NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0563n.06
Case No. 15-2001
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee ,

v. RAJAN 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; ROGERS and GRIFFIN, Circuit Judges. COLE, Chief Judge. Rajan Patel appeals hi s sentence for conspiring to commit health care fraud, in violation of 18 U. S.C. § 1349; for health care fr aud, in violation of 18 U.S.C. §§ 1347 and 2; and for making false statements relati ng to health care matters, in violation of 18 U.S.C. §§ 1035 and 2. Patel argues that the distri ct court erred in imposing restitution without making factual findings and that his sentence is procedurally unreasonable because the district court failed to make the factual findings required by Rule 32 of the Federal Rules of Criminal Procedure. For the following reasons, we affirm Patel’s sentence. I. BACKGROUND Rajan Patel was employed at Angle’s Touch home health care agency, a company that purported to provide health se rvices for homebound individuals. In reality, Angle’s TouchCase No. 15-2001, United States v. Patel

- 2 - defrauded Medicare by submitting health care cl aims for persons who were not homebound or in need of medical services. For his part, Patel, as a licensed physical therapist, would create fake patient files showing that purportedly ho mebound patients received physical therapy. On March 6, 2014, Patel was charged with one co unt of conspiracy to commit health care fraud, three counts of health care fraud, and thre e counts of making false statements relating to health care matters. A jury c onvicted Patel on all counts. The presentence investigation report (“ PSR”) recommended that Patel be held responsible for the entire amount that Medicare paid to Angle’s Touch dur ing the course of the conspiracy, which the PSR calculated to be $952,913.27. The PSR accordingly found that the amount of loss was more than $400,000 but less than $1,000,000, which increased Patel’s offense level by 14. The PSR recommended tw o-level enhancements each for (1) fraud involving sophisticated means and (2) abuse of a position of trust or use of a special skill, resulting in a total offense level of 24. Acco rding to the PSR, Patel’ s guidelines range was therefore 51–63 months of imprisonment. Both parties objected to the amount of loss in the PSR, and Patel objected to the enhancements recommended in the PSR. Patel argued that the amount of loss should be limited to the loss in the substantive counts of the indictment—between $30,000 and $70,000. The government argued that the amount of loss to Medicare for patients for whom Patel was a caregiver was over $1.3 million and that Patel’s offense level should be increased by two levels
because he was convicted of a health care offe nse involving a government health care program and the loss was more than $1 million. The district court adopted the PSR except fo r the enhancement for sophisticated means and did not otherwise grant eith er party’s objection. The distri ct court sentenced Patel toCase No. 15-2001, United States v. Patel

- 3 - concurrent sentences of 24 months of imprisonment. The district court also imposed a special assessment of $700 and ordered restitution to the Medicare trust fund, jointly and severally with all codefendants, in the amount of $952,913.27. Pate l did not object to the order of restitution but filed a timely notice of appeal. II. ANALYSIS A. Procedural Reasonableness of Sentence Patel argues that his sentence is procedura lly unreasonable because the district court failed to make the factual findings re quired by the Sentencing Guidelines. See Gall v. United
States , 552 U.S. 38, 51 (2007) (holding that a district co urt commits procedural error if it fails to calculate or improperly calculate s the Guidelines range); U.S.S. G. § 2B1.1(b)(1). 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 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)). However, 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 conteste d factual matters that formed the basis of the calculation.” Poulsen , 655 F.3d at 513 (quotation mark s omitted). So, we must determine “(1) whether the amount was in dispute; (2) if it was in dispute, whether theCase No. 15-2001, United States v. Patel

- 4 - district court adequately ruled on the disputed amount; a nd (3) if the district court ruled, whether the factual findings indicate clear error.” Id. Both parties acknowledge that the district court failed to make factual findings on the amount of loss. Accordingly, this case depend s on whether Patel put the amount of loss in dispute. A defendant can put the amount in dispute by in troducing “some evidence beyond a bare denial that calls the reliability or co rrectness of the alleged facts into question.” United States v. Lang , 333 F.3d 678, 681 (6th Cir. 2003) (quotation marks omitted). Patel claims to have done so, and a significant part of both pa rties’ sentencing memoranda and the sentencing hearing revolved around the amount of loss. Howe ver, the government contends that Patel made only legal arguments about why the amount of loss should be lower and failed to put any facts in dispute, and therefore fail ed to trigger Rule 32. Patel failed to put any specific fact regarding the amount of loss in dispute. To put a fact in dispute so as to trigger Rule 32, a defendant must actively dispute the veracity of a fact. See United States v. McGee , 529 F.3d 691, 700–01 (6th Cir. 2008) (c oncluding that facts were not put in dispute where the defendant challenged their relevancy rather than their veracity). The defendant must then produce some evidence to cal l the reliability of the contested fact into question. See Lang , 333 F.3d at 681. Pate l challenged the governme nt’s argument that the amount of loss was over $1.3 million, but he never produced any evidence to counter the amount of loss recommended by the PSR, as he was required to do under Lang . In fact, Patel barely mentioned the PSR at all in his sentencing me morandum. Where Patel did challenge the amount of loss, he made legal, not f actual, arguments. He argued that the amount of loss should have been between $30,000 and $70,000 because “‘intended loss’ means ‘a loss that the defendant purposely sought to inflict.’” (Def.’s Sentencing Mem., R. 316, PageID 2142–43 (quotingCase No. 15-2001, United States v. Patel

- 5 - United States v. Manatau , 647 F.3d 1048, 1056–57 (10th Cir. 2011).) But Patel failed to challenge the veracity of any fact relied on by the PSR in its recommendation of the amount of loss. Accordingly, the district court was not required to make factual findings under Rule 32. Patel also argues that his sentence was pro cedurally unreasonable because the district court did not make factual findings or specif ically rule on his objection to the two-level enhancement for abuse of a position of trust or use of a special skill. See U.S.S.G. § 3B1.3. At the sentencing hearing, the district court asked, “What about his trai ning as a physical therapist? Isn’t that a special skill?” (S entencing Hr’g Tr., R. 409, Page ID 4000–04.) Later, the district court seemingly, but not explicit ly, accepted the enhancement for use of a special skill. ( Id. at 34 (“So that gives me [] 41 to 51 months. And I am going to start there without going to any of the other disputed points--the abuse of a special skill and so on.”).) This is evident from the fact that the district court arrived at a range of 41–51 months of imprisonm ent, which corresponds to an offense level of 22 given Patel’s criminal hist ory category, and the dist rict court had already explicitly withdrawn the two-level enhancement for sophisticated means. Patel’s actual sentence of 24 months was thus below the Guidelines range. A sentence below the Guidelines range may be the product of harmful error where a decrease in the Guidelines range would have led the district cour t to impose a lower sentence. See United States v. Randolph , 794 F.3d 602, 615 (6th Cir. 2015). However, here it is clear that the district court “based the sentence . . . on factors independent of the Guidelines.” MolinaMartinez v. United States , 136 S. Ct. 1338, 1346–47 (2016). The dist rict court noted that courts “give . . . too much weight to the guidelines” and that “they are not outcome determinative.” (Sentencing Hr’g Tr., R. 409, PageID 4024.) Much of the sentencing hearing was dedicated to comparisons between Patel and other defendants, with the district court endeavoring to find aCase No. 15-2001, United States v. Patel

- 6 - valid comparison between Patel and similarly situ ated defendants. Finally, the sentence—terms of 24 months of imprisonment to run concurrently—was reached with little reference to Patel’s Guidelines range. Accordingly, even if the dist rict court committed an error in not ruling on Patel’s objection to the special skill enha ncement, such an error was harmless.
B. Restitution The amount of restitution is ordinarily reviewed for abuse of discretion, United States v. Williams , 612 F.3d 500, 509 (6th Cir. 2010), and the fi ndings of fact underlying the restitution calculation are ordinarily re viewed for clear error, United States v. Triana , 468 F.3d 208, 321 (6th Cir. 2006). A district court has wide latitude to de termine the amount of a victim’s losses. See 18 U.S.C. § 3664(f)(1)(A) (“[T]he court shall orde r restitution to each victim in the full amount of each victim’s losses as determined by the court . . . .”) (emphasis added). “[T]he court can order restitution for damage result ing from any conduct that was part of the conspiracy and not just from specific conduct that met the overt act requirement of the conspiracy conviction.” United States v. Sawyer , 825 F.3d 287, 295 (6th Cir. 2016) (quoting United States v. Elson , 577 F.3d 713, 723 (6th Cir. 2009)). The district court did not err in orderi ng restitution totaling the amount of loss recommended by the PSR. Patel relies on his uns uccessful arguments about the amount of loss in challenging the amount of restitution, buttressed by his claim that the district court failed to make factual findings regarding th e amount of restitution. However, “[s]pecific findings in the imposition of restitution are not required.” United States v. Jackson-Randolph , 282 F.3d 369, 386 (6th Cir. 2002). Instead, the district court must re ly on information with “ a sufficient indicia of reliability to support” the “probable accuracy” of the amount of restitution. Id. (quotationCase No. 15-2001, United States v. Patel

- 7 - marks omitted). The information relied upon by th e district court has “sufficient indicia of reliability.” Id. The district court “reviewed . . . the PSR [and] the objections and memoranda of the parties.” Id. It declined to impose the higher re stitution amount requested by the prosecutor and instead imposed an amount consistent with the PSR. See id. “Most importantly,” the district judge “presided over [Patel’s] trial and thus had extensive exposure to th e facts of the case.” Id. Finally, Patel’s argument that “intended loss” under the Guidelines means “a loss that the defendant purposefully sought to inflict” is suspect. See U.S.S.G. § 2B1.1 cmt. n.3(F)(viii) (“[T] he aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prim a facie evidence of the amount of the intended loss.”). Accordingly, the district court di d not err in imposing restitution. III. CONCLUSION Because Patel’s sentence was not procedurally unreasonable and the district court did not err in imposing restitution, we affirm.