United States v. Dennis Barson, Jr. ( 2016 )

REVISED December 29, 2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-20416
Fifth Circuit
FILED
December 28, 2016
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
DENNIS BARSON, JR.; DARIO JUAREZ,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
Before REAVLEY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:
Defendants appeal their convictions for conspiracy to commit health care
fraud and several substantive counts of health care fraud. Defendants
primarily challenge the sufficiency of the evidence, the court’s deliberate
ignorance jury instruction, a number of evidentiary rulings, and the
enhancements applied to their sentences. We AFFIRM.
I.
Defendants Dennis Barson, Jr. and Dario Juarez were charged with one
count of conspiracy to commit health care fraud under 18 U.S.C. § 1349 (Count
No. 15-20416
1) and nineteen counts of health care fraud under 18 U.S.C. § 1347 (Counts 2
through 20). After a jury trial, both Defendants were convicted on all 20
counts. The district court sentenced Barson and Juarez to 120 and 130 months
of imprisonment, respectively, followed by three years of supervised release.
The court also ordered forfeiture and restitution.
Defendant-Appellant Barson was recruited by Edgar Shakbazyan to
serve as the medical director for a diagnostic clinic under Shakbazyan’s control
in Houston, Texas. Shakbazyan was the manager of the clinic and handled the
financial affairs of the clinic. He was indicted in a multi-count indictment in
this case and was convicted pursuant to his plea of guilty.
At Shakbazyan’s request, Barson signed a blank form so the clinic could
apply for and obtain a Medicare number to be used to bill Medicare for its
services. Barson opened a bank account in his name where Medicare
reimbursements could be deposited. Barson also signed a number of blank
checks and gave them to Shakbazyan so he could draw on the account.
The clinic opened on June 8, 2009. For $7,000 per month, Barson
traveled from Austin to Houston every other Saturday to review patient files.
The clinic was set up to perform EKGs, ultrasounds, electrocardiograms,
spirometer tests, and physical exams performed by a physician’s assistant.
Medicare was billed for 9,339 procedures for tests performed on 429
beneficiaries using Barson’s Medicare number. Hundreds of the claims were
for rectal sensation testing and electromyography studies of the anal or
urethral sphincter, which the clinic could not and did not perform. At trial,
several of the clinic’s patients testified they went to the clinic because they
were paid to do so and some never received any medical services. Barson
testified he never reviewed bank statements, Medicare remittances, or concern
himself with any of the financial affairs of the clinic.
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Defendant-Appellant Juarez worked at the clinic and claimed to be a
physician’s assistant working under Barson’s supervision. Juarez, who had no
formal medical training, held himself out to patients as a physician and was
the medical staff member at the clinic.
Barson closed the clinic on July 30, 2009, after he suspected that the
clinic was not above board; however he notified no one of his suspicions.
Several suspicious circumstances came to Barson’s attention. In the
weeks leading up to closing the clinic, Barson made a number of unsuccessful
attempts to reach the California doctor who reviewed ultrasounds for the clinic.
Barson also learned in July that Shakbazyan was lying about his true identity.
On August 4, a Medicare contractor in charge of waste, fraud, and abuse,
opened an investigation into the clinic and tried unsuccessfully to contact
Barson by phone. On August 11, Barson closed the clinic bank account set up
to receive Medicare reimbursements. Upon receiving his 1099 tax form in
February 2010, Barson learned that the clinic’s bank account in his name
received approximately $1.2 million in Medicare reimbursements. In his
testimony, he claimed this was his first notice that this large sum had been
deposited in his account during the approximately two months the clinic had
been open.
II.
Sufficiency of the evidence challenges are reviewed de novo. 1 In doing
so, this Court must determine whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” 2 The
1 United States v. Umawa Oke Imo, 739 F.3d 226, 235 (5th Cir. 2014) (citing United
States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)).
2 Jackson v. Virginia, 443 U.S. 307, 319 (1979); Umawa Oke Imo, 739 F.3d at 235
(quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011)).
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Court should accept “all credibility choices and reasonable inferences made by
the trier of fact which tend to support the verdict.” 3
III.
Sufficiency of the Evidence
Defendants’ primary challenge on appeal is to the sufficiency of the
evidence to establish both the conspiracy count and the substantive counts for
health care fraud.
To establish a conspiracy to commit health care fraud, the government
must show “the existence of an agreement between two or more people to
pursue the offense of fraud; the defendant knew of the agreement; and the
defendant voluntarily participated in the conspiracy.” 4 The agreement may be
silent and informal between the conspirators. 5 Further, “voluntary
participation may be inferred from a collection of circumstances, and
knowledge may be inferred from surrounding circumstances.” 6 The defendants
need not have personally submitted the necessary forms requesting
reimbursement from Medicare to be guilty of health care fraud or conspiracy
to commit health care fraud. 7 The government may use direct or
circumstantial evidence to prove each element. 8
At trial, both Barson and Juarez argued they had no knowledge of the
fraudulent activity, let alone an agreement to commit fraud.
Barson based his argument that he had no knowledge of fraudulent
activity on his lack of experience. Before taking the job as the medical director
3 Umawa Oke Imo, 739 F.3d at 235.
4 United States v. Delgado, 688 F.3d 219, 226 (5th Cir. 2012).
5 United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012) (citing United States v.
Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986)).
6 United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).
7 Umawa Oke Imo, 739 F.3d at 235.
8 Id. (citing Delgado, 668 F.3d at 226).
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for the clinic, Barson was a physician in the Navy and worked a short time in
private practice. When he was hired by Shakbazyan to work for the clinic,
Barson was working as a neurology resident in Austin, Texas. On a resident’s
salary, he argued, he needed the extra money the job at the clinic would
provide. Barson had no prior experience with Medicare or medical billing
practices in any of his prior positions. Barson argued that he had no way of
knowing about the fraudulent scheme because he never saw any patient files
that included many of the tests the clinic billed Medicare for. Barson testified
that the patient files he reviewed included services that the clinic was set up
to provide: EKGs, ultrasounds, electrocardiograms, spirometer tests, and
physical exams performed by a physician’s assistant. Because he was hired in
this limited role to review patient files set aside for him twice a month, Barson
maintained that he had no way of knowing that the clinic was engaged in
fraudulently billing Medicare.
Similarly, Juarez argued that even though he was impersonating a
physician’s assistant, he had no knowledge of or access to any of the facility’s
billing systems.
The government presented ample circumstantial evidence to establish
both Defendants’ knowledge of the ongoing health care fraud. Barson signed
documents in blank allowing the clinic to bill under his Medicare identification
number and opened a bank account in his name to receive Medicare
reimbursements. He signed a number of blank checks to permit Shakbazyan
to draw on the account. He allowed the bank statements to be sent to the clinic
and never reviewed them. Barson received a significant sum, $7,000 per
month, for reviewing patients’ charts every other Saturday. Barson admitted
to an FBI investigator that despite his suspicions and bad feelings about the
clinic, he reported his suspicions to no one. He quietly closed the clinic on July
30. Barson did not monitor the bank account in his name or review any
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No. 15-20416
Medicare remittances that went to the clinic. Upon receiving his 1099 tax form
showing that the clinic bank account received nearly $1.2 million, Barson again
failed to contact Medicare to report his concerns.
The government also established that Juarez was aware he was
participating in a scheme to commit Medicare fraud. Juarez held himself out
as a “doctor” at the clinic and falsely claimed to Barson that he was a
physician’s assistant, the clinic’s on-site medical staff member. Juarez saw
almost all of the patients and turned a blind eye to the fact that most of the so-
called patients had no need for medical care and that many received no medical
care. He saw large numbers of patients lining up outside the clinic daily after
being delivered to the clinic by the same white van. Juarez had access to the
clinic’s mail including the bank statements and Medicare remittances. Juarez
was paid $20,000 for his work, a large sum for an unlicensed individual to pose
as a physician’s assistant. He lied to investigators about the payments he
received. Juarez also gave conflicting testimony to an FBI investigator about
an alleged break in at the clinic and missing patient files.
Barson also argues that the evidence was insufficient to establish an
“agreement” to commit health care fraud. His arguments closely track his
arguments on the knowledge element and fails for similar reasons.
The evidence established that Barson and Shakbazyan agreed that (1)
Barson would apply for a Medicare number; (2) Barson would allow the clinic
to use that number to bill Medicare; and (3) Barson would receive $7,000 per
month for reviewing files every other Saturday. The evidence established that
Shakbazyan set up the fraudulent scheme and had intimate knowledge of the
details of the fraud.
Juarez agreed with Skakbazyan to work at the clinic as the medical staff
member and hold himself out as a physician’s assistant to Barson and as a
physician to the patients.
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The jury was also entitled to find that the Defendants committed health
care fraud on the substantive counts of the indictment. Each substantive count
was based on a separate request for Medicare reimbursements that the
government established were not for medical services needed or provided. 18
U.S.C. § 1347 sets forth the elements of the offense:
Whoever knowingly and willfully executes, or attempts to execute,
a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property owned
by, or under the custody or control of, any health care benefit
program,
in connection with the delivery of or payment for health care
benefits, items, or services [commits health care fraud]. 9
Here, the jury was entitled to convict Defendants pursuant to the
Pinkerton doctrine, which imposes criminal liability on all conspirators for the
acts of other co-conspirators when those acts are foreseeable. 10 Because the
evidence was sufficient to convict Defendants on the conspiracy count, the jury
was entitled to convict them on the substantive counts as well. The Defendants
were responsible for the acts of co-conspirator Shakbazyan who actually
submitted or caused to be submitted the fraudulent claim forms for Medicare
reimbursement.
Deliberate Ignorance Instruction
Defendants argue next that the district court erred in giving the
deliberate ignorance instruction. 11 The evidence summarized above raised a
9 18 U.S.C. § 1347(a).
10 Pinkerton v. United States, 328 U.S. 640 (1946).
11 The district court instructed the jury,
The word “knowingly,” as that term has been used from time to time in these
instructions, means that the act was done voluntarily and intentionally, not
because of mistake or accident. You may find that a defendant had knowledge
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No. 15-20416
legitimate issue of whether Barson and Juarez turned a blind eye to the fact
that Medicare was being billed large sums for services not performed. Barson’s
acts in signing blank forms to allow Medicare to be billed for procedures under
his number, opening a bank account in his name for the reimbursements, and
signing blank checks for Shakbazyan to draw on the account was sufficient to
permit the jury to infer that Barson took pains to avoid personal knowledge of
incriminating facts. Barson’s failure to review any remittances from Medicare
or bank statements from his own bank account could have been viewed
similarly. Juarez relied on his lack of medical training and his unfamiliarity
with the Medicare forms to argue that he suspected no wrongdoing. Our
precedent supports submission of “a deliberate ignorance instruction ‘when a
defendant claims a lack of guilty knowledge and the proof at trial supports an
inference of deliberate indifference.’” 12 The record clearly authorized the
district court to give the instruction and the court did not abuse its discretion
in giving it.
Object of the Conspiracy
Next, Defendants argue that the district court abused its discretion by
rejecting their proposed instruction on the object of the conspiracy. Defendants
complain that the district court did not instruct the jury that the government
was required to prove the object of the conspiracy in the exact language of the
indictment. The court instructed the jury that the object of the conspiracy was
of a fact if you find that the defendant deliberately closed his eyes to what
would otherwise have been obvious to him. While knowledge on the part of the
defendant cannot be established merely by demonstrating that the defendant
was negligent, careless, or foolish, knowledge can be inferred if the defendant
deliberately blinded himself to the existence of a fact. However, if you find that
the defendant actually believed the Medicare claims being filed were not
fraudulent, then you must acquit the defendant.
See Fifth Circuit Pattern Jury Instructions (Criminal Cases) 1.37A.
12 United States v. Vasquez, 677 F.3d 685, 696 (5th Cir. 2012) (quoting United States
v. Threadgill, 172 F.3d 357, 368 (5th Cir. 1999)).
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“health care fraud, in violation of Title 18, United States Code, Section 1347.”
At Barson’s request, the court also charged:
Specifically, as to each defendant under consideration, it was an
object of the conspiracy that the defendant and others known and
unknown to the grand jury unlawfully enrich themselves by falsely
and fraudulently representing to Medicare that certain services
and procedures were performed for Medicare beneficiaries when,
in fact, the defendant well knew the services and procedures were
not being performed. 13
The Defendants contend the court erred in failing to instruct the jury that the
government was required to prove these facts. We find no abuse of discretion
in the district court’s instruction. The district court instructed the jury on the
object of the conspiracy that tracks the Fifth Circuit pattern jury instructions,
which we have approved. 14 The above instruction makes it clear that it is
describing an object of the conspiracy. The government is not required to prove
all facts alleged in the indictment as long as it proves certain facts which
satisfy the elements of the offense.
Evidentiary Rulings
Defendants raise a number of evidentiary objections in brief including:
whether the district court erred in admitting the testimony of the executive
director of the Texas Medical Board; whether the cross-examination of the FBI
Case Agent was appropriately limited to the Agent’s direct examination
13 The district court instructed the jury on the following elements of health care fraud:
For you to find one or both defendants guilty of this crime, you must be
convinced that the government has proved for the defendant then under
consideration each of the following beyond a reasonable doubt: First, that two
or more persons made an agreement to commit the crime of health care fraud
as charged in the indictment. Second: That Dennis B. Barson, Jr. and Dario
Juarez knew of the unlawful purpose of the agreement and joined in it
willfully, that is, with the intent to further the unlawful purpose.
14 United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (“It is well-settled that
a district court does not err by giving a charge that tracks this Circuit’s pattern jury
instructions and that is a correct statement of the law.”) (citing United States v. Turner, 960
F.2d 461, 464 (5th Cir. 1992)).
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No. 15-20416
testimony; whether the exclusion of the plea colloquy of Shakbazyan was
proper; and whether the exclusion of evidence gathered by a police officer in
California from an unindicted co-conspirator was proper. We have reviewed
Defendants’ arguments and find no abuse of discretion in the evidentiary
rulings by the district court.
Sentencing
Barson disputes two enhancements applied to his sentence. Juarez joins
Barson in objecting to the first enhancement.
First, Defendants argue that the district court erred in concluding the
429 patients or Medicare beneficiaries for whom the conspirators falsely
claimed benefits were “victims” under the guidelines. 15 We agree with the
government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines “victim” in
a way that encompasses the Medicare beneficiaries because it includes “any
individual whose means of identification was used unlawfully or without
authority.” 16 The district court did not err in applying this enhancement.
Second, Barson argues that the application of a sentencing enhancement
for obstruction of justice under U.S.S.G. § 3C1.1 17 was inappropriate. During
15 See U.S.S.G. § 2B1.1(b)(2)C) (2009).
16 U.S.S.G. § 2B1.1 cmt. n.4(E). The Application Notes were amended in 2009 to
include this additional definition of “victim.” The amended Note reads, “For purposes of
subsection (b)(2), in a case involving means of identification ‘victim’ means (i) any victim as
defined in Application Note 1; or (ii) any individual whose means of identification was used
unlawfully or without authority.” Id. Application Note 1 defined victim as “(A) any person
who sustained any part of the actual loss . . . ; or (B) any individual who sustained bodily
injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.1 (2008). Shakbazyan, who pleaded
guilty on the first day of trial, challenged this application of the six-level sentencing
enhancement under the Ex Post Facto Clause because the definition of “victim” was amended
to include the unauthorized use of individuals’ information. This same panel determined
that Shakbazyan’s argument was foreclosed by Fifth Circuit precedent and affirmed the
district court’s sentence. United States v. Shakbazyan, No. 15-20426, at 4-7, 9.
17 The guideline states,
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction, and (2) the
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No. 15-20416
sentencing, the government argued that Barson’s testimony was laden with
falsehoods designed to mislead the jury including: Barson’s claim that he
trusted Shakbazyan so thoroughly he signed forms in blank on the day he met
Shakbazyan and failed to ask for information about the Medicare application;
Barson opened a bank account to receive reimbursements from Medicare, but
did not know where the statements were being sent; and Barson failed to ask
Juarez for his credentials or register the supervision of him with the Texas
Medical Board. The district court who heard Barson’s testimony agreed. 18 Our
review of the record satisfies us that the district court, who observed Barson
testify, did not abuse its discretion in finding that Barson’s testimony lacked
credibility and was untruthful in his testimony.
Prosecutorial Misconduct
Defendants allege that several statements made by prosecutors during
trial amounted to prosecutorial misconduct. Some statements were objected
to during trial and some objections are raised on appeal. We have reviewed
these arguments and statements and find no error by the district court in
permitting these arguments.
IV.
The district court committed no reversible error and we therefore affirm
the Defendants’ convictions and sentences.
obstructive conduct related to (A) the defendant's offense of conviction and any
relevant conduct; or (B) a closely related offense, increase the offense level by
2 levels.
U.S.S.G. § 3C1.1.
18 The district court stated during sentencing, “Well, of course, I was here and listened
to [Barson’s] testimony. I agree with [the government] that much of it was not credible; and
because he testified not credibly or untruthfully, that does–that is an obstruction of justice.”
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No. 15-20416
JONES, Circuit Judge, concurring in part and dissenting in part:
Although I am pleased to concur in the bulk of this Medicare fraud
appeal, I differ with the panel majority’s interpretation of the term “victim” for
sentencing enhancement purposes. The majority has embraced an
unprecedented and grammatically inexplicable use of the term to, in effect,
double count the loss attributable to this unsavory fraudulent patient care
operation. The government has commendably stepped up its prosecution of
flagrant Medicare and Medicaid frauds, but never have I seen this double
counting of the “loss” to include not only the United States taxpayers who
support Medicare payments but also the “patients,” who paid not a dime, may
not have even received treatment, and in a number of cases were co-
conspirators paid to lend their names to the treatment center’s fictitious files.
Defendants have a right to be sentenced according to the plain meaning of the
guidelines, not the government’s here-concocted abuse of terms. I respectfully
dissent.
The defendants here received a six-level sentencing enhancement upon
the district court’s finding that the 429 Medicare beneficiaries who visited
defendants’ fraudulent clinic were “victims” under the United States
Sentencing Guidelines. (There was already an enhancement for the loss to the
United States Treasury.) The majority’s opinion tersely affirms the
enhancement. 1 I would vacate the defendants’ sentences and remand for
resentencing because the Guidelines and relevant Commentary are
1 The full treatment of the issue in the per curiam opinion is as follows: “Defendants
argue that the district court erred in concluding the 429 patients or Medicare beneficiaries
for whom the conspirators falsely claimed benefits were ‘victims’ under the guidelines. We
agree with the government that Application Note 4(E) of U.S.S.G. § 2B1.1 defines ‘victim’ in
a way that encompasses the Medicare beneficiaries because it includes ‘any individual whose
means of identification was used unlawfully or without authority.’ The district court did not
err in applying this enhancement.”
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No. 15-20416
inapplicable under both the plain meaning of the term “victims” and the
purpose of its 2009 definition.
By way of background, “Victim” is not defined in the loss section of the
Guidelines, § 2B1.1, but Note 1 (here inapplicable) and Note 4 of the
Commentary define the term. Note 4(E) provides in relevant part:
For purposes of subsection (b)(2), in a case involving means of
identification “victim” means (i) any victim as defined in
Application Note 1; or (ii) any individual whose means of
identification was used unlawfully or without authority. 2
The government argues that since the use of the 429 alleged beneficiaries’
Medicare identification information was part of an unlawful conspiracy, the
enhancement was proper. The defendants contend, however, that the
beneficiaries were participants in the Clinic’s kickback scheme rather than
victims, and that the 2009 iteration of the Sentencing Guidelines was not
intended to treat these beneficiaries as victims.
Guidelines Commentary “that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson
v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993). “Application
notes are given controlling weight so long as they are not plainly erroneous or
inconsistent with the guidelines.” United States v. Rodriguez-Parra, 581 F.3d
227, 229 n.3 (5th Cir. 2009) (citing United States v. Urias-Escobar, 281 F.3d
165, 167 (5th Cir. 2002)).
In my view, the government’s reading of the Guidelines is plainly
erroneous for two reasons. First, that interpretation is inconsistent with the
2 U.S.S.G. § 2B.1.1(b)(2)(C), Note 4(E) Cases Involving Means of Identification.
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No. 15-20416
plain meaning of the term “victim.” A victim is a “person who suffers from a
destructive or injurious action or agency.” “Victim,” The Random House
Dictionary of the English Language (1966). See also “Victim,” Merriam-
Webster’s Dictionary of the English Language, http://www.merriam-
webster.com/dictionary/victim, accessed Oct. 26, 2016 (“a person who has been
attacked, injured, robbed, or killed by someone else”). The government, which
bore the burden of proof for sentencing purposes, did not establish that any of
the 429 purported patients were victims in this definitional sense. On the
contrary, as the majority opinion states, “At trial, several of the clinic’s patients
testified they went to the clinic because they were paid to do so and some never
received any medical services.” Consequently, at least some of the 429 alleged
beneficiaries could have been considered co-conspirators. Applying the
application of the term “victims” here verges on the Orwellian.
Second, the majority’s interpretation is inconsistent with the purpose of
the Guideline’s definition of victims. The Guidelines were updated as part of
Amendment 726 to the Identity Theft Enforcement and Restitution Act of 2008. 3
The Sentencing Commission explained its reasoning for proposing the
amendment that was adopted to create Application Note 4(E): to address more
fully the actual harm done by identity theft. 4 Several circuits’ interpretation
of the pre-2009 Guidelines had broadened the definition of victims to those
“individuals who suffered considerably more than a small out-of-pocket loss
and were not immediately reimbursed by any third party,” even if they were
3 U.S.S.G. App’x C, Vol. III, Am. 726, p. 308
4 Office of General Counsel, Victim Primer (§2B1.1(b)(2))I, U.S. Sentencing
Commission (2013), at 6.
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No. 15-20416
later reimbursed. 5 Other circuit precedent held that victims were only those
who suffered pecuniary loss from identity theft but were not reimbursed at all. 6
Amendment 726 was intended to resolve this circuit split. 7 Under the 2009
Guidelines, while a victim of identity theft may be reimbursed by a third-party
or bank, the Commission explained that “such an individual [victim], even if
fully reimbursed, must often spend significant time resolving credit problems
and related issues, and such lost time may not be adequately accounted for in
the loss calculations under the guidelines.” 8 According to the Commission, this
hassle and lost time justified considering as a victim for sentencing purposes
anyone whose identity was stolen. Therefore, the purpose for the definition of
victims under Note 4(E) is to capture by an enhancement harms otherwise
difficult to measure. This purpose is entirely consistent with the plain
meaning of “victim” in the English language.
This purpose is not fulfilled by applying the definition of victims in this
case. The government has not established that the 429 Medicare claimants
had to spend “significant time,” or any time at all, resolving credit or related
issues. Even real Medicare beneficiaries are not normally victims of Medicare
fraud because Medicare, not the patient, pays the billing provider directly. The
real victim is the U.S. taxpayer, through Medicare, and that has been
5United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005) (internal quotation marks
omitted). See also United States v. Stepanian, 570 F.3d 51 (1st Cir. 2009); United States v.
Abiodun, 536 F.3d 162 (2d Cir. 2008); United States v. Panice, 598 F.3d 426 (7th Cir. 2010);
United States v. Pham, 545 F.3d 712 (9th Cir. 2008).
6United States v. Yagar, 404 F.3d 967 (6th Cir. 2005). See also United States v.
Kennedy, 554 F.3d 415 (3d Cir. 2009); United States v. Conner, 537 F.3d 480 (5th Cir. 2008);
and United States v. Icaza, 492 F.3d 967 (8th Cir. 2007).
7 Victim Primer (§2B1.1(b)(2)) at 8.
8 USSG §2B1.1, comment. (n.4); USSG App. C, amend. 726 (eff. Nov. 1, 2009).
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No. 15-20416
accounted for by the guidelines in this case. There is no proof at all that the
purported beneficiaries in this case suffered any harm, pecuniary or otherwise;
they cannot be considered victims under Note 4(E).
I respectfully dissent from this portion of the majority opinion.
16