United States v. John Ramirez ( 2020 )

Case: 19-20098 Document: 00515617836 Page: 1 Date Filed: 10/27/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 27, 2020
No. 19-20098
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John P. Ramirez, Medical Doctor,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-258-1
Before Smith, Clement, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Dr. John Ramirez committed healthcare fraud. The district court
sentenced him to 300 months in prison. Ramirez argues that his sentence is
unlawful because the district court miscalculated his offense level. We
disagree and affirm.
I.
Ramirez defrauded Medicare. He falsely certified that Medicare
beneficiaries needed a specialized form of nursing care called “home health
services.” Medicare pays for such services only where a physician certifies
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that he evaluated the patient face-to-face and determined that home health
services were medically necessary. Ramirez signed hundreds of those
certifications. But he did so without meeting the patients, much less
evaluating them.
Ramirez’s fraud caused two different types of financial loss to
Medicare. First, Medicare paid for each certification that Ramirez falsely
made. At the Amex Medical Clinic, for example, Ramirez falsely certified
that he evaluated almost 4,000 patients. Amex requested almost $650,000 in
Medicare reimbursements for those evaluations. Medicare paid Amex more
than $200,000. Ramirez signed similarly fraudulent certifications at two
other clinics, named EverBright and QC.
The second form of financial loss to Medicare was more astonishing.
Amex, EverBright, and QC sold Ramirez’s fraudulent certifications to
hundreds of home health agencies, and those agencies in turn used the
certifications to bill Medicare for home health services that were medically
unnecessary, never provided, or both. For example, the certifications
Ramirez fraudulently signed for Amex cost Medicare $14,577,715.91. Similar
certifications at EverBright and QC cost Medicare $11,943,808.93.
A jury found Ramirez guilty. The Pre-Sentence Report (“PSR”)
recommended a Guidelines offense level of 43. The PSR premised that
recommendation on three findings that are relevant to this appeal.
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First, the PSR calculated that Ramirez’s fraud cost Medicare more
than $25 million. The PSR explained that calculation in this table 1:
That loss amount triggered a 26-point increase to Ramirez’s offense level.
See U.S.S.G. § 2B1.1(b)(1)(L) (imposing a 22-level increase for an offense
causing loss of more than $25 million); id. § 2B1.1(b)(7)(A), (B)(iii)
(imposing a 4-level increase for defrauding a government healthcare program
of more than $20 million).
Second, the PSR determined that Ramirez’s offense involved “the
unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification.” Id.
§ 2B1.1(b)(11)(C)(i). That triggered another 2-point increase to Ramirez’s
offense level.
1
The Medicare program consists of multiple “parts.” As relevant here, Part A
covers home healthcare; Part B covers physician services. The PSR loss-calculation table
separates the two different losses to Medicare—the amounts paid for Ramirez’s
certifications (Part B) and the amounts paid for home healthcare services predicated on
Ramirez’s certifications (Part A).
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Third, the PSR determined that Ramirez’s offense involved 10 or
more victims. That triggered another 2-point increase to his offense level
under U.S.S.G. § 2B1.1(b)(2)(A)(i).
The district court accepted the PSR over Ramirez’s objections. It
therefore assigned Ramirez an offense level of 43 and a criminal history
category of I. That generated a recommended Guidelines sentence of life in
prison. But because no count of conviction prescribed a statutory maximum
sentence of life, the Guidelines automatically adjusted the recommended
sentence to 300 months. See id. § 5G1.2(b). The district court imposed that
recommended sentence. Ramirez timely appealed.
II.
Ramirez challenges three aspects of his offense-level calculation.
Then he complains that the district court denied his request for an
evidentiary hearing. We explain and reject each of his arguments.
A.
Ramirez first contests the factual basis for the loss amount, which
added 26 points to his offense level. “In such a challenge, we ask whether the
district court relied on ‘clearly erroneous facts.’” United States v. Mazkouri,
945 F.3d 293, 303 (5th Cir. 2019) (quoting Gall v. United States, 552 U.S. 38,
51 (2007)). We find clear error only if the evidence, taken in its entirety,
leaves us with a firm conviction the district court erred. Ibid.To determine the loss amount, the sentencing court looks to the
greater of “actual loss or intended loss” resulting from the defendant’s
crime. U.S.S.G. § 2B1.1 cmt. n.3(A). The Guidelines say that “actual loss”
means “the reasonably foreseeable pecuniary harm that resulted from the
offense.” Id. cmt. n.3(A)(i). In calculating that harm, the sentencing judge
“need only make a reasonable estimate.” Id. cmt. n.3(C). And because the
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sentencing judge is best able to weigh the evidence and estimate loss based
upon that evidence, his “loss determination is entitled to appropriate
deference.” Ibid.; accord Mazkouri, 945 F.3d at 303.
Loss-amount calculations aren’t limited to the offense of conviction.
The Guidelines tell us to consider “other offenses in addition to the acts
underlying the offense of conviction, as long as those offenses constitute
relevant conduct as defined in the Guidelines.” United States v. Barfield, 941
F.3d 757, 762 (5th Cir. 2019) (quotation omitted), cert. denied, 140 S. Ct. 1282(2020). Relevant conduct includes “acts and omissions” that are “part of
the same course of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). To establish that conduct is “relevant,”
the Government may show another offense is connected to the offense of
conviction “by at least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.” Id. cmt.
n.5(B)(i) (emphasis added).
Here, the sentencing court calculated the “actual loss” resulting from
Ramirez’s fraudulent activity as $26,729,041.39. It determined that amount
by aggregating the total amount Medicare paid on two categories of
fraudulent claims: (1) $14,785,232.46 that Medicare paid for home health and
physician services based on Ramirez’s certifications at Amex; and
(2) $11,943,808.93 that Medicare paid for home health and physician
services based on Ramirez’s certifications at EverBright and QC. 2
2
In calculating the loss amount, the district court relied on Ramirez’s PSR.
“Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the
sentencing judge in making factual determinations.” United States v. Harris, 702 F.3d 226,
230 (5th Cir. 2012) (per curiam) (quotation omitted). The court also can adopt facts
contained in the PSR so long as those facts have an “adequate evidentiary basis” and the
“defendant does not present rebuttal evidence or otherwise demonstrate that the
information . . . is unreliable.” Ibid. (quotation omitted).
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1.
Ramirez first argues that the district court shouldn’t have held him
accountable for category (1), the $14.8 million in Amex-related losses. That
is so, Ramirez contends, because he didn’t personally bill the Government
for $14.8 million. Ramirez further contends that he didn’t know others were
using his certifications to bill Medicare.
The record at sentencing showed otherwise. Ramirez spent an hour or
two at Amex each week. During that time, he signed huge stacks of
certification forms that enabled providers to falsely bill Medicare for home
health services. And there is no reasonable basis for doubting whether these
stacks of forms were part of a fraudulent scheme. For example, many were
blank when Ramirez signed them. One was entitled “FACE TO FACE
ENCOUNTER.” And it contained the following certification:
Yet beneficiaries testified they never met Ramirez.
Moreover, Ramirez himself appeared to recognize the (obvious) fact
that his false certifications were illegal. He cautioned Amex’s owner that if
he signed more than 100 certification forms per week, or more than 500 per
month, Medicare might catch on and raise a “red flag.” Not only could the
district court find the Amex-related losses to Medicare “reasonably
foreseeable,” U.S.S.G. § 2B1.1 cmt. n.3(A)(i), it also could find Ramirez did
in fact foresee them.
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We find no clear error in holding Ramirez responsible for the Amex-
related losses to Medicare.
2.
Second, Ramirez argues his loss-amount calculation shouldn’t include
approximately $12 million for losses related to his fraudulent certifications at
EverBright and QC. In Ramirez’s view, the district court should have
excluded those sums from the loss amount because “the Government
provided no evidence to link Dr. Ramirez” to EverBright, QC, or their
fraudulent activities.
There was ample evidence. Ramirez’s co-conspirator and former
Amex employee, Trondelyn Brown, explained in interviews with federal
agents that Ramirez told her to open EverBright, helped her obtain a DBA
through LegalZoom, and walked her through the process of applying to
become a Medicare services provider. Ramirez admitted to encouraging
Brown to open EverBright. In fact, he told her to open the clinic in the same
building as Amex so she could service some of Amex’s home health agencies.
Ramirez also helped another former Amex employee, Brenda
Rodriguez, open QC. Ramirez admitted that he “may have signed
[certification forms] for Rodriguez” at QC. And in his objections to the PSR,
Ramirez straightforwardly admitted that he worked at both clinics, but “only
showed up periodically.” Of course, he only showed up periodically at Amex
too—and Ramirez’s merely periodic appearances are part of the
Government’s proof that he did not in fact evaluate thousands of patients he
certified for Medicare. He also conceded that Amex, EverBright, and QC “all
implemented the same scheme of using pre-signed blank forms” to provide
home healthcare.
Given all this, the district court did not clearly err in concluding that
EverBright and QC shared “common accomplices, common purpose[s], or
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similar modus operandi” with Amex. United States v. Ainabe, 938 F.3d 685,
690 (5th Cir. 2019) (emphasis and quotation omitted), cert. denied, No. 19-
1407, 2020 WL 5882339 (2020) (mem). In fact, they may have shared all
three. These schemes therefore constitute relevant conduct within the
meaning of the Guidelines. See U.S.S.G. § 1B1.3(a)(2); Ainabe, 938 F.3d at
690.
Taking the Amex and QC/EverBright schemes together, the district
court correctly calculated the loss amount. And it therefore correctly
increased Ramirez’s offense level by 26 points: 22 points for causing a loss in
excess of $25 million and 4 points for causing a loss to a government
healthcare program in excess of $20 million. See U.S.S.G. § 2B1.1(b)(1)(L),
(b)(7).
B.
Next, Ramirez argues the district court erroneously added 2 points to
his offense level under U.S.S.G. § 2B1.1(b)(11)(C)(i). That Guideline applies
where the offense involved “the unauthorized transfer or use of any means
of identification unlawfully to produce or obtain any other means of
identification.” Ramirez argues “the use of patients’ information . . . did not
result in the production of any other means of identification.”
Not so. Every Medicare reimbursement claim—fraudulent or
otherwise—“bears a unique, Medicare-issued claim number tied to a
particular beneficiary.” United States v. Kalu, 936 F.3d 678, 681 (5th Cir.
2019). So whenever Amex, EverBright, QC, or an affiliated home healthcare
provider fraudulently billed Medicare for services purportedly rendered to a
beneficiary, it (1) used that beneficiary’s information unlawfully, and
(2) produced a unique Medicare-issued claim number (another means of
identification). Thus, the district court did not err in increasing Ramirez’s
offense level by 2 points under § 2B1.1(b)(11)(C)(i).
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C.
Next, Ramirez argues the district court erroneously added 2 points to
his offense level under U.S.S.G. § 2B1.1(b)(2)(A)(i). That Guideline applies
where the offense “involved 10 or more victims.” Ramirez appears to argue
that his offense involved only one victim: Medicare.
Our precedent forecloses that argument. We’ve said elsewhere the
“victims” in Guideline 2B1.1 include “any individual whose means of
identification was used unlawfully or without authority.” United States v.
Barson, 845 F.3d 159, 167 (5th Cir. 2016) (per curiam) (quoting U.S.S.G.
§ 2B1.1 cmt. n.4(E)); accord Ainabe, 938 F.3d at 689 (quoting Barson, 845
F.3d at 167); Mazkouri, 945 F.3d at 304–05. And we’ve also held that
submitting a fraudulent Medicare claim is an unlawful use of a beneficiary’s
information. See Kalu, 936 F.3d at 681. Our precedent therefore dictates that
each Medicare beneficiary whose information was used in a fraudulent claim
is a “victim” within the meaning of § 2B1.1(b)(2)(A)(i). The district court
reasonably concluded that Ramirez bore responsibility for thousands of
fraudulent claims and hence had thousands of victims.
D.
Finally, Ramirez argues the district court erred in denying him a
hearing at sentencing. Ramirez sought an evidentiary hearing to submit five
categories of “evidence and testimony that [his] trial attorneys . . . failed to
submit as evidence at trial.”
There’s no doubt that a district court “may permit the parties to
introduce evidence on [] objections” to a PSR. Fed. R. Crim. P. 32(i)(2);
see also U.S.S.G. § 6A1.3(a) (providing that parties “shall be given an
adequate opportunity to present information to the court” regarding any
sentencing factor in dispute). When a court refuses to hold a full hearing on
that evidence, we review its decision for an abuse of discretion. United States
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v. Hass, 199 F.3d 749, 751 (5th Cir. 1999). But as a general matter, “there is
no abuse of discretion when a defendant has an opportunity to review the
PSR and submit formal objections to it.” United States v. Tuma, 738 F.3d 681,
693 (5th Cir. 2013).
Here, the district court did not abuse its discretion in refusing to hold
an evidentiary hearing. Ramirez had the opportunity to review the PSR and
submit formal objections to it. His counsel used that opportunity. And the
probation office properly resubmitted the PSR with Ramirez’s objections and
the Government’s responses. See Fed. R. Crim. P. 32(g). The district
court acknowledged each objection and adopted the Government’s answers
to each. The court also offered defense counsel and the Government an
opportunity to make additional objections. Neither party did so. The district
court was well within its discretion in concluding a more extensive
evidentiary hearing was unnecessary.
The district court’s judgment is therefore AFFIRMED.
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