### 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

Appeal s 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 1 4 , 2015 Lyle W. Cayce Clerk Case: 14-11262 Document: 00513307459 Page: 1 Date Filed: 12/15/2015No. 14

- 11262

2 release, and restitution of $2,406,844. Zahedi w as 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. H e preserved his objection, so we review his sufficiency challenge de novo. See United States v . Grant , 683 F.3d 639, 642 (5t h Cir. 2012). T he 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 establis hed that Zahedi, a chiropractor, allowed Metroplex Sports Rehab Center (Metroplex) to submit f

alse cl a ims 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 , us ing Gregory Wattron’s provider identification number , and he continued to coordinate with James Sterns , the owner and operator of Metroplex, to prevent double bill ing . 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 object ion 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) ; s ee 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 Case: 14-11262 Document: 00513307459 Page: 2 Date Filed: 12/15/2015No. 14

- 11262

3 alleged that Zahedi and o thers conspired to commit health care fraud at Metroplex and continued the same scheme at DFW Rehab and Diagnost ics (DFW). T he g overnment presented sufficient evidence to establish that Zahedi participate d 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 S tates v. Mitchell , 484 F.3d 762, 770 (5th Cir. 2007); United States v. Lewis , 476 F.3d 369, 384 ( 5 th Cir. 2007). But e ven if there had been

a variance, Zahedi has not shown that it affected his substantial rights for purposes of plain error review because the g overnment 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 conced es, 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

. H e 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 ha s not shown that the district court plainly erred in finding that he was responsible for a loss of less than $2,500,000. Ordinarily, t he 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)

. T he failure to object to a district court’s factual Case: 14-11262 Document: 00513307459 Page: 3 Date Filed: 12/15/2015No. 14

- 11262

4 finding forecloses our reversal on plain error review because “[q]uestions of fact capable of re solution by the district court on proper objection at sentencing can

never con stitute 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 th is loss amount because the evidence established a single overall conspirac y from which he did not withdr a w . 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 presumpti vely reasonable. See United States v. Mondragon

- Santiago , 564 F.3d 357, 360 (5t h Cir. 2009). The district court consider ed the record, the presentence report ( PSR ) , and Zahedi’s arguments , the n determined that a sentence within the advisory guidelines ra nge was appropriate. Zahedi has not shown that there was a sentencing disparity among similarly situated d efendants nationwide , and his focus on his nonsimilar codefendants is misplaced

. See United States v. Candia , 454 F.3d 468, 476 (5th Cir. 2006)

. Za hedi 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 hars her sentence on him for exercising his right to a jury trial. Our r eview is again limited to plain

error . See Puckett , 556 U.S. at 135. Because Zahedi ’s codefenda nts received leniency from the g overnment based on their agree ment to cooperate and Case: 14-11262 Document: 00513307459 Page: 4 Date Filed: 12/15/2015No. 14

- 11262

5 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 obstruc t ion of justice because it did not make specific fact findings , it relied on nonmaterial testimony, and t he PSR did not identify his alleged false testimony. Guy did not make the se 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 foreclo ses appellate review

. See Claiborne , 676 F.3d at 438. E ven 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 P SR and did not plainly err in rul ing that the obstruction of justice enhancement was warranted ba sed 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 participa ted in the conspirac y 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 Unit ed Case: 14-11262 Document: 00513307459 Page: 5 Date Filed: 12/15/2015No. 14

- 11262

6 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 fraudulen t 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, t he 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 (5 th 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 (5t h 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 Claibor ne , 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 th ose 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. Case: 14-11262 Document: 00513307459 Page: 6 Date Filed: 12/15/2015