In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4088

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROLAND BORRASI,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 916-2—William J. Hibbler, Judge.

ARGUED OCTOBER 22, 2010—DECIDED MAY 4, 2011

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Roland Borrasi, a medical doctor,

was convicted of Medicare fraud after he accepted a

salary from a hospital in exchange for continually

referring patients to the facility, a violation of 42 U.S.C.

§ 1320a-7b. In this appeal, Borrasi attacks both his conviction and his sentence. We find that the district court

did not err by admitting minutes from hospital committee

meetings to prove attendance records while excluding
2 No. 09-4088

discussion of reports to which the minutes refer, as the

latter constituted inadmissible hearsay. Because the

Medicare fraud statute criminalizes payments when

induction of referrals is among the purposes for the

payments, we also find that the district court did not err

in instructing the jury. Accordingly, we affirm his conviction. In addition, we find that the district court

did not err in sentencing Borrasi. It reasonably estimated

the loss amount in determining his offense level, it properly assessed a leadership enhancement to his offense

level, and it expressed adequate reasons to sentence

Borrasi to a longer term than his co-defendant. Accordingly, we affirm his sentence as well.

I. BACKGROUND

Dr. Borrasi owned Integrated Health Centers, S.C.

(“Integrated”), a corporate group of healthcare providers

in Romeoville, Illinois. He worked primarily at nursing

homes and hospitals. Through this work, he became acquainted with Chief Executive Officer Wendy Mamoon,

Director of Operations Mahmood Baig, and other officers

and directors of Rock Creek Center, L.P., a licensed inpatient psychiatric hospital in Lemont, Illinois. Reimbursements from the Medicare federal health care program

constituted the vast majority of payments received by

Rock Creek.

At some time between 1999 and 2002, Borrasi, Mamoon,

Baig, and others conspired to pay bribes to Borrasi and

other individuals at Integrated in exchange for an increasing stream of Medicare patient referrals. Doctors Zafer
No. 09-4088 3

Jawich, Bruce Roper, and Abhin Singla, as well as psychologist Agnes Jonas, were among those employed at Integrated at that time. Over that period, a sum of $647,204

in potential bribes was paid to Borrasi and Integrated

physicians by Rock Creek. In 2001 alone, Borrasi referred

approximately 484 Medicare patients to Rock Creek.

In order to conceal these bribes, Borrasi and other

Integrated employees were placed on the Rock Creek

payroll, given false titles and faux job descriptions, and

asked to submit false time sheets. Borrasi, for example,

was named “Service Medical Director” and was allegedly

required to be available at all times; Baig later testified

that Borrasi was not expected to perform any of the

duties listed in his job description. According to minutes

of Rock Creek’s various committee meetings, Borrasi

and some Integrated physicians occasionally attended

meetings and submitted reports of their work. But they

attended only a very small percentage of the actual meetings, and multiple witnesses testified to rarely seeing

them in the Rock Creek facility for meetings or other

duties. Jonas, Jawich, and Roper each testified that the

Integrated physicians did not perform their assigned

administrative duties, their reports and time sheets

notwithstanding. Baig testified that he, Borrasi, and

Mamoon did not expect the Integrated physicians to

perform any actual administrative duties.

In addition, Rock Creek paid the salary for Integrated’s

secretary, as well as lease payments for one of Integrated’s

offices. This arrangement purportedly gave Rock Creek

an outpatient clinic at Borrasi’s building and certainly
4 No. 09-4088

supplemented Borrasi’s rent. Further, Baig was paid

both to oversee the admission and stays of Integrated’s

referrals to Rock Creek and also to ensure the referred

patients were returned to nursing homes and facilities

that Borrasi could access and control. These methods

enabled Rock Creek and Borrasi to maximize their

Medicare reimbursement claims.

In December 2006, a grand jury returned an indictment

against Borrasi, Mamoon, and Baig, charging them with

one count of conspiracy to defraud the United States

government, in violation of 18 U.S.C. § 371, and six

counts each of Medicare-related bribery, in violation of

42 U.S.C. § 1320a-7b et seq. Baig pled guilty to all seven

counts, but Mamoon and Borrasi proceeded to trial. The

three-week trial included testimony from Integrated

and Rock Creek employees; documentary evidence comprising time sheets, attendance records from meeting

minutes, and Medicare reimbursement claims; and recordings of Borrasi’s conversations with Integrated physicians recorded by Singla, including one in which

Borrasi admitted to referring patients in exchange for

“free money” from Rock Creek. The jury returned verdicts

of guilty on each count against Borrasi and Mamoon.

The district court then held a joint, two-day sentencing

hearing for Borrasi and Mamoon. Both defendants were

in criminal history category I. After considering the

presentence report (PSR) and the parties’ arguments

regarding increasing the offense level to reflect the

loss amount and enhancing the offense level due to their

leadership roles, the court calculated Borrasi’s offense
No. 09-4088 5

level at 28 (yielding a range of 78-97 months’ imprisonment) and Mamoon’s offense level at 26 (yielding a range

of 63-78 months’ imprisonment). The district court then

heard the defendants’ mitigation evidence, including

testimony regarding a severely debilitating accident

Mamoon’s son had suffered that left Mamoon as his

sole caregiver. The court sentenced Borrasi to seventytwo months’ imprisonment and two years’ supervised

release. Mamoon was sentenced to six months’ imprisonment, one year of home confinement, and five years’

supervised release. Each defendant was required to pay

$497,204 in restitution.

Borrasi then moved the district court to reconsider

his sentence, arguing that it should be significantly

lower to comport with Mamoon’s. After holding a hearing

on the matter, the district court denied his motion, concluding that the disparate sentences were justified by

the facts of the case and the individual defendants’ characteristics. Borrasi then timely appealed.

II. ANALYSIS

Borrasi challenges both his conviction and his sentence in this appeal. He first argues that two errors

during the guilt phase of his trial require a new trial. He

then argues that, even if his conviction stands, we must

remand for resentencing because of three errors during

the sentencing phase. The government argues that the

decisions about which Borrasi complains were not erroneous. We will consider each of Borrasi’s five issues in

turn, beginning with the alleged infirmities in his conviction.
6 No. 09-4088

A. Challenges to Conviction

At the conclusion of his trial, Borrasi moved for a new

trial or, in the alternative, a judgment of acquittal,

alleging twelve separate grounds for relief that included

alleged evidentiary, procedural, and instructional errors.

On appeal, he wisely limits his attack on his conviction

to two allegations of error. See Ehrhart v. Sec’y of Health

and Human Servs., 969 F.2d 534, 537 n.2 (7th Cir. 1992)

(“[I]t behooves litigants to choose with care a few select

issues for review, preferably those not forfeited by

waiver.”). His first allegation of error involves an evidentiary ruling, and the second focuses on the government’s

commentary during closing arguments regarding the

statute he was charged with violating. We find neither

argument persuasive.

1. Exclusion of Hearsay

Borrasi first argues that the district court erroneously

interpreted and applied the Federal Rules of Evidence

when it prevented him from using comments in

meeting minutes during his defense, despite its earlier

decision to allow the government to introduce the minutes

into evidence and use them for a different purpose.

According to Borrasi, this ruling prejudiced his case

and warrants reversal of his conviction. We review the

district court’s decision to exclude the evidence or limit

its use for an abuse of discretion, but we review its interpretation of the Rules de novo. United States v. Rogers, 587

F.3d 816, 819 (7th Cir. 2009). Even if we determine the

evidentiary decision was erroneous, we will not reverse
No. 09-4088 7

it if the jury’s ultimate decision was not influenced by

the error. United States v. Oros, 578 F.3d 703, 707 (7th Cir.

2009).

The meeting minutes at issue were taken during Rock

Creek committee meetings. The face sheet of each set of

minutes lists attendees at the meetings. The government sought to introduce them to support its expert’s

summary of the attendance of Borrasi and his Integrated

physicians at Rock Creek meetings. This summary purported to show that they did not participate sufficiently

in their assigned committees to justify receiving salaries

from Rock Creek for their respective activities. The government and Borrasi stipulated to the minutes’ admissibility, and Borrasi now argues that the scope of the stipulation agreement was not limited to specific contemplated uses of the evidence.

Some of the minutes contained comments about committee reports submitted to Rock Creek’s board of directors. Borrasi sought to introduce the minutes as exhibits

so the jury could consider the information in those referenced reports, including the descriptions of medical

services he and his employees allegedly performed for

Rock Creek. He believed the substantive information in

the reports—partially incorporated by the minutes—

would refute the government’s assertion that he and the

other Integrated employees did not have to perform

any work to receive a salary from Rock Creek.

On the government’s objection, the district court ruled

the minutes’ substantive descriptions of the reports

inadmissible because the statements would constitute
8 No. 09-4088

Federal Rule of Evidence 105 provides: “When evidence 1

which is admissible as to one party or for one purpose but not

admissible as to another party or for another purpose is ad-

(continued...)

hearsay. It did allow Borrasi to examine Rock Creek

witnesses about whether they received the reports,

and Borrasi questioned Mamoon about the reports and

committee meetings at length. Nevertheless, Borrasi

contends that the exclusion was erroneous because the

reports met the business-records exception to the

hearsay prohibition.

Federal Rule of Evidence 803(6) excepts certain “records

of regularly conducted activity” from Rule 802’s general

ban on the admission of hearsay evidence. Borrasi argues

that hospital committee meeting minutes plainly fall

within the scope of the business records exception

because they were “record[s] . . . of acts, events, conditions,

opinions, or diagnoses, made at or near the time . . . kept

in the course of a regularly conducted business activity”

and because it was Rock Creek’s regular practice to take

minutes of business meetings. Fed. R. Evid. 803(6). The

district court accepted the parties’ stipulation that the

minutes themselves would fall within this exception.

Borrasi now contends that, because the government

did not limit the uses to which the minutes could be

put upon their admission, it waived any opportunity to

later limit the evidentiary uses to which he could apply

the minutes. To support this broad premise, he cites

Rule 105, yet he cites no case for his proposition that the

1
No. 09-4088 9

(...continued) 1

mitted, the court, upon request, shall restrict the evidence to

its proper scope and instruct the jury accordingly.”

Rule has such a preclusive effect at the moment of admission. Indeed, this argument inverts the very spirit of the

Rule. Rule 105 is a vehicle for the enforcement of the

Federal Rules of Evidence, but Borrasi’s attorney would

turn it into a trap—set upon admission of evidence and

sprung later in trial—to effectively prevent enforcement

of the Rules.

The meeting minutes almost certainly fell within Rule

803(6), especially given that—despite the involvement of

Rock Creek officers in the fraudulent scheme—the government did not question the reliability of the documents.

See Fed. R. Evid. 803(6) (excluding from the business

records exception those records whose “source of information or . . . method or circumstances of preparation

indicate lack of trustworthiness”). Borrasi, however,

challenges the exclusion of the reports referenced in

the minutes and any comments in the minutes regarding the substance of those reports. Those reports

and any statements therefrom are hearsay, as each comprises statements written by physicians not testifying

before the court that Borrasi wished to introduce for the

truth of the matters asserted. See Fed. R. Evid. 801(c).

The government argues—and Borrasi does not refute—that Borrasi never laid any additional foundation

for the admission of these reports or the minutes’ substantive discussion of them. That alone justifies the district
10 No. 09-4088

court’s decision to bar the jury’s receipt of the reports, as

courts may not permit the introduction of hearsay contained within hearsay unless each layer is properly admitted under an exception to Rule 802. Fed. R. Evid. 805.

Specifically, “statements made by third parties in an

otherwise admissible business record cannot properly be

admitted for their truth unless they can be shown independently to fall within a recognized hearsay exception.” United States v. Christ, 513 F.3d 762, 769 (7th Cir.

2008) (quoting Woods v. City of Chicago, 234 F.3d 979, 986

(7th Cir. 2000)). Borrasi broadly concludes that the

minutes are not “double hearsay” because the minutes

did not contain statements of outsiders to Rock Creek,

but rather statements of reports by Integrated physicians

with privileges at Rock Creek. But he does not—and

could not—argue that the reports were themselves trustworthy business records falling within Rule 803(6) or

any other exception. Accordingly, the statements contained in the reports, as well as any quotations from

or specific references to them in the minutes, constituted

inadmissible hearsay.

The district court did not erroneously interpret

Rules 802 and 803(6). It properly allowed Borrasi to

argue that certain reports were made and then tendered

during the meetings, and it allowed him to use the admitted minutes in an attempt to prove those arguments.

But the court did not abuse its discretion in refusing to

admit any substantive descriptions of the reports in

the minutes or the reports themselves.

Had we found the exclusion erroneous, we would

nevertheless have found it to constitute harmless error
No. 09-4088 11

because it could not have had a substantial and

injurious effect on the outcome of the trial. See Oros, 578

F.3d at 709. Borrasi argues that he was prejudiced in his

defense because he was barred from showing the jury

that he and other Integrated physicians earned their

salaries. Yet Borrasi was able to expound on this theory

of defense throughout his cross-examinations, his case-inchief, and his closing arguments. Even if the court

allowed Borrasi to introduce the minutes’ specific discussions of the reports purporting to show the Integrated

physicians’ work, it is highly unlikely that the evidence

would have offset the overwhelming evidence that

Borrasi and the other physicians were being paid in

significant part for their referrals instead of their services. Baig testified that he paid kickbacks to Borrasi;

Jawich testified that he did minimal administrative

work for Rock Creek and that his contract’s job description was not accurate; and the jury heard recorded conversations in which Borrasi described the “free money”

Integrated received for their referrals. Accordingly, “any

error the district court committed was harmless and

a reversal is not warranted.” Id. at 710.

2. Interpretation of 42 U.S.C. § 1320a-7b

Borrasi’s second challenge to his conviction turns on

the interpretation of the criminal statute he was charged

with violating and conspiring to violate. Because medical services for the patients Borrasi referred to Rock Creek

were paid for by Medicare, his referrals and conduct

were subject to certain statutory restrictions. Borrasi was
12 No. 09-4088

charged, for example, with violating one statute designed to help combat health care fraud:

[W]hoever knowingly and willfully solicits or

receives any remuneration (including any kickback, bribe, or rebate) . . . in return for referring

an individual to a person for the furnishing or

arranging for the furnishing of any item or service

for which payment may be made in whole or in

part under a Federal health care program . . . shall

be guilty of a felony and upon conviction thereof,

shall be fined not more than $25,000 or imprisoned

for not more than five years, or both.

42 U.S.C. § 1320a-7b(b)(1). The government theorized

that Borrasi and the other Integrated physicians received

payments—in the guise of salaries—from Rock Creek

for their referrals of Medicare patients.

Borrasi points out, however, that the statute exempts

some behavior from its coverage. It does not criminalize

“any amount paid by an employer to an employee (who

has a bona fide employment relationship with such

employer) for employment in the provision of covered

items or services.” 42 U.S.C. § 1320a-7b(b)(3). Seizing

this language, Borrasi argues that the prosecution prejudicially misstated the law in its closing argument

by suggesting that it did not matter if any portion of

Rock Creek’s payments to him or other Integrated physicians was pursuant to legitimate employment relationships because the statute was violated if any portion of

the payments was for patient referrals. He contends that

the government’s argument to the jury nullified his
No. 09-4088 13

theory of defense and that the district court did not cure

the misconduct by striking the argument and by giving

an adequate curative instruction.

Because Borrasi’s challenge to the district court’s jury

instructions necessarily implicates a question of law—the

scope of § 1320a-7b(b)(3)’s exemption—we review the

district court’s instructions de novo. United States v.

DiSantis, 565 F.3d 354, 359 (7th Cir. 2009). We also review

de novo whether a particular instruction was appropriate

as a matter of law. United States v. Tanner, 628 F.3d 890,

904 (7th Cir. 2010). We will affirm Borrasi’s conviction

if the jury instructions fairly and accurately summarized

the law, and we will reverse only if the instructions

misled the jury and prejudiced his defense. United States

v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010).

Borrasi urges us to adopt a “primary motivation”

doctrine, under which the trier of fact would determine

the defendants’ intent in any given case and find

them not guilty if the primary motivation behind the

remuneration was to compensate for bona fide services

provided. Under the primary motivation doctrine, the

district court’s instructions in this case would have been

both inaccurate as to the law and inadequate to cure

any prejudice from the government’s statements during

its closing arguments. He contends that such a construction is necessary both to avoid the possibility of conviction based on innocent or de minimis conduct and also to

give effect to the rule of lenity in the face of statutory

ambiguity.

Persuasive authority weighs heavily against Borrasi’s

proposal. He relies on United States v. Bay State Am-
14 No. 09-4088

bulance and Hosp. Rental Serv., Inc., 874 F.2d 20 (1st Cir.

1989), where the First Circuit affirmed the appellants’

convictions after “the district court instructed that the

defendants could only be found guilty if the payments

were made primarily as [referral] inducements.” Id. at 30.

But contrary to his allegation, there does not appear to

be a circuit split regarding the appropriate interpretation of § 1320a-7b(b). The First Circuit did not decide in

Bay State “whether the government must show that such

payments were made primarily or solely with a corrupt

intent.” Id. Rather, it held that the district court’s instruction at least “comport[ed] with congressional intent.” Id.

Each circuit to actually reach the issue has rejected

the primary motivation theory Borrasi advocates. See

United States v. Greber, 760 F.2d 68, 71 (3d Cir. 1985) (“The

text refers to ‘any remuneration.’ That includes not only

sums for which no actual service was performed but

also those amounts for which some professional time was

expended.”); United States v. Davis, 132 F.3d 1092, 1094

(5th Cir. 1998) (holding that § 1320a-7b(b)(2) is violated

whenever the benefits extended were partially to induce

patient referrals); United States v. Kats, 871 F.2d 105, 108

(9th Cir. 1989) (“[T]he Medicare fraud statute is violated

if ‘one purpose of the payment was to induce future

referrals.’ ” (quoting Greber, 760 F.2d at 69)); United States

v. McClatchey, 217 F.3d 823, 835 (10th Cir. 2000) (“[A]

person who offers or pays remuneration to another

person violates the Act so long as one purpose of the

offer or payment is to induce Medicare or Medicaid

patient referrals.”).

We find the reasoning of the Third, Fifth, Ninth, and

Tenth Circuits convincing, and we decline Borrasi’s
No. 09-4088 15

invitation to create a circuit split. Nothing in the

Medicare fraud statute implies that only the primary

motivation of remuneration is to be considered in

assessing Borrasi’s conduct. We join our sister circuits in

holding that if part of the payment compensated past

referrals or induced future referrals, that portion of the

payment violates 42 U.S.C. § 1320a-7b(b)(1).

The district court’s instructions comported with this

common-sense holding. The instruction tracked the

language of § 1320a-7b(b)(1), combining it with a definition of remuneration. To convict Borrasi, the instruction

required the jury to find—beyond a reasonable doubt—that

some amount was paid not pursuant to a bona fide employment relationship. The trial court did not err in

instructing the jury, and the government’s comments

during its closing arguments did not entitle Borrasi to a

curative instruction. Because at least part of the payments to Borrasi was “intended to induce” him to refer

patients to Rock Creek, “the statute was violated, even

if the payments were also intended to compensate

for professional services.” Greber, 760 F.2d at 72.

B. Challenges to Sentencing

Borrasi also attacks his sentence, arguing that three

errors require us to remand for resentencing. First, he

alleges the district court did not make adequate findings

as to his offense level based upon the value he received

from his Rock Creek activities. Second, he contends the

district court erred by increasing his offense level due

to his purported leadership role in the criminal scheme.
16 No. 09-4088

Finally, he asserts that the great disparity between

his sentence and that of his co-defendant warrants

resentencing. We are unpersuaded by his three contentions and will affirm his sentence.

1. Sufficiency of Loss Calculation

Borrasi argues that the district court did not make

findings as to the loss amount sufficient to determine

the appropriate level of his offense. Specifically, he contends that the district court should have given him

more than the $150,000 credit it gave him for the value

of the actual services he performed for Rock Creek. According to Borrasi, the district court’s findings lacked the

requisite specificity to deny him a greater discount

based upon his objections to the PSR. The government

argues that any credit was inappropriate and that the

loss amount should have been the full amount listed in

the PSR.

Based on Borrasi’s criminal conduct, the district court

assessed his base offense level at 8 under U.S.S.G. § 2B4.1,

Bribery in Procurement of Bank Loan and Other Commercial Bribery. That section requires augmenting the

base offense level according to § 2B1.1, considering the

value of benefits received through the crime. U.S.S.G.

§ 2B4.1(b)(1). After considering the PSR and arguments

from both Borrasi and the government, the district court

determined that Borrasi accepted bribes totaling $647,204,

a sum that included the administrative salaries of

Borrasi and his Integrated group, the value of the lease

Rock Creek paid for Borrasi, and a portion of Baig’s salary.
No. 09-4088 17

Borrasi did not object to that calculation, but rather

argued that he should have received a significant credit

against that amount based on the 24-hour on-call services

his team rendered, their membership and participation

in Rock Creek committees, and various administrative

services they provided to Rock Creek.

The district court noted that the $647,204 loss amount

corresponded to a 14-level increase. It then found that

Borrasi had performed some valuable services for Rock

Creek, but noted that it was difficult to measure the

exact value of that benefit. The district court reduced the

loss amount by $150,000 to “compensate for the efforts

of the various individuals which did in fact benefit the

patients at [Rock Creek], and some adjustment for the

availability 24 hours a day of certain medical personnel

to be at the beck and call for the residents of [Rock

Creek].” (Sent. Tr. 52.) This reduction did not change

the offense level, see U.S.S.G. § 2B1.1, but did reduce

the restitution required of Borrasi to $497,204.

The loss amount calculated by the district court for

sentencing is a factual determination, one which we

review for clear error. United States v. Ali, 619 F.3d 713, 720

(7th Cir. 2010). We will uphold the district court’s loss

calculation unless we are left with a definite and firm

conviction that the district court made a mistake. United

States v. Salem, 597 F.3d 877, 884 (7th Cir. 2010). Our

deference will not excuse an absence of findings altogether, id. at 886, but a court’s findings need only be a

reasonable estimate of the loss, United States v. Christianson,

586 F.3d 532, 537 (7th Cir. 2009). Borrasi’s burden of
18 No. 09-4088

proof on appeal requires him to demonstrate that the

district court’s determination was inaccurate and outside the realm of permissible computations. Id.

Borrasi argues that he must be resentenced because

the district court’s determination of how much to reduce

the loss amount—based on the fair market value of the

services he rendered—was not sufficiently detailed to

constitute a reasonable estimate based on the evidence.

He asserts that the district court did not identify the

formula or methodology it used and thus did not provide

the particularity required for sentencing determinations.

We disagree with Borrasi’s contention. The government proved the loss value to be $647,204. Borrasi did not

object to that amount, and he bore the burden of providing “substantiated evidence . . . to counter the government’s explicit proof of loss.” United States v. Gordon, 495

F.3d 427, 432 (7th Cir. 2007). He needed to convincingly

refute the government’s proof with his own, but there

was no testimony as to the value of the on-call services,

and there was much evidence showing that the alleged

administrative services were nonextant or de minimis.

See United States v. Sensmeier, 361 F.3d 982, 989 (7th Cir.

2004) (“[W]hile we acknowledge that the burden is on

the government to prove loss, the defendants’ wholly

unsubstantiated statements are not enough to undermine, nor even question, the court’s acceptance of the

government’s proof of loss.”). Were we to give effect to

each of Borrasi’s vague valuations, in fact, the credits for

services rendered would have exceeded the total loss

proven by the government. Ultimately, Borrasi has not
No. 09-4088 19

met his heavy burden of proving that the district court’s

determination was “outside the realm of permissible

computations.” United States v. Peterson-Knox, 471 F.3d

816, 822 (7th Cir. 2006) (quoting United States v. Lopez,

222 F.3d 428, 437 (7th Cir. 2000)).

The government argues—and from the cold record we

are inclined to agree—that “if anything, the district

court was overly generous in crediting Borrasi with

$150,000” because the services he allegedly rendered

were either illusory or valueless. (Appellee’s Br. at 36-37.)

The district court gave Borrasi the benefit of the doubt

by crediting his alleged services in any amount, and it is

the district court’s lack of specificity in doing so that he

now attacks. Granted, the district court could have been

more specific in discussing how it calculated the credit

against the loss amount generated by Borrasi’s criminal

activities. But we have previously found such estimation

reasonable to determine the loss amount for sentencing,

notably in a fraud case in which factual complexities about

the existence and value of medical services abounded. See

United States v. Vivit, 214 F.3d 908, 914-16 (7th Cir. 2000).

Given the complexities of this Medicare fraud case, as

well as the lack of evidence to establish the existence

and value of any legitimately rendered services, we

find the district court’s estimate of the amount to credit

Borrasi reasonable. The district court did not clearly err

when it determined the loss value attributed to Borrasi’s

crime.
20 No. 09-4088

2. Application of Leadership Enhancement

Borrasi next argues that the district court was not

justified in assessing a four-level leadership enhancement against him while assessing only a two-level enhancement against Mamoon. The district court increased

Borrasi’s offense level under U.S.S.G. § 3B1.1(a) after

finding that he was an organizer or leader of Integrated

and Rock Creek’s criminal activities. Borrasi argues that

the court did not consider the appropriate enhancement

factors on the record. He also argues that he was only

a middleman between the Integrated physicians and

the Rock Creek hierarchy—a hierarchy that included

Mamoon, who Borrasi venomously asserts should

have borne the brunt of any leadership enhancement.

We review the district court’s factual finding regarding

the four-level enhancement for clear error, and Borrasi’s

arguments do not leave us with a “firm and definite

conviction that an error has been made.” Tanner, 628 F.3d

at 907. The court explicitly adopted the PSR’s assessment

of the leadership enhancement. The PSR examined seven

factors relevant in determining Borrasi’s role in this

criminal scheme, see United States v. Curb, 626 F.3d 921, 924-

25 (7th Cir. 2010), and concluded that each supported

the enhancement in this case. Of particular note, Borrasi

actively recruited physicians into his scheme, controlled

the Integrated physicians, solidified and expanded the

relationship between Integrated and Rock Creek, and

established Baig’s role in Rock Creek’s admissions department to facilitate the scheme. See United States v. House,

110 F.3d 1281, 1284 (7th Cir. 1997) (affirming organizer
No. 09-4088 21

and leader enhancement where the appellant was the

common connection between the criminals, where he

“brought . . . people together, both individually and as

a group, to further the business of the conspiracies,” and

where he had substantial decision-making authority).

Although the district court assessed only a two-level

enhancement to Mamoon, Rock Creek’s CEO, her actual

role in the fraudulent scheme was less extensive and

fundamental than Borrasi’s. We conclude that the

district court did not clearly err in assessing a four-level

enhancement to Borrasi based on his role in the offense.

3. Sentencing Discrepancy

Borrasi finally argues that his sentence was unreasonable because it was much longer than that imposed

on his co-defendant. We review the district court’s sentencing procedures, including its consideration of the 18

U.S.C. § 3553(a) factors, de novo. United States v. Pulley,

601 F.3d 660, 664 (7th Cir. 2010). If the court properly

applied those procedures, we review the sentence’s

substantive reasonableness for an abuse of discretion. Id.

When determining the appropriate sentence for a

given defendant, the district court should consider “the

need to avoid unwarranted sentence disparities among

defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The

district court found that the guidelines range was reasonable and fair for Borrasi, but gave him a minimal

downward adjustment accounting for his medical
22 No. 09-4088

service to under-served groups; it ultimately sentenced

him to 72 months’ incarceration. By contrast, the district

court found Mamoon’s case to be outside the heartland

of the statute, found her to be the critical caregiver for

her profoundly disabled son, and found the guidelines

range to be considerably longer than necessary to

prevent Mamoon from re-offending; it ultimately sentenced her to 6 months’ incarceration. In denying

Borrasi’s motion to reconsider his sentence based on

this disparity, the district court explained that the discrepancy in sentencing was not only justified but demanded by their respective actions and circumstances.

Borrasi now argues that a plain application of

§ 3553(a)(6) mandates vacature of his sentence in light of

Mamoon’s, which he complains was markedly lenient

compared to his own. We disagree because § 3553(a)(6)

allows for warranted disparities among co-defendants’

sentences. Pulley, 601 F.3d at 668. Here, the district court

made individual, particularized sentencing determinations based on the § 3553(a) factors as to Borrasi and

Mamoon during both the sentencing hearing and the

hearing on Borrasi’s motion for reconsideration. It

followed the appropriate procedures and considered the

avoidance of disparity in arriving at its sentences.

We find that the district court properly calculated the

guidelines range in Borrasi’s case and that the belowguidelines sentence it imposed is reasonable. See id. at 668

(“[I]f the district court provides an adequate statement of

reasons, consistent with § 3553(a), for believing that the

sentence is appropriate, and it is within the Guidelines

range, we presume the sentence is substantively reason-
No. 09-4088 23

able.”). Accordingly, the district court did not err in

sentencing Borrasi.

III. CONCLUSION

The district court erred in neither its evidentiary rulings

nor its jury instructions, so we AFFIRM the district court’s

judgment of conviction. The district court reasonably

estimated the amount of loss in determining Borrasi’s

offense level, properly enhanced the offense level due

to his leadership role, and correctly considered and

rejected his disparate sentencing argument. Accordingly,

we AFFIRM the sentence imposed.

5-4-11