UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSEPH PRINCE, Defendant - Appellant. No. 20-1239 (D.C. No. 1:18-CR-00300-RM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, BRISCOE , and BACHARACH , Circuit Judges.

________________ _________________ After a jury convicted Joseph Prince of numerous counts arising out of a scheme to swindle millions of dollars from the Department of Veterans Affairs (VA), the district court imposed a low-e nd Guidelines sentence of 192 months’ imprisonment. Mr. Prince appeals from his sentence, arguing that the district court erred in adding four offens e levels for an intended loss exceeding $20 million. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 9, 2021 Christopher M. Wolpert Clerk of Court2 BACKGROUND The fraud scheme involved the VA Spin a Bifida Healthcare Program (the Program). The Program provides coverage for the medical needs of persons born with spina bifida after their veteran pare nts were exposed to Agent Orange while serving in the Korean or Vietnam wars. The VA employed Mr. Prince to work at a call center for the Program, assisting benefici aries with obtaining services and with the authorization, processing, and payment of claims. The Program pays for beneficiaries to receive home healthcare benefits. These benefits include: (1) home health aide se rvices, such as assistance with bathing, toileting, eating, dressing, and exercising, as well as assistance with medical equipment and health monitoring; and (2 ) homemaker services, such as cooking, laundry, and light housekeeping. The Pr ogram covers only se rvices performed by approved providers acting within the scope of their authority. It also requires that individual home health service providers have certain qualif ications and be supervised by a registered nurse. Mr. Prince convinced his family memb ers and friends to set up home health agencies. But these agencies were shams; they were not approved providers and did not employ the registered-nurse supe rvisors required by the Program. Then Mr. Prince falsely told bene ficiaries and their caregiver s that the caregivers were eligible for compensation for providing home healthcare serv ices, even if they had no qualifications. He referred them to the sham home health agen cies to file the paperwork and bill the VA. The caregiver s received a small portion of the amounts3 billed, with the remainder (excluding some costs) split betwee n Mr. Prince and his friends and family. Before the fraud wa s discovered, Mr. Prince had enrolled the caregivers of approximately 45 beneficiar ies with the sham agencies. And the agencies had submitted bills to the VA tota ling at least $20,060,081.16, of which the VA had paid $18,777,134.68. 1 The third superseding indictment charge d Mr. Prince with 45 counts: eleven counts of felony conflict of interest, in violation of 18 U. S.C. §§ 208(a) and 216(a)(2); ten counts of hea lth care fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1347 and 2; one count of cons piracy to commit an offense against the United States, in violation of 18 U.S.C. § 371; six counts of soliciting/receiving an illegal gratuity, in violation of 18 U. S.C. § 201(c)(1)(B); six counts of soliciting/receiving an illegal kickb ack, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A); eight count s of unlawful monetary tran sactions, in violation of 18 U.S.C. § 1957; and three counts of mone y laundering, in viol ation of 18 U.S.C. § 1956(a)(1)(B)(i). A jury fou nd him guilty on all 45 counts. At sentencing, the district court clar ified that the proper focus was intended loss and the victim of the o ffense was the VA, not the bene ficiaries of the Program. Applying various increases to the offense level, includi ng a four-level increase under Sentencing Guideline § 2B1.1(b)(7) for an intended loss to a government health care

1 The government initially identified bills totaling $20,060,081.16. It subsequently identified another $375,172 in bills that were submitted to the VA but were not paid, for a revised to tal intended loss of $20,435,253.16.4 program of more than $20 million, the distri ct court determined that the applicable offense level was 36. With Mr. Prince’s crim inal history category of I, the resulting Guidelines range was 188 to 235 months. Th e district court sent enced Mr. Prince to 192 months of imprisonment, three years of supervised release, and $18,777,134.68 in restitution.
DISCUSSION On appeal, Mr. Prince challenges only th e four-level increa se in his offense level under § 2B1.1(b)(7). We review the district court’ s loss-calculation methodology de novo and its factual finding of loss for clear error. See United States
v. Crowe , 735 F.3d 1229, 1235-36 (10th Cir. 2013) . Under the clea r error standard, “we may disturb the district court’s loss determination . . . only if the court’s finding is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm convic tion that a mistake has been made.” Id. at 1236 (internal quotation marks omitted); see also United States v. Gould , 672 F.3d 930, 935 (10th Cir. 2012) (“A distri ct court’s factual finding is clear error only if it is simply not plausible or permis sible in light of the entire record on appeal.” (internal quotation marks omitted)). Section 2B1.1(b)(7) directs the court to add four levels when “the defendant was convicted of a Federal health care of fense involving a Government health care program” and the loss to such program wa s more than $20 million. “[L]oss is the greater of actual loss or in tended loss.” U.S. Sent’g Guidelines Manual § 2B1.1 cmt. n.3(A) (U.S. Sent’g Comm’n 2018). For pur poses of § 2B1.1, “loss equals actual5 loss (or intended loss) minus credits against loss.” Crowe , 735 F.3d at 1237. Here, the calculation involves intended lo ss rather than actual loss. As Mr. Prince concedes, under Applicati on Note 3(F)(viii) to § 2B1.1, “the aggregate dollar amount of fraudulent bills s ubmitted to the Govern ment health care program shall constitute prima facie evidence of the amount of the intended loss, . . . if not rebutted.” The government showed that the amounts billed to the VA totaled more than $20 million. In the district court, Mr. Prince attempted to rebut this evidence by arguing that the court should deduc t the value of services provided to the beneficiaries. He asserted that it was the government’s burden to ascertain the value of those services, and it had made no effort to identify or value th e services. But the district court disagreed. It laid out four reasons to re ject Mr. Prince’s position: (1) there was no evidence that he intended to confer a benefit on the VA; (2) there was no evidence that he intended to confer a benefit on the beneficiaries of the Program; (3) the VA received no services; a nd (4) the VA received no value, because it was not authorized to pay for servic es rendered by unqualif ied personnel. The district court subsequently stated, as a fifth point, th at no services were added because of Mr. Prince’s pr ogram; the caregivers were already taking care of the beneficiaries, and he simply paid them to do what they were already doing. On appeal, Mr. Prince asserts that th e district court er red in calculating intended loss because it analyzed whether he conferred a benefit on the VA, not whether he “purposefully sought to inflict more than $20,000,000 of pecuniary harm on the VA,” Aplt. Opening Br. at 10 (inter nal quotation marks omitted), as required6 by Application Note 3(A)(ii) to § 2B1.1. He further argues that trial evidence showed he did not seek to inflict that amount of pecuniary harm on the VA, because “his intent was to give some of that m oney to the spina bifi da beneficiaries for covered services.” Aplt. Open ing Br. at 10. “[A]ll of the spina bifida beneficiaries, or their caregivers, who testified at trial said that they did receive some benefits through the home health enti ties from the VA, which indicat es that Mr. Prince did not intend the value of all the servic es to be a loss to the VA.” Id. at 11. To the extent that Mr. Prince asserts that the district court used the wrong methodology in calculating in tended loss, he has not show n where he preserved any such objection. Our review indicates that although he objected to the district court’s finding, he never asserted that the dist rict court erred by discussing whether he conferred a benefit on the VA. 2 Therefore, we review only for plain error. See United States v. Maynard , 984 F.3d 948, 966 (10th Ci r. 2020). But Mr. Prince does not argue for plain error. “When an appe llant fails to preserve an issue and also fails to make a plain-error argument on app eal, we ordinarily d eem the issue waived (rather than merely forfeited) and decline to review the issu e at all—for plain error or otherwise.” United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019).

2 To the contrary, after the district c ourt explained its firs t four grounds for rejecting the objection, Mr. Prince’s counsel stated, “I think the Court was logical and persuasive, honestly, about th e four-point intentional aspect of this.” R. Vol. 5 at 1884. And then, in reiterating Mr. Prince ’s position that the c ourt should deduct the value of the services provided to the bene ficiaries, counsel framed his argument in terms of benefit to the VA. See id. at 1885.7 To the extent that Mr. Prince makes th e same argument he made in district court—that the court should reduce the amount of intende d loss by the value of the services provided to the bene ficiaries—the district court did not clearly err in finding that the intended loss exceed ed $20 million. The bills submitted to the VA were sufficient to establish the amount of intended loss, and Mr. Prince fa iled to rebut that evidence. Although Mr. Prince argues in his opening brief that he intended those in the Program to receive some benefit and ci tes examples of care given, care provided by unqualified caregivers did not benefi t the VA and payments made by the VA for that care was therefore a lo ss to the VA. Most, if not all, of the caregivers were unqualified under the Program’s requirements, and none were supervis ed as required. Further, none of the home health agenci es were approved pr oviders, and those services were of no value to the VA. Mr . Prince knew that if the true facts were apparent, the VA would not pa y anything for the services. His intention to share a small portion of the VA’s money with the car egivers does not mean that he did not intend to inflict pecuniary harm on the VA.
CONCLUSION The district court’s judgment is affirmed.

Entered for the Court
Mary Beck Briscoe Circuit Judge