means of identification of another person (3) without lawful authority (4)
during and in relation to a felony enumerated in 18 U.S.C. § 1028A(c). See 18
U.S.C. § 1028A(a)(1); see also United States v. Stephens, 

, 404–05
(5th Cir. 2009). Although couched as a challenge to the sufficiency of the
evidence, Mahmood’s argument that he should not have been convicted of
aggravated identity theft is driven entirely by a legal argument, to wit, that
the “without lawful authority” element of § 1028A required the Government to
prove that he actually stole patients’ identifying information.        Assuming
§ 1028A requires actual theft, Mahmood argues that the Government failed to
carry its burden at trial because the uncontroverted evidence showed that
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                                  No. 15-40521
patients named in the indictment consented to the sharing of their information
for billing purposes.
      Mahmood’s argument presents an issue of first impression in this
circuit—whether actual theft or misappropriation of a person’s “means of
identification” is required to satisfy the “without lawful authority” element of
aggravated identity theft proscribed in 18 U.S.C. § 1028A(a)(1). Though our
slate is blank, we are not without guidance from other circuits—as the Ninth
Circuit recently recognized, our sister circuits have rejected the argument that
§ 1028A requires actual theft or misappropriation. See United States v. Osuna-
Alvarez, 

, 1185 (9th Cir. 2015) (per curiam) (collecting cases from
a number of circuits), cert. denied, 

(2015); see also United States
v. Soto-Mateo, 

, 123 (1st Cir. 2015), cert. denied, No. 15-7876, 

(Feb. 29, 2016). Today, we join the circuit trend, and hold that
§ 1028A does not require actual theft or misappropriation of a person’s means
of identification as an element of aggravated identity theft. Rather, the statute
plainly criminalizes situations where a defendant gains lawful possession of a
person’s means of identification but proceeds to use that identification
unlawfully and beyond the scope of permission granted. See, e.g., id.; United
States v. Reynolds, 

, 436 (D.C. Cir. 2013).
      In interpreting § 1028A, we begin with the plain language of the statute,
and end there if the text is unambiguous. See, e.g., United States v. Kaluza,

, 658 (5th Cir. 2015). By its plain terms, § 1028A criminalizes the
use of a means of identification “without lawful authority.” See 18 U.S.C.
§ 1028A(a)(1) (“Whoever, during and in relation to any felony violation
enumerated . . . knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person shall . . . be sentenced to
a term of imprisonment of 2 years.” (emphasis added)).           At the time of
Mahmood’s convictions, Black’s Law Dictionary defined “lawful” as “[n]ot
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                                       No. 15-40521
contrary to law” and defined “authority” as “[t]he right or permission to act
legally on another’s behalf.” Black’s Law Dictionary 152 & 965 (9th ed. 2009).
Combining these two definitions, Ҥ 1028A(a)(1) reasonably proscribes the . . .
use of another person’s means of identification, absent the right or permission
to act on that person’s behalf in a way that is not contrary to the law.” Osuna-

(quoting United States v. Ozuna-Cabrera, 

, 499 (1st Cir. 2011)). Stated otherwise, § 1028A(a)(1) “easily encompasses
situations in which a defendant gains access to identity information
legitimately but then uses it illegitimately—in excess of the authority
granted.” 

.
       Because the plain language of § 1028A unambiguously criminalizes a
wider array of conduct than actual theft, we need not resort to traditional
canons of statutory interpretation 7 or legislative history to further discern
Congress’ intent. See 

. However, Mahmood makes two
additional arguments that warrant discussion. First, Mahmood argues that,
regardless of the circuit trend and the plain language of § 1028A, the district
court instructed the jury as if actual theft was required.                  This argument
misstates the district court’s jury instructions. The court instructed the jury
that “[t]he phrase ‘without lawful authority’ means that the Defendant used
another’s means of identification without that person’s permission . . . or


       7 Mahmood argues, inter alia, that our interpretation of the plain meaning of “without
lawful authority” as broader than actual theft renders element four of § 1028A—that the use
occur during and in relation to a predicate felony—meaningless. See TRW Inc. v. Andrews,

, 31 (2001) (“It is a cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). We
find the Eleventh Circuit’s and the Fourth Circuit’s rejection of this argument to be
persuasive. See United States v. Kasenge, 

, 541 (11th Cir. 2011) (“It takes little
imagination to conceive instances in which a person might transfer, possess, or use another
person’s means of identification, during and in relation to a predicate offense, in a manner
that is lawfully authorized.”); United States v. Abdelshafi, 

, 609 & n.6 (4th Cir.
2010).
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                                 No. 15-40521
having obtained that person’s permission illegally.”   This instruction makes
no mention of actual theft as a required element of § 1028A.
      Second, Mahmood invites the court to follow the Seventh Circuit’s en
banc decision in United States v. Spears, 

(7th Cir. 2013), and read
the “without lawful authority” element of § 1028A as requiring actual theft.
Mahmood’s reliance on Spears is misplaced. In Spears, the defendant was
convicted of five felonies, including aggravated identity theft, after he made a
counterfeit handgun permit for a third party who was awaiting trial for a drug
charge and therefore could not lawfully obtain such a permit. 

. In that counterfeit permit, the defendant used the third party’s actual
name and birthdate. 

the defendant conceded that he lacked “lawful authority”
to transfer the counterfeit permit; instead, he argued, inter alia, that he did
not transfer a means of identification to “another person” within the meaning
of § 1028A because the transferred permit used the third party’s actual name
and birth date such that “no information was stolen from, or transferred to,
anyone who did not consent.” 

The Seventh Circuit agreed, holding
that the phrase “another person” in § 1028A requires the presence of “a person
who did not consent to the use of the ‘means of identification.’” 

As
the court noted, “[p]roviding a client with a bogus credential containing the
client’s own information is identity fraud but not identity theft; no one’s
identity has been stolen or misappropriated.” 

      Mahmood essentially asks that we interpret the “without lawful
authority” element of § 1028A in the same manner that the Seventh Circuit
read “another person” in Spears. We decline. Spears is purposefully silent as
to the meaning of “without lawful authority,” as that element was conceded on
rehearing. See 

The Seventh Circuit expressly limited its holding
and discussion to the meaning of “another person,” and one other circuit has
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                                 No. 15-40521
since cited Spears as consistent with the universal trend rejecting the
argument that the “without lawful authority” element of § 1028A requires
actual theft. See Osuna-

.
      Even assuming arguendo that Spears should somehow influence our
interpretation of the “without lawful authority” element, the Seventh Circuit’s
reasoning would still be inapplicable here. As district courts have aptly noted,
the core reasoning of Spears centers on the Seventh Circuit’s understanding
that a § 1028A crime must affect real, ascertainable victims. See United States
v. Cwibeker, No. 12-CR-0632 (JS)(ARL), 

, at *5 (E.D.N.Y. Feb
2, 2015) (“Unlike Spears, the individuals whose identities Defendant allegedly
used to submit false Medicare claims were not co-conspirators; they were
victims. Their information—though perhaps lawfully obtained at the outset—
was allegedly misappropriated by Defendant for his own gain. The presence of
real, ascertainable, and immediate victims renders the core reasoning behind
the court’s decision in Spears patently inapplicable here.”); United States v.
McDonald, No. 6:14-CR-10033-JTM, 

, at *4 (D. Kan. Aug. 18,
2014) (similar). Here, Mahmood clearly used the identifying information of
real, non-complicit patients in executing his scheme to defraud Medicare.
Thus, contrary to Mahmood’s argument, nothing that we could arguably glean
from Spears would affect his aggravated identity theft convictions.
      In sum, nothing in the plain language of § 1028A indicates that
Mahmood must have actually stolen his patients’ means of identification in
order to be convicted of aggravated identity theft. Rather, the statute plainly
applies to circumstances like these, where Mahmood gained access to his
patients’ identifying information lawfully, but then proceeded to use that
information unlawfully and in excess of his patients’ permission. See, e.g.,
Osuna-

–86; see also 

(“While [the defendant] had authority to possess the Medicaid identification
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                                    No. 15-40521
numbers, he had no authority to use them unlawfully so as to perpetuate a
fraud.”). Because there was no evidence at trial that Mahmood had consent to
use his patients’ identifying information to commit health care fraud, we affirm
each of his aggravated identity theft convictions.
                          III. Motion for New Trial
      Sufficiency challenges aside, Mahmood next argues that the district
court erred in denying his motion for new trial without first holding an
evidentiary hearing to consider the merits of his ineffective assistance claim.
We review the district court’s denial of Mahmood’s motion for new trial, as well
as the court’s decision not to hold an evidentiary hearing, for abuse of
discretion. See United States v. Bishop, 

, 469–70 (5th Cir. 2010).
                                        A.
      Federal Rule of Criminal Procedure 33(a), provides, inter alia, that a
district court may grant a new trial in the interest of justice. See United States
v. Poole, 

, 272 (5th Cir. 2013) (citing Fed R. Crim. P. 33(a)). We
have stressed that motions for new trial are generally disfavored, see United
States v. Eghobor, 

, 363 (5th Cir. 2015), and that district courts
have wide discretion with respect to Rule 33 motions, see United States v. MMR
Corp., 

, 1047 (5th Cir. 1992) (citing United States v. Simmons,

, 31 (5th Cir. 1983)).
      “The law of this circuit is well established that a motion for new trial
may ordinarily be decided upon affidavits without an evidentiary hearing.”
United States v. Hamilton, 

, 1373 (5th Cir. 1977) (citing United
States v. Curry, 

(5th Cir. 1974); see also 

(“A motion for a new trial can ordinarily be ruled upon without conducting an
evidentiary hearing.”). “Where evidentiary hearings are ordered, it is because
of certain unique situations typically involving allegations of jury tampering,


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                                 No. 15-40521
prosecutorial misconduct, or third party confession.” 

; see also MMR 

.
      Mahmood’s Rule 33 motion was predicated upon an argument that his
trial counsel rendered ineffective assistance. We analyze ineffective assistance
of counsel claims using the two-prong inquiry articulated in Strickland v.
Washington, 

, 687 (1984). To satisfy the Strickland standard,
Mahmood must show (1) that counsel’s performance was deficient, and (2) that
the deficiency prejudiced Mahmood’s defense, meaning “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
[at trial] would have been 

, 694. We “must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” 

(internal quotation marks and
citation omitted).
                                      B.
      In his motion for new trial, Mahmood argued that trial counsel rendered
ineffective assistance by failing to solicit testimony from Melnykovych and
Pelton, two experts who had reviewed the medical records of the patients
named in the indictment, and who would have testified that: (1) changes to
Longley’s initial coding were medically justified, i.e., the claims submitted to
Medicare were accurate and supported by patients’ medical records; and (2)
Mahmood’s resequencing of codes without reviewing patients’ medical records
was “not inherently wrong or improper.”       In support of these arguments,
Mahmood attached an expert report drafted by Melnykovych and Pelton, as
well as an affidavit from Melnykovych. On appeal, Mahmood contends that
the district court’s failure to hold an evidentiary hearing to investigate the


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                                      No. 15-40521
experts’ testimony and trial counsel’s performance constituted an abuse of
discretion. We disagree.
       None of the unsolicited expert testimony advanced by Mahmood
implicates the unique situations noted in Hamilton, in which evidentiary
hearings are commonly necessary. See 

; see also
United States v. Fields, 58 F. App’x 597, 

, at *2 (5th Cir. Jan.
24, 2003) (unpublished table decision) (citing Hamilton and affirming the
denial of a Rule 33 motion without a hearing where the defendant did “not
demonstrate[] that his situation was sufficiently unique to warrant an
evidentiary hearing”). More telling, most of the potential testimony would not
have bolstered Mahmood’s defense.              The gist of the experts’ report and
Melnykovych’s affidavit is that Mahmood’s resequencing of Medicare claims
was accurate in light of the conditions and diagnoses documented in patients’
medical records. However, as 

, Mahmood’s convictions are
predicated on the trial evidence establishing that he never reviewed a single
patient’s medical record in this case; rather, he directed his employees to
disregard such records and code acute and chronic conditions based solely on
how much money Medicare would reimburse his hospitals.
       In light of Mahmood’s failure to review any medical records, the experts’
post-hoc review of those records does not exculpate Mahmood from the jury’s
verdict that he executed a scheme to defraud Medicare. Trial counsel certainly
was not ineffective for failing to present non-exculpatory expert evidence to the
jury, 8 cf. United States v. Logan, 

, 864 (5th Cir. 1988), just as



       8  In his brief, Mahmood cites a line of habeas cases for the proposition that
“[n]umerous federal courts have held that the failure to employ an expert may constitute
constitutionally ineffective assistance.” See, e.g., Williams v. Thaler, 

, 604–05
(5th Cir. 2012) (considering whether counsel’s failure to obtain certain expert reports could
satisfy the Strickland standard). In these cases, the unsolicited expert testimony could have
exculpated the defendant, see, e.g., Showers v. Beard, 

, 632 (3d Cir. 2011), or
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                                       No. 15-40521
allowing new counsel an evidentiary hearing to explore such non-exculpatory
testimony would have been an exercise in futility, cf. 

(affirming the denial of a Rule 33 motion where a defendant failed to explain
how evidence “could probably produce an acquittal”).
       Mahmood also argues that trial counsel was ineffective for failing to offer
the experts’ alleged testimony that his resequencing of diagnosis codes without
reviewing patients’ medical records was not improper. Although Mahmood
highlighted this argument in his appellate brief, his briefs below, and a post-
oral argument Rule 28(j) letter, he cites no portion of his expert proffer in which
one of the experts testified to a specific circumstance where medical coding
could be completed absent some review of a patient’s medical record. Indeed,
the experts’ analysis of the medical records mentions no such circumstances, 9
and Melnykovych’s affidavit references no such specific circumstances. 10 The




minimally made the defense stronger or the government’s case more difficult to prove, see,
e.g., 

–05. The circumstances here are distinguishable. Because
Mahmood never reviewed patients’ medical records, the experts’ testimony about what those
records show is irrelevant on the question of whether Mahmood executed a plan to cheat
Medicare.
        9 The experts’ report only sparingly refers to appropriate coding practices. As to

patient A.G., the report mentions that “[c]oding guidelines allow for the optimization of [code]
assignment when two or more diagnoses are equally treated during the hospitalization and
present on admission” and, as to patient J.W., the report mentions that an individual
reviewing a specific page of the medical record would have correctly changed J.W.’s primary
diagnosis. Neither of these references purport to state or imply that changes to medical
coding can be completed absent review of some portion of a patient’s medical record.
        10 In her affidavit, Melnykovych testifies that “[t]here are occasions that a coder, by

referencing the initial sequence of codes, may properly re-sequence those codes, provided that
the initial coding determinations were made after a review of the patient’s entire medical
record” (emphasis in original). In making this conclusory pronouncement, Melnykovych
identifies no such occasions. Melnykovych also testifies that “[i]n the case where there may
be more than one viable principal diagnosis code and correct coding rules and conventions
have been applied in arriving at proper code assignment . . . the coder may re-order the viable
principal diagnosis codes to determine and assign the code as the principal diagnosis which
would result in the highest [Medicare reimbursement]” (emphasis in original). However, one
such proper coding convention that Melnykovych attests to is a coder’s review of the clinical
record.
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                                  No. 15-40521
district court did not abuse its wide discretion in declining to credit Mahmood’s
conclusory assertions in his briefs, particularly given that Mahmood’s own trial
evidence suggested that coding of a patient’s principal diagnosis could not be
completed without review of the medical record. See, e.g., United States v.
Reed, 

, 373 (5th Cir. 2013) (‘Conclusory allegations,
unsubstantiated by evidence, do not support the request for an evidentiary
hearing.”).
      Having carefully considered the briefing and the record below, we
conclude that Mahmood’s arguments rest on either non-exculpatory testimony
or conclusory assertions, neither of which is sufficient to show that the district
court abused its discretion in denying his motion without an evidentiary
hearing.      Accordingly, we affirm the district court’s denial of Mahmood’s
motion for new trial.
                             IV. Loss Calculation
      This brings us to the first of several of Mahmood’s arguments related to
the district court’s sentencing determinations.       It is undisputed that at
sentencing the district court sustained, in part, Mahmood’s objection and
reduced the PSR’s calculation of the total loss suffered by the victims of his
fraud to $599,128.02. Consistent with his objection below, Mahmood now
argues that the district court erred in refusing to go one step further and credit
him for the fair market value of services that his hospitals rendered to patients.
We agree.
      “Though we review a sentence for abuse of discretion, we review the
district court’s application of the guidelines de novo and its findings of fact at
sentencing for clear error.” United States v. Klein, 

, 213 (5th Cir.
2008) (internal citations omitted).    The district court’s loss calculation is
generally a factual finding that we review for clear error. See 

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                                  No. 15-40521
However, we review “de novo how the court calculated the loss, because that is
an application of the guidelines, which is a question of law.” 

§ 2B1.1(b)(1) provides that the amount of loss
resulting from a crime involving fraud is a specific offense characteristic that
increases a defendant’s base offense level. See, e.g., United States v. Isiwele,

, 202 (5th Cir. 2011). Pertinent here, a sentencing “court need
only make a reasonable estimate of the loss.” See U.S.S.G. § 2B1.1 comment.
(n.3(C)). However, the amount of loss must account for “the fair market value
of the . . . services rendered, by the defendant or other persons acting jointly
with the defendant, to the victim before the offense was detected.” 

comment. (n.3(E)(i)).
        Two cases guide our analysis of Mahmood’s arguments: United States v.
Klein, 

(5th Cir. 2008), and United States v. Jones, 

(5th Cir. 2011). In Klein, the defendant was a physician who committed health
care fraud in several ways, including submitting claims for in-office
administration of certain medications when, in fact, patients were self-
administering those medications at home.         

–09.        In
calculating the total loss inflicted by the defendant’s fraud, the district court
totaled the face amount that the defendant billed to insurance companies for
the in-office visits without crediting the defendant for the value of the
medications that patients self-administered on those dates. See 

213–14. We held that this was error—even though the defendant fraudulently
billed services related to the medications, neither party disputed that the
patients needed those medications or that the insurance companies would have
had to pay for the medications had the defendant not fraudulently billed them.

vacated the defendant’s sentence and remanded for the
district court to recalculate the loss considering the fair market value of the


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                                   No. 15-40521
medications pursuant to U.S.S.G.§ 2B1.1 comment. (n.3(E)(i)). See 

15.
        By contrast, we reached a different result on the facts of Jones. There,
the defendants billed Medicare for the provision of certain services,
fraudulently misrepresenting that licensed professionals had rendered those
services. See 

–72, 984. The district court calculated the
loss amount without crediting the defendants for the alleged value of the
services. See 

We affirmed based on the district court’s factual
finding that the services “had no monetary value insofar as the Medicare and
Medicaid laws are concerned.” 

preliminary matter, we held that
Medicare, not the defendants’ patients, was the victim of the defendants’ fraud
for purposes of the fair-market-value credit in U.S.S.G. 2B1.1 comment.
(n.3(E)(i)). See 

Medicare as the appropriate victim, we
concluded that “Medicare pays for treatments that meet it standards” and that
the defendants’ treatments using unlicensed personnel did not meet those
standards.     See 

received no value from the
unlicensed treatment and the district court did not err in refusing to consider
the fair market value of those treatments in calculating the loss amount. See

Jones, and their progeny illuminate the path we take to
resolve the particular issues in this case. We must consider that Medicare is
the victim of Mahmood’s fraud and that Medicare receives “value” within the
meaning of U.S.S.G. § 2B1.1 comment. (n.3(E)(i)) when its beneficiaries receive
legitimate health care services for which Medicare would pay but for a fraud.
See 

; 

–14. Thus, if as in Klein,
Medicare would have paid for the services that Mahmood’s hospitals rendered
to patients but for Mahmood’s fraudulent billing, then Mahmood is entitled to
a credit for the fair market value of those services. See 

–
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                                 No. 15-40521
14. By contrast, if as in Jones, Medicare would not have paid for the services
that Mahmood’s hospitals rendered to patients, then Mahmood is entitled to
no such credit. See 

. We must consider that Mahmood
bore the burden to proffer evidence that the services that his hospitals
rendered to patients were legitimate and that Medicare would have paid for
those services but for his fraud. See United States v. Echols, 574 F. App’x 350,
360–61 (5th Cir. 2014) (distinguishing Klein where the defendant failed to
proffer “evidence that legitimate medical services were actually provided to
any . . . patients”). However, we must also be cognizant of the fact that the
Government     cannot    rebut   Mahmood’s      proffer    merely   relying   on
“unsubstantiated claims that particular health care services were not
rendered.” See United States v. Martin, 555 F. App’x 358, 369 (5th Cir. 2014)
(affirmatively citing Jones and affirming the denial of a credit where the case
was not one “in which the government’s proposed loss calculation was based on
unsubstantiated claims that particular health care services were not
rendered”).
      We hold that Mahmood carried his burden at sentencing to show that his
hospitals rendered legitimate services to patients and that Medicare would
have paid substantial sums for those services had he not fraudulently billed
them. At trial, the Government’s entire theory of Mahmood’s guilt was that
coders at his hospitals accurately coded Medicare claims and that these claims
were tainted only when Mahmood fraudulently switched the order of diagnosis
codes on the claims. The Government’s own expert “priced” the eighty-five
identified claims and testified that Medicare would have reimbursed
Mahmood’s hospitals $430,639 if the claims had been submitted without




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                                       No. 15-40521
Mahmood’s fraud. 11 Mahmood pointed to this “pricing” evidence at sentencing,
and the Government proffered no rebuttal evidence tending to suggest that
Medicare would not have paid for the services underlying the expert’s pricing
calculation or that the services were not actually provided.                  Absent such
contrary evidence, the district court’s refusal, without explanation, to credit
Mahmood for the $430,639 that Medicare would have reimbursed his hospitals
but for his fraud was a legally unacceptable method of calculating the loss. See

–15 (applying U.S.S.G. § 2B1.1 comment. (n.3(E)(i))).
       The Government cites Jones and argues that we should affirm the
district court because Medicare is the victim of Mahmood’s fraud for purposes
of U.S.S.G. § 2B1.1 comment. (n.3(E)(i)), and Mahmood’s hospitals provided
services to patients, not Medicare. The Government overstates Jones.
       As 

, the district court here made no factual finding akin
to that made in Jones indicating that the services rendered to Mahmood’s
hospitals were of no value to Medicare. See 

. Moreover,
Jones does not require that we read § 2B1.1 comment. (n.3(E)(i)) as precluding
a credit merely because health care services were provided to patients, not



       11 In its brief, the Government argues that “Mahmood cannot point to any evidence in
the record to support his contention that services were actually provided” or “any evidence in
the record concerning the fair market value of the services purportedly provided.” This
argument boldly ignores Mahmood’s reliance at sentencing on the Government’s own trial
evidence to show that his hospitals actually rendered services to patients and that the value
of these services was $430,639. We appreciate that, at times during the trial, the
Government’s expert did refer to his pricing determinations as “hypothetical”
reimbursements. However, the Government’s argument remains quite contradictory—on the
one hand, the Government asks that we consider its pricing evidence as accurate and reliable
to show Mahmood’s guilt at trial; yet, on the other, the Government asks that we consider
the same evidence unreliable, inaccurate, or incomplete in applying the Sentencing
Guidelines for reasons that the Government did not explain to the district court and has not
explained on appeal. At bottom, the Government’s argument remains nothing more than
“unsubstantiated claims that particular health care services were not rendered,” which are
insufficient to show that Mahmood is not entitled to a fair-market-value credit. See Martin,
555 F. App’x at 369.
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                                      No. 15-40521
Medicare. Indeed, such a reading would preclude a credit in any health care
fraud case implicating Medicare. Medicare is not a patient; as such, it never
receives “value” as does a patient when he or she receives treatments and
procedures from a health care provider. Rather, Jones instructs that Medicare,
as an insurance organization, receives “value” when its beneficiaries receive
legitimate health care services for which Medicare is obligated to pay but for a
fraud. See 

; see also 

–15. As

, the only available evidence indicates that Medicare
beneficiaries at Mahmood’s hospitals did receive such legitimate services. The
services only became “illegitimate” sometime after the fact when Mahmood
fraudulently billed them to Medicare. 12             Under such circumstances, and
consistent with Jones, § 2B1.1 comment. (n.3(E)(i)) entitles Mahmood to a
credit against loss.
       The Government also contends that Mahmood is not entitled to a credit
because his fraud was pervasive and difficult to detect.                 Implicit in this
argument is that the district court’s loss calculation did not capture the full
extent of Mahmood’s fraud and possibly even underestimated the impact of
Mahmood’s fraud. Similar to the situation in Klein, the district court was
certainly free to make a factual finding that Mahmood’s fraud was pervasive
or that the $599,128.02 loss figure underestimated the victims’ actual loss for
any number of reasons. See 

. But, no such factual finding




       12 The Government also argues that Mahmood is not entitled to a credit because he
violated one of Medicare’s conditions of payment that requires compliance with “Medicare
laws, regulations and program instructions that apply to th[e] provider.” Such a condition of
payment was not the type of treatment standard that rendered health care services
illegitimate in Jones. 

–72, 984.
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                                       No. 15-40521
was made by the court. 13 Accordingly, these arguments are not relevant in this
appeal.
       All said, based on the record at sentencing, the Guidelines and Klein
required the district court to credit Mahmood for the fair market value of
legitimate health care services that his hospitals rendered to patients. The
district court’s failure to do so was a procedural error and an abuse of
discretion. See 

–15. Because this procedural error
affected the applicable Guidelines-sentencing range on Mahmood’s conspiracy
and health care fraud convictions, we vacate the sentence imposed on those
convictions and remand for resentencing.
                                     V. Restitution
       Mahmood next challenges the district court’s restitution order.                    He
argues that the district court made the same error in imposing the amount of
restitution as it did in calculating the loss amount, i.e., that restitution should
have been offset by the value of the services that his hospitals rendered to
patients. We agree.
       Mahmood preserved his objection to the district court’s restitution order
by objecting at sentencing.           Accordingly, we review the legality of the
restitution award de novo, “and if the award is legally permitted, we review
the amount for abuse of discretion.” 

“An order of restitution will be
reversed on appeal only when the defendant shows that it is probable that the
court failed to consider a mandatory factor and the failure to consider the
mandatory factor influenced the court.” 

States v. Reese,

, 1280–81 (5th Cir. 1993)).




       13 In considering the § 3553(a) factors, the district court did note one witness’ trial
testimony that Mahmood’s fraud began as early as 2005. However, the court made no factual
finding related to conduct beginning in 2005 in calculating the loss amount.
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                                   No. 15-40521
        The court ordered Mahmood to pay $599,128.02 in restitution pursuant
to the MVRA. “‘The MVRA authorizes restitution to a victim directly and
proximately harmed by a defendant’s offense of conviction’ but ‘limits
restitution to the actual loss directly and proximately caused by the
defendant’s offense of conviction.’” Echols, 574 F. App’x at 359 (emphasis
added) (quoting United States v. Sharma, 

, 322–23 (5th Cir.
2012)). “[I]n health care-fraud cases, an insurer’s actual loss for restitution
purposes must not include any amount that the insurer would have paid had
the defendant not committed the fraud.” 

. The MVRA
places the burden on the Government to prove a victim’s actual loss. See 18
U.S.C. § 3664(e). However, the sentencing court may shift that burden to the
defendant as justice requires. See 

–26 (citing 18
U.S.C. § 3664(e)).
        Even assuming Mahmood had the burden to show the victims’ actual
loss, we hold that he carried that burden. As 

, at sentencing,
Mahmood relied upon the Government’s own valuation of the services rendered
to patients at his hospitals, which indicated that Medicare would have
reimbursed the hospitals all but $143,608. Absent evidence to the contrary,
the failure to consider this amount as the victims’ actual loss was an abuse of
discretion.   See, e.g., 

.      Accordingly, we vacate the
restitution order and remand for the district court to reconsider the victims’
loss.
                       VI. Substantive Reasonableness
        Mahmood’s final challenge is to the substantive reasonableness of his
sentence. Specifically, he argues that the district court abused its discretion
in imposing the sentence on his aggravated identity theft convictions. We need
not reach this issue. In considering an appropriate sentence on the aggravated
identity theft convictions, the district court considered, inter alia, “the financial
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                                  No. 15-40521
loss borne by the United States taxpayers.” As 

, the district
court erred in calculating the loss caused by Mahmood’s fraud. Accordingly,
we vacate the sentence imposed on Mahmood’s aggravated identity theft
convictions, and remand for the district court to resentence Mahmood on those
convictions after recalculating the loss.
                                CONCLUSION
      In summary, we AFFIRM in part, and VACATE and REMAND in part.
We AFFIRM each of Mahmood’s health care fraud convictions, each of his
aggravated identity theft convictions, and the district court’s denial of his
motion for new trial. We VACATE Mahmood’s sentence in total and the
district court’s restitution order, and REMAND for resentencing.




                                       28