United States v. Ramanathan Prakash

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10517
Plaintiff-Appellee, D.C. No.
2:08-cr-00427-MCE-7
v.
RAMANATHAN PRAKASH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted October 18, 2016**
San Francisco, California
Before: CALLAHAN and HURWITZ, Circuit Judges, and MOLLOY,*** District
Judge.
*
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).
***
The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
Ramanathan Prakash was convicted of health care fraud and conspiracy to
commit health care fraud in violation of 18 U.S.C. §§ 1347 and 1349, and sentenced
to 120 months in prison. We previously vacated Prakash’s sentence and remanded
to allow Prakash to present evidence that the intended loss from the fraud was less
than the amount billed to Medicare. United States v. Popov, 742 F.3d 911, 916 (9th
Cir. 2014). On remand, the district court resentenced Prakash to 120 months. We
affirm.
1. In the prior appeal, we held that the amount billed to Medicare is prima
facie evidence of intended loss for purposes of calculating the offense level under
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B1.1, but that “the parties may
introduce additional evidence to support arguments that the amount billed
overestimates or understates the defendant’s intent.” Popov, 742 F.3d at 916.
Prakash does not deny that the district court allowed the introduction of such
evidence, but argues that our instructions in Popov violated the Ex Post Facto Clause
because the opinion relied on 2011 amendments to the Sentencing Guidelines while
his crimes occurred in 2006-08.
2. The argument fails. Popov noted that its approach was consistent with the
2011 amendments, but expressly relied on opinions of three sister circuits
interpreting prior versions of U.S.S.G. § 2B1.1, including the version in effect at the
time of Prakash’s offenses. 742 F.3d at 915–16; see also U.S.S.G. § 2B1.1. cmt.
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n.3(A)(ii) (2007) (providing that intended loss can include “intended pecuniary harm
that would have been impossible or unlikely to occur (e.g., as in . . . an insurance
fraud in which the claim exceeded the insured value)”).
3. Contrary to Prakash’s argument, Popov does not change the burden of
proof with respect to intended loss. See United States v. Howard, 894 F.2d 1085,
1090 (9th Cir. 1990) (placing burden on the government). Rather, Popov simply
gives the defendant the opportunity to rebut the government’s evidence of intended
loss. 742 F.3d at 916.
4. Prakash also argues that he was denied effective assistance of counsel
because his counsel did not seek rehearing in Popov. Even assuming review of the
ineffective assistance claim is properly before us on direct appeal, but see United
States v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005) (limiting review of
ineffective assistance claims on direct appeal), overruled on other grounds by United
States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), the argument
fails given our holding that Prakash’s resentencing pursuant to Popov was
constitutional. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that
prejudice requires a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”).
AFFIRMED.
3