IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20325

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

ARUN SHARMA; KIRAN SHARMA, 

 Defendants – Appellants.

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-409-1

Before REAVLEY, JONES, and ELROD, Circuit Judges.

PER CURIAM:*

This cases requires us to review a $37 million restitution award entered 

against Arun Sharma and Kiran Sharma, who pleaded guilty to operating a 

decade-long insurance fraud scheme. This is our second opportunity to review 

the district court’s calculation of restitution, as the Sharmas previously

appealed their first judgment and sentence, which included a $43 million 

restitution award. We vacated the first award and remanded for resentencing 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2015

Lyle W. Cayce

Clerk

 

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to correct errors in the restitution calculation. This appeal follows

resentencing. We AFFIRM.

I.

Arun and Kiran Sharma, married physicians licensed in the state of 

Texas, owned and operated two health clinics that predominately offered 

prescriptions for painkillers and injections for temporary relief of joint and 

muscle pain. Throughout the relevant period, the Sharmas fraudulently billed 

insurers (including Medicare, Medicaid, and several private insurance 

companies) for pain injections that they never actually administered to their 

patients. Most of the Sharmas’ fraud involved “upcoding,” a practice through

which the Sharmas would submit bills to insurers claiming that they had 

administered more specialized, expensive injections when they had actually 

administered only basic injections. For example, the Sharmas typically 

administered simple “trigger point injections” to their patients, which involved

using short needles that were targeted at the outer muscles. However, the 

Sharmas represented to the insurance companies that they were 

administering deep-tissue injections, including: facet-joint, paravertebral, 

sacroiliac nerve, sciatic nerve, and various other nerve block, injections. These 

required longer needles aimed at targets deeper in the tissue or skeletal 

structure such as the spine.

Throughout the course of the fraud, the Sharmas billing suggested that 

they saw a remarkable number of patients each year, averaging as many as 

109 patients per day in 2005. The Sharmas tried to convince all of their 

patients to take shots at every office visit, and they put many of their patients 

on a regimen of shots every two weeks. Beyond just the upcoding, the Sharmas 

also would often bill insurers for fictitious injections and for “phantom” office 

visits that never took place.

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Authorities learned of the fraud after two foreign medical graduates1

working for the Sharmas sent an anonymous letter to the Texas Medical Board 

and various insurers detailing the Sharmas’ illegal activities. After an 

investigation, a grand jury indicted the Sharmas on sixty-four counts of 

conspiracy, health-care fraud, mail fraud, unlawful distribution of controlled 

substances, and money laundering. The Sharmas each pleaded guilty, 

pursuant to a plea agreement, to one count of conspiracy to commit health-care 

and mail fraud and one substantive count of health-care fraud, in violation of 

18 U.S.C. §§ 371, 1347.

At the first sentencing, the district court sentenced Arun Sharma to 180 

months of imprisonment and three years of supervised release. The district 

court sentenced Kiran Sharma to 96 months of imprisonment and three years 

of supervised release. In addition to their prison terms, the district court 

ordered the Sharmas to pay restitution, jointly and severally, to Medicare, 

Medicaid, and various private insurers in the total amount of $43,318,170.93. 

To arrive at this figure, the district court adopted the calculation offered by the 

government in its sentencing memorandum, which relied on facts in the 

Presentence Investigation Report (PSR) and the Sharmas’ plea agreements. 

The amounts in the PSR came from written “victim impact statements” and 

electronic claims data—information that insurers had submitted which 

detailed the amounts they had paid to the Sharmas.

1 The Sharmas regularly hired physicians who had graduated from medical schools 

outside of the United States and the Sharmas’ plea agreements refer to these employees as 

“foreign medical graduates.” Within the medical community, such physicians were earlier 

considered “foreign medical graduates,” but the American Medical Association now refers to 

them as “international medical graduates,” which we use hereinafter.

The Sharmas employed international medical graduates to help them operate their 

deluged clinics and add fictitious information to the progress/procedure notes that formed the 

basis of the bills that they sent to insurers.

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The Sharmas objected to the restitution award recommended in the PSR

on the grounds that: (1) it included amounts that insurers paid for procedures 

that were entirely outside the scope of the fraud; and (2) it did not include 

offsets for the value of legitimate and medically necessary trigger point 

injections. The Sharmas submitted an alternative restitution figure of 

$21,028,963.61 prepared by their forensic accountant. The district court 

rejected the Sharmas’ calculation and adopted the figures in the PSR, ordering 

restitution in the amount of $43,318,170.93, to be paid jointly and severally. 

The Sharmas appealed.2

On appeal, we vacated the restitution award because the “amount 

exceeded the insurers’ actual losses by millions of dollars.” United States v. 

Sharma (Sharma I), 703 F.3d 318, 327 (5th Cir. 2012). For example, we noted 

that the district court erroneously included payments that insurers made 

during the year before the admitted fraudulent conduct had even begun. Id. 

at 323–24. The restitution award also included amounts paid for treatments 

and procedures that were not considered part of the injection-related fraud. 

Id. at 324. We held that these errors, along with the Sharmas’ rebuttal 

2 After the district court issued its order, and while the Sharmas’ direct criminal 

appeal was pending, the two international medical graduates who reported the fraud, Samuel 

Babalola and Kayode Samuel Adetunmbi, filed a qui tam action under both the False Claims 

Act (FCA) and the Texas False Claims Act, to recover a share of the forfeiture in the Sharmas’

criminal action. The district court, interpreting the FCA, granted the government’s motion 

for partial summary judgment, concluding that the FCA requires filing the qui tam complaint 

at or before the time of the restitution order in the related criminal case. United States ex 

rel. Babalola v. Sharma, No. H-11-4026, 2013 WL 431821, at *3 (S.D. Tex. Feb. 1, 2013). 

Because the two graduates filed their FCA action after the district court issued its order, they 

could not share in the restitution. We affirmed. United States ex rel. Babalola v. Sharma, 

746 F.3d 157, 163 (5th Cir.), cert. denied, 134 S. Ct. 2856 (2014).

In addition, the Sharmas’ son, Guarav Sunny Sharma, filed a third-party petition 

under 21 U.S.C. § 853(n) for an ancillary proceeding to determine his rights to property 

forfeited as part of his parents’ criminal convictions. The district court dismissed the petition 

and we affirmed on the basis that Guarav did not timely file his petition after receiving actual 

notice of the preliminary forfeiture order on March 3, 2011. United States v. Sharma, 585 F. 

App’x 861, 861–62 (5th Cir. 2014).

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evidence, sufficiently undermined the reliability of the PSR. Id. We further 

held that the district court abused its discretion, and we vacated its judgment 

and remanded the case for resentencing.3 In the remand order, we instructed 

the district court to recalculate the restitution award “consistent with [our] 

opinion and based solely on evidence already in the record [and to] . . . specify, 

on the record, its findings and reasons regarding each insurer’s actual loss.” 

Id. at 327 (emphasis added).

In the first appeal from the first sentencing hearing, we also held that

the district court did not abuse its discretion in denying offsets to the 

restitution award for injections that the Sharmas argued were “medically 

necessary or reimbursable by the insurers.” Id. As we explained, the Sharmas 

bore the burden of proving the offsets and, based on the record, they presented 

no competent evidence to show that the injections were medically necessary 

procedures that warranted legitimate reimbursement.4 Id. at 326.

Before resentencing, the Sharmas filed a joint motion for continuance 

and discovery seeking to review their seized patient files “for information that 

might establish the medical necessity of certain procedures” so that they could 

prove they were entitled to offsets. The district court summarily denied the 

motion.

At resentencing, the government contended that the proper restitution 

award was $37,636,436.39, and the Sharmas, again, argued that it was 

$21,028,963.61, which included their requested offsets. Excluding offsets, the 

3 We also vacated the amount of the Sharmas’ forfeiture money judgment and 

remanded it for recalculation because, pursuant to the Sharmas’ plea agreements, the 

forfeiture award must match the restitution award.

4 The Sharmas sought panel rehearing in United States v. Sharma (Sharma I), 703 

F.3d 318 (5th Cir. 2012), which we denied. Arun also petitioned the United States Supreme 

Court to review our denial of his request to proceed pro se in this appeal. The Supreme Court 

denied his petition. See Sharma v. United States, 134 S. Ct. 78 (2013).

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Sharmas essentially agreed with the government’s new calculation; the 

Sharmas’ expert calculated gross restitution at $37,670,826.32, slightly higher 

than the government’s figure.

The district court did not issue a written opinion, but dictated a “miniopinion” into the transcript. As the district court explained, it “adopt[ed] the 

methodology and amounts set out by the government in its resentencing 

memorandum, including the list of injection-related procedure codes and the 

dollar amount paid by each insurer for injection-related procedures during the 

time period of the conspiracy.” The court explained that it had considered the 

electronic claims data and the Sharmas’ expert report prepared by their 

accounting expert. Reading our opinion from the first appeal into the 

transcript, the district court rejected the Sharmas’ claims for offsets. The 

district court stated that it agreed with our reasoning in the first appeal, 

specifically our reasoning that the government provided sufficient evidence 

that the trigger-point injections were illegitimate, and that the Sharmas failed 

to show they were medically necessary. The district court explained that it 

“formally ma[de] the same factual findings” as the findings we made in the first 

appeal. The district court also overruled all of the Sharmas’ objections to the 

PSR report and addenda, and adopted as its findings the facts in those 

documents. The district court accepted the government’s figure in the 

resentencing memorandum and found “that 18 fraud victims incurred an 

actual loss of $37,636,436.39.” The district court again sentenced Arun to 180 

months of imprisonment and three years of supervised release. It again 

sentenced Kiran Sharma to 96 months of imprisonment and three years of 

supervised release. The district court listed on Arun’s amended judgment the 

restitution amount awarded to each insurer. However, it did not include the 

same list on Kiran’s amended judgment, writing only “See Attached List”

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under “Name of Payee,” and under “Restitution Ordered,” including only the 

combined total awarded. The district court failed to attach the list.

The Sharmas filed the instant appeal. The Sharmas argue that the 

district court abused its discretion by denying their motions for a continuance 

and further discovery. They contend that they were first made aware that they 

bore the burden of proving offsets when we ruled on their first appeal. 

Therefore, they argue, by denying their motions, the district court denied them 

the opportunity to satisfy their burden of proving offsets by presenting 

evidence that the trigger point injections were medically necessary. This, they 

assert, violated their due process rights.

In addition, the Sharmas argue that the district court did not follow our 

remand instructions because it failed to specify its findings and reasons for 

ordering the restitution attributable to each insurer. Arun further argues that 

the district court abused its discretion because its restitution award included 

amounts paid for procedures that the government has not shown to be part of 

the fraud. More specifically, he argues that while the procedures included in 

the restitution award are injection-related, the government has failed to show 

that they are the types of injections the Sharmas admitted to billing during 

their conspiracy.5

5 Kiran Sharma also argued in her brief that she did not receive an adequate 

explanation of the basis for her restitution award because the district court failed to attach 

to her amended judgment a list of the individual insurers’ losses—the district court instead 

included only the combined total restitution amount. However, her counsel conceded at oral 

argument that this issue alone would not warrant a remand for resentencing. In any event, 

Kiran’s amended judgment did indicate that her restitution obligation ran jointly and 

severally with Arun’s and identified Arun’s amended judgment by cause number, which 

contained the detailed figures. Moreover, the district court stated at the resentencing 

hearing that it was adopting the “methodology and amounts set out by the Government in its 

resentencing memorandum,” a document which was itself entered into the record. The fact 

that the district court incorporated that content by reference, at the hearing rather than 

attaching it to the amended judgment, is of no consequence. The district court’s explicit 

incorporation of the government’s resentencing memorandum in its sentencing judgment was 

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II.

We review de novo whether a district court faithfully and accurately 

applied our instructions on remand and whether the law of the case doctrine 

bars re-examination of an issue of fact or law already decided on appeal. 

United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004). We review the amount 

of a district court’s restitution award for abuse of discretion. United States v. 

Mann, 493 F.3d 484, 498 (5th Cir. 2007). Factual findings supporting the 

award are reviewed for clear error. United States v. Beydoun, 469 F.3d 102, 

107 (5th Cir. 2006). Even absent express findings, we may affirm a restitution 

award if “the record provides an adequate basis to support the restitution 

order.” United States v. Blocker, 104 F.3d 720, 737 (5th Cir. 1997).

III.

For the reasons discussed below, the Sharmas’ arguments are without 

merit. They are not entitled to offsets, the district court correctly followed our 

remand instructions, and the evidence in the record supports the district 

court’s restitution award.

As an initial matter, the law of the case doctrine controls our review of 

whether the district court should have applied the offsets requested by the 

Sharmas, as this issue was already decided in the Sharmas’ first appeal. “The 

law of the case doctrine posits that ordinarily ‘an issue of fact or law decided 

on appeal may not be reexamined either by the district court on remand or by 

the appellate court on subsequent appeal.’” Lee, 358 F.3d at 320 (quoting 

United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)). The doctrine 

reflects the “‘sound policy that when an issue is once litigated and decided, that 

should be the end of the matter.’” Lee, 358 F.3d at 320 (quoting United States 

sufficient to satisfy our instruction to “specify, on the record, its findings and reasons 

regarding each insurer’s actual loss.”

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v. United States Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950)). “[O]nly 

those discrete, particular issues identified by the appeals court for remand are 

properly before the resentencing court.” United States v. Marmolejo, 139 F.3d 

528, 530 (5th Cir. 1998). “In short, the resentencing court can consider 

whatever this court directs-no more, no less. All other issues not arising out of 

this court’s ruling and not raised before the appeals court, which could have 

been brought in the original appeal, are not proper for reconsideration by the 

district court below.” Id. at 531.6

In the first appeal, we directly addressed the offsets issue, holding that

the district court did not abuse its discretion in determining that the Sharmas 

failed to meet their burden of proving offsets.7 Sharma I, 703 F.3d at 326. In 

6 In contrast, some circuits allow district courts the discretion to expand the scope of 

resentencing “unless the district court’s discretion is specifically cabined.” E.g., United States 

v. West, 646 F.3d 745, 749 (10th Cir. 2011). In those circuits, the district court should “look 

to the mandate for any limitations on the scope of the remand and, in the absence of such 

limitations, exercise discretion in determining the appropriate scope.” Id.

7 In Sharma I, we reasoned that:

The government presented unrebutted evidence that Arun (1) deliberately 

misdiagnosed patients as having rheumatoid arthritis and put them on an 

injection regimen, (2) tried to convince all of his patients to have trigger-point 

injections at every visit, (3) required patients who declined injections to sign 

mendacious acknowledgments that they had received the treatments before he 

would prescribe pain medication, and (4) administered injections in an 

assembly-line fashion without taking routine sanitary precautions. The 

Sharmas also employed six foreign medical graduates to fabricate bills en 

masse. Finally, the government asserted in its sentencing memorandum that 

patients who later went to different physicians were “universally” taken off 

trigger-point injections.

The Sharmas offered little in the way of concrete evidence to rebut the 

government's contentions. Their plea agreements stated that some injections 

were provided, but did not represent that those injections were medically 

necessary or that the physicians would have been reimbursed for them by the 

insurers. Although the Sharmas provided anecdotal statements from patients 

claiming some degree of pain relief, the victims of the crimes of conviction were 

the insurance companies, not the patients. The Sharmas did not produce 

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our remand instruction, we said nothing about reconsidering the offsets issue

at resentencing. However, we did instruct the district court to recalculate the 

gross restitution amount, address whether the government had offered 

sufficient evidence to support that amount, and conform the forfeiture money

judgment to the new restitution award. Sharma I, 703 F.3d at 327. Given our 

circuit’s application of the law of the case doctrine, these were the exclusive 

issues for consideration at resentencing and our ruling on the offsets was 

binding on the Sharmas at resentencing and in this appeal.

Moreover, despite their argument to the contrary, denying the Sharmas’

request for offsets does not violate their due process rights. The Sharmas

contend that our allocating to them the burden of proving offsets in Sharma I, 

and, subsequently, the district court’s denying their motions for a continuance 

and for further discovery before resentencing,8 violate their due process rights 

because, when developing the record at initial sentencing, they were unaware 

of their burden. To be sure, actual losses under the Mandatory Victims 

Restitution Act (MVRA), codified at 18 U.S.C. §§ 3613A, 3663A–64 (which is 

competent evidence suggesting that even one injection to even one patient was 

medically necessary and met the insurer's reimbursement standards.

703 F.3d at 326.

8 We review the denial of a request for continuance under an abuse of discretion 

standard. United States v. Walters, 351 F.3d 159, 170 (5th Cir. 2003). “To prevail, the movant 

must show that the denial resulted in specific and compelling or serious prejudice.” United 

States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999) (internal quotation marks omitted). 

Likewise, we review the denial of a request for discovery for abuse of discretion. United 

States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011).

It is not exactly clear that the Sharmas’ adequately preserved their due process 

argument given that they did not specifically raise this issue at resentencing. See United 

States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (explaining that to preserve an issue, a 

defendant must “make and factually develop in the district court all arguments”). 

Accordingly, their due process argument may be subject to plain-error review. As discussed 

above, however, the Sharmas cannot prevail even under an abuse of discretion standard.

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the basis for ordering restitution in this case) cannot “include any amount that 

the insurer would have paid had the defendant not committed the fraud.” 

Sharma I, 703 F.3d at 324; see also United States v. Klein, 543 F.3d 206, 215 

(5th Cir. 2008). However, since at least 1998, we have interpreted 18 U.S.C. § 

3664(e) to require shifting to the defendant the burden of proving offsets. See

United States v. Sheinbaum, 136 F.3d 443, 449 (5th Cir. 1998) (“[W]e conclude 

that justice requires that the burden of establishing any offset to a restitution 

order should fall on the defendant.” (internal quotation marks omitted)).9 We 

have, in several subsequent cases, approved shifting “at least a portion of the 

burden to a defendant to establish his entitlement to a restitution credit [i.e., 

offsets].” Sharma I, 703 F.3d at 325–26; see, e.g., United States v. Loe, 248 F.3d 

449, 470 (5th Cir. 2001) (affirming the denial of offsets where the defendant 

was unable to provide reliable evidence supporting its claims); United States 

v. Edet, No. 08-10287, 2009 WL 552123, at *3 (5th Cir. Mar. 5, 2009) (denying

offsets where a defendant could not offer evidence that Medicare would have 

paid for the equipment at issue absent his fraud). At least two other circuits 

similarly allocate the burden of proving offsets to the defendant. See United 

States v. Bryant, 655 F.3d 232, 254 (3d Cir. 2011); United States v. Elson, 577 

9 As we further explained in United States v. Sheinbaum:

Logically, the burden of proving an offset should lie with the defendant. 

[Section 3664(e) of Title 18 of the United States Code] allocates the various 

burdens of proof among the parties who are best able to satisfy those burdens 

and who have the strongest incentive to litigate the particular issues involved. 

Having investigated the crime and wishing to provide as strong a deterrent as 

possible, the government is best suited to persuade the court as to the amount 

of loss caused by the offense. On the other hand, the defendant is better 

positioned to proffer evidence about his own financial resources and needs, and 

his desire to lower his restitution order gives him the incentive to litigate such 

mitigating circumstances.

136 F.3d 443, 449 (5th Cir. 1998).

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F.3d 713, 734 (6th Cir. 2009). Given these precedents, the Sharmas cannot 

claim that they were unaware of their burden.10

Furthermore, the Sharmas did in fact have notice that the medical 

necessity of the injections was at issue in the first sentencing. The 

government’s filings continually challenged the validity of not only the 

specialized injections, but also the trigger point injections. The government’s 

initial sentencing memorandum discussed at length the reasons why even the 

trigger point injections were illegitimate: (1) the Sharmas routinely diagnosed 

insured patients with arthritis regardless of test results; (2) drug patients who 

refused shots were required to sign acknowledgements saying that they had 

received them; (3) shots were administered without following sanitation 

protocols; (4) employees added false information to progress and procedure

reports; (5) the Sharmas did not “spen[d] enough time with any of the ‘pain’ 

patients to properly evaluate their medical needs”; and (6) patients who left 

the Sharmas universally reported that their new doctors discontinued the 

shots as medically unnecessary. These allegations, at the very least, informed 

10 The Sharmas, citing Bell v. Berson, 402 U.S. 535, 541–42 (1972), argue that due 

process requires a hearing to be meaningful and appropriate to the related case, and that a 

hearing that “excludes consideration of an element essential to” deciding the issue fails to 

meet this due process standard. The Sharmas also cite United States v. Klein as an example 

where we have remanded to give the district court an opportunity to credit offsets. However, 

neither of these authorities supports the Sharmas’ argument here.

Bell involved a state administrative hearing in which a driver’s license was revoked 

without considering liability, a factor that played a “crucial role” in implementing the policies 

of the governing statute. The administrative agency adjudicating the matter foreclosed the 

driver’s opportunity to be heard on the issue. In contrast, here, the district court did not 

foreclose the Sharmas’ opportunity at the first sentencing proceeding to argue their offsets 

claim. They had the opportunity to do so as part of the sentencing process, and they did in 

fact present some evidence on the issue.

Similarly, Klein does not help the Sharmas’ argument. Although we remanded a 

restitution order to the district court for recalculation because it failed to discount for offsets, 

we did so because the government did not dispute that the procedures were legitimate; the 

dispute was instead over how the defendant billed insurers for those procedures. Klein, 543 

F.3d at 215. For reasons already explained, that is not the case here.

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the Sharmas that the government intended to establish that most, if not all, of 

their injections were unnecessary and fraudulent.

IV.

The only remaining issues in this appeal are whether the district court 

abused its discretion in recalculating the gross restitution amount and whether 

it adequately followed our remand instructions. We have reviewed the record, 

including the underlying data, and are satisfied that the district court’s 

restitution award includes only amounts paid pursuant to the Sharmas’

fraudulent scheme.

Under the MVRA, restitution is limited to the

actual loss directly and proximately caused by the defendant’s offense of 

conviction. An award of restitution cannot compensate a victim for losses 

caused by conduct not charged in the indictment or specified in a guilty 

plea, or for losses caused by conduct that falls outside the temporal scope 

of the acts of conviction.

Sharma I, 703 F.3d at 323 (citing United States v. Hinojosa, 484 F.3d 337, 343 

(5th Cir. 2007)). As we explained in Sharma I, the restitution award in this 

case should exclude payments for non-injection-related procedures given that 

those are outside the scope of the offense of conviction.11 Sharma I, 703 F.3d 

at 323. In addition, every dollar in the restitution award must be supported 

by record evidence. United States v. Arledge, 553 F.3d 881, 899 (5th Cir. 2008).

11 The probation officer concurred with the methodology in the resentencing 

memorandum but noted in the PSR that he “believes the restitution statute allows for 

additional losses associated with the fraudulent medical examinations, x-rays, and tests, as 

cited in the Indictment as part of the scheme under the counts of conviction . . . .” But, the 

probation officer understood our first opinion to require a more conservative approach. In 

addition, despite the Sharmas’ admissions in their plea agreements that they billed insurers 

for some office visits that never occurred, the government explained in its resentencing 

memorandum that, “given the difficulty of separating out the phantom visits from the real 

visits,” it decided to take a conservative approach in calculating its restitution figure and 

assumed that all visits were legitimate.

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In their plea agreements, the Sharmas pleaded guilty only to conspiracy 

and fraud arising out of injection-related procedures, which excludes some of 

the other procedures they offered at their clinics (e.g., allergy-related 

consultations and medication). However, Arun argued for the first time at 

resentencing that even some of the injection-related procedures that the 

government included in its calculation (which are listed by “procedure codes” 

in Attachment A of the government’s resentencing memorandum) are outside 

the categories of injections that comprise their offense (as delimited in their 

plea agreements). Arun contends that the government failed to meet its 

burden of proving that every code in its resentencing memorandum should be 

included in the calculation.

The government argues that the mandate rule12 prevents Arun from 

raising this new argument after remand. See Marmolejo, 139 F.3d at 530–31 

(“All other issues not arising out of this Court’s ruling and not raised before 

the appeals court, which could have been brought in the original appeal, are 

not proper for reconsideration by the district court below.”) (emphasis added). 

In United States v. Hamilton, a case involving a Medicare fraud scheme, we

held that the defendants could not argue for the first time in their second 

appeal that the district court improperly included lawfully-obtained proceeds 

in its restitution award. 440 F.3d 693, 697 (5th Cir. 2006). Likewise, we barred 

another defendant from seeking reductions in restitution for actual services he 

12 See United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (“The mandate rule . 

. . prohibits a district court on remand from reexamining an issue. . . . [It] cover[s] issues 

decided both expressly and by necessary implication . . . .”) (emphasis in original). There are 

three scenarios excepted from application of the mandate rule, none of which, according to 

the government, are applicable here: (1) introducing evidence at a subsequent trial that is 

substantially different; (2) an intervening change in controlling authority; and (3) a 

determination that the earlier decision was clearly erroneous and would work a manifest 

injustice. Id.

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provided because he did not raise his arguments in his original appeal. United 

States v. Isiwele, 493 F. App’x 562, 563 (5th Cir. 2012). 

Arun did not raise this new argument at the first sentencing hearing or 

in the first appeal. The Sharmas argued at their first sentencing hearing that 

many of the insurer payments should not have been included in the loss 

calculation because they were outside the time period of the conspiracy, were 

not injection-related, and/or were based on the insurer’s claim despite the 

insurer’s uncertainty whether the claim was related to the Sharmas’ guilty 

plea. Arun first raised this new argument about excluding payments for 

certain types of injections at the second sentencing hearing and again in his 

brief in this appeal. At resentencing, the district court read our remand 

instructions in Sharma I to require recalculating the restitution figure to 

include all injection-related payments supported by the record. This was a fair 

reading of Sharma I.

Even reviewing the injection-related payments, the district court 

adequately specified the basis for its calculation. In issuing its amended 

restitution award, the district court stated on the record that it was “adopt[ing] 

the methodology and amounts set out by the Government in its resentencing 

memorandum, including the injection-related procedure codes and the dollar 

amount paid by each insurer for injection-related procedures during the time 

of the conspiracy.” The resentencing memorandum included Attachment C, a 

spreadsheet detailing the individual losses for each of the eighteen insurers, 

and Attachment D, the underlying electronic claims data. Relying on this data 

(rather than just the victim impact statements filed by insurers that proved 

problematic in the first restitution calculation), the government narrowed the 

payments in two main ways. First, it included only payments made for claims 

filed during the timeframe of the conspiracy (January 1, 1998 and June 10,

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2009). Second, it selected from that subset only those payments made for 

injection-related procedures—the type of procedures the Sharmas admitted 

comprised a part of their fraud. The government did this by looking at the 

billing code for each claim and determining whether the description of the 

procedure associated with that code fit within the fraud. Attachment A to the 

resentencing memorandum includes a list of injection-related procedures with

their description and corresponding codes. By narrowing the restitution in this 

way, the government made sure to avoid including amounts for procedures that 

may not have been part of the fraud, which is what led to the errors at the 

initial sentencing.

Moreover, Arun’s challenge to these codes is undermined by the 

Sharmas’ own expert, who acknowledged that she received the codes from the 

Sharmas’ defense counsel and used all of them for purposes of calculating her 

restitution award. It is true that her report excludes certain codes that Arun 

claims should not be included in his restitution award, but these codes 

represent only $2,351.71 of the award. And, the Sharmas’ expert calculated 

gross restitution that was about $34,000 higher than the government’s 

figure.13 We also note that the Sharmas’ counsel acknowledged on the record

that the gross restitution amount in the government’s resentencing 

memorandum was “correct in the way it was calculated.” He explained that it 

is based on the claims data already in the record, and correctly excludes “any 

amounts billed that were outside of the scope of the conspiracy and any 

amounts that were billed for non-injection-related procedures.” This 

admission directly contradicts Arun’s argument.

13 Because the Sharmas’ expert included a few additional procedures that the 

government chose to exclude, her gross restitution amount was $37,670,826.32, compared to 

the government’s figure of $37,636,436.39.

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Given that the Sharmas own expert essentially agreed with the 

government’s calculation of the gross restitution and that their counsel 

admitted that the amount “is correct in the way it was calculated,” we are not 

persuaded that the district court abused its discretion in its calculation of the 

restitution award. In explicitly adopting the government’s methodology, the 

district court satisfied our remand instruction to “specify, on the record, its 

findings and reasons regarding each insurer’s actual loss.” Sharma I, 703 F.3d 

at 327.

V.

For the foregoing reasons, we AFFIRM.

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