United States v. Alatan ( 2023 )

Case: 22-20464 Document: 00516965150 Page: 1 Date Filed: 11/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 13, 2023
No. 22-20464 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Olotin Alfred Alatan,
Defendant—Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-633-1
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Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
A jury convicted Olotin Alfred Alatan of one count of conspiracy to
commit healthcare fraud, eight counts of aiding and abetting healthcare
fraud, and one count of engaging in monetary transactions in property
derived from specified unlawful activity. On each count, he was sentenced
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20464 Document: 00516965150 Page: 2 Date Filed: 11/13/2023
No. 22-20464
to concurrent 120-month terms of imprisonment and three-year terms of
supervised release.
Alatan argues that the district court erred in applying (1) a two-level
enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i) for an offense that
involved more than 10 victims, and (2) a two-level enhancement under
§ 2B1.1(b)(11)(C)(i) because the offense involved the unauthorized use of a
means of identification unlawfully to obtain another means of identification. 1
We review these arguments, raised here for the first time, for plain error. See
United States v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010).
Regarding § 2B1.1(b)(11)(C)(i), Alatan argues that he had the
authorization of the Medicare beneficiaries in this case to submit claims on
their behalf and that he was authorized, as a Medicare provider, to submit
Medicare claims for his patients. Thus, he contends, he did not use any
patient’s means of identification unlawfully or without authorization. He
also argues that his use of patient information did not result in the production
of any other means of identification. Alatan, however, has not shown that the
district court erred in applying the enhancement. See United States v.
Ramirez, 979 F.3d 276, 282 (5th Cir. 2020); United States v. Kalu, 936 F.3d
678, 681 (5th Cir. 2019).
Turning to his challenge to the number of victims, Alatan argues that
§ 2B1.1(b)(2)(A)(i) and application note 4(E) to that Guideline do not
include the Medicare beneficiaries in this case as “victims.” His argument
is based on his erroneous contention that he did not unlawfully use his
patients’ means of identification to obtain another means of identification
when he submitted fraudulent Medicare claims on their behalf. Our
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1
The record does not support Alatan’s assertion on appeal that an enhancement
under § 2B1.1(b)(2)(B) was applied in this case.
2
Case: 22-20464 Document: 00516965150 Page: 3 Date Filed: 11/13/2023
No. 22-20464
precedent forecloses this argument. United States v. Mazkouri, 945 F.3d 293,
304-05 & n.3 (5th Cir. 2019). Alatan has shown no error in the application of
this enhancement. In any event, the ultimate guidelines number was 120
months due to the statutory maximum which is below what the guidelines
would have been even if the two enhancements had not been added. 2
AFFIRMED.
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2
The guidelines range for the offense level of 36, including those two
enhancements, for a criminal history of 1 was 188-235, while a guidelines range for the
offense level of 32 (had the two two-level enhancements been removed) would be 121-151.
Since the maximum sentence was 10 years, the guidelines range would be 120 months under
either scenario.
3