# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 50891

**United States of America,** Plaintiff

— Appellee **,**

versus **William Joseph Dubin,** Defendant

— Appellant **,**

**consolidated with**

**_____________ No. 19** 

**- 50912** 

**_____________ United States of America,**  Plaintiff

— Appellee **,**

versus **David Fox Dubin,** Defendant

— Appellant

**.** United States Court of Appeals Fifth Circuit 

### FILED December 4 , 2020 Lyle W. Cayce ClerkNo. 19

- 50891

2 Appeal from the United States District Court for the Western District of Texas

USDC No. 1:17

- CR

- 00227

- XR

Before **Barksdale, Elrod,** and **Ho,** Circuit Judges

**. Rhesa Hawkins Barksdale,**  Circuit Judge **:** William Joseph Dubin and David Fox Dubin were convicted on

c harges arising from a scheme to defraud Texas’ Medicaid program. Between them, they raise eight issues : sufficiency of the evidence for their conviction s ; running of the statute of limitations based on the superseding indictment; restitution and forfeiture amounts; and William Dubin ’s length of sentence. A n issue of first impression for our court is whether David Dubin’s fraudulently billing Medicaid for services not rendered constitutes an illegal “use” o f “a means of identification of another person” , in violation of 18 U.S.C. § 1028A

. **AFFIRMED**

. I.
William Dubin was a licensed psychologist in Texas , and formed “Psychological A.R.T.S., P.C.” (PARTS) , in Austin, Texas , for his psychology practice

. H e served as its chief officer and director. His son, David Dubin, later began working for PARTS on the business side of the corporation, and provide d no psychological services. PARTS is an enrolled Medicaid provider and, as such, agreed to comply with Med icaid laws and regulations. Texas’ Medicaid program provides, inter alia , funding for psychological evaluations of children within Texas’ emergency

- shelter system. In that regard, McKenzie served as the p resident of the b oard of d irectors of Williams Hou se, an emergency youth shelter located approximately 80 miles from Austin. As a part of its operations, Williams House arranged for mental

- health assessments and psychological evaluations at the shelter.No. 19

- 50891

3 Former PARTS office manager King testified at tri al that , between January and March 2011 , McKenzie and W illiam D ubin discussed an opportunity for PARTS to conduct evaluations at Williams House. The email discussion concluded with W illiam D ubin ’s offering McKenzie “10% off the top of the first year’s gro ss income from this project”. After the discussions, PARTS began to send its employees and clinicians to Williams House and bil led Medicaid for the work , as well as paying ten percent of the gross income to McKenzie.
PARTS employees performed intake interviews and psychological evaluations at Williams House. To receive Medicaid reimbursement for the work, PARTS had to certify whether a licensed psychologist perfor med it

. Work performed by a l icensed psychologist had a higher Medicaid reimbursement rate than that performed by other clinicians. At trial, King testified that she explained billing procedures and requirements to W illiam D ubin , but that he insisted tha t PARTS bill a t the higher rate , despite services not being performed by a licensed psychologist. In April 2011, W illiam D ubin directed King to pay McKenzie ten percent, in advance, of the amount estimated to be billed to Medicaid for the upcoming month . One group of evaluations that stemmed from Williams House was largely performed by a non

- licensed psychologist. But, PARTS billed Medicaid for those evaluations as if they had been performed by a licensed psychologist. Eventually, McKenzie received a contract providing $50 per hour for his referral services as an independent contractor. The contract purportedly served as a means to provide McKenzie with an above

- board role for which he could be paid for his referrals. Based on time cards he submitted , McKenzie would be paid $50 per hour f or referral s ; but, the rate was not a “real number”

. Along this line, McKenzie routinely faile d to submit timeNo. 19

- 50891

4 cards or other estimates of time spent under this contract . Instead, King devised a method to calculate McKenzie’s hours after

- the

- fact. She calculate d ten percent of the gross amount reimbursed by Medicaid for Williams House patients, d ivided it by McKenzie’s contract hourly rate of $ 50, and entered th e resul t ing number as McKenzie’s hours worked. This
ten

- percent calculation practice continued after King left PARTS in December 2011

. After a PARTS employee resigned, she provided the

ca lculation material to the Texas Attorney General. Townsend worked as a biller at PARTS, reporting to David Dubin

. Townsend billed Medicaid for PARTS’ services rendered. D avid D ubin and Townsend discussed PARTS’ billing procedures, and he instructed he r to bill Medicaid for the licensed

- professional rate , despite th is being a violation of Medicaid rules because some services were performed by students or interns , and were , therefore, ineligible for reimbursement

. Medicaid rules limit the number of billable hours per patient. After a conversation with D avid D ubin , Townsend frequently received his questions about how many hours remained for a patient , and she was often instructed to add hours to a patient’s record a fter the patient had been examined and PARTS had billed for reimbursement . In one instance, Townsend was asked to add three hours of bills as “corrected claims” for 19 previously seen patients. These added

- claims generated additional payments from Medica id

. D avid D ubin similarly instructed Townsend’s replacement, Gordon, to continue these practices, and included additional instruction s for Gordon to work around other Medicaid limits. D avid D ubin told Gordon to bill the maximum of eight hours regardless of whether th ey had been performed

. After receiving a tip, Texas’ Medicaid Fraud unit inquired into PARTS’ billing practices. After receiving patient files and communications related to PARTS’ billing procedures , it was revealed that PARTS billed forNo. 19

- 50891

5 s ervices provided by a licensed psychologist and received by 300 patients totaling 1,896 hours , although those services were not performed by a licensed psychologist.
W illiam D ubin , D avid D ubin , a n d McKenzie were charged in June 2017 for, inter alia , violating: 18 U.S.C. §§ 2 (aiding and abetting); 1349 (conspiracy to commit health

- care fraud); 1347 (health

- care fraud); 1028A (aggravated identity theft); 371 (conspiracy to violate 42 U.S.C. §§ 1320a

- 7b (b)(1) and (2)); and 42 U.S.C. §§ 1320a

- 7b (b)(1) and (2) (soliciting or receiving illegal remuneration and offering to pay illegal remuneration) . The superseding indictment in September 2018 did not include earlier charges against McKenzie ; he pleaded guilty prior to the Dubins’ trial

. Trial began on 9 October 2018 and ended on the 26 th . William and David Dubin testified.
For the 25 counts against him, W illiam D ubin was convicted on three :

c ount o ne, violating 18 U.S.C. § 371 (conspiracy to pay and receive health

care kickbacks); and c ounts n ine and t en, violating 42 U.S.C. § 1320a

7b(b)(2) (offering to pay , and paying , illegal remuneration for Patients C ( c ount n ine) and D ( c ount t en)). For the 25 counts against him, D avid D ubin was convicted on three : c ount t welve, violating 18 U.S.C. § 13 49 (conspiracy to commit health

- care fraud); c ount n ineteen, violating 18 U.S.C. §§ 2, 1347 (aiding and abetting and health

- care fraud for Patient L); and, c ount t wenty

five, violating 18 U.S.C. §§ 2, 1028A (aiding and abetting and aggravated identity thef t for Patient L)

. At sentencing, the court adopted the presentence investigation report ( PSR ) , as modified , for William Dubin and imposed , inter alia : five years ’ probation ; restitution of $61,230 ; and forfeiture in the same amount . For D avid D ubin , the court adopted the PSR, as modified , and imposed , inter alia : imprisonment of twelve months and one day for c ounts t welve andNo. 19

- 50891

6 n ineteen; two years’ imprisonment for count twenty

- five; restitution of $ 282, 0 19. 92 ; and forfeiture of $94 ,006.64

. II. David Dubin claims the superseding indictment substantially amended the charges so that the statute of limitations had r u n. Both defendant s challenge: the sufficiency of the evidence for their convictions; and the restitution and forfeiture amounts. And , William Dubin challenges the length of his sentenc e . Each challenge fails.
A

. F or counts nineteen and twenty

- five , David Dubin asserts the G overnment’s amend ed indictment substantially altered the charges such that the s uperseding indictment may not revert back, and thus the two counts

were time

- barred

. If so, h is sufficiency

- of

- the

- evidence challenges become
moot because the statute ran , and those two convictions would be vacated

. Essentially, if David Dubin’s assertions are correct on this issue, he is also without a charge for his third conviction , on count twelve.
David Dubin failed , however, to raise th is statute

- of

- limitations defense until in a post

- trial motion for ineffective assistance of counsel, filed by his trial counsel, that admitted as much . H is appellate counsel (different from trial counsel) acknowledged this at oral argument

. Failure to raise this issue until post

- trial waives it

. United Stat es v. Lewis , 774 F.3d 837, 845 (5th Cir. 2014) (holding criminal defendant must raise statute

- of

- limitations issue at trial, and defendant waives the defense if raised for first time in post

- trial motion).
B.
For William and David Dubin ’s sufficiency

- of

- the

- evidence challenge s for their convictions , if defendant timely moves for judgment ofNo. 19

- 50891

7 acquittal, as in this instance, the p reserved challenge is reviewed de novo

. E.g. , United States v. Oti , 872 F.3d 678, 686 (5th Cir. 2017) (citation omitted). Such review “is highly deferential to the verdict” and “consider[s] the evidence in the light most favorable to the [G]overnment, with all reasonable inferences and credibility determinations made in [its] favor”. Id . (internal quotat ion marks and citations omitted). For that review, “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt”. Id . (emphasis in original) (citation omitted). In that regard, “it [is] within the sole province of the jury as the fact finder to decide the credibility of the witnesses and to choose among reasonable constructions of evidence”; accordin gly, “[w]e will not second guess the jury in its choice of which witnesses to believe”. United States v. Zuniga , 18 F.3d 1254, 1260 (5th Cir. 1994) (citations omitted). Among the evidence the jury considered was the Dubins ’ trial testimony

. The jury, as a result, was able to weigh t his testimony against the evidence offered by the Government.

1. David Dubin’s sufficiency challenges are addressed first. We then turn to William Dubin’s.

a
. David Dubin challenges his conviction on count twelve for co nspiracy to commit health

- care fraud , in violation of 18 U.S.C. §§ 1347 , 1349

. A gain,

a conviction is affirmed unless no rational juror could have convicted defendant. United States v. Gonzalez , 907 F.3d 869, 873 (5th Cir. 2018) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Conspiracy to commit health

- care fraud requires the G overnment to show beyond a reasonable doubt: “ (1) two or more person s made an agreement to commit health careNo. 19

- 50891

8 fraud; (2)

. . . defendant knew the unlawful purpose of the agreement; and (3)

. . . defendant joined in the agreement with the intent to further the unlawful purpose”. United States v. Sanders , 952 F.3d 2 63, 273 (5th Cir. 2020) (quoting United States v

. Ganji , 880 F.3d 760, 767 (5th Cir. 2018)).
David Dubin ’s sufficiency challenges are based on his being acquitt ed

on other health

- care
- fraud counts , and h is assert ion that, therefore, the only evidence that can be considered to support a convict ion for conspiracy to commit such fraud is the evidence for his three counts of conviction: twelve, nineteen, and twenty

- five

. Further, he contends there is no Medicaid 12

- month

- cycle that he could violate under this scheme. In doing so, he discusses hi s theory of the Government’s case: bills for Patient L, whose examination and billings the Government used to charge David Dubin on count twelve , were held in abeyance until a later date to avoid a Medicaid rule proscribing multiple billings in a 12

- month

- cycle ; and, b ecause he forced PARTS ’ billing team to hold Patient L’s reimbursements, he purposefully avoided the rule, and therefore committed h ealth

- care fraud. His claim relies , however, on there being no 12

- month rule, and accordingly he could not violate it.
But , the conviction does not hinge on whether there is a 12

- month

cycle

. David Dubin ’s conviction is valid, regardless of whether the crime was completed, if he entered into any scheme to defraud, including a scheme to bill Medicaid for services not provided.
T he s uperseding i ndictment charged him with , inter alia , conspiracy to defraud Medicaid under 18 U.S.C. § 1349. S ignificant evidence establish ed the elements of conspiracy , showing David Dubin ’s : direction of l icensed p sychological a ssociates (a post

- doctoral associate position requiring licensure by the Texas Behavioral Health Council; not equivalent to a licensed psychologist) and unlicensed students to conduct psychologicalNo. 19

- 50891

9 tests on behalf of PARTS; submitting bills to Medicaid with improper modifiers to obtain a higher reimbursement rate; and, directing tes ts not to be supervised as required.
T he evidence establishe d a valid basis for conviction on conspiracy to commit health

- care fraud. As discussed, w e can not reconsider the weight of the evidence or attempt to balance the credibility of witnesses

— that task is “the sole province of the jury”. United States v. Hernandez

- Palacios , 838 F.2d 1346, 1350 (5th Cir. 1988); see also United States v. Duvall , 846 F.2d 966, 975 (5th Cir. 1988) (“It is not possible, or even proper for us to speculate about the basis of the jury’s decision.”). David Dubin ’s attempt to exclude evidence on other counts for which the jury returned not

- guilty verdict s is similarly unavailing. Not

- guilty verdicts may not be used to attack the evidence supporting a guilty v erdict. United States v. Powell , 469 U.S. 57 , 66 (1984) (“We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenit y, but of some error that worked against them.”).
b

. In challeng ing his conviction on count twenty

- five for aggravated identity theft and aiding and abetting , in violation of 18 U.S.C. § § 2 and 1028A , David Dubin claim s his acts did not constitute “use” within the meaning of the statute. The identity

- theft statute requires a two

- year sentence for “ [w]hoever . . . knowingly transfers, possesses, or uses , without lawful authority, a means of identification of another pers on ” during the commission of an enumerated felony. 18 U.S.C. § 1028A(a)(1) (emphasis added)

. The statute stacks the two

- year sentence with any sentence arising from an enumerated felony, which include s health

- care fraud , in violation of 18 U.S.C. § 13 47. See 18 U.S.C. § 1028A(c)(5).No. 19

- 50891

10 Our court has not previously considered the definition of “use” pursuant to the identity

- theft statute, § 1028A. It has , however, considered whether a person acted “without lawful authority” under that statute

. S ee United States v. Mahmood , 820 F.3d 177, 187 (5th Cir. 2016). L ook ing to the plain language of the statute, our court held it “proscribes the . . . use of anoth er person’s means of identification, absent the right or permission to act on that person’s behalf in a way that is not contrary to the law”. Id. at 188 (citing United States v. Osuna

- Alvarez , 788 F.3d 1183, 118 6 (9th Cir. 2015) (alteration in original) ( “[I]llegal use of the means of identification alone violates § 1028A.”); United States v. Ozuna

- Cabrera , 663 F.3d 496, 499 (1st Cir. 2011) (“[R]egardless of how the means of identification is actually obtained, if its subsequent use breaks the law

— specific ally, during and in relation to the commission of a crime enumerated in subsection (c)

— it is violative of § 1028A(a)(1).”)). In claiming he did not “use” the identity of another in the commission of the health

- care fraud , David Dubin does not claim he had lawful authority
to use the identities of patients that comprised the health

- care fraud

. Re

stated , he claims only that he did not use those identities. In doing so, h e relies upon United States v. Medlock , 792 F.3d 700 (6th Cir. 2015), and contends, under that decision’s holding on “use” , he cannot be convicted under the identity

- theft statute. Notably, the court first looked to the plain meaning of the word to hold that “use” means, inter alia , to avail oneself of. Id . at 705

– 06. But Medlock ’s holding is also based in part on a prior decision ’s defining “use” in the identity

- theft statute , various canons of construction, and the Sixth Circuit’s Pattern Jury Instructions “contemplat[ing] a narrow reading of ‘use’”

. Id

. at 706. T he “use” in Medlock turn ed on what kind of service defendants provided , and whether they overbilled for services. Id. at 70 9

. We do not accept Medlock’s definition.No. 19

- 50891

11 As we did in Mahmood , we look to the plain language of the statute. We hold the plain meaning of “use” answers the question at issue: whether David Dubin “use[d]” the means of identification of another, without lawful authority, to violate § 1028A. T he plain meaning of “us e” is: “take, hold, or deploy (something) as a means of accomplishing a purpose or achieving a result; employ: [as in] ‘she used her key to open the front door’” , Oxford Dictionary of English (3d ed. 2010); and, “to employ for the accomplishment of some purpose” and “to avail oneself of”, Black’s Law Dictionary (10th ed. 2014). 913 F.3d at 1334. In short, deciding whether a person “use[d]” something seems to be a relatively straightforward yes or no, despite David Dubin’s contention to the contrary. Alt hough David Dubin urge s our adopt ing the holding on “use” from Medlock , the facts of this case do not fit squarely into the holding or facts of Medlock . There defendants, who operated a non

- emergency ambulance company that transported Medicare patients to certain medical appointments, ultimately provided the transportation service but falsely stated that stretchers were required for transport. Medlock , 792 F.3d at 703

– 05. In contrast, Patient L did not receive services. While Patient L did undergo psychological testing by a psychological associate, there was no clinical interview, evaluation, or report provided to the shelter that assessed the patient ’s needs or made any recommendations with respect to the best program or treatment for the patient . ROA.19

- 50912.3151

- 57 , 3958

- 59

. Furthermore, the sixth circuit, i n two subsequent case s , took different approaches to “use” than it did in Medlock , one of which was a health

- care fraud / identity

- theft case , United States v. Michael , 882 F.3d 624 (6th Cir. 2018)

. See also United States v. White , 846 F.3d 170 (6th Cir. 2017). Both cases provide a slightly different definition of “use” than what David Dubin urges our adopt ing and are more compatible with the issue at hand

. Michael does, it is true, cite Medlock favorably, but only insofar as “[t ]he definition[]No. 19

- 50891

12 noted in .

. . Medlock cover[s] the conduct alleged in this case.” Michael , 882 F.3d at 628. It does not, however, explicitly adopt Medlock ’s definition. Michael also favorably cites White , which “rejected a cramped reading of ‘uses[.]’ ” Id.
The e leventh c ircuit also addressed the definition of “use” under the identity

- t heft statute, holding that the plain, ordinary meaning of the statute resolves the question. United States v. Munksgard , 913 F.3d 1327, 1334 (11th Cir. 2019) (citing Mi chael , 882 F.3d at 628). Munksgard confronted circumstances similar to those in this case, albeit bank fraud ’s being the predicate offense

. Id. at 1333. There, defendant admitted he acted “without lawful authority”, there was an enumerated predicate felony, and there was no dispute whether defendant used a “means of identification”. Id

. at 1333

– 34. Holding that the plain meaning of “use” resolved whether defendant “use[d]” a means of ide ntification , the court held defendant had violated the
statute

. Id

. at 1334. Simply put, “to use an object is [t]o convert [it] to one’s service; to avail oneself of [it]; to employ [it]; as, to use a plow, a chair, a book”. Id . (citing Webster’s Second New International Dictionary 2806 (1944)).
Consistent with th e plain meaning of “use” , the statute operates simply as a two

- part question to determine criminal conduct : did defendant use a means of identification ; and , was that use either “without lawf ul authority” or beyond the scope of the authority given? Our court’s opinion in Mahmood alludes to this approach. See Mahmood , 820 F.3d at 187

– 90 (“ t he statute plainly applies to circumstances like these, where [defendant] gained access to his patients’ identifying information lawfully, but then proceeded to use that information unlawfully and in excess of his patients’ permission”).No. 19

- 50891

13 Pursuant to that two

- part standard, David Dubin “ use [ d ]” the means of identification of the patients ; and he did so without their lawful authority, as well as in a manner beyond the scope of the ir lawful authority. At oral argument here , David Dubin’s counsel admitted as much by noting that resolution of this question is ultimately a scope

- of

- authority issue.
Patient L’s means of identification

— the patient’s Medicaid reimbursement number

— was used, or employed, by David Dubin in the reimbursement submissions to Medicaid. Based upon the records provided to Medicaid for reimbursement, David Dubin asserted Patient L received services th at he did not receive. Needless to say, i n order to be eligible for Medicaid reimbursement as submitted, the services provided to Patient L had to have been performed as submitted. PARTS submitted Patient L’s information for reimbursement as having been performed by a licensed psychologist ; instead , it was only partially performed by a licensed psychological associate , as defined supra

. Patient L was never interviewed , despite PARTS’ usual procedure, and David Dubin instructed the psychological associate that performed some of the services to cease evaluat ion of the patient, yet David Dubin submitted the evaluations as though they had been completed. Effectively, part performance of the psychological services rendered them illusory, but David Dubin billed Medicaid for a completed service. Applying these facts to our two

- part standard for the statute: David Dubin “use[d]” means of identification when he took the affirmative acts in the healt h

- care fraud, such as his submission for reimbursement of Patient L’s incomplete testing ; he used the means of identification

. Next, David Dubin does not dispute he had no lawful authority to submit these tests for reimbursement , like the defendant in Mahmood . 820 F.3d at 189. In short, David Dubin “use[d]” Patient L’s means of identification “without lawful
aut hority” under § 1028A.No. 19

- 50891

14 2

. Turning to William Dubin , he challenges the sufficiency of the evidence for : his conviction of conspiracy to pay and receive health

- care kickbacks , in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a (count one) ; and, his conv iction s for offering to pay , and paying , illegal remunerations , in violation of 42 U.S.C. § 1320a

- 7b(b)(2) (counts nine and ten)

.

a. Regarding his conviction on count one

— conspiracy to pay and receive health

- care kickbacks

— t he statute criminalizes: “knowingly and willfully giv[ing] or receiv[ing] a benefit for referring a party to a health care provider for services paid for by a federal health care program”. United States v. Sanjar , 876 F.3d 725, 746 (5th Cir. 2017). A co nspiracy to violate the health

care kickback statute requires “an agreement to do so, knowing and voluntary participation in the conspiracy, and an overt act by one member in furtherance of the unlawful goal”. United States v. Gevorgyan , 886 F.3d 450, 454 (5th Cir. 2018) (citation and quotation omitted).
William Dubin primarily attacks the evidence by asserting : his co

conspirator, McKenzie, had no power to control patients ’ receiving PARTS’

care ; and , therefore, the co

- conspirator could not refer pati ents in violation of the statute. He also claims he lacked the requisite intent under the statute : the G overnment had to show he intended to gain undue influence over the

reason ing of another person ; and it failed to do so. See United States v. Miles , 360 F.3d 472, 477

– 78 (5th Cir. 2004). Finally, he asserts that , because McKenzie was paid after the services were rendered to patients , the payments to him could not have been to induce the services.
T he G overnment presented evidence from former PA RTS employees regard ing William Dubin ’s agreement with McKenzie to provide him a ten

percent fee for patients referred to PARTS by Williams House. EmailsNo. 19

- 50891

15 described the relationship between them as a fee

- for

- referral arrangement , and the two outlined their arrangement in a contract that provided for McKenzie ’s being paid $50 an hour. But, the Government presented testimony undermining th at hourly rate. William Dubin emailed McKenzie about the “opportunity” previously offered, reiterating that , under their agreement, McKenzie would receive “10% off the top of the first year’s gross income from this project”.
As discussed supra , o nce PARTS began working with the Will iams House patients, William Dubin directed McKenzie’s fees to be calculated after

- the

- fact , so they would consistently add up to ten percent of PARTS’ reimbursements f or patients from Williams House

. A nd as also discussed, b ecause McKenzie rarely submitt ed time sheets, the PARTS administrative assistant , King, calculated ten percent of the Williams House patient

payments from Medicaid, and then McKenzie’s hou rs “worked” was calculated to reflect the ten percent he was owed

. The primary PARTS employee calculati ng McKenzie’s fee left PARTS during the scheme, but trained her replacement to continue carrying it out. According to King’s testimony, William Dubin admitted it was “unethical for [PARTS] to pay somebody for referrals, so we needed to s how it as an hourly rate”.
William Dubin ’s reading of Miles ignores a critical fact pattern that violates the kickback statute: “payments to a [party] based on the number of patients that he s i gned up with the service”. 360 F.3d at 480. As in Miles , W illiam Dubin and PARTS paid McKenzie based on the number of patients referred.
b. Concerning William Dubin ’s conviction s on counts nine and ten for offering to pay , and paying , illegal remunerations , in violation of 42 U.S.C. § 1320a

- 7b(b)(2) , the G overnment was required to show defendant, beyondNo. 19

- 50891

16 a reasonable doubt: knowingly and willfully offered to pay, or paid , any remuneration to any person; to induce that person; to refer anyone for a service eligible for payment under a federal health

- care pro gram , or to arrang e for the furnishing of such a service

. See 18 U.S.C. § 1320a

7b(b)(2)(A). As with his conspiracy conviction in count one , William Dubin claims the jury ignored evidence that McKenzie could not assert control over the Williams House pat ients. He also claims : Williams House’s remote location necessarily limited which psychological providers were willing to provide services, so the relationship between PARTS and Williams House was out of necessity and was not an illegal remuneration sche me. This sufficiency challenge improperly asks our court to reweigh the evidence presented to the jury and hold it was legally impossible for him to induce McKenzie to refer patients, or that the payments to McKenzie were not remunerations under the stat ute. As discussed supra , the payments constituted health

- care kickbacks under the statute. Regarding whether William Dubin could not induce McKenzie to refer patients , the G overnment presented evidence to show William Dubin did so : McKenzie’s role as an executive in the decision

- making process at Williams House ; his updating on the “99% probability that [he] can get [PARTS patients] in to the emergency shelter for testing ”; and, William Dubin ’s emphasizing to PARTS staff the need to keep McKenzie happy in order to “keep getting referrals”. This evidence could reasonably describe a relationship by which McKenzie had the power and ability to provide PARTS with access, and William Dubin sought to ensure that continued.
C

. With evidence sufficient for each of the convictions, we turn to the Dubins’ challenges to restitution and forfeiture. Both use the same theories to challenge the district court’s calculation of each.No. 19

- 50891

17 1. The legality of a restitution award is reviewed de novo ; if l egally permitted, the amount ($61,230 for William, and $282, 0 19.92 for David, Dubin) is reviewed for abuse of discretion. United States v. Cothran , 302 F.3d 279, 28 8 (5th Cir. 2002). Along that line, t he Mandatory Victims Restitution Act of 1996 requires defendant to pay restitution to the victim in a property

loss case. 18 U.S.C. § 3663A. When the underlying offense of conviction is fraud, the court may award restitution for actions taken as part of the scheme. Cothran , 302 F.3d at 289 (“[W]he re a fraudulent scheme is an element of the conviction, the court may award restitution for ‘actions pursuant to that scheme’”

. (quoting United States v. Stouffer , 986 F.2d 916, 928 (5th Cir. 1993))).
F or the Dubins’ crimes, the victim is the Governmen t , vis

- à

- vis Texas’ Medicaid program, which receives funding from the United States Department of Health and Human Services

. See , e.g. , United States v. Jones , 664 F.3d 966, 984 (5th Cir. 2011); see also Mahmood , 820 F.3d at 193 (“We must consider that Me dicare is the victim of [the] fraud . . . .”). Restitution awards are limited “to the actual loss directly and proximately caused by

. . . defendant’s offense of conviction”. Mahmood , 820 F.3d at 196 (citation omitted). In calculating loss amounts for p urposes of restitution, the Government bears the burden to demonstrate the loss. See 18 U.S.C. § 3664(e); see also Mahmood , 820 F.3d at 196. The burden then shifts, and “ a defendant, to be entitled to an offset against an actual loss amount for purposes of restitution, must establish (1) ‘that the services .

. . were legitimate’ and (2) ‘that Medicare would have paid for those services but for his fraud’”

. United States v. Mathew , 916 F.3d 510, 521 (5th Cir. 2019) (quoting Mahmood , 820 F.3d at 194); see also United States v. Ricard , 922 F.3d 639, 659 (5th Cir. 2019) (“The defendant meets this burden by establishing ‘(1) that the services [he provided to Medicare beneficiari es] were legitimate’No. 19

- 50891

18 and (2) ‘that Medicare would have paid for those services but for his fraud’”) (quoting Mathew , 916 F.3d at 521 (alteration in original) ).
The Dubins claim our court’s recent decision in R icard entitles them
to an offset calculated at actual value of services provided. See 922 F.3d at 658

– 59. Ricard and Mahmood , they assert , require deduct ing the amount Medicaid would have paid , but

- for the fraud. See Ricard , 922 F.3d at 659

– 60; see also Mahmood , 820 F.3d at 196. But the Dubins have the burden to satisfy both prongs of the standard set out in Mahmood , and they fail on both fronts. 820 F.3d at 194. At sentencing, the Dubins claimed the services provided by PARTS “were valuable to those

. . . t o whom they were provided” and , as a result, the Dubins should receive the offset

. This claim is unavailing, however.
At trial , and again at sentencing, the Government provided substantial evidence that the purported services were illegitimate : poor re cord keeping by the Dubins , improper billing based on who performed the services , and services performed by individuals who were not employees at the time the y provided services

. The Dubins failed to overcome this strong showing and thus fall short of carrying their burden on the first prong. They also failed to prove that Medicaid would have paid for the services because their bills were submitted in violation of Medicaid rules and regulat ions for psychological treatment and without modifiers for testing administered by psychological associates, interns, and students (as opposed to licensed psychologists). The evidence of work done by students and unlicensed individuals shows illegitimate services that w ere billed for reimbursement by PARTS and the Dubins.

2. Next, we consider the Dubins’ challenge to the forfeiture order s : $61,230 f o r William , and $94,00 6.64 f o r David , Dubin

. A forfeiture order ’sNo. 19

- 50891

19 legality is reviewed de novo ; its factual bases for clear error. United States v. Reed , 908 F.3d 102, 125 (5th Cir. 2018) , cert

. denied 139 S. Ct. 2655 (2019). The PSR calculated the total amount of improper benefits conferred

on William Dubin from the kickback scheme to be $61,230. For the intended loss related to the health

- care fraud perpetrated by William and David Dubin , the PSR found it totaled $659,085.98 , of which $282,019.92 was paid to PARTS, because the poor record keeping at PARTS made it i mpossible to separate legitimate , from illegitimate , Medicaid claims. See United States v. Hebron , 684 F.3d 554, 563 (5th Cir. 2012 ) (“[ D efendant] should not reap the benefits of a lower sentence because of his ability to defraud the [G] overnment to such an extent that an accurate loss calculation is not possible.”). When the fraud cannot be parsed for properly

- obtained amounts, “the burde n shifts to

. . . defendant to make a showing that particular amounts are legitimate. Otherwise, the district court may reasonably treat the entire claim for benefits as intended loss”. Id. T he loss amount for David Dubin of $94,006.64 was based on his share of PARTS be ing one
- third, and accordingly his share of the impermissible benefit to be

one
- third. See Reed , 908 F.3d at 127 (holding the court must apportion forfeiture amounts between defendants).
T he Government demonstrated the Dubins’ mutual failures to separate proper payments and valid records from improper payments and invalid records. After acquiring case
- file i nformation, the PSR presented the total amounts to be forfeited by William Dubin and David Dubin , and it bears sufficient indicia of reliability. See United States v. Dickerson , 909 F.3d 118, 130 (5th Cir. 2018).
D

. The final issue is William Dubin’s assertion that the district court erred by failing to adjust his sentence downward based on a lower restitutionNo. 19

- 50891

20 amount

. A downward sentence, he contends, necessarily flows from his restitution claim : a s a result of his claim that he shoul d receive a vacated or revised restitution amount, his sentence must be lowered according to the newly calculated or vacated restitution

. B ecause his challenge to the restitution calculation fail s , this one does as well

. III. For the foregoing reasons, the judgments are **AFFIRMED**

.No. 19

- 50891

21 **Jennifer Walker Elrod ,**  Circuit Judge **,** concurring: I concur in the majority opinion’s affirmance of David Dubin’s identity

- thef t conviction (Count 25) because our precedent requires it. See United States v. Mahmood , 820 F.3d 177 , 187

– 90 (5th Cir. 2016)

. But I do so reluctantly and write to explain why the Sixth Circuit’s decision in United States v. Medlock , 792 F.3d 700 (6th Ci r. 2015) better interprets the statute at issue, 18 U.S.C. § 1028A. Title 18 U.S.C. § 1028A is the “Aggravated Identity Theft” statute. That law imposes a mandatory two

- year sentence on anyone who uses another person’s means of identification without law ful authority during and in relation to theft of government funds. 18 U.S.C. § 1028A(a)(1); see also Mahmood , 820 F.3d at 18 8. In Mahmood , we held that § 1028A “ plainly criminalizes situations where a defendant gains lawful possession of a person’s means of identification but proceeds to use that identification unlawfully and beyond the scope of permission granted.” 820 F.3d at 187

– 88. Hence, under Mahmood ’s broad language, David Dubin violated § 1028A when he used Patient L’s identity to lie about the e xact contours of the services provided to Patient L. But the statute does not require such a broad interpretation, and the Sixth Circuit explained why in Medlock . The Medlocks owned a non

emergency ambulance company. 792 F.3d at 703. Medicaid agreed to reimburse the Medlocks for patients’ ambulance rides if the rides were “medically necessary.” Id. Reimbursable transportations had to have an Emergency Medical Technician on board with the patient, and the Medlocks’ company had to document each trip with a certification of medical necessity describing why the transportation qualified for reimbursement. Id. at 703

– 04. The Medlocks submitted certificates of medical necessity t hat contained several lies. For example, the Medlocks lied about patients beingNo. 19

- 50891

22 transported on stretchers and said that the patients were accompanied by someone inside the ambulance when, in fact, the patient rode alone with the driver. Id. at 704, 708. The Sixth Circuit reversed the identity

- theft conviction because the Medlocks “misrepresented how and why the beneficiaries were transported, but they did not use those beneficiaries’ identities to do so.” Id. at 707. “[T]he Medlocks’ misrepresentatio n that certain beneficiaries were transported by stretchers does not constitute a ‘use’ of those beneficiaries’ identification

. . . because their company really did transport them.” Id. at 708. In my view, the Sixth Circuit has the better interpretati on of the
statute. 1 There was simply no identity theft in Medlock , and there is none here. David Dubin lied to Medicaid about the exact contours of the services Patient L received, but did not misrepresent that Patient L did indeed receive services. Pat ient L’s not receiving the full array of psychological services does not erase the fact that Patient L

— and not someone else

— received services. When he billed Medicaid, he lied about when a clinical interview was performed and about the type of person that performed the services. Thus, David lied about when and how Patient L received services, but did not lie about Patient L’s identity or make any misrepresentations involving Patient L’s identity. Nor did anyone else pretend to be Patient L. Therefore,

1 In United States v. Michael , Judge Sutton, writing for the panel, favorably cited Medlock , which he said “held, quite correctly, that submitting false reimbursement requests about the nature of a service provided did not co nstitute ‘use’ of another’s ‘means of identification’ but that forging a doctor’s signature to bolster those submissions satisfied the statute.” 882 F.3d 624, 628 (6th Cir. 2018). Again, here, as in Medlock , the forgery was about the nature of the servic es provided, not about anyone’s identity.No. 19

- 50891

23 a ny forgery alleged in this case, as in Medlock , was related only to the nature of the services, not to the patient’s identity. We recently affirmed a § 1028A conviction in a healthcare fraud case where the defendants, unlike in this case, committed actual identity theft. United States v. Anderson , 980 F.3d 423 (5th Cir. 2020). Terry Anderson owned an optical and hearing aid center at which his son, Rocky Anderson, also worked. Id . at 425. Terry forged Rocky ’ s signature to file insurance claims, and vic e versa. Id . at 432. The Andersons also used the names of two people to file insurance claims for hearing tests and hearing aids when the people had never been tested by the Andersons and never received hearing aids. Id

. Unlike in this case, there was real identity theft in Anderson

. For these reasons, if I were writing on a blank slate, I would follow the Sixth Circuit’s interpretation of § 1028A as outlined in Medlock . Because we are bound by the holding in Mahmood , h owever, I concur in full.