United States Court of Appeals
                                For the Eighth Circuit
                            ___________________________

                                 No. 19-2779
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                          v.

                                    Sharif Karie

                                     Defendant - Appellant
                                   ____________

                      Appeal from United States District Court
              for the Western District of Missouri - Western Division
                                  ____________

                          Submitted: September 24, 2020
                              Filed: September 30, 2020
                                  ____________

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

       Sharif Karie was convicted of conspiracy to commit theft of public funds, theft
of public funds, aggravated identity theft, money laundering, and mail fraud under
18 U.S.C. §§ 371, 641, 642, 1028A, 1956(a)(1)(B)(i), and 1341. The district court1
sentenced him to 58 months in prison and ordered him to pay $576,937.75 in total
restitution, including $536,833.75 to the state of Missouri. He appeals his sentence

      1
       The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
and the amount of restitution. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

                                          I.

       The Child Care and Development Fund (CCDF)—a federal program—
provides money to states in order to ensure access to high-quality childcare for low-
income families. Under the CCDF, parents are not allowed to care for their own
children because it would negate the Fund’s purpose to enable parents to work or go
to school.

      In Missouri, under the CCDF, a childcare provider must maintain daily
attendance records for each child in its care. The attendance sheet must record drop-
off and pick-up times. To verify the attendance sheet, a parent must sign daily and
again at the end of the month. Childcare providers then submit the attendance online.
Based on the childcare provided and authorized, providers receive an electronic
payment from the state. If childcare providers fail to keep adequate attendance
records, the state has a right to recover funds provided.

      In December 2011, Karie formed Karie Day Care Center LLC (KDCC).
KDCC received its license, valid for two years, on October 7, 2013. In December
2013, KDCC hired Sheri Beamon as the director of the daycare. Karie taught
Beamon how to use the online billing system.

       Karie told employees that a prerequisite for employment was enrollment of
their children in the daycare. Beamon enrolled five of her children. She testified
that Karie’s goal was to hire employees with as many children as possible. Karie
maintained attendance sheets for his employees’ children. He told employees the
purpose of these sheets was to record their work hours, not their children’s
attendance. Even if employees left work early (which they often did), Karie
requested they record their entire shifts on the attendance sheets. Karie also deducted
money from his employees’ paychecks if they did not qualify for the full
reimbursement under the CCDF.




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       In September 2014, Brenda Lentz, a state employee, audited KDCC. The
audit was prompted by a parent who said she was fired from KDCC because her
children were no longer eligible for the CCDF. Lentz’s audit revealed many issues.
She found that 14 of the 15 families with children enrolled at the daycare had a parent
working there, many caring for their own children. Lentz found many discrepancies
with KDCC’s attendance records, including that they were filled out monthly rather
than daily. She also found improper billing practices.

       In October 2014, federal agent Peter Blackburn arranged for a pole camera to
monitor how many people were entering and leaving KDCC. In August 2015, the
state placed KDCC on probationary status, due to numerous health, safety, and
record-keeping violations not directly related to Agent Blackburn’s surveillance.

       KDCC’s license expired on September 30, 2015. Karie did not renew it.
Instead, on October 7, 2015, he formed a new daycare, Tima Child Care Center LLC
(TIMA), listing his wife Mulki Hassan as the owner. Karie and Hassan met with a
state agent to apply for another daycare license. Karie did most of the talking during
the meeting. TIMA received its license on February 29, 2016, opening at the same
location as KDCC. Again, Beamon was the director. Karie resumed his activities
under TIMA, falsifying attendance sheets and billing incorrect information to the
state. Learning of the reopening, Agent Blackburn continued his video surveillance.

      In August 2018, Karie and Beamon were indicted. At trial, the government
presented testimony from Agent Blackburn, Lentz, Beamon, Karie’s ex-wife, five
former employees of KDCC and TIMA, and five witnesses employed by various
state and federal agencies. Karie presented one witness, a certified public
accountant. His primary theory of defense was that Beamon alone was responsible
and was lying about his involvement to get a lighter sentence.

      On the amount of loss, the jury heard evidence that the CCDF paid
$536,833.75 to KDCC and TIMA. Agent Blackburn testified that based on his
observations, he estimated 69 percent of the services performed by KDCC and 46
percent of the services performed by TIMA were legitimate. Multiplying these
percentages by the total amounts billed, Agent Blackburn estimated a total “loss



                                         -3-
amount” of $165,208.27—$146,029.97 for KDCC and $35,515.43 for TIMA. The
jury convicted Karie.

      At sentencing, based on Agent Blackburn’s testimony, Karie argued that up
to 69 percent of billing was “valid and properly collectable,” so the loss amount
should total $165,208.27 instead of $536,833.75. Based on this calculation, Karie
asked for a 10-level enhancement, not the 12-level enhancement for the total loss.
The government replied that Blackburn was giving “the best case scenario.” The
Presentence Investigation Report (PSR) recommended a loss amount of $536,833.75
and a 12-level enhancement.

       The district court agreed with the government and the PSR, finding that
“based on a preponderance of the evidence,” the totality of the circumstances, and
the evidence at trial, the PSR reflected the correct loss amount. The district court
calculated the total loss amount from to the billing practices of the two daycares to
be $536,833.75. It applied a 12-level enhancement, sentenced Karie to 58 months
in prison (within guidelines), and ordered restitution of $536,833.75 to the Missouri
Department of Health and Human Services.

      Karie appeals the offense level for his sentence and the amount of restitution.

                                         II.

       When examining a loss amount, this court reviews the district court’s legal
conclusions “de novo and its factual findings for clear error.” United States v. Luna,

, 928 (8th Cir. 2020). “[A]s long as the determination is plausible in
light of the record as a whole, clear error does not exist.” United States v. Harmon,

, 738 (8th Cir. 2019). Though the government must prove sentencing
enhancements by a preponderance of the evidence, the district court does not have
to make a precise determination of the loss, only a reasonable estimate.

Guidelines, the offense level for fraud “depends on the
greater of the ‘actual’ or ‘intended losses,’ the latter of which includes any
‘pecuniary harm that the defendant purposely sought to inflict’ even if it ‘would have
been impossible or unlikely to occur.’” United States v. Smith, 

, 547

                                         -4-
(8th Cir. 2019) (cleaned up), quoting U.S.S.G. § 2B1.1 cmt. n.3(A). Here, the
district court calculated the actual loss, “the difference between what the victim paid
and what the victim recovered plus any other forms of reasonably foreseeable
pecuniary harm that resulted from the offense.” United States v. Belfrey, 

, 750 (8th Cir. 2019) (internal quotation marks omitted).

       When calculating the offense level under U.S.S.G. § 2B1.1, the district court
must “make an allowance for the legitimate, compensable services provided” by the
defendant because the Sentencing Guidelines “provide an offset for the ‘fair market
value of . . . the services rendered . . . to the victim.’” 

, quoting
U.S.S.G. § 2B1.1, cmt. n.3(E)(i). For losses involving government benefits, there
is a special rule: “loss shall be considered to be not less than the value of the benefits
obtained by unintended recipients or diverted to unintended uses, as the case may
be.” U.S.S.G. § 2B1.1, cmt. n.3(F)(ii).

      By the Guidelines, if the loss amount is more than $150,000, but less than
$250,000, the offense level increases by 10. U.S.S.G. § 2B1.1(b)(1)(F). If the loss
amount is more than $250,000, but less than $550,000, the offense level increases
by 12. U.S.S.G. § 2B1.1(b)(1)(G).

       Karie’s argument relies almost entirely on Agent Blackburn’s estimates that
69 percent of KDCC’s and 46 percent of TIMA’s daycare services were legitimate.
Karie fails to note, however, that Agent Blackburn made clear these were only the
most “conservative” estimates and in making them, he gave Karie the “benefit of the
doubt.” For example, even if a child stayed at the daycare for only a few minutes,
Agent Blackburn counted the child as present for the entire time billed. Other than
Agent Blackburn’s testimony, Karie provided no evidence that he provided
legitimate daycare services. To the contrary, the state auditor testified that 14 of the
15 families with children at KDCC had a parent working there.

      Karie relies on United States v. Boesen, 

(8th Cir. 2008), but that
case is different. There, the defendant physician billed private insurers for
“procedures and tests that were not actually performed or that were medically
unnecessary.”

However, the defendant also performed actual services and
submitted legitimate bills.

The government argued that 67 percent of the

                                           -5-
defendant’s claims to private insurers were fraudulent.

court
concluded that only a 50 percent extrapolation was reasonable “under all of the
circumstances of this case.”

       Here, Karie presented no evidence that he provided legitimate services or
submitted legitimate bills. And he certainly provided no evidence differentiating
legitimate from illegal billing. The district court’s calculation of the loss as the total
amount paid to Karie’s daycares was not clear error. See United States v. Miell, 

, 1000-01 (8th Cir. 2011) (affirming a district court’s calculation of loss
based on the total money received for services because the defendant landlord’s
dealings were “systematically tainted with fraud” and it was impossible to tell which
services were legitimate versus illegitimate); 

(this court
accords “particular deference to the loss determination because of the district court’s
unique ability to assess the evidence and estimate the loss”).

       Even if the district court clearly erred in calculating the loss at $536,833.75,
any error would be harmless. A 12-level enhancement applies if the loss amount is
anywhere between $250,000 and $550,000. Agent Blackburn testified that based on
his surveillance, the most conservative estimate of loss was $165,208.27. This
testimony, combined with the wealth of other evidence that Karie failed to provide
any legitimate daycare services, supports the finding that the loss amount was over
$250,000. See 

(an incorrect “application of the Guidelines
is harmless error where the district court specifies the resolution of a particular issue
did not affect the ultimate determination of a sentence”).

       The record supports the district court’s conclusion that Karie was responsible
for a loss amount between $250,000 and $550,000, and thus the offense level (and
resulting guidelines range) was correct.

                                           III.

      Karie challenges the order of restitution, asserting that the district court erred
by determining the loss amount as the total amount of reimbursements issued to
KDCC and TIMA by the state of Missouri, $536,833.75.



                                           -6-
      This court reviews the district court’s decision to award restitution for an
abuse of discretion, and its finding of the loss amount for clear error. United States
v. Gammell, 

, 1180 (8th Cir. 2019). The government “bears the
burden of proving the amount of restitution based on a preponderance of the
evidence.” Id.; 18 U.S.C. § 3664(e).

       The Mandatory Victims Restitution Act (MVRA) requires that a district court
“shall order” restitution in cases where there is “an identifiable victim or victims has
suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(a)(1), (c)(1)(B).
For purposes of the MVRA, a victim of an offense is “a person directly and
proximately harmed by the offense.” 

, quoting 18 U.S.C.
§ 3663A(a)(2). Once the district court has identified a victim, it must determine “the
full amount of each victim’s losses,” based on the amount of actual loss caused by
the defendant’s offense. United States v. Frazier, 

, 903 (8th Cir. 2011),
quoting 18 U.S.C. § 3664(f)(1)(A). The district court has discretion to determine
this amount “depending on the circumstances of each case.”

Anything a
victim “would have had to pay, regardless of the defendants’ actions, cannot be a
loss caused by the fraud.” 

. Although the loss amount for
sentencing and restitution purposes are calculated in the same manner, “the two
determinations serve different purposes and thus may differ depending on the
relevant facts.” United States v. Lange, 

, 907 (8th Cir. 2010).

       The parties do not dispute the district court’s decision to award restitution to
the state of Missouri as the victim. Karie challenges only the amount of restitution.
As with the first issue, Karie relies almost entirely on Agent Blackburn’s estimate
of the loss, $165,208.27—not the total amount paid to Karie’s daycares by the state
of Missouri, $536,833.75. However, as discussed, the district court, Agent
Blackburn, the government, and the PSR indicated that these were just estimates,
based on assumptions that gave Karie the “benefit of the doubt.”

       Where a defendant’s dealings are “systematically tainted with fraud,” a
district court may determine that the total amount of payments equals the loss
amount. 

. “[A]lthough the ultimate burden of proving loss
always remains with the government, the MVRA authorizes the district court to
place on the defendant a burden of producing evidence of any legitimate services.”

                                          -7-
United States v. Bikundi, 

, 791 (D.C. Cir. 2019), citing 18 U.S.C. §
3664(e). If the defendant does not produce this evidence, the prosecution “may rely
on the existence of a pervasive fraud to argue that all services were infected by fraud
in some way, and therefore that payments for all services represent loss under the
MVRA.” Id.; see United States v. Archer, 

, 173 (2d Cir. 2011) (noting
that “where the prosecution’s burden of proof would require it to prove a negative
and the facts at issue are more readily ascertainable by the defendant, the defendant
is often obliged to assume [the] burden of production of evidence”).

        Here, based on a preponderance of the evidence, the district court agreed with
the PSR that Karie’s “entire day care business was permeated by fraud and
established to commit fraud” and “[t]here is no way to discern if any legitimate
services were provided.” At trial, Karie presented only one witness, a certified
public accountant, who did not address the legitimacy of Karie’s daycares or any of
the services it provided. The government presented many witnesses who testified to
the insufficiency of the attendance records and the fact that in order to be employed
at the daycares, employees had to have children enrolled there. The state auditor
testified that 14 of the 15 families with children at the daycare had a parent working
there; one employee had 10 children enrolled.

       In Luna, this court recognized an offset to the amount of restitution. 

. There, in a recruitment-and-kickback scheme, the defendant
doctors paid recruiters to seek victims of car accidents.

The doctors then
fraudulently treated patients to collect insurance reimbursements.

court made a reasonable estimate of the actual loss suffered by the victim, it
failed to “make an allowance for the legitimate, compensable services provided by
the [defendant].”

(noting that the district court’s findings did not rule out
the possibility that insurance providers had no obligation to pay or that the services
were unnecessary, unreasonable, or never provided).

      Here, however, Karie presented no evidence that he provided “legitimate,
compensable services.”

services were arguably legitimate, Karie
has no legal right to the money because he failed to keep adequate and complete
records certifying attendance for each child. See

(discussing restitution
where the insurer had “no obligation to pay”). According to the Provider Contract

                                          -8-
Agreement (PCA), the state of Missouri has the “right to recover all funds for which
adequate verification and full documentation” are not maintained, including
“inadequate or lack of attendance records.” Missouri also has “the authority to
impose monetary or other sanctions in cases of . . . fraudulent, repealed contract or
payment violations.” Especially relevant for TIMA, the PCA requires applicants
certify that they are not presently suspended, debarred, ineligible, or excluded—
voluntarily or otherwise—from participation in federal programs, like the CCDP. If
falsely certified, the penalty is loss of payment.

       The district court (and the jury) credited the testimony of state and federal
agents who detailed the lack of recordkeeping or improper recordkeeping at Karie’s
daycares. The state auditor testified that the attendance records had numerous
problems and inconsistencies. Agent Blackburn testified that an authorized search
of KDCC’s computers showed a lack of records, records that did not match KDCC’s
billings to Missouri, and records completed all in one sitting, contrary to the PCA.
Karie never disputed that his daycares’ records were inadequate, inaccurate, or
incomplete. In this case, treating the entire amount obtained by Karie as the loss
amount ensures that he does not “benefit from the comprehensive alteration of [his]
own records.” 

.

       The district court did not clearly err in concluding that the $536,833.75 paid
to Karie’s daycares by Missouri is the loss amount under the MVRA. See 

(holding restitution award was based on a “reasonable estimate
of loss” and not clearly erroneous).

                                    *******

      The judgment is affirmed.
                      ______________________________




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