United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20511

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Patrick Osemwengie, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:22-CR-332-1 

______________________________

Before Duncan, Wilson, and Ramirez, Circuit Judges.

Per Curiam:*

A jury convicted Patrick Osemwengie of conspiring to defraud the 

United States and to pay and receive health care kickbacks, in violation of 18 

U.S.C. § 371. During sentencing, the district court imposed a six-level 

enhancement under U.S.S.G. § 2B1.1(b)(1), which was applicable pursuant 

to U.S.S.G. § 2B4.1(b)(1), based on its estimate of a total loss to Medicare of 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2024

Lyle W. Cayce

Clerk

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$68,019.87. The district court then varied downwards from the guidelines 

range of 15 to 21 months, imposing a 12-month sentence in which 

Osemwengie would serve the first six months in prison and the other six 

months in home detention. Osemwengie challenges his sentence on appeal. 

First, Osemwengie argues that the Government did not satisfy its 

burden of proof as to the loss amount under § 2B1.1(b)(1) because it did not 

correlate each kickback paid to Osemwengie with a specific beneficiary. As 

Osemwengie preserved this claim, we review the district court’s 

interpretation of the Guidelines de novo and its factual findings for clear 

error. See United States v. Shah, 95 F.4th 328, 382 (5th Cir. 2024). 

“Generally, the government must show by preponderance of the 

evidence the amount of loss attributable to fraudulent conduct.” United 

States v. King, 93 F.4th 845, 852 (5th Cir. 2024). “A district court may rely 

upon information in the PSR [presentence report] in making its loss-amount 

estimate, so long as that information bears some indicia of reliability.” Id.

(internal quotation marks and citation omitted). If a defendant challenges the 

PSR, the defendant “bears the burden of presenting rebuttal evidence to 

demonstrate that the information in the PSR is inaccurate or materially 

untrue.” United States v. Danhach, 815 F.3d 228, 238 (5th Cir. 2016) 

(internal quotation marks and citation omitted).

“[T]he amount fraudulently billed to Medicare . . . is prima facie 

evidence of the amount of loss the defendant intended to cause.” United 

States v. St. Junius, 739 F.3d 193, 214 (5th Cir. 2013) (internal quotation 

marks and citation omitted). Here, the district court’s loss estimate of 

$68,019.87 was based on the amount that two home health care companies 

billed Medicare for beneficiaries referred to them by Osemwengie, as set 

forth in the final PSR. An investigator with the Texas Attorney General’s 

Medicare and Medicaid Fraud Control Unit testified that these figures in the 

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final PSR’s loss table were derived from Medicare claims data and based on 

interviews with beneficiaries conducted during the investigation into 

Osemwengie. As these loss figures in the PSR arose out of a law enforcement 

investigation, they bore indicia of reliability. See United States v. Dickerson, 

909 F.3d 118, 128 (5th Cir. 2018). 

Although Osemwengie asks for further backup information for the loss 

figures, the loss amount “need only be a reasonable estimate . . . based on 

available information.” Shah, 95 F.4th at 382 (internal quotation marks, 

brackets, and citation omitted). Furthermore, Osemwengie has not 

presented evidence that rebuts the PSR as to these loss amounts. Without 

such evidence, Osemwengie’s “mere speculation is insufficient to show” 

that the district court erred in adopting the loss figures. United States v. De 

Nieto, 922 F.3d 669, 676 (5th Cir. 2019). Accordingly, his challenge on this 

issue fails. See Danhach, 815 F.3d at 238.

Second, Osemwengie contends that the district court erred by relying 

on § 2B1.1 commentary to calculate the total loss amount based on intended 

loss rather than actual loss. Osemwengie’s argument hinges on Kisor v. 

Wilkie, 139 S. Ct. 2400 (2019), which addresses the deference framework 

applicable to an agency’s interpretations of its own regulations. See Kisor, 

139 S. Ct. at 2408. 

This court need not decide whether Osemwengie preserved his Kisorbased claim because his challenge “fails under any standard of review.” See 

United States v. Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023). We have held 

that Kisor does not govern the guidelines and its commentary. United States 

v. Vargas, 74 F.4th 673, 677-78 (5th Cir. 2023) (en banc), cert. denied, 144 

S. Ct. 828 (2024). Accordingly, Vargas forecloses the Kisor-based challenge 

to the § 2B1.1 commentary that Osemwengie raises here.

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Third, Osemwengie argues that his sentence is substantively 

unreasonable because it is greater than necessary in violation of 18 U.S.C. 

§ 3553(a). In support, he argues that the sentence overstates the seriousness 

of his offense, fails to account for his exceptionally low risk of recidivism, and 

limits his ability to pay restitution. 

Because Osemwengie preserved his challenge, our review is for abuse 

of discretion. United States v. Willis, 76 F.4th 467, 477 (5th Cir. 2023). As 

his sentence is below the guidelines range, it is presumed to be reasonable. 

See United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). To rebut that 

presumption, Osemwengie must demonstrate that the sentence: “(1) does 

not account for a factor that should have received significant weight, (2) gives 

significant weight to an irrelevant or improper factor, or (3) represents a clear 

error of judgment in balancing the sentencing factors.” Id. at 558 (internal 

quotation marks and citation omitted).

Notably, the district court explicitly determined that the downward 

variance it awarded adequately addressed the sentencing factors set forth in 

§ 3553(a), which include the nature and seriousness of the offense, the 

defendant’s characteristics, and the need for restitution. ROA.766; see also 

ROA.757. Moreover, Osemwengie has not shown that the district court gave 

significant weight to an irrelevant or improper factor, failed to consider a 

relevant factor that should have received significant weight, or committed a 

clear error of judgment in balancing the § 3553(a) factors. See Simpson, 796 

F.3d at 558-59. Accordingly, Osemwengie has not rebutted the presumption 

of reasonableness that applies to his below-guidelines sentence. See id. at 557-

59.

AFFIRMED.

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