NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 17a0305n.06 

Case No. 15-1666

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

VINOD PATEL, 

Defendant-Appellant. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN 

O P I N I O N

BEFORE: COLE, Chief Judge; BOGGS and SILER, Circuit Judges. 

 COLE, Chief Judge. Vinod Patel appeals his sentence for conviction of health care fraud, 

in violation of 18 U.S.C. § 1349, and conspiracy to offer, pay, solicit, and receive health care 

kickbacks, in violation of 18 U.S.C. § 371. Contrary to Patel’s assertions, the convictions are not 

multiplicitous, and the district court did not abuse its discretion in calculating the amount of loss 

that Patel must pay in restitution. But the district court failed to make the factual findings 

required for sentencing under Rule 32 of the Federal Rules of Criminal Procedure. We therefore 

vacate Patel’s sentence and remand to the district court for resentencing. 
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I. BACKGROUND 

Vinod Patel and his brother Babubhai Patel1 owned First Michigan Home Health Care 

(“First Michigan”), a company that purported to provide health services for homebound 

individuals. In reality, First Michigan defrauded Medicare, Medicaid, and health insurance 

companies by billing for, but not dispensing, prescription drugs and by submitting home-healthcare claims that were based on kickbacks or services that were medically unnecessary. 

Patel added patients through referrals from physicians and paid the physicians kickbacks 

in return. Patel also hired marketers to find people with Medicare coverage and offered those 

people prescription drugs, such as Vicodin, Soma, and Xanax, if they would meet with a 

physician on First Michigan’s payroll. Patel then paid the physicians to order home-health 

services from First Michigan for the purported patients. First Michigan then confirmed that the 

patients were eligible for services and submitted the requests to Medicare. Patel worked closely 

with a physician’s assistant named James Burdette. Burdette met with patients and prescribed 

Vicodin, Soma, and Xanax for them and called the prescriptions in to pharmacies that Babubhai 

owned and operated, such as Tri-City Apothecary and Rapid Drugs. Burdette also prescribed 

non-narcotic medications, but the patients rarely received these. Instead, the medications were 

billed to Medicare but not dispensed. 

On August 2, 2011, Babubhai was arrested as part of a round of arrests. That day, Patel 

shut down the operation. However, in March 2013, Patel was arrested as part of a second round 

of arrests. A jury convicted Patel of conspiracy to commit health care fraud, in violation of 18 

U.S.C. § 1349, and conspiracy to offer, pay, solicit, and receive health care kickbacks, in 

violation of 18 U.S.C. § 371. 

 

1

 Throughout this opinion, we refer to the Appellant by his last name, Patel, and refer to his brother by his first 

name, Babubhai. 
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The presentence report (“PSR”) concluded that, under the United States Sentencing 

Guidelines, Patel had an offense level of 31 and a criminal history category of I. The PSR 

recommended a range of 108–135 months’ imprisonment. Patel’s offense level was calculated 

after various adjustments, including a 20-level upward adjustment for intended loss. The PSR 

attributed an intended loss of $8,072,955 to Patel. That total intended loss was based on two 

amounts: the total amount billed by First Michigan, $7,238,276, and the amount for all of the 

prescriptions written by Burdette and filled by Tri-City and Rapid Drugs, $834,679. Patel 

objected to the calculation of the loss, arguing that the government had failed to prove that any 

particular bills were fraudulent and that some of the bills were for legitimate medical services. 

Patel’s Sentencing Memorandum said: 

There was a lot of testimony that fraudulent billing practices had occurred, but 

there were neither doctors nor patients that testified that any particular bill was 

fraudulent, nor did any witnesses testify that a particular bill was fraudulent. 

Thus, there is no basis for the increase on the base offense level. 

(Patel Sentencing Mem., R. 1372, PageID 19545.) At the sentencing hearing, the government 

argued that the loss was properly calculated, and Patel’s attorney rested on the previous written 

objections. The district court’s only response was to say, “I think the person who wrote the 

presentence report got it right.” (Sentencing Tr., R. 1508, PageID 20672.) 

The district court sentenced Patel to seventy-eight months’ imprisonment for the healthcare-fraud conspiracy and sixty months’ imprisonment for the kickback conspiracy, with the two 

sentences to run concurrently. The district court also ordered Patel to pay $7,238,276 in 

restitution. Patel appealed his sentence. 
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II. ANALYSIS 

A. Multiplicity 

Patel argues that his indictment was multiplicitous insofar as it charged him with two 

separate conspiracies rather than a single, multi-faceted conspiracy. Whether an indictment is 

multiplicitous is a legal question that this court reviews de novo. United States v. Swafford, 512 

F.3d 833, 844 (6th Cir. 2008). We review for clear error a lower court’s finding of fact that the 

government has proven by a preponderance of the evidence that multiple conspiracies existed. 

In re Grand Jury Proceedings, 797 F.2d 1377, 1380–81 (6th Cir. 1986). 

An indictment is multiplicitous if it charges a single offense in more than one count. 

Swafford, 512 F.3d at 844. A multiplicitous indictment violates the Double Jeopardy Clause of 

the Fifth Amendment. U.S. CONST. amend. V (“No person shall . . . be subject for the same 

offence to be twice put in jeopardy of life or limb.”). To determine whether convictions under 

two statutes are actually one offense, a court must look to “whether Congress intended to punish 

each statutory violation separately.” Pandelli v. United States, 635 F.2d 533, 536 (6th Cir. 

1980). If the answer is not clear on its face, “the general test for compliance with the double 

jeopardy clause looks to ‘whether each provision requires proof of a fact which the other does 

not.’” Swafford, 512 F.3d at 844 (emphasis omitted) (quoting Blockburger v. United States, 284 

U.S. 299, 304 (1932)). We have previously used the Blockburger test to decide that convictions 

for violations of § 1349 and § 371 are not multiplicitous. United States v. Fowler, 819 F.3d 298, 

308 n.4 (6th Cir. 2016). Other circuits have done the same. See, e.g., United States v. Sanjar, 

853 F.3d 190, 202 (5th Cir. 2017); United States v. Moran, 778 F.3d 942, 964 (11th Cir. 2015); 

United States v. Njoku, 737 F.3d 55, 67–68 (5th Cir. 2013); United States v. Jones, 733 F.3d 574, 

584 (5th Cir. 2013). 
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We apply the Blockburger test to conclude that Patel’s indictment was not multiplicitous 

because each statute requires proof of a fact that the other does not. Conspiracy to commit 

health-care fraud requires some fraudulent act. See 18 U.S.C. §§ 1347, 1349. But the kickback 

conspiracy statute prohibits two or more persons from conspiring to commit “any offense against 

the United States.” See 18 U.S.C. § 371 (emphasis added). Additionally, § 371 requires proof of 

an overt act, and § 1349 does not. See 18 U.S.C. §§ 371, 1349.

Patel does not contest the result under Blockburger and instead argues that we should 

forgo the Blockburger test and apply the totality of the circumstances test of United States v. 

Sinito, 723 F.2d 1250 (6th Cir. 1983). However, this argument is foreclosed by Fowler, where 

we decided that the Blockburger test should be applied when determining whether convictions 

for violations of § 1349 and § 371 are multiplicitous. Fowler, 819 F.3d at 308 n.4. 

Additionally, Sinito is factually distinguishable from this case. In Sinito, the prosecution 

charged the defendant with two conspiracies under the same statute, 18 U.S.C. § 1962. 723 F.2d 

at 1253. The Sinito court’s concerns about “overzealous prosecutors” who could “carv[e] up one 

conspiracy into two . . . offenses” are understandable in that situation. Id. at 1256. However, no 

such concerns exist when, as in the present case, the defendant is charged under separate 

conspiracy statutes. Even if the conspiracies arose out of the same conduct, that does not offend 

the Double Jeopardy Clause. After all, the multiplicity doctrine “draws a crucial distinction 

between multiple punishments for the same conduct (permissible) and multiple punishments for 

the same offense (impermissible).” White v. Howes, 586 F.3d 1025, 1027 (6th Cir. 2009). When 

Congress intends to impose multiple punishments for the same conduct, the “imposition of such 

sentences does not violate the Constitution.” United States v. Berryhill, 587 F. App’x 310, 313–

14 (6th Cir. 2014). 
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B. Amount-of-Loss Calculation 

Patel challenges the procedural reasonableness of his sentence by arguing that the district 

court failed to make the factual findings required by Rule 32 of the Federal Rules of Criminal 

Procedure. 

A district court commits procedural error if the district court fails to calculate or 

improperly calculates the Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). 

Under section 2B1.1(b)(1) of the Sentencing Guidelines, a defendant’s offense level increases 

based on the amount of loss caused by his crime. United States v. Behnan, 554 F. App’x 394, 

398 (6th Cir. 2014). So, an improper calculation of the amount of loss is procedural error under 

Gall. In a fraud case, we review the amount of loss calculated by the district court for clear error 

and the methodology used to calculate the loss de novo. United States v. Washington, 715 F.3d 

975, 984 (6th Cir. 2013). 

Under Rule 32 of the Federal Rules of Criminal Procedure, a sentencing court “must—for 

any disputed portion of the presentence report or other controverted matter—rule on the dispute.” 

Fed. R. Crim. P. 32(i)(3)(B). We require “‘literal compliance’ with Rule 32, so when matters are 

contested the court must explain its calculation methods.” United States v. Poulsen, 655 F.3d 

492, 512–13 (6th Cir. 2011) (quoting United States v. Nelson, 356 F.3d 719, 722 (6th Cir. 

2004)). In this calculation, a court “need only make a reasonable estimate of the loss.” U.S.S.G 

§ 2B1.1 cmt. n.3(C). In other words, a court “does not have to establish the value of the loss 

with precision; it simply needs to publish the resolution of contested factual matters that formed 

the basis of the calculation.” Poulsen, 655 F.3d at 513 (internal quotation marks omitted). 

So, we must determine “(1) whether the amount was in dispute; (2) if it was in dispute, whether 
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the district court adequately ruled on the disputed amount; and (3) if the district court ruled, 

whether the factual findings indicate clear error.” Id.

We first examine whether the amount was in dispute. A defendant can put the amount in 

dispute by introducing “some evidence beyond a bare denial that calls the reliability or 

correctness of the alleged facts into question.” United States v. Lang, 333 F.3d 678, 682 (6th 

Cir. 2003) (citation omitted). Here, the PSR attributed an intended loss of $8,072,955 to Patel 

based on (1) the total amount billed by First Michigan and (2) all of the prescriptions written by 

Burdette and filled by Tri-City and Rapid Drugs. In his Sentencing Memorandum, Patel 

objected to whether the government met its burden to prove that all such charges were fraudulent 

by a preponderance of the evidence. Specifically, Patel argued that it was the government’s 

burden to prove the amount of loss and that the loss must be precisely attributable to Patel’s 

conduct. However, Lang also required Patel to offer some evidence to rebut the PSR. 

Patel offers the following from his Sentencing Memorandum as putting the amount in 

dispute: 

There was a lot of testimony that fraudulent billing practices had occurred, but 

there were neither doctors nor patients that testified that any particular bill was 

fraudulent, nor did any witnesses testify that a particular bill was fraudulent. 

Thus, there is no basis for the increase on the base offense level. 

(Patel Sentencing Mem., R. 1372, PageID 19545.) Patel notes that no witness testified that any 

specific bills were fraudulent. Because the PSR uses the total amount billed as the basis for its 

loss calculation, Patel’s evidence that the government failed to prove that all the bills were 

fraudulent is sufficient to call the correctness of the PSR’s calculation into question. 

We, therefore, conclude that Patel sufficiently put the amount of loss in dispute and triggered 

Rule 32. 
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 The government does not contest that the district court failed to make proper factual 

findings under Rule 32. The district court’s only statement after hearing Patel’s objection to the 

amount of loss was: “I think the person who wrote the presentence report got it right.” 

(Sentencing Tr., R. 1508, PageID 20672). This is not an adequate factual finding under Rule 32 

and violates the Sixth Circuit principle that a “court may not merely summarily adopt the factual 

findings in the presentence report.” United States v. White, 492 F.3d 380, 415 (6th Cir. 2007). 

The district court was required to explain the basis for its resolution of contested factual matters 

and failed to do so. Accordingly, the district court committed procedural error by not making 

factual findings under Rule 32. 

C. Restitution 

Patel asserts that the loss calculation underlying the restitution amount was in error. 

We review preserved claims of error in calculating restitution for abuse of discretion. 

See Fowler, 819 F.3d at 304. We conclude that the district court did not abuse its discretion in 

calculating the amount of restitution. 

“An abuse of discretion occurs when the reviewing court is left with the ‘definite and 

firm conviction that the trial court committed a clear error of judgment.’” United States v. Hunt, 

521 F.3d 636, 648 (6th Cir. 2008) (quoting Dubay v. Wells, 506 F.3d 422, 431 (6th Cir. 2007)). 

The district court does not need to make specific factual findings in imposing restitution. United 

States v. Jackson-Randolph, 282 F.3d 369, 386 (6th Cir. 2002). Additionally, the Mandatory 

Victims Restitution Act of 1996 gives the district court latitude to determine the amount of the 

victim’s losses. See 18 U.S.C. § 3664(f)(1)(A) (“[T]he court shall order restitution to each 

victim in the full amount of each victim’s losses as determined by the court . . . .”) (emphasis 

added). 
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The amount of restitution ordered by the district court does not indicate an error of 

judgment. The order requires Patel to pay $7,238,276, which is the total amount of bills 

submitted to Medicare/Medicaid from First Michigan between January 1, 2007, and August 

2011. The commentary to the Guidelines says that “the aggregate dollar amount of fraudulent 

bills submitted to the Government health care program shall constitute prima facie evidence of 

the amount of the intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(F)(viii). It is not a clear error of 

judgment to order an amount that is explicitly permissible under the Guidelines. Therefore, the 

district court did not abuse its discretion in calculating the amount of restitution. 

III. CONCLUSION 

The district court failed to make proper factual findings under Rule 32. Accordingly, we 

vacate Patel’s sentence and remand to the district court for resentencing. We affirm the 

remainder of the district court’s judgment.