### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-11077

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MUHAMMED NASIRU USMAN, also known as Nasir Usman, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:09-cr-146-P-1

Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges. PER CURIAM: * Muhammed Nasiru Usman appeals his sentence for Medicare/Medic a id fraud, challenging the district court’s calculation of loss amount under U.S.S.G. § 2B1.1 an d a pplication of enhancements for mass-marketing and abuse of a position of trust with Medicare and Medicaid. Usman also a r gu e s t hat his sentence is substantively unreasonable. We affirm. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Februa ry 13 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-11077 Document: 00511757165 Page: 1 Date Filed: 02/13/2012No. 10-11077 I. Muhammed Nasiru Usman owned and operated two private ambulance companies, Royal Ambulance Services, Inc. (“Roy al”) an d Fir s t C hoice, EMS, Inc. (“First Choice”). Usman operated Royal until l a t e 2 0 0 6, when it ceased doing business due to seizure of its assets stemming from the investigation of its fraudulent Medicare and Medicaid billing. First Choice stopped doing business in 2007 after Medicare began denying its claims on pre-pay medical review. Usman was indicted on one count of c o n s p i r acy to commit health care fraud in viola t ion of 18 U.S.C. § 371; twelve counts of health care fraud, in violation of 18 U.S.C. §§ 1347 and 2; and one count o f e n g a gi n g in monetary transactions in property derived from specified unlawful activity, in violation of 18 U

. S

. C

. § § 1 957 and 2. David McNac, Usman’s former office manager, and Shaun O ut e n , U s man’s former director of operations, were also indicted and pled gu i l ty to conspiracy to commit health care fraud. McNac’s and Outen’s plea agreements effectively limited their sentencing exposu r e to sixty months imprisonment – the statutory maximum for the conspiracy count. Usman proceeded to trial. The evidence adduced a t t r i a l revealed that Royal and First Choice primarily transported Medicare and Medicaid patients to and from dialysis treatment on a non-emergency basis. Medicare paid for a non-emergency transport of a dialysis patient only if the patient suffered from

a medical condition that, at the time of transport, made othe r m e a n s o f t r a n s portation dangerous to the patient’s health. At least eighteen patien t s transported by R o y a l a n d First Choice did not meet Medicare’s criteria for reimbursement. In total, First Choice and Royal billed Medicare and Medicaid $3,644,464.90 for the eighteen patients. Under Usman’s direction and approval, M c N ac , O ut e n, and other managers instructed company employees to modify th e ambulance “runsheet” narratives to disguise the patients’ true conditions. The claims for these patients omitted key details of the patients’ me d i c a l s tatuses and transport and included false information to justify reimbursement.
2 Case: 10-11077 Document: 00511757165 Page: 2 Date Filed: 02/13/2012No. 10-11077

The jury convicted Usman on all counts. At s entencing, the district court applied an eighteen-level enhancement to U s m a n ’ s base offense level based on a “loss amount” of $3,644,464.90. The 1 district court calculated the loss amount according to the amount Usman billed to Medicare/Medicaid. The district court also applied a two-level enhancement for mass-marketing, a two-level enhancement for abuse of a position of trust, 2 3

a four-level adjustment for Usman’s role as an organize r or leader in the criminal activity, and a two-level increase in the offense level for obstruction of 4 justice. This resulted in a total offense level of 3 5

. B e c a u se Usman was in

5 Criminal History Category III, that offense level corresponded to a Guideline range of 210 to 262 months. However, the district c o u r t granted a two-level downward variance, leaving Usman with a Gu i d e l i n e range of 168 to 210 months. The court sentenced Usman to 180 months imprisonment and a threeyear term of supervised release and ordered him to pay restitution in the amount of $1,317,179.30. Usman timely appealed. II. A. Loss Amount “We review de novo the district court’s method of determining loss, while clear error review applies to the background factual findings that determine whether or not a particular method is appropriate.” The commentary to § 2B1.1 6 indicates that for the purposes of that Guideline, “loss” is the “gr e a t e r of the

See U. S. S. G. § 2B1.1 (b) (1) (J)

. 1
See id. § 2 B1.1(b)( 2)(A)(ii)

. 2
See id. § 3 B1.3. 3
See id. § 3B1.1 (a)

. 4
See id. § 3 C1.1. 5
Uni ted States v. Isiw ele , 635 F.3d 196, 202 (5t h C ir. 2011) (c itin g Uni ted States v. 6 Ha rri s , 597 F.3d242 , 251 n.9 (5t h Cir

. 2010) ). 3 Case: 10-11077 Document: 00511757165 Page: 3 Date Filed: 02/13/2012No. 10-11077

actual loss or intended loss.” To establish a particular amount of “intended 7 loss,” the government must prove by a preponderance of e vi dence that the defendant had the subjective intent to cause that amo u n t o f l o ss. The 8 commentary to § 2B1.1 explains that intended loss may “inc l ude[] intended pecuniary harm that would have b een impossible or unlikely to occur.” This 9 court has held that the amount fraudulently billed to Medicare and Medicaid is “prima facie evidence of the amount of loss [the defendant] intended to cause,” but “the amount billed does not constitute conclusive evidence of intended loss; the parties may introduce additional evidence to suggest that the amount billed either exaggerates or understates the billing party’s intent.” 1 0 Here, it was undisputed that Usman billed $3,644,464.90 i n fraudulent claims. Thus, there was prima facie evidence that Usman int e nded a loss of $3,644,464.90. Usman maintains, as he did at sentencing, that the district 11 court should have found that he intended a loss of no m ore than the $1,317,179.30 actu a l l y paid on the fraudulent claims. Usman notes that he argued at se n t e ncing that he and the others involved in the scheme were “abundantly aware” that they would only rece ive amounts allowed under Medicare’s reimbursement formula and fee schedule. But Usman presented no evidence in support of that argument, and the record does not support it. None o f the witnesses at trial testified that Usman knew the details of Medicare’s reimbursement formula and fee schedule. In addition, there was no testimony that Usman knew that Medica re would automatically forward the

U .S .S .G

. § 2B1.1 cm t. n. 3(A)

. The com me ntary t o aG uide line is bind ing un les s it is 7 inco nsi st ent with th e language of the Guid eline

. See United States v. Cerv antes -Blanc o , 504 F.3d576 , 579 n.1 (5t h Cir

. 2007)

. United States v. Sanders , 343 F.3d 511, 527 ( 5th Cir. 2003). 8
U .S .S .G

. § 2 B1.1 cm t. n. 3(A) (ii). 9
Isiw ele , 635 F.3dat203

. 1 0
See id. 1 1
4 Case: 10-11077 Document: 00511757165 Page: 4 Date Filed: 02/13/2012No. 10-11077

claims to Medicaid for dually-covered patients. Usman himself testified that he did not know the rules of Medicare/Medicaid billing or how to go about billing for ambu l a n c e t ransports. He stated that he contracted with professional billing companies “because they know the Medicare/Medicaid rules,” which he did not know. Usman also testified that, although he owned and operated First Choice and Royal, he relied on his employees and was not aware of fraudulent conduct. One of the government’s witnesses, an employee of a government contractor that processed Medicare claims, provided brief testimony about Med i care fee schedules and r eimbursement rates, and the government introduced into evidence a d i s k c ontaining a scanned version of the manual of Medicare rules and regulations for the years 2002 and 2004-2006. However, none of the billing representatives testified that they had discussed the reimbursement rates or fee schedules with Usman. Given Usman’s own testimony that he knew nothing about billing and the absence of any testimony that he was aware of or understood the Medicare fee schedule and reimbursement formula, it was not clear error for the district court to find an intended loss of $3,644,464.90 – the amount billed for fraudulent claims. 1 2 B. Mass-Marketing Enhancement We review the district court’s factual findings with regard to the massmarketing enhancement for clear error and the district court’s interpretation of the Sentencing Guidelines de novo. 1 3 The commentary to § 2B1

. 1(b)(2) explains that for the purposes of the subsection, “‘mass-marketing’ means a plan, program, promotion, or campaign

See, e. g. , Uni ted States v. He ar ne , 397 F. App ’x 948, 951 (5t h Cir. 2010) (unp ublis hed) 1 2 (f indi ng no clea r err or in the di st ric t cour t’s find ing that the billed amount wa s the inte nded los s amo unt wh ere “[ t] here wa s evide nce that [t he def enda nt] lack ed kn ow led ge of the billi ng pr oce dur es for M edi car e and theref ore did not unders tand the amount s that Me dic are lik ely wo uld pay” ).

Uni ted Sta tes v. M

aus kar , 557 F.3d219 , 232 (5t h Cir

. 2009)

. 1 3 5 Case: 10-11077 Document: 00511757165 Page: 5 Date Filed: 02/13/2012No. 10-11077

that is conducted through solicitation by telephone, mail, the Internet, or other

means to induce a large number o f p e r s o ns to (i) purchase goods or services

. . . .” We have emphasized that “th[is] definition of ‘mass-marketing’

1 4 is not limited to the listed mediums-it explicitly contem p l a t e s ‘ other means’ of mass-marketing.” For example , “f ace-to-face marketing intended to reach a 1 5 large number of persons for the purpose of fa c ilitating health care fraud can constitute mass-marketing.” For purposes of the enha n cement, the mass- 1 6 marketing need not be directed at vi c t i m s of the fraud. In addition, the 1 7 enhancement may be applied even where the defendant d i d not actively participate in the mass-marketing activities. 1 8 The district court explained that it was applying the m a s s - m arketing

en h a n cement in Usman’s case because “[t]his Circuit has upheld that [enhancement] in

. . . Medicare fraud cases where they are targeting nursing homes and the places where you have multiple people that could be potent i al cl i e n t s.” Usman argues that the district court erred in applying the enhancement because, unlike printed advertisements, promotional pens and

mouse pads distributed by McNac and Outen merely displayed logos and did not

“ i m p art details

. . . about the goods or services a company produces.” As the government notes, however, the marketing efforts in this case consisted of more than the distribution of pens and mouse pads. Usman’s employees distributed t h o se promotional items, as well as “gifts provided by

. . . Usman su c h a s colognes, perfumes, [and] gift cards, ” in conjunction with a face-to-face marketing campaign t h a t targeted administrators at nursing homes in the

U .S .S .G

. § 2 B1.1 cm t. n. 4. 1 4
Uni ted Sta tes v. M

agnus on , 307 F.3d333 , 335 (5t h Cir

. 2002) ( perc uriam ). 1 5
Ma uska r , 557 F.3dat233 ( quot atio n m ark s, al ter atio ns, andc itat ion om itt ed)

. 1 6
Isiw ele , 635 F.3dat204 -05. 1 7
Ma uska r , 557 F.3dat233

. 1 8 6 Case: 10-11077 Document: 00511757165 Page: 6 Date Filed: 02/13/2012No. 10-11077

Dallas area. They also catered lunches for employees at the faci l i t i e s . Usman and McNac enlisted Murray Thomas, one of the patients, to market for Usman at the dialysis center where she received treatment. McNac testified that in late 2004 and 2005, ninety percent of the patients served by Royal Ambulance had been “acquired by marketing eff o r t s.” The district court did not err in its application of the mass-marketing enhancement. C. Abuse-of-Position-of-Trust Enhancement Usman next challenges the district court’s application of an enhancement based o n U s m a n ’s abuse of a position of trust with Medicare and Medicaid, 1 9 arguing that as the owner of an ambulance servic e p r o vi d e r , he was not in a trust relationship with Medicare and Medicaid. As Usman acknowledges, that argument is barred by circuit precedent, and he raises it merely to preserve it 2 0 for future review. D. Substantive Reasonableness Usman asks the panel to fi n d that his sentence was substantively unreasonable because it was “at least 300% higher than those meted out to his codef e n d a n t s.” Because Usman did not challenge the reasonableness of his sentence in the district court, we apply a plain error standard of review. Under 2 1 that standard, Usman must demonstrate that the district court made a clear or obvious error that affected his substantial rights. If he does so, we may 2 2 exercise our discretion to correct the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. 2 3

U. S. S. G. § 3B1.3 (p rovid ing fora two- level enha ncem ent “[ i]f the def enda nt abus ed 1 9
a pos itio n of publ ic or pr ivate tru st

. . . in a man ner that signi fic antly f a c i l i t a t e d the com mi ss ion or conc ealm ent of the off ens e”)

. See Uni ted Sta tes v. M il le r , 607 F.3d144 , 150 (5t h Cir

. 2010)

. 2 0
Uni ted Sta tes v. Pe lti er , 505 F.3d389 , 391- 92 ( 5th Cir. 200 7). 2 1
Pucke tt v. U

nitedState s , 556 U. S. 129 , 135 (200 9). 2 2
Id. 2 3 7 Case: 10-11077 Document: 00511757165 Page: 7 Date Filed: 02/13/2012No. 10-11077

Under 18 U.S.C. § 3553(a)(6), a district court must consider “the need to avoid unwarranted se n t e n c ing disparities among defendants with similar

reco r d s w h o h ave been found guilty of similar conduct.” However, this rule 2 4 does not apply to “sentencing disparities between co-defendants who might not be similarly situated.” As the district court reasonably concluded, Usman and 2 5 his co-defendants were not similarly situated. Usman thus has not shown any error with regard to the substantive reasonableness of his sentence. III. The sentence imposed by the district court is AFFIRMED.

See Uni ted States v. Gu il le rm o Bal leza , 613 F.3d 432, 435 (5t h Cir. 2010) (quo ting 18 2 4 U. S. C. § 3 553( a)( 6))

.

Id. 2 5 8 Case: 10-11077 Document: 00511757165 Page: 8 Date Filed: 02/13/2012