NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 14-3580
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                                   ANNA MUDROVA,
                                           Appellant
                                     __________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-13-cr-00164-001)
                       District Judge: Honorable Juan R. Sanchez

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 22, 2015

     BEFORE: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges


                                  (Filed: July 23, 2015)

                                       __________

                                        OPINION*
                                       __________


NYGAARD, Circuit Judge.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Upon her conviction for conspiracy to commit health care fraud (18 U.S.C. §

1349), the District Court sentenced appellant Anna Mudrova to 96 months of

imprisonment. In this appeal, she maintains that the District Court erred by adding a two-

level sentence enhancement for ten or more victims (United States Sentencing Guidelines

§ 2B1.1(b)(2)(A)(i)), and that it generally erred by failing to properly apply the factors set

out in 18 U.S.C. § 3553(a). We will affirm.

       This opinion does not have any precedential value. Therefore, our discussion of

the case is limited to covering only what is necessary to explain our decision to the

parties.

       Mudrova entered into a plea agreement for conspiracy to commit health care

fraud. Her elaborate scheme, centered on fraudulently billing for ambulance transports of

patients on medically unnecessary trips, resulted in over $1.5 million in payments from

Medicare and over $300,000 in payments from supplemental insurers. Mudrova’s plea

agreement states the following:

              The defendant understands, agrees and has had explained to
              her by counsel that the Court may impose the following
              statutory maximum sentence for conspiracy to commit health
              care fraud, in violation of 18 U.S.C. § 1349: 10 years
              imprisonment, a term of supervised release after
              imprisonment of three years, a fine of $250,000 and a $100
              special assessment.

(App. 3). The parties stipulated to: a base level of 6, and an upward adjustment of 24

levels for the amount of the loss involving a government health care program, her central

role in the conspiracy, and for abusing a position of trust. The parties also stipulated to a


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downward adjustment of 2 levels for acceptance of responsibility and a 1-level downward

adjustment for cooperating, pursuant to section 3E.1(a) and (b) of the Guidelines. (App.

5).

       By agreement, both parties were permitted “to argue the applicability of any other

provision of the Sentencing Guidelines, including offense conduct, offense

characteristics, criminal history, adjustments and departures.” (App. 4). At sentencing,

the Government requested a 2-level enhancement for Mudrova’s mass marketing efforts

to further her scheme (§ 2B1.1(b)(2)(A)(ii)), or alternatively, for a crime involving 10 or

more victims (§ 2B1.1(b)(2)(A)(i)). The District Court determined that the mass

marketing referenced in the Guidelines was different from the situation presented in this

case, but it did enhance the sentence 2 levels based on the number of victims. With an

offense level of 29 and criminal history category of 1, the Guidelines range was 87 to 108

months. The District Court ordered Mudrova to serve 96 months of imprisonment and to

pay restitution to Medicare and other insurers in the amount of $1,860,543.42.

       Mudrova maintains that the enhancement for the number of victims violates the

plea agreement, because she stipulated only to one victim of her crime: Medicare. She

asserts that the Government’s argument for an enhancement of 10 or more victims was

not anticipated in the agreement and therefore it is not a fact to which she pleaded guilty.

We are not persuaded.1 The enhancement for 10 or more victims is grounded in the very

conduct to which Mudrova pleaded guilty, since it was clear that both Medicare and

1
  She raises the breach of plea agreement claim for the first time on appeal, and we
therefore review it for plain error. Puckett v. United States, 

, 143 (2009).

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supplemental insurers received fraudulent bills from Mudrova’s company.2 Moreover,

she did not object to the partial list of insurers referenced as victims in the presentence

report, undermining her assertion that she was aware of only one victim. Finally, her

only objection to the list of victims presented by the Government at sentencing was that

all of them profited from (what she viewed as) a corrupt system. Therefore, they were

not “victims.” Yet, she admitted making claims to them, or receiving money from them. 3

The Government was well within its rights under the terms of the plea agreement to argue

2
  We note the contradictory position held by Mudrova on this topic in that she appeals a
sentence enhancement on the basis that Medicare was the only victim, but she does not
appeal the portion of the District Court’s order requiring her to pay restitution to the very
entities she now asserts are not victims. In fact, she embraces the restitution to these
entities in a secondary argument against the enhancement ( addressed next) that we find
equally unpersuasive. In a related matter, Mudrova asserts for the first time in her reply
brief that one entity, U.S. Railroad Retirement Board, should not be counted as a distinct
entity for purposes of counting the number of victims. However, her failure to object to
the order requiring her to pay this entity a separate amount in restitution fatally
undermines this argument. The District Court did not clearly err in counting this entity as
a victim.
3
 At the sentencing hearing, the following exchanges occurred in reference to the District
Court’s deliberation on the Government’s request for an enhancement for 10 or more
victims:

              Court:        [I]t [a claim for payment by Mudrova] was
                            submitted to these insurance companies, for
                            payment, they paid out, right?

              Mr. Kenny: The – yes . . .
              ....
              Court:     They’ve [the insurance companies] sustained
                         losses, do you agree?

              Mr. Kenny: Yeah, these companies sustained losses. . . .

(App. 113-14).

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for its applicability here, and the District Court did not clearly err by interpreting the plea

agreement to allow the enhancement.

         She also argues that the evidence supporting the enhancement for 10 or more

victims is insufficient, resulting in error, because the Government failed to establish that

the insurance companies it listed were victims of her crime. She maintains that there is

no evidence showing that the companies sustained losses, or at least permanent losses,

from her conduct. Yet, Mudrova ignores the fact that she admitted these companies lost

money because of her conduct.4 As a result, we conclude that the District Court did not

err by applying the enhancement under 2B1.1(b)(2)(A)(i).5

         Even if we had concluded that the District Court erred, any error would have been

harmless. The 96 month sentence was—as the District Court stated—reasonable as a

variance from the Guidelines, under the 18 U.S.C. § 3553(a) factors.6 The District Court

reviewed Mudrova’s conduct (the targeting and recruiting of patients, the kickbacks, the

extensive marketing efforts, and the risk she imposed on persons she ultimately

transported in sub-standard ambulances), and noted that these aspects of her crime are not

accounted for in the Guidelines. The District Court stressed that the sentence was

grounded in the seriousness of the crime and the need for deterrence, given her

4
    See infra, footnote 3.
5
  Mudrova’s argument that the District Court’s restitution order eliminates the insurance
companies’ “actual loss” for sentencing purposes is absurd. Mudrova provides no
evidence that she ever attempted to reimburse Medicare or the defrauded insurers either
in-part or in-full prior to sentencing.
6
 We review the reasonableness of a sentence for abuse of discretion. United States v.
Johnson, 

, 143-44 (3d Cir. 2012).
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“unapologetic greed” and the fact that she continued to perpetrate the crime even after

knowing that she was being investigated. (App. 157-160). There is simply no support

for Mudrova’s argument that the District Court pre-determined the sentence and did not

properly assess the case to determine an appropriate term of imprisonment. In light of

this, we conclude that the District Court was well within its discretion to order an upward

variance of two levels.

       For all of these reasons, we affirm the sentence of the District Court.




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