United States v. Sri Wijegoonaratna ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50255
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00512-
SJO-VAP-3
SRI WIJEGOONARATNA, AKA Dr. J,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 5, 2019
Pasadena, California
Filed April 26, 2019
Before: Ronald M. Gould, Jacqueline H. Nguyen,
and John B. Owens, Circuit Judges.
Opinion by Judge Gould
2 UNITED STATES V. WIJEGOONARATNA
SUMMARY *
Criminal Law
The panel affirmed a conviction for seven counts of
health care fraud, affirmed in part and vacated in part the
sentence, and remanded, in a case in which the defendant, a
physician, and others affiliated with California Hospice Care
fraudulently billed Medicare and Medi-Cal for hospice care
given to patients who had been falsely certified as terminally
ill.
Affirming the conviction, the panel held that the district
court did not err in overruling the defendant’s objection to
the prosecutor’s statement during closing argument that
office staff who completed a patient intake form copied the
defendant’s assessment.
The panel rejected the defendant’s contention that the
district court, at sentencing, did not make Fed. R. Crim. P.
32’s required factual findings on a disputed loss calculation.
The panel held that sufficient evidence supports the
district court’s finding that the defendant intended the loss
amounts underlying his sentencing enhancements.
The panel held that the district court did not plainly err
in applying an enhancement pursuant to 18 U.S.C. § 3147
and U.S.S.G. § 3C1.3 for committing a crime while on
supervised release, where the defendant – whose counts of
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. WIJEGOONARATNA 3
conviction concerned conduct before he went on pretrial
release – continued the same course of conduct after his
pretrial release began.
Reviewing de novo, the panel held that because the
government charged the defendant with multiple counts
rather than a single continuing offense, the district court
violated the ex post facto clause by sentencing him under the
2016 Sentencing Guidelines Manual on the six counts
arising from conduct that occurred before the Guidelines
Manual revision.
COUNSEL
Alyssa D. Bell (argued), Anya J. Goldstein, and Reuven L.
Cohen, Cohen Williams LLP, Los Angeles, California, for
Defendant-Appellant.
Steven M. Arkow (argued), Assistant United States
Attorney; Lawrence S. Middleton, Chief, Criminal Division;
Nicola T. Hanna, United States Attorney, Los Angeles,
California; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Defendant Sri Wijegoonaratna appeals his jury
conviction and sentence for seven counts of health care fraud
in violation of 18 U.S.C. § 1347. We affirm
Wijegoonaratna’s conviction, and we affirm in part and
vacate and remand in part his sentence.
4 UNITED STATES V. WIJEGOONARATNA
I
A
Hospice care is designed for patients with terminal
illnesses who choose to forgo active treatment of their
terminal condition and instead receive palliative care,
including pain relief and family bereavement services.
Hospice care may be provided in the patient’s home or in a
facility such as a nursing home.
For eligible Medicare beneficiaries, Medicare pays
around $200−250 per day for hospice care. To be eligible, a
patient must be certified as terminally ill by two licensed
physicians. “Terminally ill” means that the patient’s
prognosis is less than six months if the disease runs its
normal course. The two licensed physicians are typically the
hospice medical director or staff physician and the patient’s
attending physician. Patients are initially certified for ninety
days of service. If a patient requires hospice care beyond
those ninety days, the patient can be recertified for an
additional period. Recertification requires just one
physician.
About 85% of hospice patients die in hospice care (the
remaining 15% end hospice care alive). Patients receive
hospice care for an average of sixty-six days, but about half
receive hospice care for fewer than twenty days before
dying.
Priscilla Villabroza acquired California Hospice Care
(“CHC”) in 2008. Sharon Patrow, her daughter, handled
business operations; Erwin Castillo, a registered nurse,
handled medical matters. Dr. Violeta Atiga worked as the
medical director.
UNITED STATES V. WIJEGOONARATNA 5
Patient admission at CHC required three documents:
(1) a nursing assessment, completed by a nurse during a
visit; (2) a history and physical, completed by a physician
during a visit; and (3) a patient intake form, completed by
CHC office staff. At trial, the parties disputed the order in
which these documents were completed. Once a patient’s
file was complete, the patient’s attending physician and Dr.
Atiga would certify that the patient was terminally ill.
According to trial testimony, CHC’s practice was to
fraudulently bill Medicare and Medi-Cal for hospice care
given to patients who had been falsely certified as terminally
ill. CHC illegally paid recruiters to refer patients to CHC.
CHC also falsified records and even paid some patients to be
on hospice. Although CHC certified its patients as
terminally ill, the majority of CHC patients did not die
within six months of admission.
Wijegoonaratna filled several roles at CHC from
November 2009 to May 2013. For most CHC patients,
Wijegoonaratna was the attending physicianthe physician
who completed the “history and physical,” certified the
patient as hospice-eligible (along with Dr. Atiga), and
remained responsible for the patient’s care. Wijegoonaratna
also recruited around half of CHC’s patients, participated in
team meetings, and served as its associate medical director.
He continued in these roles even after he was indicted and
placed on pretrial release in a different criminal case. All
told, CHC paid Wijegoonaratna over $325,000 while he
worked with CHC, not including any cash payments he
received, e.g., for illegal kickbacks.
B
After investigators discovered CHC’s fraud,
Wijegoonaratna was charged with nine counts of healthcare
6 UNITED STATES V. WIJEGOONARATNA
fraud in violation of 18 U.S.C. § 1347. He was charged
along with Villabroza, Patrow, a nurse, a patient recruiter,
and another doctor (Boyao Huang). Castillo was charged
separately.
1
Wijegoonaratna and Huang went to trial.
Wijegoonaratna was tried on seven counts, each one
representing a patient Wijegoonaratna had fraudulently
certified as terminally ill and for whose care CHC had billed
Medicare or Medi-Cal.
The government presented the testimony of family
members, doctors, a hospice expert, and the patients to show
that none of the seven patients was in fact terminally ill.
The defense argued that Wijegoonaratna’s diagnoses
merely confirmed earlier assessments made by the nurses.
The defense attempted to show that Wijegoonaratna’s
diagnoses were legitimate—that is, that the patients were
actually eligible for hospice care—because another medical
professional made the same diagnoses. At a minimum, the
defense hoped that the jury would conclude that
Wijegoonaratna was lazy, but not criminal: that he did not
perform his own review, and instead negligently, but without
intent to defraud, copied the nurse’s earlier assessment.
To support that theory, during closing argument the
defense highlighted one piece of evidence: an intake form in
a patient’s file that listed a terminal illness. Defense counsel
referred to the document as the patient’s nursing assessment
(which was to be completed by a nurse during a visit), but
the document that defense counsel described was in fact the
intake form (completed by CHC office staff). By contrast,
the nursing assessment contained a non-terminal diagnosis;
UNITED STATES V. WIJEGOONARATNA 7
it was the intake form that contained the terminal illness.
Wijegoonaratna’s history and physical contained the same
diagnosis as the intake form.
Ignoring the differences between the two documents and
who was to prepare them, defense counsel argued that
Wijegoonaratna had merely copied the intake form diagnosis
into his history and physical.
In its rebuttal, the government emphasized
Wijegoonaratna’s independent duty to assess patients
medically and his deep involvement in CHC. The
government also addressed the specific document
highlighted by the defense. First, the government pointed
out that the nursing assessment in the patient’s file contained
a non-terminal diagnosis. Second, the government
suggested that the office staff who filled out the intake form
had copied Wijegoonaratna’s diagnosis, and not the other
way around.
At that point, defense counsel objected that there was “no
such evidence” that the office staff copied Wijegoonaratna’s
diagnosis. The court overruled the objection. The
government continued its rebuttal, emphasizing that “the
intake form is not the nurse’s assessment.” At the end of
closing arguments, Wijegoonaratna moved for a mistrial
based on those statements, but the court denied the motion.
The jury convicted Wijegoonaratna on all seven counts.
2
The presentence report calculated two guideline ranges:
one for the six counts (counts 1, 2, 3, 4, 7, and 8) committed
while the 2010 Sentencing Commission Guidelines Manual
was in effect, and one for the remaining count (count 9),
8 UNITED STATES V. WIJEGOONARATNA
which was committed after the 2010 Guidelines Manual was
revised to Wijegoonaratna’s detriment. 1 Under the 2010
Guidelines Manual, Wijegoonaratna’s offense level was 29
and the guideline range was 87−108 months. In 2011, the
Sentencing Commission added a two-level specific offense
characteristic for a loss greater than $1 million to a
government healthcare program. U.S.S.G. § 2B1.1(b)(7)
(2016). Because of those additional two levels, for count 9,
Wijegoonaratna’s offense level was 31 and the guideline
range was 108−135 months.
Under both versions of the Guidelines Manual, an 18-
level loss enhancement applied. See U.S.S.G.
§ 2B1.1(b)(1)(J) & cmt. 3(A) (2010); U.S.S.G.
§ 2B1.1(b)(1)(J) & cmt. 3(F)(viii) (2016). The loss
enhancement was based on the amount CHC billed (and
Medicare paid) for Wijegoonaratna’s patients, excluding
those patients who died while receiving CHC hospice care.
CHC billed $4,014,989, and Medicare paid $3,384,202,
for Wijegoonaratna’s patients who were alive when they
were discharged from hospice care. Under both versions of
the Guidelines Manual, Wijegoonaratna was also subject to
a three-level increase for committing an offense while on
pretrial release. U.S.S.G. § 3C1.3 (2010); U.S.S.G. § 3C1.3
(2016). In his sentencing memorandum, Wijegoonaratna
challenged the loss amount calculation as lacking
1
The presentence report applied the 2016 Manual to count 9 to
comply with the Sentencing Commission’s instruction that courts “shall
use the Guidelines Manual in effect on the date that the defendant is
sentenced” unless doing so “would violate the ex post facto clause.”
U.S.S.G. § 1B1.11. The parties agree that there is no such issue with
applying the 2016 manual to count 9 and, thus, that it was correct for the
district court to do so.
UNITED STATES V. WIJEGOONARATNA 9
evidentiary and legal support. He also argued that his age
and deteriorating health justified a downward variance.
At the sentencing hearing, Wijegoonaratna did not raise
any new objections. Addressing Wijegoonaratna’s request
for a shorter sentence based on his health condition, the court
noted that Wijegoonaratna “made the decision for
130 persons that their underlying health conditions should
not be treated, that they should go into hospice and waive
and give up their right to treatment.”
The district court overruled Wijegoonaratna’s objection
to the loss amount calculation. The court then stated that
Wijegoonaratna’s total offense level is 31 and guideline
range is 108–135 months. The court then imposed a 108-
month prison sentence: 78 months on the first six counts and
30 months on the remaining count, to be served
concurrently, with an additional 30 months based on the
sentencing enhancement, to be served consecutively.
II
A
Wijegoonaratna challenges his conviction on the ground
that the prosecutor committed misconduct when he
represented that the nurses completing the intake form
copied Wijegoonaratna’s assessment.
We usually review for abuse of discretion a district
court’s overruling of an objection to prosecutorial
misconduct. See, e.g., United States v. Tucker, 641 F.3d
1110, 1120 (9th Cir. 2011); United States v. Tam, 240 F.3d
797, 802 (9th Cir. 2001). However, Wijegoonaratna points
out that in United States v. Perlaza we stated that we “review
10 UNITED STATES V. WIJEGOONARATNA
whether closing argument constitutes misconduct de novo.”
439 F.3d 1149, 1169 n.22 (9th Cir. 2006).
Perlaza appears to have mistaken the standard of review.
Perlaza cites United States v. Santiago, where we reviewed
“the court’s overruling of the objection” to the prosecutor’s
comments at trial “for abuse of discretion.” 46 F.3d 885, 892
(9th Cir. 1995). But to the extent that Perlaza created an
intracircuit conflict, here “[w]e are not prompted to call for
our court to revisit the broader issue en banc” because “in
the end” applying either standard of review “would not alter
[the] outcome.” United States v. Torres, 869 F.3d 1089,
1107 (9th Cir. 2017) (Clifton, J., concurring). Because we
reach the same results under review for abuse of discretion
and de novo review, we need not and decline to weigh in on
the intracircuit conflict that appellant asserts exists.
In reviewing alleged prosecutorial misconduct, we
“focus[] on its asserted impropriety and substantial
prejudicial effect.” United States v. Weatherspoon, 410 F.3d
1142, 1145 (9th Cir. 2005). “We must . . . determine at the
outset whether the prosecutor made improper
statements. . . .” Id. “During closing argument, a prosecutor
may do no more than comment on facts in evidence and
make reasonable inferences based on the evidence.” United
States v. Hermanek, 289 F.3d 1076, 1101 (9th Cir. 2002).
Here, we conclude that the prosecutor’s statement—that
the office staff completing the intake form copied
Wijegoonaratna’s history and physical—was not improper.
Although no witness directly testified to that fact, the
proposition is reasonably inferred from the evidence. Trial
testimony established that at CHC the intake forms were not
sent to the doctors performing the history and physical; thus,
it is a reasonable inference that the staff copied
Wijegoonaratna’s diagnosis, rather than the other way
UNITED STATES V. WIJEGOONARATNA 11
around. Also, the nursing assessment in the patient’s file
contained a different, non-terminal diagnosis, so
Wijegoonaratna could not have copied his terminal
diagnosis from that document.
Wijegoonaratna also contends that even if the
prosecutor’s statement was a fair inference as to one patient,
it was inappropriate as a more sweeping statement of CHC’s
usual practice. Read in context, however, the prosecutor’s
statement referred only to the specific documents that the
defense had highlighted in its closing. The district court did
not err in overruling Wijegoonaratna’s objection to the
prosecutor’s statement.
B
Wijegoonaratna challenges his sentence on several
grounds. First, he argues that the district court did not make
Federal Rule of Criminal Procedure 32’s required factual
findings on the disputed loss calculation.
Generally, we review de novo the sentencing court’s
compliance with Rule 32. United States v. Burkholder,
590 F.3d 1071, 1076 (9th Cir. 2010). But where a defendant
does not object at sentencing to a district court’s compliance
with the Rule, we review for plain error. 2 United States v.
Kaplan, 839 F.3d 795, 803 (9th Cir. 2016). Wijegoonaratna
argues that we should review de novo under the “pure
questions of law” exception to plain error review, but that
exception does not apply to review of mixed questions of
2
Contrary to the government’s contention, where a defendant fails
to object, the issue is forfeited, not waived. United States v. Depue,
912 F.3d 1227, 1232–34 (9th Cir. 2019) (en banc).
12 UNITED STATES V. WIJEGOONARATNA
law and fact such as this one. See United States v. Yijun
Zhou, 838 F.3d 1007, 1012 (9th Cir. 2016).
At sentencing, a district court must, “for any disputed
portion of the presentence report or other controverted
matter” either “rule on the dispute or determine that a ruling
is unnecessary.” Fed. R. Crim. P. 32(i)(3)(B). The district
court’s findings under Rule 32 must be express and explicit.
See United States v. Doe, 705 F.3d 1134, 1153 (9th Cir.
2013). “Rule 32 findings ‘need not be detailed and lengthy,’
but they must ‘state the court’s resolution of the disputed
issues.’” United States v. Job, 871 F.3d 852, 869 (9th Cir.
2017) (quoting United States v. Ingham, 486 F.3d 1068,
1074 (9th Cir. 2007)). Rule 32(i)(3)(B) applies only to
factual disputes, not legal ones. United States v. Grajeda,
581 F.3d 1186, 1188 (9th Cir. 2009).
As an initial matter, we agree with Wijegoonaratna that
his objections were factual. Wijegoonaratna objected to the
presentence report’s assumption that the patients who lived
longer than six months or were alive at discharge were
fraudulently certified. He also argued that it was not
reasonably foreseeable that CHC would continue to bill for
patients after Wijegoonaratna’s initial ninety-day
certification.
Nonetheless, we conclude that the district court satisfied
Rule 32’s requirements. The district court described
Wijegoonaratna’s objection on the record:
There is a specific objection to the 18-level
increase or enhancement for amount of loss.
The claim that the government has failed to
prove the loss by clear and convincing
evidence. And it appears that counsel is
taking the position that the loss should be
UNITED STATES V. WIJEGOONARATNA 13
limited to the loss that was the subject of the
counts of conviction at the time of trial which
is significantly less than the loss calculated
by the probation officer in the PSR.
The district court also said that it was “convinced that the
government has met the clear and convincing standard
regarding loss,” explaining that “when a judge presides over
a trial, there’s so much more information that comes to
light.” The district court concluded that Dr.
Wijegoonaratna’s objections to loss “would be overruled.”
Those statements make clear that the district court was aware
of Wijegoonaratna’s objections but disagreed with them.
The district court satisfied Rule 32’s requirement. See Job,
871 F.3d at 869.
C
Next, Wijegoonaratna raises two challenges to the loss
amount calculations underlying the 18-level increase in his
total offense level.
At sentencing, the government bears the burden of
proving facts that support a sentencing enhancement. See
United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir.
2010). Where the sentencing enhancement “has an
extremely disproportionate effect on the sentence relative to
the offense of conviction,” United States v. Mezas de Jesus,
217 F.3d 638, 642 (9th Cir. 2000)—and particularly where
the enhancement is based on uncharged conduct—“due
process may require clear and convincing evidence of that
conduct.” United States v. Hymas, 780 F.3d 1285, 1289 (9th
Cir. 2015) (quoting Treadwell, 593 F.3d at 1000). We
review “the district court’s factual findings for clear error.”
United States v. Bernardo, 818 F.3d 983, 985 (9th Cir.
2016).
14 UNITED STATES V. WIJEGOONARATNA
Calculating Wijegoonaratna’s loss amounts, the
government considered only bills associated with patients
alive at discharge. Wijegoonaratna contends that the
government should not have assumed that every patient alive
at discharge had been fraudulently certified as hospice
eligible. After all, about 15% of patients properly admitted
to hospice care are alive at discharge. But at trial, the district
court heard clear and convincing evidence to support the
proposition that all of the patients that Wijegoonaratna
certified were fraudulently certified. That some of those
patients happened to die within six months—by coincidence
or because they stopped receiving essential care for their
non-terminal illnesses—does not undermine that evidence.
Wijegoonaratna also argues that he should not be held
responsible for billing that occurred after the initial 90-day
hospice certification. Wijegoonaratna contends that he did
not participate in the recertifications. But even if that is true,
the evidence at trial strongly suggested that he was well
aware that CHC continued to bill for those patients. Indeed,
Wijegoonaratna was deeply involved with CHC: he
participated in at least some recertifications, served as
attending physician for many patients, and attended team
meetings as an associate medical director at CHC. Sufficient
evidence supports the district court’s finding that
Wijegoonaratna intended the loss amounts underlying his
sentencing enhancements.
D
Based on the language of 18 U.S.C. § 3147,
Wijegoonaratna also contends that the sentencing
enhancement for committing a crime while on supervised
release was improper. The statute applies an additional
sentence where a person is “convicted of an offense
committed while” on pretrial release. 18 U.S.C. § 3147; see
UNITED STATES V. WIJEGOONARATNA 15
also U.S.S.G § 3C1.3 (2010) (increasing offense level by
3 levels where 18 U.S.C. § 3147 applies); U.S.S.G. § 3C1.3
(2016) (same). Wijegoonaratna argues that the statute does
not apply because all his counts of conviction—although not
all his conduct related to his convictions—were committed
before he went on pretrial release in October 2012.
Because Wijegoonaratna did not raise this issue at
sentencing, the parties agree that we review for plain error.
See Depue, 912 F.3d at 1232–34. “An error cannot be plain
where there is no controlling authority on point and where
the most closely analogous precedent leads to conflicting
results.” United States v. De La Fuente, 353 F.3d 766, 769
(9th Cir. 2003).
Wijegoonaratna has cited no controlling authority to
support his contention that the time period of an “offense,”
for the purposes of 18 U.S.C. § 3147 and U.S.S.G. § 3C1.3,
is limited to the dates of the charged executions of that
scheme. To the contrary, the Guidelines Manual defines
“offense” for the purposes of the enhancement broadly to
include “all relevant conduct.” U.S.S.G. § 1B1.1 cmt.
n.1(H). “[R]elevant conduct” means, among other things,
acts that “were part of the same course of conduct or
common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1)(A), (a)(2).
Though Wijegoonaratna’s counts of convictions
concerned conduct that occurred before October 2012, he
continued to diagnosis patients for CHC after his pretrial
release began. That is, he continued the same “course of
conduct” that led to his “offense of conviction.” Id. The
district court did not plainly err in applying 18 U.S.C. § 3147
and U.S.S.G. § 3C1.3.
16 UNITED STATES V. WIJEGOONARATNA
E
Finally, Wijegoonaratna contends that the district court
violated the ex post facto clause, U.S. Const. art. I, § 9, cl. 2,
by sentencing him under the revised Guidelines Manual on
the six counts (1, 2, 3, 4, 7, and 8) arising from conduct that
occurred before the revision.
Because Wijegoonaratna did not raise the ex post facto
challenge at sentencing, we would typically review his
challenge for plain error. Depue, 912 F.3d at 1232–34.
However, we have held that we are not limited to plain error
review where the appeal presents a “pure question of law”
and there is no prejudice to the opposing party. See United
States v. Torres, 828 F.3d 1113, 1123 (9th Cir. 2016). But
see Yijun Zhou, 838 F.3d at 1015–17 (Graber, J., concurring)
(suggesting that the “pure question of law” exception to
plain error review should be reconsidered en banc). That is
the case here. The question presented is purely legal: Does
applying the revised Guidelines Manual to all of
Wijegoonaratna’s counts violate the ex post facto clause?
And we have previously held that “the government is not
prejudiced by our requirement that the district court correctly
calculate the Guidelines sentencing range before it imposes
a sentence, even though [the defendant] did not raise the
issue below.” United States v. Evans-Martinez, 611 F.3d
635, 642 (9th Cir. 2010). We consider Wijegoonaratna’s ex-
post-facto-clause challenge de novo. 3
3
We consider Wijegoonaratna’s challenge even though his sentence
was below both the 2010 and 2016 Guidelines ranges because we must
remand if the district court failed to calculate the proper range. See Gall
v. United States, 552 U.S. 38, 51 (2007) (“Regardless of whether the
sentence imposed is inside or outside the Guidelines range, the appellate
court . . . must first ensure that the district court committed no significant
UNITED STATES V. WIJEGOONARATNA 17
At the outset, we reject the government’s argument that
the district court in fact sentenced Wijegoonaratna
separately under the 2010 Guidelines Manual and the 2016
Guidelines Manual. The parties did not mention the separate
ranges in their sentencing memoranda or at sentencing. The
district court noted only one guidelines range, “108 to
135 months,” which is the range provided by the 2016
Guidelines Manual. Finally, the district court sentenced
Wijegoonaratna to 78 months on counts 1, 2, 3, 4, 7, and 8,
plus an additional 30 months on count 9, for a total of
108 months. In doing so, the court commented that the
sentence was at “the low end of the Guideline range.” That
statement is accurate only if the district court was relying on
the 2016 Guidelines Manual.
Because we conclude from this record that the district
court sentenced Wijegoonaratna based on the 2016
Guidelines Manual, we next consider whether doing so
violated the ex post facto clause. Using a Guidelines Manual
revised after an offense occurred to calculate a Guidelines
range for that offense violates the ex post facto clause if the
revision leads to a higher punishment. See United States v.
Ortland, 109 F.3d 539, 546 (9th Cir. 1997) (“[W]hen
application of a version of the Guidelines enacted after the
offense leads to a higher punishment than would application
of the Guidelines in effect at the time of the offense, there is
an ex post facto problem.”). For this reason, a defendant
must generally be sentenced under the Guidelines Manual
that was in effect when the offense occurred. See United
States v. Warren, 980 F.2d 1300, 1304 (9th Cir. 1992)
(“Normally, a district court is to apply the version of the
Sentencing Guidelines in effect on the date of sentencing.”).
procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range.”).
18 UNITED STATES V. WIJEGOONARATNA
Where different counts involve different conduct occurring
under different Guidelines Manuals, “different Guidelines
ranges for those counts are appropriate.” United States v.
Anekwu, 695 F.3d 967, 989–90 (9th Cir. 2012). But where
the conduct is a “continuing offense” spanning a period
before and after a Guidelines Manual revision, the later
Guidelines Manual applies without violating the ex post
facto clause. See United States v. Castro, 972 F.2d 1107,
1112 (9th Cir. 1992) (holding that applying revised
Guidelines to a continuing offense that terminated after the
effective date of the revised Guidelines did not violate the ex
post facto clause), overruled on other grounds by United
States v. Jimenez Recio, 537 U.S. 270 (2003). The crux of
the issue, then, is whether Wijegoonaratna was charged with
a continuing offense. If so, application of the 2016
Guidelines Manual to all counts would not violate the ex post
facto clause.
We have previously held that the government may
decide to charge health care fraud schemes as a single count
(one continuing offense) or as multiple counts (individual
executions of a scheme). See United States v. Holden,
806 F.3d 1227, 1231−32 (9th Cir. 2015) (citing United
States v. Awad, 551 F.3d 930, 937–38 (9th Cir. 2009)). That
decision has its natural consequences. For example, it
affects whether a defendant may be charged for conduct that
falls outside the statute of limitations. Id. Specifically,
where a health care fraud scheme is charged in a single count
as a continuing offense, we have held that it may encompass
acts that fall outside the statute of limitations. Id. But where
the government charges each fraudulent act as a separate
count, counts concerning conduct outside the statute of
limitations must be dismissed. See id. at 1230, 1231−32.
UNITED STATES V. WIJEGOONARATNA 19
Here, too, the government’s decision to charge
Wijegoonaratna with multiple counts has consequences.
The government could have charged Wijegoonaratna’s
offense as a continuing offense, but it chose not to do so. For
that reason, the ex post facto rule that applies to continuing
offenses—just like the statute of limitations rule for
continuing offenses—does not apply here, where the health
care fraud was charged as multiple counts. Instead, the
district court was required to calculate and apply the
guideline ranges from the Guidelines Manual in effect at the
time of each count. It did not. We vacate Wijegoonaratna’s
sentence and remand for further proceedings consistent with
our decision.
III
Wijegoonaratna’s conviction is affirmed, and his
sentence is affirmed in part and vacated and remanded in part
for proceedings consistent with our opinion.
The parties are to bear their own costs.
AFFIRMED IN PART AND VACATED AND
REMANDED IN PART.