as i understand it then this is the thing that makes as little difficult for you i think nobody challenges the p s r in the district court and the only challenge you're doing now really i guess is that you're arguing that a codefendant who proceeded to trial and was found guilty that their argument regarding intanon extent of fraud in sentencing should somehow be imported into your own or in your own clients well your honor i do think there was really a failure at the adversarial system here at sentencing and it's i appreciate your reasoning but i guess what i'm trying to get at is nobody is challenging the p s r nobody challenged even this mean the plea was made nobody challenged anything about the elements of the intent or any of that just after looking at what happened at another trial with another defendant who was also found guilty and the argument they made where now to air review and that's because the government advanced inconsistent theories a las asked to this defendant and the codefendant who was sentenced just weeks later the relevant evidence for the court and the government to consider was all in the record at the time of miss smith sentencing and the i just think that's a failure of justice and it satisfies the plain error standard when the government advances admitted she sees nearly all the patients at the clinic she admitted she knew the patients were largely brought in by the marketers she ordered the medically unnecessary tests and sometimes those tests were not even in minister she admits that she admitted she orders the tests both through her office and through referrals to other providers have written this down because this is what she said she had made she created the false documentation indicating the patients had conditions they didn't actually have and she admits that the toll amounts build the medicare from her clinic were and then she says what that is and that she'd also done the referrals to other providers after that i'm trying to figure out what was all those admissions and no objections to the p that his intended loss should be lower because he was aware of what he allowed to mount a rule under medicare that medicare would not necessarily bill the full amount now mrs smith he's not even doing the billing is being held responsible for the entire amount not only of the clinics billing but of the referrals billing even though her involvement in billing was much less and her awareness and understanding of the scheme was much what do i do with  of which says of seven forty two fed thirty nine sixteen and health care fraud cases the amount billed to insure shall constitute prime a facia evidence of the intended loss for are not rebutted this evidence is sufficient evidence to establish the intended loss by preponderance of the evidence your honor however p was a failure to challenge the pre sentence report but at the time of her sentencing there was evidence in the record from the person who did the billing who was mr sarkozy and that he he understood that the entire government witness and was discussing me the this issue when it says there is a manual to tell physicians or physicians assistants how to use the fee schedule and then later on in the testimony and there is an admission that for all practical purposes it's widely known that medicare never pays the amount bil supposed to bill what they would normally charge and there was a medicaid care schedule that provided the amount for the service and it would never be what was so that was that was i'm looking at her somewhere from pages ninety nine to one or two of the excerpts from the record so there was there was record evidence that the physicians but more importantly in light of one of the arguments a government makes or physicians assistant how to use the fee schedule isn't it and he says yes and later on he also acknowledges that this that those two items together were sufficient to rebut the crime officials showing under papa and really it's it's illogical to hold the person who's less responsible for the billing responsible for such a dramatically higher loss amount as well as a restitution amount basically ten times higher than the codefendant although they were held jointly and severally liable well let's think about that she signs the referrals for the project on work to be provided by the providers instead your clients admits all of these things that i've seen in the record she admits she did the billing is to their own clients and then she admits she does the referrals to the other clients and the other defendant doesn't even write that referrals and yet i'm supposed to suggest even though the government makes arguments the government makes argument what they want they want to convict both but my worry is looking at this and given your honor there was no evidence that one hundred percent of the referral billings were fraudulent there was evidence that miss smith with less involved and billing laundering proceeds and her codefendan theory applied last involved in that she didn't write the prescriptions but she writes the referrals for all of this work and her codefendant did not right i ask you one question the amount of restitution as i understand that is is based on actual loss of her time so you have a what looks to me like a somewhat anomalous situation where the was based on the amount of intended loss using the entire amount billed rather than the allowed amounts by medicare and yet this method was also held responsible for entire actual loss  when there's a clear like this the lawyers tend to negotiate among other things what will be the defendant will be held accountable for and at least in my court they they there were an estimated calculation of what the guidelines would would be was there any effort do you know to me to to engage in any kind of negotiation about what the government would insist on an intended loss i don't know your honor i'm not privy to record up with lee departed so he wouldn't be i believe the part of for the sole reason that he would win the pier that there was any disparity in sentencing with the with your client but i let me make a suggestion to you i don't know how this appeal is going to turn out we don't have any discussions before hand but from my reading of pop off this there is a there's certainly a basis to support the fact that evidence in the record in fact two of the cases that are cited in popoff were believe remains based on evidence in the record which is regarding the difference between intended loss and actual loss and i would suggest that of the pending on this case turned out that you file a petition for writ of habeas corpus alleging ineffective assistance of counsel thank you i think that's where we need to go here i mean my understanding and you can correct me that the excerpts on the record she didn't say anything about the intended loss your contract in fact the only specific amount she admitted to was something like one point two million dollars with respect to the clinic so your honor if i could point you to a couple of part of a couple of places with respect to her admissions and that go to the point of it being related to the referral losses so first i think is the corded noted about sort of her thing all of the congress to me that for the purpose of restitution the judge sentences imposes a restitution based on actual loss for the purpose of sentencing he he doesn't on the basis of the amount billed notwithstanding the fact that there's not only evidence at the trial which seems to me to be fairly strong that it was it was widely known including physicians assistants i know you make a point somewhere in your papers that well she wasn't really a doctor so she doesn't she didn't know about medicare billing but there's evidence in the record that medicare never paid more than what their fee schedule was that it was the physicians was supposed to bill what the actual what they would actually charge notwithstanding the fact that it was more than what medicaid care would would pay and that this was pretty much common knowledge so this is this is this is evidence in the record and she was sentence first before her codefendant but as i did a sort of my timeline it was clear before she was sense that you had agreed with the with the with and you ultimately did for sure you agreed with the co defendant that the loss would actually intended loss was was what let me address there's two issues here i think that are getting conflated a little bit so i'd like to separate the two of them out one is is the the sort of pop off question of the intended losses being the building melt versus being sort of paid amount plus would have been paid on denied claims that sort of pop off and under paul off the that there is a prime if a showing that it is in the intended amount is the amount bill that's been consistent in the guidelines well before pop off even came down in the record in fact they cite a fifth circuit case and the second circuit case in which the second they there was a rematch and then it seemed that the court was troubled by that very fact that there was that there was evidence in  testimony that you're pointing to which is a general testimony about an existence of a manual that that that that may be familiar to a physician's assistant such as we have no indication that she was actually familiar with that in off and i there's a there was a there were a couple of q is and days at the trial that sort of interested me on page one o one their customary even though they have no intent to be paid the amount bill correct and then the question is well physicians know they're not going to be paid through the usual and customary rates if they bill medica the amendments and they for the amended when they called congress actually amended the when the sentencing commission actually amended the guidelines to to sort of codified the case law where they said they indicated that it was part of it where even where it was impossible was intended to cover stings so where there would be there would be no loss or for something to do with insured property  isn't a trouble you that that on this record i can't believe that her lawyer knew what he or she was doing there was no effort made which it often is the case by competent boy just this is the most important aspect of what the sentence was going to be no parent she goes in there and no apparent effort to deal with what what the government makes some arrangement with the government is that what the government would agree to one in time of loss and there's also this anomaly a nomaly that restitution is ordered on the actual loss i think the government that she's not sentenced on the basis of it so the money she pays out is the actual loss and she goes to jail for  well i think that again and again i want to sort of take a step back to what i would disagree with the suggestion that this was a determinative factor in terms of the amount of her sentence and that comes from what i wanted to separate out the two issues that are getting conflated here which is the popoff related issue in the referral it related billings issue so if the referral related billings are an entirely separate question and that actually was a much larger amount of l trouble in reading the record and knowing precisely how that worked of course so what what the defendant admitted in this case happened is that the patients would come in by marketers they would be brought in recruited to the clinic often just one time she would order a battery of services from for those patients some of which it appears would be billed through the clinic itself some of which would have been referred out to other clinics she has admitted to no knows what i don't understand so much what percentage of the so called referral that comes out of the clinic well none of the referral fees come out of the clinic so the clinic itself bills for what it does right whether that's providing physical therapy whether that's providing for the allergy tests or so forth and again it's provided it's billing for what it purportedly does in this case the evidence was demonstrating that that was not actually happening then there would be referrals out to other providers so the clinic itself d itself doesn't do for example a pulmonary function test that would have been referred out to there was reference in the record to the ronald carlist medical corp there was a lot of s testimony at trial about how that particular referral provider didn't even have uses the license position that she has and then medicare relies on that when she writes on the prescription that you know this item you know i want i want this test for this patient i want this leg brace or back brace then that you know the suggestion is that there was a cake well i don't know what strong suggestion was that evidence in the record that there was a kickback there was evidence in the record at the trial of the codefendant again it's a little awkward because we're importing a trial of a codefendant if it would been a trial a defendant it probably would have been a little but counsel there does not have to be a kickback in order for there to be a loss to the government the amount is still lost to the government regardless of how the money was dispersed that is true and some people sell their services more cheaply than others some people more i'm not disputing that so she is now being held accountable for intended loss based on what another provider she acts so i gave way and write the prescription which then she knows is medically message no necessary she admitted the tests and services short of a medically unnecessary and then she also knew that some of those we go to the sunset clinic some of them would go to referring billing but we don't know what the division is we do your honor actually it was one point two million was billed with respect to the sunset clinic ten point nine million was billed by the referring providers which unfortunately is a is a testament to how much damage can be done in a would one could not i don't know why else but in looking at this what what's the benefit for her or for her employer for her to write these prescriptions when the billing is going to be filled by you know we put these in separate chambers i'm trying to get at what what is a you know what just result here i think that is correct and i think that the court below was also trying to get a just result and i i wan would be getting less then his his less culpable employee so the judge says i'm going to up with leave the part to avoided this parody which i could understand that would lead the party through to to avoid the disparity departing i mean this whole thing seems to me to be quite strange well i think the disparity so that you only disparity between the two is in the treatment of the referral losses they receive the same sentence in fact the court actually reject rough calculation again from doing this all the time it was one level it's roughly close to ten percent of a sentence but in percent of the guidelines that the different is the difference is a forty percent difference and  exactly but the the sole difference between these two was the treatment of the referral the referral losses and you know the government actually argued that both should be responsible for the referral losses what the court found at sentencing is that it relied on the he actually was only doing the billing with respect to the sunset clinic and that he didn't write those referral prescriptions that he wants well you know what was going on he was a manager i mean if you had to do culpability here who would you say was more culpable than the is factual disputes that cannot serve as the basis for playing air in this case the sole difference between the two was not the popoff argument which is the just record actually did not apply the popoff argument to codefendant sarkozy and that was not a disparity here was solely the and i want to just know that you're really suggesting that if i understand your argument that we're going to move down from his one point two and the clinic down to four hundred fifty thousand yes from ten point nine down to the medicare payment of three point five at a minimum yes and also i want to that's what you're asking well i think you know very well that's what the restitution did you're asking us to do that as to the sentence for nothing in the record in this particular case as to what happened with this defendant but what happened in the in the record of another defendant where the government was after that defendant and made and made evidence or did whatever they did there which got brought into this record by some motion or by the judge in the record well it's in the record but it has nothing to do with what happened with this defendant your honor if i'm going to find playing air it's got to be in this record then i'd respectfully sentiment there is more than sufficient evidence in the record to reduce the intended loss to the allowed amounts in addition regarding the referral of billings in addition to reducing them from the eleven million to the three point five million the government argued with respect to the that the referral fraud should be inferred by a presumed kickback scheme but there were no kickbacks to miss smith in fact it was clear on the record that she only made wages about thirty thousand dollars less than a third