REVISED December 15, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11262

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

REGINALD GUY; ABBAS ZAHEDI,

Defendants-Appellants

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-87-4

USDC No. 4:14-CR-87-2

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Defendants-Appellants Reginald Guy and Abbas Zahedi were convicted 

by a jury of one count of conspiracy to commit health care fraud, five counts of 

health care fraud, and four counts of aggravated identity theft. Guy was 

sentenced to a total of 156 months of imprisonment, three years of supervised 

 

* 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

December 14, 2015

Lyle W. Cayce

Clerk

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release, and restitution of $2,406,844. Zahedi was sentenced to a total of 145 

months of imprisonment, three years of supervised release, and the same 

amount of restitution. They appeal their convictions and sentences.

1. Zahedi

Zahedi argues that the evidence was insufficient to support his 

conviction for a single conspiracy because the evidence established two 

separate conspiracies. He preserved his objection, so we review his sufficiency 

challenge de novo. See United States v. Grant, 683 F.3d 639, 642 (5th Cir. 

2012).

The evidence was sufficient for a reasonable factfinder to find that 

Zahedi and others participated in a single overall conspiracy to commit health 

care fraud. See Grant, 683 F.3d at 643. The evidence established that Zahedi, 

a chiropractor, allowed Metroplex Sports Rehab Center (Metroplex) to submit

false claims for services he did not provide, and he received a percentage of the 

health insurance payments. After Zahedi opened another clinic, he continued 

to submit false bills, using Gregory Wattron’s provider identification number,

and he continued to coordinate with James Sterns, the owner and operator of 

Metroplex, to prevent double billing. The jury’s finding that there was a single 

overall conspiracy is supported by the evidence. See United States v. Morrow, 

177 F.3d 272, 291 (5th Cir. 1999).

Zahedi also contends that there was a material variance between the 

indictment and the evidence presented at trial. Zahedi did not raise this 

objection in the district court, so our review is limited to the plain error

standard. See United States v. Collins, 774 F.3d 256, 262 (5th Cir. 2014); see

also Puckett v. United States, 556 U.S. 129, 135 (2009).

Zahedi has not shown that there was a material variance between the 

indictment and the evidence presented at trial. The indictment specifically 

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alleged that Zahedi and others conspired to commit health care fraud at 

Metroplex and continued the same scheme at DFW Rehab and Diagnostics 

(DFW). The government presented sufficient evidence to establish that Zahedi 

participated in a single overall conspiracy, so he failed to show that there was 

a material variance between the indictment and the evidence presented at 

trial. See United States v. Mitchell, 484 F.3d 762, 770 (5th Cir. 2007); United 

States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007). But even if there had been 

a variance, Zahedi has not shown that it affected his substantial rights for 

purposes of plain error review because the government established Zahedi’s 

involvement in at least one of the proved conspiracies. See Mitchell, 484 F.3d 

at 770.

Zahedi also contends that the indictment was duplicitous because it 

charged multiple conspiracies in a single count. As he concedes, he did not 

raise this contention in the district court. “Objections to the indictment, such 

as objections on the basis of duplicity, must be raised prior to trial.” United 

States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005) (internal quotation marks 

and citation omitted). Zahedi waived this issue by failing to raise it prior to 

trial. See id. In any case, as discussed above, the evidence showed one 

conspiracy, so the indictment was not duplicitous.

Zahedi next asserts that the district court erred in finding that he was 

responsible for the money billed and collected by Metroplex after he withdrew 

from the conspiracy. He did not raise this argument in the district court, so 

our review is limited to plain error. See Puckett, 556 U.S. at 135. He has not 

shown that the district court plainly erred in finding that he was responsible 

for a loss of less than $2,500,000. Ordinarily, the district court’s finding of loss 

is a factual one reviewed for clear error. See United States v. Harris, 597 F.3d 

242, 250-51 (5th Cir. 2010). The failure to object to a district court’s factual 

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finding forecloses our reversal on plain error review because “[q]uestions of fact 

capable of resolution by the district court on proper objection at sentencing can 

never constitute plain error.” United States v Claiborne, 676 F.3d 434, 438 (5th 

Cir. 2012). Neither has Zahedi shown that the district court plainly erred in 

finding him responsible for this loss amount because the evidence established 

a single overall conspiracy from which he did not withdraw. And Zahedi would 

be responsible for the entire loss because he was responsible for the reasonably 

foreseeable relevant conduct of his coconspirators. See United States v. Torres, 

114 F.3d 520, 527 (5th Cir. 1997); United States v. Scurlock, 52 F.3d 531, 540

(5th Cir. 1995).

Zahedi next asserts that his 145-month within-guidelines sentence was 

substantively unreasonable and disproportionate to his codefendants’ 

sentences. Zahedi’s within-guidelines sentence is presumptively reasonable. 

See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). 

The district court considered the record, the presentence report (PSR), and 

Zahedi’s arguments, then determined that a sentence within the advisory 

guidelines range was appropriate. Zahedi has not shown that there was a 

sentencing disparity among similarly situated defendants nationwide, and his 

focus on his nonsimilar codefendants is misplaced. See United States v. 

Candia, 454 F.3d 468, 476 (5th Cir. 2006). Zahedi has failed to rebut the 

presumption of reasonableness. See United States v. Cooks, 589 F.3d 173, 186 

(5th Cir. 2009).

For the first time on appeal, Zahedi contends that the district court 

violated his due process rights by improperly imposing a harsher sentence on 

him for exercising his right to a jury trial. Our review is again limited to plain 

error. See Puckett, 556 U.S. at 135. Because Zahedi’s codefendants received 

leniency from the government based on their agreement to cooperate and 

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testify against Zahedi and Guy at trial, he has shown no due process violation. 

See United States v. Devine, 934 F.2d 1325, 1338-39 (5th Cir. 1991).

2. Guy

Guy argues that the district court erred in imposing a two-level sentence 

enhancement for obstruction of justice because it did not make specific fact 

findings, it relied on nonmaterial testimony, and the PSR did not identify his 

alleged false testimony. Guy did not make these objections in the district court, 

so our review is limited to plain error. See Puckett, 556 U.S. at 135. The 

district court’s finding that Guy obstructed justice is a factual finding. See 

United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). Guy’s failure 

to object to the district court’s factual finding forecloses appellate review. See 

Claiborne, 676 F.3d at 438. Even if review is not foreclosed, the district court 

did not plainly err in finding that Guy obstructed justice by testifying falsely 

at trial. The PSR expressly stated, and provided record citations to show, that 

Guy’s testimony was in conflict with the evidence presented at trial and the 

jury’s findings. The district court adopted the PSR and did not plainly err in 

ruling that the obstruction of justice enhancement was warranted based on 

Guy’s false testimony. See United States v. Perez-Solis, 709 F.3d 453, 469 (5th 

Cir. 2013); United States v. Flores, 640 F.3d 638, 644 (5th Cir. 2011).

Guy next contends that the district court erred in imposing a three-level 

enhancement under U.S.S.G. § 3B1.1(b) based on its finding that he was a 

manager or supervisor. Guy was a union representative at Lear Corporation 

and used that position to recruit Lear employees to be patients at Metroplex 

and DFW. The patients participated in the conspiracy by allowing Metroplex 

and DFW to use their health insurance information to submit fraudulent bills. 

See U.S.S.G. § 3B1.1, comment. (n.1). Guy’s recruitment of patients supports 

the district court’s finding that he was a manager or supervisor. See United 

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States v. Rodriguez-Lopez, 756 F.3d 422, 434-435 (5th Cir. 2014). He also 

delivered payments to the patients, worked at Metroplex, submitted 

fraudulent bills, was involved in meetings and had input in decisions at 

Metroplex, and helped create fraudulent patient files in an attempt to conceal 

the fraud. Moreover, Sterns testified that without Guy’s participation, the 

magnitude of the conspiracy would not have been as great. The district court 

did not clearly err in finding that he was a supervisor or manager and imposing 

the three-level enhancement under § 3B1.1. See id.

Guy further contends that the district court erred in determining that he 

should be held responsible for a loss amount of approximately $3,000,000. 

After considering the PSR, Blue Cross’s fee schedule, and Guy’s arguments, 

the district court made a reasonable determination that the loss should be 

based on the fee schedules, rather than the amount billed or the amount 

actually paid. See United States v. Umawa Oke Imo, 739 F.3d 226, 240 (5th Cir. 

2014). Therefore, Guy has not shown that the district court clearly erred in 

finding that the loss was approximately $3,000,000. See Harris, 597 F.3d at 

250-51 (5th Cir. 2010).

For the first time on appeal, Guy argues that the allowed amount should 

not be used because of the lack of information concerning the allowed amounts. 

As there was no objection, this factual determination cannot be plain error. 

See Claiborne, 676 F.3d at 438. And, as Guy did not present any evidence to 

demonstrate that the allowed amounts in the fee schedule were inaccurate, the 

district court did not plainly err in using those amounts to make a reasonable 

estimate of the loss. See Umawa Oke Imo, 739 F.3d at 240; see also United 

States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012).

AFFIRMED.

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