IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20261

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SHARON IGLEHART, M.D., 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CR-746-1

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

In challenging her conviction and sentence for Medicare and Medicaid 

fraud, Sharon Iglehart contests the district court’s: admitting evidence of

Iglehart’s prior disciplinary investigation; and ruling concerning the “intended 

loss” under the advisory Sentencing Guidelines. AFFIRMED.

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 18, 2017

Lyle W. Cayce

Clerk

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I.

Iglehart was a psychiatrist in Houston, Texas, associated with Riverside 

General Hospital (Riverside). In addition to its inpatient hospital, Riverside 

offered “partial hospitalization programs” (PHPs) at off-site facilities. Medicare

defines PHPs as providing psychotherapeutic and pharmacologic treatment to 

patients at least four days per week, for a minimum total of 20 hours per week. It 

was through her billing practices at two Riverside-owned PHPs―Riverside 

Southeast Mental Health Program in Houston (Southeast) and Riverside 

Dallas―that Iglehart was later convicted for, inter alia, defrauding Medicare and 

Medicaid. 

Medicare reimburses PHPs for their services, subject to several 

requirements. Among these requirements, PHPs must comply with federal 

record-keeping standards; in addition, a licensed physician must personally 

oversee and document the PHP’s treatment programs. 

Iglehart worked as medical director and sole psychiatrist at Southeast from 

2005 until 2009; Riverside Dallas, from 2011 until 2012. In this role, she was 

responsible for admitting patients, supervising treatment, and billing Medicare. 

Throughout this entire time period, Iglehart also worked as an attending 

physician at Riverside’s inpatient psychiatric facility. 

Over the course of an investigation into Riverside’s facilities, the 

Government discovered evidence of numerous billing irregularities committed by 

Iglehart. For example, she frequently used her admitting and referral authority 

to pass patients between Riverside’s inpatient program and the PHPs, despite the 

patients’ not being qualified for PHP treatment under Medicare. Moreover, she 

often backdated signatures and billed Medicare for face-to-face consultations at 

Riverside Dallas, despite billing for patients in Houston on the same day. Of 

particular relevance to the evidentiary issue at hand, Iglehart also billed Medicare 

for patient treatments in Houston, despite her being at a recordkeeping course in

San Diego, California, pursuant to a Texas Medical Board (TMB) order, following

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an investigation in 2004 into Iglehart’s billing practices. As a result of these, and 

other, billing practices, Riverside fraudulently billed Medicare and Medicaid over 

$22.7 million; Medicare and Medicaid reimbursed Riverside approximately $6.4 

million. 

Iglehart was indicted on five criminal counts: conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349; health-care fraud, in violation of 18 

U.S.C. §§ 2, 1347; and three counts of false statements related to a health-carebenefit program, in violation of 18 U.S.C. §§ 2, 1035. At trial, the Government 

presented voluminous evidence regarding her Medicare billing practices and the 

conspiracy to pass patients between Riverside and the two PHPs. Iglehart elected 

to testify at trial, and claimed her errant billing was the result of poor

recordkeeping, rather than criminal conduct. 

Iglehart was convicted on all five counts. Based in part on the presentence 

investigation report (PSR), the court sentenced Iglehart to 144 months in prison, 

applying enhancements pursuant to, inter alia, Guidelines §§ 2B1.1(b)(1)(K) and 

2B1.1(b)(7)(B)(ii), and granting a downward variance from the advisory 

Guidelines sentencing range. 

II.

Iglehart claims: the court’s permitting the admission of evidence of the 

TMB investigation violated Federal Rule of Evidence 404(b) as inadmissible 

character evidence; and, the court did not use the proper methodology in

calculating her intended loss. (She also asserts the court erred in applying a 

sentencing enhancement for “abuse of trust”. U.S.S.G. § 3B1.3. But, she 

acknowledges this issue is foreclosed by United States v. Valdez, 726 F.3d 684, 694 

(5th Cir. 2013), and raises it only to preserve it for possible further review.) 

A.

In contending the court erred in admitting evidence regarding the TMB 

investigation, Iglehart maintains Robert Blech’s testimony—which explained 

Iglehart and TMB, following an investigation, entered into an order requiring, 

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inter alia, her to attend the above-referenced recordkeeping course in San Diego—

was inadmissible evidence of bad character under Federal Rule of Evidence

404(b). (She does not, however, challenge evidence regarding her presence in San 

Diego or the content of the recordkeeping training.)

“Evidence of a crime, wrong, or other act is not admissible to prove a 

person’s character in order to show that on a particular occasion the person acted 

in accordance with the character.” Fed. R. Evid. 404(b)(1). But, although such 

evidence is generally inadmissible, it is “admissible for another purpose, such as 

proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident”. Fed. R. Evid. 404(b)(2). 

1.

It goes without saying that our court must determine its own standard of 

review. E.g., United States v. Rosenthal, 805 F.3d 523, 528 (5th Cir. 2015). As is 

also equally well-established: although, generally, evidentiary rulings are 

reviewed for abuse of discretion, plain-error review applies when a party does not 

object in district court. E.g., United States v. Ramos-Rodriguez, 809 F.3d 817, 821 

(5th Cir. 2016); United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). 

Federal Rule of Evidence 103(b) states: “Once the court rules definitively 

on the record ― either before or at trial ― a party need not renew an objection or 

offer of proof to preserve a claim of error for appeal”. Regarding the rule’s

requiring the court to rule “definitively”, persuasive authorities have emphasized 

the importance of that condition. See United States v. McElmurry, 776 F.3d 1061, 

1067 (9th Cir. 2015); United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir. 

2015); United States v. Big Eagle, 702 F.3d 1125, 1130 (8th Cir. 2013); United 

States v. Nixon, 694 F.3d 623, 628 (6th Cir. 2012).

As noted above, the Government provided evidence of Iglehart’s billing 

Medicare for treatment administered in Houston while she was in San Diego for 

recordkeeping training. Her participation in the training was required by the 

above-described TMB order, following investigation into her recordkeeping 

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practices. Along that line, the Government provided notice of its intent to

introduce the TMB order, the facts that led to the order, and evidence regarding 

Iglehart’s conduct after the order. In response, she moved in limine to exclude 

this evidence, asserting it would be inadmissible character evidence, in violation 

of Rules 404(b) and 403. 

During trial, a hearing was held on the motion. In ruling, the court stated: 

Well, I -- I think on balance that it’s not unfairly 

prejudicial within the meaning of 403. It is conduct 

which, in the context of the case as it has unfolded to this 

point and based upon the -- certainly the defense theory 

of the case, has a high degree of relevance in achieving 

the objectives of 404(b) which, among other things, is to 

show absence of mistake or lack of accident when a 

demonstration is made that this person has had rather 

strong therapy or teaching or mentoring on how 

accurately to keep records. 

I’ll deny the motion in limine. I’ll let you make your 

objection depending upon the nature of the offer made. I 

don’t think that it’s -- behooves the government to extend 

or prolong or -- I could change my mind on this if there’s 

some kind of effort to hang your case on that particular 

record. I see it as a factor that’s, I think, a problem. 

(Emphasis added.) 

Immediately after the ruling, Iglehart’s counsel asked whether “[t]he 

different findings or just the [TMB] order” would be admissible. The court 

responded: “Well, this is -- this is what I’m not sure of. I’m not sure what the 

extent of the [Government’s] offer is”. 

In reply, the Government explained it would offer, inter alia: a witness to 

explain the TMB order, which followed as a result of the investigation (Blech’s 

testimony at trial, discussed infra); the order itself (which was never introduced 

at trial); a witness from the training program to confirm Iglehart’s attendance; 

and some slides from the program’s presentation. 

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The Government’s offer having been clarified, the court stated: “All right. 

Well, we’ll take up the objections as the offer comes. It does appear that it fits 

within 404(b) in order to demonstrate absence of mistake or lack of accident on 

the way this -- the records were kept”. 

Iglehart, however, made no subsequent objection to Blech’s testimony, nor 

did she request a limiting instruction regarding TMB’s investigation. Moreover, 

on direct examination, Iglehart discussed TMB’s investigation, stating she “felt a 

lot of shame” about the sanctions and reprimand. And, with no objection from 

Iglehart, the Government, during its closing, reminded the jury of TMB’s

investigation and the resulting “recordkeeping training” in San Diego. 

For the challenged testimony, Iglehart urges an abuse-of-discretion 

standard of review, asserting her motion in limine was sufficient to preserve the 

issue for appeal. Relying upon Rule 103(b)’s not requiring a contemporaneous 

objection to evidence “[o]nce the court definitively rules on the record”, Iglehart 

maintains the court ruled “definitively” by stating, “I’ll deny the motion”. The 

Government contends plain-error review applies because, despite the court’s 

ruling “we’ll take up the objections as the offer” was made, Iglehart did not do so. 

In the light of the above-quoted colloquy, the court did not rule “definitively”

on whether the TMB investigation was admissible evidence. Rather, the court 

continued to discuss the admissibility of the evidence with counsel for both sides, 

clarified what would be offered, and finally affirmed it would reconsider the 

objection at the time of the offer. Based on this record, Iglehart was required to 

object during trial in order to preserve the issue for appeal. 

And, because Iglehart failed to do so, review is only for plain error. E.g.,

Broussard, 669 F.3d at 546. Under that standard, Iglehart must show a forfeited 

plain (clear or obvious) error that affected her substantial rights. Puckett v. 

United States, 556 U.S. 129, 135 (2009). If she makes that showing, we have the 

discretion to correct the reversible plain error, but should do so only if it “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.

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2.

Our court applies a two-prong test for admissibility under Rule 404(b): (1) 

the evidence must be “relevant to an issue other than the defendant’s character”; 

and (2) the evidence’s probative value must not be substantially outweighed by its 

prejudicial effect. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en 

banc). As noted above, Iglehart contends Blech’s testimony explaining the TMB 

investigation fails the Beechum test as unfairly prejudicial character evidence. As 

also noted, she does not challenge the evidence of the San Diego trip or related 

recordkeeping training, objecting only to the underlying TMB investigation, which 

gave rise to the San Diego training. The Government responds, inter alia, that

the testimony is: admissible to prove lack of mistake; and probative in order to 

disprove Iglehart’s poor-recordkeeping defense.

At trial, the testimony by Blech, TMB’s assistant general counsel, was very 

brief: 

Q: And has Sharon Iglehart been investigated by [TMB]? 

A: Yes, she has. 

Q: And when was that investigation concluded? 

A: The investigation was concluded on July 25th, 2008, 

and the case was referred to the legal department at the 

TMB. 

Q: And as a result of that investigation, was Dr. Iglehart 

required to attend a training course for physicians? 

A: Yes. She entered into an agreed order, the terms of 

which required her to attend a PACE medical 

recordkeeping course. 

Q: I’m sorry. PACE medical record --

A: Yes. The -- the PACE is a University of San Diego 

physician program, and they have a recordkeeping 

course.

There was no cross-examination.

In its closing, the Government also reminded the jury about the TMB 

investigation: “Well, the evidence is that [Iglehart] also was subject to an 

investigation. Because of that, she had to go to medical recordkeeping training 

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which -- and you’ll remember the San Diego trip. . . . But she billed for seeing 

patients when she was at that mandatory recordkeeping . . . class”. 

Assuming, arguendo, Blech’s testimony about the investigation constituted

character evidence offered “to show that on a particular occasion [Iglehart] acted 

in accordance with the character”, Rule 404(b)(1), it does not rise to the level of 

reversible plain error. Applying Beechum’s two-prong test, any error was not

“clear or obvious”: it was not clear or obvious that Blech’s testimony was not 

relevant to an issue other than Iglehart’s character (namely, an issue concerning 

her recordkeeping practices and training); and it was not clear or obvious that the 

undue prejudice substantially outweighed the probative value. Beechum, 582 

F.2d at 911. This is especially true given Iglehart’s defense theory of poor 

recordkeeping and her comments, on direct examination, about the TMB 

sanctions. 

Moreover, even assuming, arguendo, a plain (clear or obvious) error, given 

the voluminous evidence of Iglehart’s fraudulent-billing practices presented at 

trial, any such error did not affect her substantial rights. Over the course of a 

seven-day trial, Iglehart only points to two instances in which the Government 

mentioned the TMB investigation in a claimed inadmissible manner. In neither 

instance did the Government explain the underlying basis for the investigation or 

otherwise imply it was an indicator of guilt in the current prosecution; rather, the 

Government used the testimony to explain why Iglehart was in San Diego for 

recordkeeping training, despite billing for patients in Houston (evidence to which 

she does not object).

B.

Iglehart’s second issue concerns whether the court used the proper burdenshifting methodology to calculate “intended loss” under Guidelines §§ 2B1.1(b)(1) 

and (b)(7). These two Guidelines provide offense-level enhancements based on 

defendant’s intended loss to the Government. See U.S.S.G. §§ 2B1.1(b)(1), (b)(7).

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1. 

The parties dispute whether this issue was properly preserved for appeal. 

The Government contends plain-error review applies because Iglehart objected

only generally to the enhancements, rather than specifically to the calculation 

methodology. Iglehart maintains her written objections to the PSR were sufficient 

to preserve the issue because she cited Valdez and Isiwele, which explain the 

proper burden-shifting methodology. See Valdez, 726 F.3d at 696; United States 

v. Isiwele, 635 F.3d 196, 203 (5th Cir. 2011). Therefore, she asserts the court’s 

methodology is reviewed de novo; factual findings, for clear error.

Arguably, the issue was not preserved. In any event, we need not resolve 

the question of issue-preservation because Iglehart’s contentions fail under either 

standard. For the purpose of this analysis, therefore, the court’s methodology is 

reviewed de novo, and its factual findings for clear error. See Valdez, 726 F.3d at

696. Along that line, a factual finding is not clearly erroneous if it is “plausible in 

light of the record as a whole”. Id. at 692 (quoting United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).

2.

Turning to the substantive issue, Guideline § 2B1.1 provides tiered 

sentencing enhancements based on the amount of intended loss. In addition to 

providing tiered enhancements applicable to all theft offenses, the Guideline also 

provides additional enhancements for health-care-fraud offenses. U.S.S.G. 

§§ 2B1.1(b)(1) (generic-theft offenses), (b)(7) (health-care-fraud offenses). To 

calculate loss and determine any appropriate enhancement, “the aggregate dollar 

amount of fraudulent bills submitted to the Government health care program 

shall constitute prima facie evidence of the amount of the individual loss, i.e., is 

evidence sufficient to establish the amount of the intended loss, if not rebutted”. 

U.S.S.G. § 2B1.1 cmt. 3(F)(viii). 

Our court has held that, although the amount billed fraudulently to 

Medicare is prima facie evidence, it “does not constitute conclusive evidence of 

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intended loss; the parties may introduce additional evidence to suggest that the 

amount billed either exaggerates or understates the billing party’s intent”. 

Isiwele, 635 F.3d at 203 (internal quotation marks omitted) (quoting United States 

v. Miller, 316 F.3d 495, 504 (4th Cir. 2003)). Accordingly, our court employs a 

burden-shifting framework for calculating the intended loss in health-care fraud 

cases. See id.; Valdez, 726 F.3d at 696. Nonetheless, courts have “wide latitude 

to determine amount of loss”. United States v. Jones, 475 F.3d 701, 705 (5th Cir. 

2007).

Using the $22.7 million billed throughout Riverside and Iglehart’s 

conspiracy as prima facie evidence, the PSR recommended, inter alia, two 

enhancements based on Iglehart’s intended loss: a 20-level enhancement for a 

generic-theft offense, with an intended loss between $9.5 and $25 million, 

pursuant to Guideline § 2B1.1(b)(1)(K); and a four-level enhancement for healthcare fraud, with an intended loss in excess of $20 million, pursuant to Guideline 

§ 2B1.1(b)(7)(B)(iii). As noted, Iglehart’s written objection to the PSR’s calculated

loss cited the above-referenced Isiwele and Valdez decisions. 

In considering Iglehart’s objection regarding the generic-theft 

enhancement, Guideline § 2B1.1(b)(1)(K), the court recognized the prima facie

evidence likely overstated Iglehart’s intended recovery from Medicare and 

Medicaid, but overruled the objection nonetheless:

And I am satisfied to accept that, perhaps, [Iglehart] had 

enough knowledge that she worked through these years 

of defrauding Medicare to know that she was not going 

to get the full amount, but she did not have enough 

knowledge to fine-tune it, certainly, to anything less 

than 9.5. And I find abundant evidence to support that 

intended loss amount within that range of 9.5 million to 

25 million, and, therefore, I deny the objection . . . .

In finding the PSR’s recommended 20-level generic-theft enhancement applicable, 

the court made a factual finding that Iglehart intended loss between $9.5 and $25 

million. U.S.S.G. § 2B1.1(b)(1)(K).

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The court next turned to Iglehart’s objection regarding the recommended 

four-level health-care-fraud enhancement for loss in excess of $20 million. 

U.S.S.G. § 2B1.1(b)(7)(B)(iii). The court sustained this objection: 

I find that it is reasonable to conclude that she would 

have assumed and believed and intended that loss to be 

not greater than $20 million . . . . The next level down is 

between 7 million to 20 million. The adjustment is for 

three levels. That is what I find is correct in this 

instance, giving the appropriate measure of credence to 

her claim of knowing that not everything gets paid by 

Medicare and, at the same time, recognizing that at least 

9.5 million, somewhere less than 20 million, would have 

been the intended loss. 

Accordingly, the court applied a three-level health-care-fraud 

enhancement, which applies for intended loss between $7 and $20 million. 

U.S.S.G. § 2B1.1(b)(7)(B)(ii). Taken together with the 20-level generic-theft 

enhancement, the court found Iglehart intended loss of at least $9.5 million (based 

on the generic-theft enhancement), but less than $20 million (based on the healthcare-fraud enhancement). As there were no relevant Guidelines thresholds within 

that range, the court did not further specify its calculation. 

As stated, Iglehart maintains the court did not follow the burden-shifting 

methodology for calculating intended loss. See U.S.S.G. § 2B1.1 cmt. 3(F)(viii); 

Valdez, 726 F.3d at 696; Isiwele, 635 F.3d at 203. She asserts the prima facie

evidence was rebutted by showing Medicare only paid $6.4 million of the $22.7 

million billed; accordingly, she contends the court should have then required the 

Government to produce evidence of her subjective intent to cause loss in excess of 

$6.4 million. 

The Government counters that the court followed the proper methodology 

articulated in Isiwele and Valdez by acknowledging that the prima facie evidence 

(i.e., the billed amount) overstated Iglehart’s intent. The Government further 

maintains the court did not err by considering Iglehart’s knowledge and subjective 

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expectations regarding the Medicare billing process in order to conclude she 

intended loss in excess of $9.5 million. 

Although the court did not articulate a step-by-step methodology (which it’s 

not required to do), it explained its reasoning for the applicability of each 

enhancement: it rejected the prima facie evidence; considered evidence of 

Iglehart’s subjective knowledge; and made a factual finding for the range of her 

intended loss. Especially given the “wide latitude” courts are afforded in 

calculating loss, the conclusion that Iglehart’s intended loss was between $9.5 and 

$20 million was “plausible in light of the record as a whole”. Jones, 475 F.3d at 

705; Valdez, 726 F.3d at 692. Accordingly, the court did not err in applying the 

enhancements under Guidelines §§ 2B1.1(b)(1)(K) and (b)(7)(B)(ii). 

III.

For the foregoing reasons, the judgement is AFFIRMED. 

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