Case: 17-20411      Document: 00514547534         Page: 1    Date Filed: 07/10/2018




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

                                                                                 FILED
                                      No. 17-20411                           July 10, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

ANN ANYANWU,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-318-3


Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       A jury convicted Ann Anyanwu of three counts of aiding and abetting
health care fraud in violation of 18 U.S.C. §§ 1347 and 2, and the district court
sentenced her to concurrent terms of thirty-three months of imprisonment and
held her liable for $4,752,028.19 in restitution, jointly and severally with her
co-defendants. Anyanwu appeals her convictions and sentence as well as the
district court’s restitution order.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 17-20411
      First, Anyanwu challenges the sufficiency of the evidence supporting her
convictions. Because Anyanwu moved for a judgment of acquittal at the close
of the evidence, we review her challenge to the sufficiency of the evidence de
novo. See, e.g., United States v. Jordan, 

, 396 (5th Cir. 2017).
“When reviewing the sufficiency of the evidence, we view all evidence, whether
circumstantial or direct, in the light most favorable to the government, with
all reasonable inferences and credibility choices to be made in support of the
jury’s verdict.” United States v. Alaniz, 

, 600 (5th Cir. 2013)
(internal quotation marks omitted). Anyanwu argues that the evidence was
insufficient to prove that she had the specific intent to advance her co-
defendants’ commission of health care fraud, as the Government was required
to prove. She claims that she merely worked as a nurse, saw her patients as
needed, performed the appropriate nursing services, and was paid a salary for
her work. We disagree.
      Aiding and abetting under 18 U.S.C. § 2 requires that the Government
“prove (1) that the defendant associated with the criminal venture, (2)
participated in the venture, and (3) sought by action to make the venture
succeed.” United States v. Lopez-Urbina, 

, 757 (5th Cir. 2005)
(internal quotation marks omitted). A conviction for healthcare fraud under
18 U.S.C. § 1347 requires that a defendant “knowingly and willfully executed
a scheme to defraud a government health care program.” United States v.
Gevorgyan, 

, 455 (5th Cir. 2018) (internal quotation marks
omitted).
      While Anyanwu notes that she did not participate in billing and did not
personally submit false documents to Medicare, the Government presented
evidence that Anyanwu herself: (1) signed medical records, which she knew
her co-defendants would later submit to Medicare, falsely representing that
certain Medicare beneficiaries qualified for home health services; (2)
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                                  No. 17-20411
misrepresented the care she provided to patients on required forms that she
knew her co-defendants would later submit to Medicare; (3) purported to
provide services to Medicare patients when she was actually working
elsewhere; (4) directed her patients to sign blank timesheets; (5) forged patient
signatures on her timesheets; and (6) paid kickbacks to patients on behalf of
her employer, knowing that Medicare prohibited such payments. Viewed in
the light most favorable to the Government, the jury could rationally find that
Anyanwu had the specific intent to aid and abet her co-defendants’ health care
fraud offenses.
         Next, Anyanwu challenges the district court’s sentence and its
restitution order, claiming that the court erred in holding her responsible for
$4,752,028.19 in actual loss to Medicare, an amount the district court used for
both the Sentencing Guidelines calculations and its restitution calculation. “A
district court’s loss calculation, and its embedded determination that the loss
amount was reasonably foreseeable to the defendant, are factual findings
reviewed for clear error.” United States v. Brown, 

, 341 (5th Cir.
2013). We review the amount of a legally permitted restitution award for abuse
of discretion. United States v. Read, 

, 231 (5th Cir. 2012). Here,
Anyanwu contends that the district court should have considered only the loss
she intended to cause Medicare, which she asserts was $175,000, reflecting the
salary she received. Once again, we disagree.
         For purposes of the Sentencing Guidelines, the amount of loss used to
calculate the defendant’s offense level is “the greater of actual loss or intended
loss.”    U.S.S.G. § 2B1.1, comment. (n.3(A)) (2016).      Actual loss is “[t]he
reasonably foreseeable pecuniary harm that resulted from the offense.” 

comment. (n.3(A)(i)).     Anyanwu does not dispute that Medicare
incurred an actual loss of over $4.7 million as a result of the fraudulent scheme
that she aided and abetted, nor does she claim that this loss was not reasonably
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                                 No. 17-20411
foreseeable to her.   She has therefore forfeited any such contention.       See
Jefferson Cmty. Health Care Ctrs., Inc. v. Jefferson Par. Gov’t, 

,
626 (5th Cir. 2017) (an issue not raised in a party’s opening brief is generally
forfeited).   Although the Government concedes that the district court
erroneously added $4,294.97 to the actual loss amount, any error in this
respect was harmless and did not impact Anyanwu’s Guidelines range.
      As to the district court’s restitution order, while Anyanwu ostensibly
challenges its amount, she makes no attempt to explain, in light of relevant
authority, why the district court’s calculation is incorrect. She has therefore
forfeited any argument in this respect. See SEC v. Life Partners Holdings, Inc.,

, 784 (5th Cir. 2017) (deeming a party’s challenge forfeited for
inadequate briefing). However, here, too, the Government concedes that the
district court miscalculated the amount by erroneously adding $4,294.97.
Unlike in the context of the Guidelines calculation, the miscalculation of the
restitution amount is not harmless.
      Accordingly, we VACATE the district court’s restitution order and
REMAND for correction of the restitution amount. We otherwise AFFIRM the
district court’s judgment.




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