panel's oral arguments for the week as you all probably believe and i will say from here they we saved the best for last you are probably take a break after the st three arguments for a short period of time and then here are the final two most of you have probably argued here before be aware of our lighting system or your red light that comes on really does mean stop we'll be aware of that health care fraud and five counts of such of the counts of health care fraud and sentenced to one hundred and fifty months and to begin with here i'd like to use my limited time to st address our th issue the issue sentencing and specifically the issue of loss this case is controlled by this court's opinion in the united states versus resell that cases cited a reason page forty four dollars and at seventy five dollars said there are one hundred and eighty four resell court held that it downward variance even if substantial one does not cure incorrect guidelines calculation and as the court said and i quote we cannot assume the district court the the original guidelines level set level thirty eight dollars with a punishment range of two hundred and thirty five months to two hundred and ninety three months the court sentenced resell to one hundred and thirty six months putting the sentence squarely in the middle of the correct sentencing guidelines nevertheless this court remanded again because we cannot assume that the court would not have varied further down starting from the correct guideline level in that case thirty one and interested in the ultimate outcome one pace or looked the district court all remained sentenced resell to ninety six months so forty months below the original sentence in twenty five months below the correct sentencing guidelines and so here what we're saying is the the air in the district court here was at least as apparent as that in resell warranting the same result was any language by the district judge and that precedence no matter what was said here an indication that  level forty three dollars in a corresponding beginning point seven thousand seven hundred and twenty months the court said that's the beginning point here very it's was going to be go down from there so  we see and lot of sentencing when he by my district judges is that if there's a statement in the sentencing should that it does support that this was a sentence that would be given regardless of the guideline calculation that that can remove any effect of an improper calculation isn't there a statement like that in this case not just on the basis of the various words was a comparison to kate to another case but again the court said that she was beginning the court was beginning at seven hundred and twenty months that was her starting point in here's where the error is in that starting point so the level of originally set was level forty three the  that was based on to begin with that was based on starting from the five patients a trial the five named patients in the indictment extrapolating to thirty six patients who lived at the same nursing home as received from the patients he saw at riverside was eight hundred and ninety two million eight hundred and ninety two thousand the pre sentence report at paragraph fifty nine attributes four  the reason that the way the court got there is by lumping riverside patients together with non riverside patients twenty separate those out doctor scurry received eight hundred and ninety two thousand for riverside patients but effect make all the difference if she makes it down the variance to one hundred and fifty months st the difference is this the one point off drops the guidelines by half from level forty three to level forty c level forty three is seven hundred and twenty if you have any of you already from any court in the united states that says that when calculating the actual or intended loss for purposes of the sentence of the sentencing report that you only use the charged counts you know that and that's how it was that's it so i don't understand what and that's why i begin with one thousand eight hundred out of the twenty eight that's the most glaring example of being unreasonably indiscriminate punishing the defendant for patients who were never on the rivers that these five patients were demented completely unqualified for p h p service and could not benefit from them at sentencing we presented four under handed deserving patients whose who themselves and their so we would only review that for plain error on appeal if it was for again we're bound by it but i must not overlook that i don't think your brief mention anything about the correctness of our son  which involves the summer's summaries of these massive medicare bills these if you want to talk about here is this team medicare bills one has five hundred thousand lines of data another one hundred and thirty thousand lines of data all condensed into let's say a dozen summary exhibits presented by the case agent and contrary to what the government says in its read cross honors crane on behalf of the united states let me start with the st issue about the summary charts and just try to resolve any potential confusion about what they did and did not represent so with respect to the cat objection but they don't pursue that on appeal for governments exhibits three and five pacifically governments exhibit five as all the information that was billed or caused to be billed by dr ms currie under his medicare provider number entirely clear from the trial record whether that number is in fact cadwallader this if you look at the record on appeal page seven thousand one hundred and thirty five where there is a terminations of the reassignment of benefits that number appears to be associated with doctors mass curry which is government of part of government exhibit two years before the jury but more to the point this reassignment of benefits while it is true that dr ms currie was not the one who was paid for those services the representation is that he was the provider of those services and all the summary charts were saying in the the inference that is in the summary charts is that for representations that he was the one providing the services that he would necessarily be at the site the charts indicate that for most of those days three or more service locations is where dr ms currie on those days  providing services the representation you mean just the use of his provider number and this mission of those bill i'm sorry how is that representation appear in the record is it that his provider number is being used medicare for the services that dr miscarry provided on on sentencing and on appeal it's now for services incident to dr askers services but it's still under dr miscarries provider number and instead of medicare a pain doctor as scary they would send the payments to cadwallader but the underlying inference and assumption which the government thinks is the best and most reasonable reading of the record at trial is that dr ms currie was cadwallader or at least representing that he was at college while there because he was the one providing the services or supervising the services make sure i understand the source of the fraud you said that these bills were submitted with his number or if they should middle and cared welder's number as well is what i understood from the plaintiffs brief you say somewhere in your brief that he had an obligation to code water to provide the initial psychiatric seems like a contract requirement not a medicare fraud requirement so how was what was medicare told in these bills that was fraudulent well the so for purposes of trial the summary charts there isn't and there doesn't need to be any allegation of fraud for the summary chart for the both for the reason and the inference is that the government's theory on the summary charts because the summary charts are trying to represent either days or patients in which it was represented to medicare that doctor has curry was the provider or misrepresentation i'll use that was the misrepresentation  medicare involving the billing that carried water also had inch medicare number on at trial the government didn't allege that there was any fraud or misrepresentation relating to that data but rather that dr meds curry was either billing or causing to be billed the representation that he was seeing patients or was otherwise supervising services at ca ader so it not that this is the data underlying the charts and the charts themselves aren't making an assumption that there was fraud at cadwallader but rather that there is a representation that services are being provided by dr mass curry at cadwell there are certain days it that may be fraudulent it may not but for purposes of looking at particular dates and seeing how many patients were being provided services by dr miscarry or at least he was the supervising attending physician that was that was all the charts were offered for now the inference that then the government curry's provider number one would be if he was himself providing the services but has assigned to the payments from medicare and set up going to himself to go to cadwallader under that approach he would need to be the one actually providing the services the one that was more of the focus at sentencing and on appeal is that these services by cadwallader were incident to his the services he was otherwise providing but even under that theory under these sort of a political medicare guidelines dr mass curry needed to be on site when those services were performed even if he wasn't doing the face to face interaction with the patients he needed to be available at had daughter because there's an exception if you're a hospital but there's no evidence at all in the record that cadwalader was a hospital so either way the representation just on the medicare data is that dr matas curry was present at cadwallader now that may or may not actually be true but that's what the data is representing and how medicare would have understood the submissions from cab this was all done before the jury and even if you take out all these claims under this eight j nine number there are still implausibly high number of patients at least patients and there's other evidence on the record that dr miscarry would be at riverside for only ninety minutes or two hours at a time and the idea of being able to see four hundred and four thousand five hundred and eighty patients is certainly implausible even if there were error with the charts which again under abuse of discretion standard the government would submit there is no error and certainly not an abuse of discretion by the district court admitting these charts which are subject to cross examination and had a limiting instruction given to the jury that they had to decide how much weight to give it any air would be harmless for the her face of evidence of fraud and that pervasive evidence of fraud is also relevant to the sentencing guidelines calculation issue and so much there was questions on this st issue i would move to the to the guidelines calculation here we see a lot of cases you doing with representative sampling of victims or rather whatever the other sort of criminal activity may have been you just look at a sampling of it i found this a particularly small sampling of actual patients and knows at least one other cases come up from this particular prosecution dealing with another defendant what do you say there isn't five an unusually limited number of actual examples of people who are who you want to say or  of the kind of conduct that you're criminalising so i guess the way i would answer that you are if i understand the question correctly is if it was simply just the information about these five patients and their patient files and treatment alone that would be small and that have been raised by your friend on the other side of just how representative all day and in fact are there are a lot of patients that do not have that sort of have had no particular no benefit they could presumption that all of the riverside related billings you're right that in other cases the government as sentencing has given more examples of specific patients than they did at sentencing in this case but that doesn't take away the finding by the district court and the tremendous amount of evidence of systemic fraud that was taking place at riverside to establish the presumption that all of the riverside billings were fraudulent and leaves it to the defense to try to rebut that presumption and while the defense does come forward with examples of patients who did not suffer from the type of all signers or severe dimension of dementia that might make them ineligible that wasn't the only type of fraud alleged or that was going on at riverside there was the type of fraud where patients were ineligible but there was also fraud for whether the services were medically necessary whether the services were resulting in and prudent in any patients billing for services that didn't take place even of the four or five examples that the defense offers two of those patients were billed for services when dr metzger by bach dr miscarry for when he was out of the country so it doesn't mean that they are free from fraud they just might not be the precise same type of fraud as the substantive counts that were at issue in the indictment and so to the finding by the district court that there was systemic manipulation and fraud at riverside and therefore the establishment of pervasive for fraud through all evidence that government introduced at trial which is really significant i think quite comfortably establishes that with respect to riverside all of the amounts billed by the riverside where dr mas and sixteen guidelines the and twenty point and hand spent that the district court gave is for a loss amount between nine and a half one million dollars twenty five cents so even if you just want to look at only the range and so and that even that doesn't even touch the billings that doctor mess curry did under his own provider number some of which were the reverse side some of which were subject to the reassignment of benefits  that's associated with cadwallader there is no change to the guidelines range it would still be above twenty million dollars it would still be comfortably between the nine five and twenty five million how do you respond to the opening there's not an explicit statement by the district court where she said was regardless of the guy line range this is the such as i would impose that sad i think the best and most reasonable read the ng and particularly if you focus on page twenty four somebody to of the record is the district court was certainly not jane council all that regardless of what the precise loss i'm out was going to be she indicated that she was already going to give us substantial dow variance and so the government things the best reading of the record is that even if there was a different guidelines range the court was still going to issue the same sentence but does acknowledge that there isn't a explicit see mean it seems it pretty explicit to me that she was going to impose the variance and same one hundred and fifty it whether it was twenty two million or sixty nine million or twenty million the that we agree without reading your honor all i was trying to say it was the sort of maybe magic word sentences and there but i don't think it was the the government's meet you don't need some magic worse to be able to read this transcript and see that it's pretty clear coming off the page that this senates of a one hundred and fifty months was what was going to happen place and even if the court were going to take issue with any small part of the loss amount which again the government thinks it should not it wouldn't change the guideline range because the primary source of reducing th the loss amount would be this one million nine hundred thousand dollars associated with the reassignment of benefits and that just simply doesn't change any of the enhancements that were at issue and so the same guideline range and calculation would exist and in if there are no further questions or q thank you what i what i'd just heard is that the government inviting this court to assume that the sentence would have been the same if the starting point were lower herself says we can't do that we're not and twenty get just one point that one point makes all the difference cuts that you have me with your understanding of herself because i'm i'm looking at it yes in the way i understand her opinion in this case the district judge says the guidelines themselves came to a reasonable result so therefore i'm going to grant a downward variance and so this seems to be like a lot of the things the supreme court united states has said which is where the district judges sentencing decision is anchored somehow to the guidelines calculation that is in this case one hundred and thirty six months right that that sentence and the variance associated with it is anchored to the guidelines therefore the guidelines really matter whereas if the district judge says well i think i'm to make a varian i think one hundred and fifty is the good sentence regardless of these you know fighting about twenty million perceive versus twenty two million on the last amount it seems different is that my misunderstanding your reading of result oh i don't know about that i mean grisel says we can assume that the sense would be the same from a different starting point but back to the process of sentencing the process of sentencing is st set the guidelines nd is there a reason for departure in these days with resells says we just can't make the assumption which is what i hear the government inviting this court ninety two thousand from riverside the rest is non riverside there is no fold it was an accurate alone all the nonmember side stuff into the summaries it misled the jury to tailor is the case i cited about this about this in taylor what they did is they put a picture of a woman in a in an organizational chart which misled the jury as to the degree of her culpability not not guilty vs not guilty just how involved hell culpable wishing that in accuracy was sufficient to find error and sufficient to reverse because of the misleading nature and here i say this is even more serious and what happened taylor because it had a look at the spread sheets governments exhibit three governments exhibit five they are massive there is no way a juror could understand them it's impossible t