NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0305n.06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

. ) ) ) ) ) ) ) ) ) ) ) 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 se ntence for conviction of health care fraud, in violation of 18 U.S.C. § 1349, and conspiracy to offer, pay, solicit, a nd receive h ealth care kickbacks, in violation of 18 U.S. C. § 371. Contrary to Patel’s as sertions, the convictions are not multiplicitous, and the district c ourt did not abuse its discretion in calculating the amount of loss that Patel must pay in restitution. But the di strict court failed to make the factual findings required for sentencing under Rule 32 of the Federa l Rules of Criminal Procedure. We therefore vacate Patel’s sentence and remand to the district court for resentencing.No. 15-1666, United States v. Patel

- 2 - I. BACKGROUND Vinod Patel and his brother Babubhai Patel 1 owned First Michigan Home Health Care (“First Michigan”), a company that purported to provide h ealth services for homebound individuals. In reality, First Michigan defr auded Medicare, Medicaid, and health insurancecompanies 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 phys icians 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, So ma, and Xanax, if they would meet with a physician on First Michigan’s payroll. Patel th en paid the physicians to order home-health services from First Michigan for the purported patie nts. 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 pha rmacies 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, so licit, 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.No. 15-1666, United States v. Patel

- 3 - The presentence report (“PSR”) concluded that, under the United States Sentencing Guidelines, Patel had an offense level of 31 a nd a criminal history category of I. The PSR recommended a range of 108–135 months’ imprisonmen t. 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 intende d 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 fille d by Tri-City and Rapid Drugs, $834,679. Patel objected to the calculation of the loss, arguing th at the government had failed to prove that any particular bills were fraudulent an d 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 incr ease 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 Pa tel’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’ imprisonm ent 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 app ealed his sentence.No. 15-1666, United States v. Patel

- 4 - II. ANALYSIS A. Multiplicity Patel argues that his indictment was multiplic itous 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 th at this court reviews de novo. United States v. Swafford , 512 F.3d 833, 844 (6th Cir. 2008). We re view for clear error a lower court’s finding of fact that the government has proven by a preponderance of the ev idence that multiple conspiracies existed. In re Grand Jury Proceedings , 797 F.2d 1377, 1380–81 (6th Cir. 1986). An indictment is multiplicitous if it charge s 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. C ONST . 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 ci rcuits 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).No. 15-1666, United States v. Patel

- 5 - 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 doe s 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 mo re 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 contes t 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 c onspiracies under the same stat ute, 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” ar e 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 th e conspiracies arose out of the same conduct, that does not offend the Double Jeopardy Clause. After all, the multip licity 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 fo r 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).No. 15-1666, United States v. Patel

- 6 - B. Amount-of-Loss Calculation Patel challenges the procedural reasonableness of his sentence by arguin g 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 Guid elines, 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 lo ss 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 presen tence 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 expl ain 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 word s, a court “does not have to es tablish 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, whetherNo. 15-1666, United States v. Patel

- 7 - the district court adequately ru led 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 di spute. A defendant can put the amount in dispute by introducing “some evidence beyond a ba re denial that calls the reliability or correctness of the allege d facts into question.” United States v. Lang , 333 F.3d 678, 682 (6th Cir. 2003) (citation omitted). Here, the PSR at tributed an intended loss of $8,072,955 to Patel based on (1) the total amount billed by First Michig an and (2) all of the pr escriptions 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. Specificall y, Patel argued that it was the government’s burden to prove the amount of loss and that the loss must be pr ecisely attributable to Patel’s conduct. However, Lang also required Patel to offer so me evidence to rebut the PSR. Patel offers the following from his Sent encing 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 incr ease on the base offense level. (Patel Sentencing Mem., R. 1372, PageID 19545.) Pa tel notes that no witness testified that any specific bills were fraudulent. Because the PSR us es the total amount billed as the basis for its loss calculation, Patel’s evidence that the governm ent failed to prove that all the bills were fraudulent is sufficient to call the correctne ss of the PSR’s calcula tion into question. We, therefore, conclude that Patel sufficiently put the amount of loss in dispute and triggered Rule 32.No. 15-1666, United States v. Patel

- 8 - The government does not contest that the di strict court failed to make proper factual findings under Rule 32. The district court’s only statement af ter hearing Patel’s objection to the amount of loss was: “I think the person who wr ote the presentence re port got it right.” (Sentencing Tr., R. 1508, PageID 20 672). This is not an adequate factual finding under Rule 32 and violates the Sixth Circuit pr inciple that a “court may not me rely summarily adopt the factual findings in the pres entence 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 pr ocedural error by not making factual findings under Rule 32. C. Restitution Patel asserts that the loss calculation underlyi ng the restitution amount was in error. We review preserved claims of error in cal culating restitution for abuse of discretion. See Fowler , 819 F.3d at 304. We conclude that the district c ourt did not abuse its discretion in calculating the amount of restitution. “An abuse of discretion occurs when the revi ewing court is left with the ‘definite and firm conviction that the trial court co mmitted 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 spec ific 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 c ourt shall order re stitution to each victim in the full amount of each victim’s losses as determined by the court . . . .”) (emphasis added).No. 15-1666, United States v. Patel

- 9 - The amount of restitution ordered by the distri ct court does not indicate an error of judgment. The order requires Patel to pa y $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 exp licitly 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 ma ke proper factual findings under Rule 32. Accordingly, we vacate Patel’s sentence and remand to the dist rict court for resentencing. We affirm the remainder of the district court’s judgment.