United States v. Elseddig Musa ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10046
Plaintiff-Appellee, D.C. No.
2:15-cr-01265-DLR-1
v.
ELSEDDIG ELMARIOUD MUSA, dba MEMORANDUM*
Arizona One Medical Transportation, LLC.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted December 17, 2019**
Phoenix, Arizona
Before: GRABER, HURWITZ, and MILLER, Circuit Judges.
Elseddig Musa was convicted of 35 counts of healthcare fraud (18 U.S.C.
§ 1347) and four counts of aggravated identity theft (18 U.S.C. § 1028A). The
district court found him responsible for approximately $1.2 million of loss to the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Arizona Health Care Cost Containment System (“AHCCCS”).
The district court premised its original loss calculation on “unmatched
claims”—claims for reimbursement for transportation for which there was no
corresponding medical billing to AHCCCS. See United States v. Musa, 742 F.
App’x 265, 267 (9th Cir. 2018). In a previous appeal, we vacated Musa’s sentence
and remanded, reasoning that “the record does not adequately demonstrate that
relying entirely on the amount of ‘unmatched claims’ was a sufficiently reliable
method of estimating loss” because the record showed that unmatched claims “are
not always fraudulent.” Id. We ordered “the district court to determine whether
review of [Musa’s] trip reports and daily schedules is a more accurate method of
calculating loss; if the court concludes that it is not, it may again base the loss
calculation on the value of unmatched claims.” Id.
On remand, the district court conducted an evidentiary hearing and concluded
that calculating loss using unmatched claims was the most accurate method. The
district court therefore reimposed the original sentence. We have jurisdiction under
18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm.
1. The district court did not clearly err in finding that the value of
unmatched claims was the most reliable method to estimate the loss attributable to
Musa’s crimes. See U.S.S.G. § 2B1.1 cmt. n.3(C); United States v. Walter-Eze, 869
F.3d 891, 913 (9th Cir. 2017), cert. denied, 139 S. Ct. 1196 (2019). Testimony at
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the sentencing hearing supported the district court’s conclusion that potentially
legitimate unmatched claims made up a small number of the total unmatched claims.
2. The district court also did not clearly err in finding that calculating loss
using Musa’s schedules and trip reports was a less reliable estimation of loss. The
government’s expert testified that those records were both incomplete and
inconsistent. Moreover, even if loss were calculated in this way, the government’s
expert testified that it would have resulted in a loss of more than $1 million, which
would have resulted in the same guidelines sentence that use of unmatched claims
to calculate loss produced. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir.
2010).
AFFIRMED.
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