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*

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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-end Guidelines sentence of 192 months’ 

imprisonment. Mr. Prince appeals from his sentence, arguing that the district court 

erred in adding four offense 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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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 Court
2 

BACKGROUND

 The fraud scheme involved the VA Spina Bifida Healthcare Program (the 

Program). The Program provides coverage for the medical needs of persons born 

with spina bifida after their veteran parents 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 beneficiaries 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 services, 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 Program covers only services performed by 

approved providers acting within the scope of their authority. It also requires that 

individual home health service providers have certain qualifications and be 

supervised by a registered nurse. 

 Mr. Prince convinced his family members 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 supervisors required by the Program. Then 

Mr. Prince falsely told beneficiaries and their caregivers that the caregivers were 

eligible for compensation for providing home healthcare services, even if they had no 

qualifications. He referred them to the sham home health agencies to file the 

paperwork and bill the VA. The caregivers received a small portion of the amounts 
3 

billed, with the remainder (excluding some costs) split between Mr. Prince and his 

friends and family. Before the fraud was discovered, Mr. Prince had enrolled the 

caregivers of approximately 45 beneficiaries with the sham agencies. And the 

agencies had submitted bills to the VA totaling at least $20,060,081.16, of which the 

VA had paid $18,777,134.68.1

 

 The third superseding indictment charged 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 health care fraud and aiding and abetting, in violation of 

18 U.S.C. §§ 1347 and 2; one count of conspiracy 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 kickback, in violation of 42 U.S.C. 

§ 1320a-7b(b)(1)(A); eight counts of unlawful monetary transactions, in violation of 

18 U.S.C. § 1957; and three counts of money laundering, in violation of 18 U.S.C. 

§ 1956(a)(1)(B)(i). A jury found him guilty on all 45 counts. 

 At sentencing, the district court clarified that the proper focus was intended 

loss and the victim of the offense was the VA, not the beneficiaries of the Program. 

Applying various increases to the offense level, including 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 total intended loss of $20,435,253.16. 
4 

program of more than $20 million, the district court determined that the applicable 

offense level was 36. With Mr. Prince’s criminal history category of I, the resulting 

Guidelines range was 188 to 235 months. The district court sentenced 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 the four-level increase 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 clear 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 conviction 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 district court’s factual finding is clear error only if it is 

simply not plausible or permissible 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 offense involving a Government health care 

program” and the loss to such program was more than $20 million. “[L]oss is the 

greater of actual loss or intended loss.” U.S. Sent’g Guidelines Manual § 2B1.1 cmt. 

n.3(A) (U.S. Sent’g Comm’n 2018). For purposes of § 2B1.1, “loss equals actual 
5 

loss (or intended loss) minus credits against loss.” Crowe, 735 F.3d at 1237. Here, 

the calculation involves intended loss rather than actual loss. 

 As Mr. Prince concedes, under Application Note 3(F)(viii) to § 2B1.1, “the 

aggregate dollar amount of fraudulent bills submitted to the Government 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 deduct 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 the services. But the 

district court disagreed. It laid out four reasons to reject 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; and (4) the VA received no value, because 

it was not authorized to pay for services rendered by unqualified personnel. The 

district court subsequently stated, as a fifth point, that no services were added 

because of Mr. Prince’s program; 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 the district court erred 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 (internal quotation marks omitted), as required 
6 

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 money to the spina bifida beneficiaries for 

covered services.” Aplt. Opening 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 entities from the VA, which indicates that Mr. Prince did not 

intend the value of all the services 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 intended loss, he has not shown where he preserved any 

such objection. Our review indicates that although he objected to the district court’s 

finding, he never asserted that the district 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 Cir. 2020). But Mr. Prince 

does not argue for plain error. “When an appellant fails to preserve an issue and also 

fails to make a plain-error argument on appeal, we ordinarily deem the issue waived 

(rather than merely forfeited) and decline to review the issue 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 court explained its first four grounds for 

rejecting the objection, Mr. Prince’s counsel stated, “I think the Court was logical 

and persuasive, honestly, about the four-point intentional aspect of this.” R. Vol. 5 at 

1884. And then, in reiterating Mr. Prince’s position that the court should deduct the 

value of the services provided to the beneficiaries, counsel framed his argument in 

terms of benefit to the VA. See id. at 1885. 
7 

 To the extent that Mr. Prince makes the same argument he made in district 

court—that the court should reduce the amount of intended loss by the value of the 

services provided to the beneficiaries—the district court did not clearly err in finding 

that the intended loss exceeded $20 million. The bills submitted to the VA were 

sufficient to establish the amount of intended loss, and Mr. Prince failed to rebut that 

evidence. Although Mr. Prince argues in his opening brief that he intended those in 

the Program to receive some benefit and cites examples of care given, care provided 

by unqualified caregivers did not benefit the VA and payments made by the VA for 

that care was therefore a loss to the VA. Most, if not all, of the caregivers were 

unqualified under the Program’s requirements, and none were supervised as required. 

Further, none of the home health agencies were approved providers, and those 

services were of no value to the VA. Mr. Prince knew that if the true facts were 

apparent, the VA would not pay anything for the services. His intention to share a 

small portion of the VA’s money with the caregivers 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