[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-13743

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-00090-KD-MU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

RASSAN M. TARABEIN, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(January 13, 2020)

Before MARTIN, BRANCH, and FAY, Circuit Judges.

PER CURIAM: 

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Rassan Tarabein appeals his $15,010,682 restitution calculation after he 

pleaded guilty to one count of health care fraud, in violation of 18 U.S.C. § 1347,

and one count of unlawful distribution of controlled substances, in violation of 21

U.S.C. § 841(a)(1). On appeal, he argues that the district court plainly erred by not 

making specific factual findings as to the calculation of restitution during the 

sentencing hearing. After a thorough review of the record, we affirm. 

I. Background

Rassan Tarabein was a licensed neurologist who provided services related to 

pain management and neurology. For these services, he billed various health care 

benefit programs, including government and private insurers. From around 2004 

to May 2017, Tarabein orchestrated a scheme to defraud the health care benefit 

programs by billing the programs for medically unnecessary tests and procedures. 

Additionally, Tarabein distributed and dispensed controlled substances to patients 

for no legitimate medical purpose and outside the usual course of professional 

practice. 

A federal grand jury indicted Tarabein with two counts of heath care fraud, 

in violation of 18 U.S.C. § 1347, ten counts of false statements relating to health 

care matters, in violation of 18 U.S.C. § 1035, one count of false statements to a 

federal agency, in violation of 18 U.S.C. § 1001, four counts of unlawful 

distribution of controlled substances, in violation of 21 U.S.C. § 841(a)(1), and 

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four counts of engaging in monetary transactions in property derived from 

specified unlawful activity, in violation of 18 U.S.C. § 1957. 

Tarabein pleaded guilty to one count of health care fraud and one count of 

unlawful distribution of controlled substances pursuant to a written plea agreement. 

In the penalties section, the plea agreement contemplated “such restitution as may 

be ordered by the court.” The agreement further noted that under 18 U.S.C §§ 

3556 and 3663(A) restitution was mandatory, and that “the defendant agrees to 

make full restitution in an amount to be determined by the Court at sentencing.” 

The government agreed to recommend a 60-month sentence. Additionally, the 

plea agreement contained an appeal waiver, which provided that: 

As part of the bargained-for exchange represented in this 

plea agreement, and subject to the limited exceptions 

below, the defendant knowingly and voluntarily waives 

the right to file any direct appeal or any collateral attack, 

including a motion to vacate, set aside, or correct 

sentence under 28 U.S.C. § 2255. Accordingly, the 

defendant will not challenge his guilty plea, conviction, 

or sentence in any district court or appellate court 

proceedings. 

The agreement further provided that the only exceptions to the appeal waiver were 

for (1) any sentence imposed in excess of the statutory maximum, (2) any sentence 

which constitutes an upward departure or variance from the advisory guideline 

range, or (3) a claim of ineffective assistance of counsel in a direct appeal or § 

2255 motion. 

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At the plea hearing, the district court then spoke specifically about the 

appeal waiver. The court asked: 

In the plea agreement, you are waiving your right to 

appeal the entry of this guilty plea as well as the sentence 

that I give you. You can’t file a direct appeal or a 

collateral appeal. Do you understand that? . . . The only 

exception is if I go above the guidelines, which I won’t 

do, if I go above the statutory maximum, which I won’t 

do, or if you receive ineffective assistance of counsel. 

Those would be the only reasons you could appeal the 

sentence or this conviction. Do you understand?

In response to both questions, Tarabein answered affirmatively that he understood 

the terms of the appeal waiver. 

The probation department prepared an initial presentence investigation 

report (“PSI”) prior to Tarabein’s sentencing. The probation officer noted that the 

Mandatory Victim Restitution Act of 1996 applied to Tarabein’s offense and 

adopted the loss calculations of a special agent for the government, which then 

formed the basis for the restitution amount. The report indicated that Tarabein was 

accountable for $12,231,301 of illicit payments that he received from the health 

care organizations. 

Tarabein initially objected to the amount of restitution listed in the PSI. The 

government also objected but argued that the total restitution amount should be 

$14,526,122.63 because the figure listed in the PSI only included restitution for 

fraudulent procedures when it should have included fraudulent prescriptions as 

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well. Tarabein then withdrew his objections to the PSI and “adopt[ed] the 

application and determination of sentencing factors and the guidelines calculations 

contained therein.” 

The final PSI revised the total restitution amount owed, determining that the 

final amount was $15,010,682. This number included $12,715,860 of fraudulent

procedures and $2,524,794 of fraudulent schedule II prescriptions. The total did 

not include the roughly four million dollars of fraudulent non-schedule II 

prescriptions. However, the total did give Tarabein credit for refunds in the 

amount of $229,973. 

Prior to sentencing, the government filed a supplemental memorandum 

detailing how an FBI special agent had calculated the loss amount and restitution 

amount associated with Tarabein’s health care fraud scheme.1

 The document 

provided charts, explanations, and specifics on how the special agent calculated the 

loss amount for each insurance company fraudulently billed. 

At the sentencing hearing, the district court stated that the probation office 

had determined Tarabein’s total offense level to be 33 with criminal history 

1 The document indicated that, in general, the special agent would take a random 

sampling of patients and calculate loss for them before averaging that number and multiplying it 

by the number of patients with the same procedures done or prescriptions given across 

Tarabein’s practice. To make the calculations for individual patient records, the government 

agent consulted with several experts, including two medical doctors and a medical billing code 

expert. The agent also interviewed several employees and patients to understand the scope of the 

fraudulent prescription problem. 

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category I, making the resulting guideline range 135 to 168 months’ imprisonment. 

After hearing from five victims, a character witness for the defendant, character 

letters, and Tarabein’s own statement, as well as arguments from both parties, the 

court sentenced Tarabein to 60-months’ imprisonment, in accordance with the plea 

agreement, 1 year of supervised release, and ordered restitution in the amount of 

$15,010,682. The court ordered Tarabein to make restitution payments of at least 

$500 a month. After the district court imposed the sentence, it asked for any 

objections. Tarabein, through counsel, responded: “I don’t have any objections, 

your Honor.” The court also told Tarabein that he would be given credit for the 

nearly $6,000,000.00 in restitution he had already paid.

On June 8, 2018—the same day as the sentencing hearing—Tarabein filed a 

notice of non-appeal, stating that he had consulted with his attorney and he did not 

wish to file an appeal. The district court entered its final judgment in Tarabein’s 

criminal case on June 20, 2018. In conjunction with the final judgment, the court 

entered a statement of reasons which indicated the court “adopt[ed] the presentence 

investigation report without change.” On August 29, 2018, Tarabein filed a pro se

notice of appeal. In October 2018, his trial attorneys withdrew from his case.2

 

2 We note that, because Tarabein was represented at the time he filed his pro se notice of 

appeal, we are entitled to ignore that filing. See Martinez v. Court of Appeal of California, 

Fourth Appellate Dist., 528 U.S. 152, 163 (2000) (holding there is no constitutional right to selfrepresentation on direct appeal); United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir. 

1987) (“It is the law of this circuit that the right to counsel and the right to proceed pro se exist 

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II. Standard of Review

We review jurisdictional issues and the interpretation of federal rules of 

procedure de novo. United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). 

We review the legality of a restitution order de novo, and a factual finding 

regarding a specific amount of restitution for clear error. United States v. Huff, 609 

F.3d 1240, 1247 (11th Cir. 2010). However, objections or arguments that are not 

raised at sentencing are reviewed for plain error. See United States v. Bennett, 472 

F.3d 825, 831 (11th Cir. 2006) (an argument regarding defendant’s offense level 

was not raised before the district court and was thus subject to plain error review). 

Under plain error review, this Court may correct an error where “(1) an error 

occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it 

seriously affected the fairness of the judicial proceedings.” United States v. 

Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). 

III. Discussion

A. We Need Not Decide the Issue of Timeliness 

In a criminal case, a defendant’s notice of appeal must be filed in the district 

court within fourteen days after entry of the judgment or order being appealed. 

Fed. R. App. P. 4(b)(1)(A)(i). A pro se prisoner’s notice of appeal is deemed filed 

in the alternative....”). However, given the posture of the case and the fact that the government 

has not objected, we will treat the notice as if it were proper for purposes of this decision. 

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on the date that he delivers it to prison authorities for mailing. Fed. R. App. P. 

4(c)(1); see also Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015). 

Here, the notice of appeal is undisputedly untimely because Tarabein filed it 

60 days after judgment was entered in his case. He now asks this court to excuse 

his untimeliness based on his counsel’s alleged ineffectiveness in not filing the 

notice of appeal when instructed to by Tarabein. 

The deadline in Rule 4(b) for a defendant to file a notice of appeal in a 

criminal case is not jurisdictional. Lopez, 562 F.3d at 1313. Instead, the filing 

deadline is considered a claims processing rule, and the government can waive an 

objection to an untimely notice of appeal in a criminal case. Id. at 1312–13. 

Nevertheless, if the government raises the issue of timeliness, then we “must apply 

the time limits of Rule 4(b).” Id. at 1313–14. Here, while the government did 

assert that we should find Tarabein’s appeal time-barred if we did not consider the 

merits of his restitution argument, the government actually expressed a preference 

for a decision on the merits. While the government’s position is not a true 

“waiver,” we believe it is a distinguishing feature from the procedural posture in 

Lopez and thus permits a different outcome here.3 Accordingly, we proceed to the 

merits of the appeal. 

3 Because we reach the merits of this appeal, we need not reach the issue of what effect, if 

any, a claim of ineffective assistance has on Rule 4(b)’s time requirements. 

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B. Tarabein’s Claim Fails on Plain Error Review4

Because Tarabein did not object to the amount of restitution at sentencing, 

his claim regarding the impropriety of the district court’s methods must be 

reviewed for plain error. Bennett, 472 F.3d at 831. In plain error review, it is the 

defendant who bears the burden to show all four prongs of this demanding 

standard. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). 

Because we conclude that Tarabein has not met his burden to show the third prong, 

we need not address the others. See United States v. Curtis, 400 F.3d 1334, 1335 

(11th Cir. 2005) (choosing to dispose of the plain error review by only addressing 

the third prong). 

The third prong of plain error review is that the error must “affect substantial 

rights” of the defendant. Fed. R. Crim. P. 52. For substantial rights to be affected, 

the error “must have been prejudicial,” meaning it “affected the outcome of the 

district court proceedings.” Olano, 507 U.S. at 734. We hold that any such error

as to the restitution amount did not affect the outcome of the proceeding below.

First, the restitution amount was undisputed at the sentencing hearing. We 

do not mean “undisputed” in the sense that Tarabein did not object—we mean that, 

after the government filed its supplemental memorandum clarifying how the 

4 As his claim fails on this ground, we do not need to address the issue of Tarabein’s 

appeal waiver and whether it is applicable. 

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special agent, and by extension the probation officer, had reached the figures it did, 

Tarabein provided no alternative method on how to calculate restitution. Indeed, 

the record shows there was none. As noted above, Tarabein even withdrew his 

objection to the initial PSI after the government objected that the figure was too 

low under its agent’s calculations. Rather, Tarabein, in a very general manner, 

questions the restitution award because it was not specifically calculated. But we 

have held that, because “the determination of the restitution amount is by nature an 

inexact science,” a district court “may accept a ‘reasonable estimate’ of the loss 

based on the evidence presented.” United States v. Baldwin, 774 F.3d 711, 728 

(11th Cir. 2014) (quoting United States v. Futrell, 209 F.3d 1286, 1290 (11th 

Cir.2000)). Relying on estimates is especially reasonable in fraud cases, where the 

defendant’s conduct produces “inevitable gaps in evidence.” Futrell, 209 F.3d at

1292.

Second, the record demonstrates that the district court had ample reasons to 

rely on the amount in the PSI. The supplemental memorandum filed by the 

government prior to sentencing contained numerous charts, calculations, and 

consultations with non-government experts who reviewed the procedures Tarabein 

conducted and the medical records to give estimates of what percentage of 

Tarabein’s billing was fraudulent. Further, as the government points out, the 

figures put forward by the government appear to be a conservative estimate of 

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Tarabein’s fraud. The supplemental memorandum states that the figures were 

calculated using the “most common procedures fraudulently billed by Tarabein” 

even though “there are other procedures and tests Tarabein was performing 

fraudulently.” And the figures only account for the years 2011 through 2016, even 

though Tarabein admitted to running this fraudulent scheme from 2004 to 2017. 

Finally, the total amount in the PSI did not include the roughly four million dollars 

of fraudulent non-schedule II prescriptions that Tarabein submitted, another 

category of funds which he could have been required to pay in restitution. 

Finally, we have upheld loss amount and restitution calculations based on 

methodology contained in the PSI before. See U.S. v. Bradley, 644 F.3d 1213, 

1293 (11th Cir. 2011) (finding no error because the Court adopted the PSI in full, 

which discussed the methodology relied on in calculating the amount of loss); see 

also U.S. v. Dickerson, 370 F.3d 1330 (11th Cir. 2004) (upholding a restitution 

amount based on methodology only contained in the PSI). The PSI contained 

ample information about the methods Tarabein used to steal money, the manner in 

which the loss amounts were calculated by the government, and the calculations 

used to add the various loss amounts together for a total restitution amount. 

For the reasons above, Tarabein has failed to meet his burden that any 

alleged error affected his substantial rights. 

AFFIRMED. 

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