### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

Nos. 11-20102, 11-20167, 11 -20204

UNITED STATES OF AMERICA Plaintiff–Appellee
v. ARUN SHARMA, KIRAN SHARMA Defendants–Appellants

Appeals from the United States District Court for the Southern District of Texas

Before WIENER, CLEMENT, and PRADO, Circuit Judges. WIENER, Circuit Judge: Defendants–Appellants Dr. Arun Sharma (“Arun”) and Dr. Kiran Sharma (“Kiran”) pleaded guilty to d e f r a u d ing health-care insurers by billing for pain injections that they never administered. As part of their sentences, the district court ordered them to pay $43,318,170.93 in restitution to thirty-two victims defrauded by the scheme, viz. , Medicare, Medicaid, and thirty private insurers. The Sharmas appeal the amount of restitution, contending that it exceeds the insurers’ actual losses. Arun also claims that the government breached his plea agreement. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 2 0, 2 012 Lyle W . Cayce Clerk Case: 11-20102 Document: 00512091609 Page: 1 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204 I. Facts & Proceedings Arun and Kiran are phys i c i a n s m a rried to each other who operated two pain management, arthritis, and allergy clinics in Houston, Texas. From 1998 to 2009, they conspired to defraud Medicare, Medicaid, and m a n y p r i vate insurance companies of mil l i o n s o f do ll a r s b y billing for paravertebral facet-point injections th a t they never administered to patients. Sometimes, the Sharmas would actually administer a cheaper, faster, “trigger-point injection” but would “upcode” the procedure and bill insurers for the more expensive facet-point injection. Other times, the Sharmas would submit “phantom” bills for injections or patient visits that never happened. The Sharmas were indicted on sixty-four counts of conspiracy, health-care fraud, mail fraud, unlawful distri b u t i on of controlled substances, and money laundering. Eventually, each pleaded guilty to (1) one coun t o f c o n s piracy to commit health-care and mail fraud and (2) one substantive count of health-care fraud, in violation of 18 U.S.C. § 1347. The counts of conviction related to the injection-billin g f

r a u d but not to any other charged conduct, such as unlawful distribution of controlled substances. In their plea agreements, the Sharmas agreed to pay r e s t i t u t i o n to the insurer victims in an amount to be set by the district court. They also agreed t o specified forfeitures, including a money judgment to be rendered by the sentenc i n g court in the same amount as the restitution award. Finally, the government agreed to place $1,500,000 of the seized funds in an educational trust for the benefit of the Sharmas’ son. 1 The United Stat e s Probation Office (“Probation Office”) prepared Presenten c e Investigation Reports (“PSRs”) for both defendants. The PSRs

The ple a agree me nts als o cont ained app eal wa ivers

. At o r a l a r gume nt, the 1 governm ent conc ede d that th e w a i v e r s do not bar this app eal of res tit utio n ord ers that pur por ted ly excee d the st atut ory maxim um autho rized by the Man dat ory Vict im Rest itut ion Act. See Uni ted Sta tes v. Che m. & Me tal Indus. , Inc. , 677 F.3d750 , 752 (5t h Cir

. 2012)

. 2 Case: 11-20102 Document: 00512091609 Page: 2 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

calculated tha t the actual loss to Medicare, Medicaid, and thirty private insurers totaled $43,318,170.93, and recommended restitution in that amount. The Sharmas obj e cted, primarily because the recommendation did not give them a credit for amounts that the insurers would have paid for t h e t r i g ger-point injections that were actually administered. They also objected that the $43,318,170.93 total overstated the insurers’ actual losses because it improperly included payments for non-injection tre a t m ents unrelated to the Sharmas’ specific offenses of conviction, such as Ki r a n ’ s undisputedly legitimate allergy practice and treatments other than by injection. In supp o r t of their objections, the Sharmas submitted an alternative restitution calculation prepared by a forensic accountant. According to her report, their accountant first scrutinized the insurers’ claimed losses to exclude
p a y m ents for procedures other than injections, reducing the total loss t o $37,670,826.32. The accountant then assumed that the Sharmas had administered a specific number of legitimate, medically necessary trigger-point injections each mon t h a n d that the insurers would have paid for those procedures without the “upcoding.” Applying a credit for those injections, t he accountant concluded that the actual loss to the insurers totaled $21,028,963.61. At sentencing, the district court heard arguments regarding the amount of restitu t i o n a n d the Sharmas’ entitlement to credit for the medical services actually provided. The dist r ict court overruled the Sharmas’ objections and ordered r e s titution in the amount of $43,318,170.93, the exact amount recommended in the PSRs. The Sharmas timely appealed, chall e nging the amount of restitution ordered by the district court. In addition, Arun contends that the government breached the plea agreement by pursuing forfeiture of particular assets and by opposing a credit to the restitution award for legitimate charges.

3 Case: 11-20102 Document: 00512091609 Page: 3 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204 II. Analysis A. Standards of Review We review the quantum of an award of restitution for abuse of discretion. 2 We review the district court’s factual findings for clear error. A factual finding 3 is clearly erroneous only if “based on the record as a whole, we are left with the definite and firm conviction t h a t a mistake has been committed.” We may 4 affirm in the absence o f express findings “if the record provides an adequate basis to support the restitution order.” 5 As Arun did not articulate breach o f the plea agreement to the district

c o u r t, we review that claim for plain error. To show plain error, h e m u s t 6 d e monstrate that the error was clear or obvious and affected his subs t a n t i a l rights. “Even if he meets this tough standard, we will n o t r e v e r s e unless the

7

error has a serious effect on the fairness, integrity, or pu b l i c r e p u tation of judicial proceedings.” 8 B. Restitution The district court awarded restitution pursuant to the Mandatory Victim Restitution Act (“MVRA” )

. The MVRA authorizes restitution to a victim 9

See Uni ted Sta tes v. M ann , 493 F.3d484 , 498 (5t h Cir

. 2007)

. 2
Uni ted Sta tes v. Be

ydoun , 469 F.3d102 , 107 (5t h Cir

. 2006)

. 3 E.g. , Uni ted States v. Tee l , 691 F.3d 578, 585 (5t h Cir. 2012) (int erna l quot atio n mar ks 4
om itt ed)

.

Uni ted Sta tes v. Blocke r , 104 F.3d720 , 737 (5t h Cir

. 1997)

. 5
See Uni ted States v. He bron , 684 F.3d 554, 557- 58 (5t h Cir. 2012) (“ [W] itho ut a sp ecif ic 6 objec tio n aler ting the dis tri ct cour t that the governm ent has brea ched the ple a agree me nt, the err or is not pr es erved .” ). E.g. , Uni ted Sta tes v. Ba rl ow , 568 F.3d215 , 219 (5t h Cir

. 2009)

. 7
Id. ( inte rnal quot atio n m ark s om itt ed)

. 8
18 U. S. C. § 3 663A. 9
4 Case: 11-20102 Document: 00512091609 Page: 4 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

“directly and proximately harmed” by a defendant’s offense of conviction. The 1 0
purpose of restitution under the MVRA is to compensate victims for losses, not to punish defendants for ill-gotten gains. An award of restitution greater than 1 1 a victim’s actual loss exceeds the MVRA’s statutory maximum. 1 2 The Sharmas contend on appeal, as they did in the district court, that the total restitution awarded exceeded the aggregate amount of the insurers’ actual loss by erroneously (1) i ncluding restitution for payments not related to the injection-billing fraud and (2) failing to give credit for amounts that the insurers would have paid fo r t he less expensive injections that were actually administered. We address each of the contentions in turn. 1. Actual Loss Caused by the Offenses of Conviction The MVRA limits restitution to the actual loss d i r e ctly and proximately caused by the defendant’s offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment

or specified in a guilty plea, or for losses caus e d by conduct that falls outside 1 3 the temporal scope of the acts of conviction. Moreover, excessive r e stitution 1 4

18 U. S. C. § 3663A( a)( 1), (a) (2) , (c )( 1); see also Uni ted States v. Ar le dge , 553 F.3d 881, 1 0 898 (5t h Cir

. 2008)

.

See Beydo un , 469 F.3d at 108; see also Uni ted States v. Tay lor , 582 F.3d 558, 565- 66 1 1 (5t h Cir

. 2009)

.

See Chem

. & M

etalIndus ., 677 F. 3d at 752; Be ydoun , 469 F.3dat107

. 1 2
See Uni ted States v. Hi nojos a , 484 F.3d 337, 343 (5t h Cir. 2007) (vac ating ord er of 1 3
res tit utio n that inclu ded los se s caus ed by unchar ged fr aud that wa s “out sid e the sc ope of the indi ctm ent and inco nsi st ent wi th the unde rs tand ing o f the par tie s to the oralp lea” ).

See U n i te d States v. Inma n , 411 F.3d 591, 595 (5t h Cir. 2005) (vac ating exces sive 1 4
res tit utio n aw ard that i n c l u d e d l os se s fall ing outs ide the “ sp ecifi c tem por al sc ope of the indi ctm ent” ) (em phas is in origi nal)

. 5 Case: 11-20102 Document: 00512091609 Page: 5 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

awards cannot be excused by harmless error; every dollar must be supported by record evidence. 1 5 The Sharmas insist that the district court erred by awarding restitution for losses not caused by their offenses of conviction. They pleaded guilty to only two of the sixty-four counts of indictment, and both of those counts related to the scheme to bill insurers between 1998 and 2009 for facet-poin t i nj e ctions that

were never administered. Amounts that the insurers paid the Sharmas between 1998 and 2009 for those non-administered injections are actual losses properly compensable through restitution. Not so, however, for amounts paid by the insurers before 1998 or paid by them betwee n 1 9 9 8 and 2009 for unrelated treatments. Those payments do not constitute losses directly and proximately caused by the offenses o f c o nviction and should not have been included in calculating the restitution award. The district court adopted the precise amount from the PSRs, which it could do only if those amounts had an adequate evidentiary basis and remained unrebutted by the defendants. In preparing the Sharmas’ PSRs, the Probation 1 6 Office apparently relied on statements fro m t h e i nsurers themselves. The government solicited information regarding “any financi a l losses and/or harm experienced as a result of” the Sharmas’ billing for injections that were not administered. Medicare, Medicaid, and thirty of the private insurers responded with “victim impact statements” claiming losses from the fraud. For Medicare, Medicaid, and twenty-eight of the thirty defrauded private in s urers, the Probation Office copied the claimed losses directly into the PSRs. 1 7

See Ar le dge , 553 F.3d at 899 (vac ating res tit utio n aw ard beca use les s than 1% of the 1 5 tot al wa s not sup por tedby evide nce of caus atio n by fr aud)

.

See Uni ted Sta tes v. Ca ntu-Ra mi rez , 669 F.3d619 , 629 (5t h Cir

. 2012)

. 1 6
For the rem aining tw o ins urer s, the PSRs rec om me nded dif fer ent amo unts than the 1 7 los se s clai me d in the victi m im pac t st atem ent, but the rec ord is silent as to this dis cre panc y. 6 Case: 11-20102 Document: 00512091609 Page: 6 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

By thus directly incorporating the amounts from the victim impact

s t a t e m e n ts into the PSRs as actual losses, the Probation Office went astray

. Examples fr o m t h r e e of the insurers will suffice to show how the Probation Office failed to scrutinize those amounts and thereby recommended restitution for more than the insurers’ actual losses. One insurer, Tricare, claimed as loss all of its payments to the Sharmas dating back to 1997. Inas m uch as the charged conspiracy did not begin until 1 9 9 8 , h o w e v e r, the 1997 payments plainly do not constitut e a c t u a l losses under the MVRA. A second insurer, Texas 1 8 Amerigroup, reported that i t paid the Sharmas $650,775.01 for injections, out of a total of $929,884.55 paid to them for all treatments. Yet t h e P r o bation Office listed the larger figure, the one for total payments, as actual loss instead of listing only the lesser amount that the insurer pai d f o r injections. This too overstates the insurer’s loss by including payments not cause d b y the specific convictions. A third insurer, Principal Life Insurance, attached a spreadsheet

1 9 of all of its payments to the Sharmas, but expressly stated that it was “not sure which claims relate to the gui l ty plea.” The Probation Office nevertheless reported all of those payments as actual loss. We find no independent basis in the recor d o n w h i c h the PSRs could have concluded that the entire amount related to the guilty pleas when the insurer itself stated that it did not know. 2 0 These three errors in confecting the PSRs resulted in recommendations of restitution to Tricare, Texas Amerigroup, and Principal Life that exceeded the evidence of their actual losses under the MVRA. Moreover, thes e o b vious mistakes u n d e r mine our confidence that the Probation Office gave any meaningful scrutiny to the actual losses of Medicare, Medicaid, and the

See Inma n , 411 F.3dat595

. 1 8
See Hi nojos a , 484 F.3dat343

. 1 9
See Ar le dge , 553 F.3dat898 -99. 2 0 7 Case: 11-20102 Document: 00512091609 Page: 7 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

remaining twenty-seven private insurer victims. Our doubts are compounded 2 1 by the Sharmas’ reb u t t al evidence. Their accountant examined the insurers’ claimed losses and concluded that, by failing to exclude non-injection payments, the PSRs overstated the loss by $5,647,344.61

. In sum, the record does not support the entire $43,31 8 , 1 7 0.93 of restitution recommended in the PSRs and awa r d e d b y t he district court. The Sharmas identified this deficiency to the district court, but it did not address those objections and instead adopted the unsupported figure. This was an abuse of discretion. 2 2 2. Credit for Medical Services Actually Provided Actual loss also must not include compensation for that which would have

occu r r ed in the absence of the crime. Thus, in health-care fraud cases, an insurer’s actual loss for restitution purposes must not include any amount that the insurer woul d h a v e paid had the defendant not committed the fraud. For example, in United States v. Klein , the defendant physician was convicted of billing insurers for personally administering three shots to his patients, when in fact each patient self-administ e r e d t w o of the three shots at home. The 2 3 district court awarded re s tit u ti on in the entire amount that the insurers paid the

To be c l e a r , w e are not cri tic izing the use of victi m im pac t st atem ents

. The 2 1 governm ent may pr ope rly so lici t them , and the dis tri ct cour t may rely on them as an evide ntiar y bas is for an awa rdof res tit utio n that co mp lies wit h the stand ard s of the MVRA. But if a dis put e aris es , the cour t mus t det erm ine by a pr epo nder ance of the evide nce wh ethe r the st atem ents act ually sup por t the quant um of an aw ard of rest itut ion. The err or here wa s the unques tio ning reli ance on the st atem ents , fir st by Proba tio n and se cond by the se nten cing cour t. “‘[A]bus e of dis cre tio n’ is a phr ase wh ich ‘s ound s wo rs e than it real ly is. ’” Smi th Int’l,

2 2 Inc. v. Tex

. Com me rce Bank , 844 F.2d 1193, 1199 n.3 (5t h Cir. 1988) (c itat ion om itt ed)

. “It is sim ply a legal ter m of art wh ich, pr ope rly unde rs too d, car ries no pejo rat ive conno tat ions of a pr ofe ss ional or per so nal natur e.” Id. ; seeals o Sam ’s StyleShop v. Cosmo s Broa d. Corp

. , 694 F.2d998 , 1007 n.21 (5th Cir. 1982) (“ The ter m ‘abus e o f dis cre tio n’ is unfo rtu nate , forithas no pejo rat ive cont ent. ”)

. 543 F. 3d 206, 208 -09 (5t h Cir

. 2008)

. 2 3 8 Case: 11-20102 Document: 00512091609 Page: 8 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

defendant for the two self-adm i n i s t e r ed shots, including the cost of the medication itself as well as the amount the defendant charged for administering it. Bu t t h i s overstated the insurers’ losses: Even though the doctor 2 4 fraudulently misrepresented how the medicat i o n was administered, “the insurance companies would have had to pay for th e m edications regardless of the fraud.” We therefore vacated the restitution award a n d r e manded for

2 5 recalculation with a credit for the value of the medication. 2 6 In contrast, no credit was warranted in United States v . Jones when the defendants billed Medicare for providing physical rehabilitation se r v i ces, but fraudulently misrepresented the qualifications of the personnel who performed the work. The district co u r t a w a rded restitution to Medicare for the total

2 7 amount it paid to the defendants, without giving any credit for the value of the physical therapy that was actually provided. We affirmed because, although 2 8 the p a t i e n t s m ay h av e r e ceived some therapeutic benefit, Medicare itself–not the patients–was the victim of the fraud and would not have paid f o r a n y o f the treatment absent those fraudulent misrepresentations. 2 9 In the instant case, the parties dispute whether this situation is closer to Klein or to Jone s . T h e S h a rmas assert that, like the defendant in Klein , they provided real medical se r v i c e s f o r which the insurers would have paid in the

Id. at215

. 2 4
Id. 2 5
Id. at213 , 215- 16. 2 6
664 F. 3d 966, 970 , 977 (5t h Cir

. 2011)

. 2 7
See id. at972 -73, 984

. 2 8
Id. at 984. Jones dis cus se d the ap pli cabil ity of a cre ditint he cont ext of ac tual los s 2 9 calc ulati on for se nten cing pur pos es unde r the Gu ide lines , but the reas oning app lies eq ually to res tit utio n, wh ich the cour t aw ard ed in the sam e a mo unt. See id. at972 -73, 984

. 9 Case: 11-20102 Document: 00512091609 Page: 9 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

absence of the fraudulent upcoding. The government contends that this case 3 0 is closer to Jones because, notwithstanding any pain reli e f that the patients might have received, nothing in the record suggests that the insurers would have paid for the medically unnecessary trigger-point injections. Even though the MVRA puts the burden on the governm e nt to demonstrate the a m o unt of a victim’s loss, a sentencing court may shift “the burden of demonstrating such other matters as the court deems appropriate

... [to] the party designated by the court as justice requires.” In the past, we have 3 1 approved the transfer of at least a portion of the burden to a defendant to establish his entitlement to a r e s titution credit. In United States v. Loe , for example, we affirmed a district court’s rejection of a restitutio n c r e d i t on the basis of the defendant’s inability “to provide reliable eviden c e supporting its claims” that not all of its insurance claims were fraudulent. S i m i larly, in 3 2 United States v. Shein b a u m , w e stated that the defendant had “the burden of proving an offset” to restitution for any amounts it paid the victim in a civil settlement. And, in the unpublished opinion of United States v. Edet , another

3 3 health-care fraud case, we affirmed a restitution award that did not credit the value of wheelchairs actually provided to patients because the defendant did not offer any eviden c e that Medicare would have paid for the wheelchairs in the

a b s ence of the fraud. With that precedent in mind, we examine the i n s t a n t 3 4 record.

The Shar mas a c k n o w led ge that they are not enti tle d to cre dit for “p hanto m” bills

3 0 bas ed on nonexis tentvis its

. 18 U. S. C. § 3 664( e). 3 1
248 F. 3d 449, 470 ( 5th Cir. 200 1). 3 2
136 F. 3d 443, 449 ( 5th Cir. 199 8). 3 3
N o. 08-1 0287, 200 9 W L 552 123, at*3 ( 5th Cir. M ar. 5, 200 9). 3 4 10 Case: 11-20102 Document: 00512091609 Page: 10 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

The government presented unrebutted evidence tha t Aru n ( 1 ) deliberately misdiagnosed patients as having rheumatoid arthritis and put them on an injection regimen, (2) tried to convince all of his patients to have trig g er-point injections at every visit, (3) required patients who declined inje c t i o n s t o sign mendacious acknowledgments that they had received the treatments before he

w o u ld prescribe pain medication, and (4) administered i n j e c ti o n s i n a n a s s e mb ly line fashion without ta k i n g r o utine sanitary precautions. The Sharmas also 3 5 employed six foreign medical graduates to fabricate bills en masse. Finally, the government asserted in its sentencing memorandum that patients who later

w e n t to different physicians were “universally” taken off trigger-point injecti o n s . T he Sharmas offered little in the way of concrete evidence to rebu t t h e government’s contentions. Their plea agreements stated that some injections

w e re provided, but did not represent that those injections were medical l y necessary or tha t t h e physicians would have been reimbursed for them by the insurers. Although the Sharmas provided anecdotal statements from patients claiming some degree of pain relief, the victims of the crimes of conviction were the insurance companies, not the patients. T h e Sharmas did not produce 36 competent evidence suggesting that even one injection to even one patient was medically necessary and met the insurer’s reimbursement standards. Instead, th ey submitted only the accountant’s report which assumed without explanati o n that legitimate and me d i c a l l y necessary injections were performed and would have been reimburse d. The district court was not required to accept that selfserving premise.

Ou r dec isi on is lim ite d to thes e fac ts

. Und er othe r cir cum st ance s, the governm ent’ s 3 5 burd en of proving los s mi ght requ ire expert tes tim ony regar ding medic al nece ss ity or billing st andar ds

.

See Jones , 664 F.3dat984

. 3 6
11 Case: 11-20102 Document: 00512091609 Page: 11 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

Our review of the record in the context of the burdens of proof satisfies us that the government provided sufficient evidence that the trigger-point injections were merely a revenue stream for the Sharmas and not l e g itimate, medica l l y necessary treatments for which the insurers would have paid in the absence of t h e fraud. The Sharmas did not submit evidence refuting that conclusion. Ac c o r d i ngly, the district court did not abuse its discretion in declining to apply a restitution credit. C. Breach of the Plea Agreement Arun also contends that the government breached his plea agreement by (1) opposing the restitution credit discussed above, (2) requesting fo r f e i t u r e of the remainder of the educational trust, and (3) requesting forfeiture of funds not listed in the indictment or in notices of forfeiture. “In evaluating whether a plea agreement was b r e a c h ed, we apply general principles of contract law, construing the terms strictly against the government as drafter, to determine whether the governmen t ’ s conduct is consistent with the defendant’s reasonable understanding of the agreement.” 3 7 Assuming without deciding that Arun adequately briefed this issue, none of the purported breaches are inconsistent with a reasonable understanding of the plea a g r e ement. First, the agreement did not stipulate to a method for calculating restitution or to a credit for any trigger-point injections. In fact, the 3 8 government expressly r e s e rv e d the right to “set forth or dispute sentencing f a c tors or facts material to sentencing.” Second, the plea agreement did no t address the balance of the $1.5 million educational trust. As the trust contained

s e i z e d f u n ds, and Arun agreed to forfeit proceeds of the fraud, he could not reasonably expect any remainder of the trust to revert to him. Third, although

He bron , 684 F.3dat558 (inte rnal quot atio n m ark s and cit atio n o mi tte d)

. 3 7
See id. at 557- 58 (f

indi ng that Go vernm ent brea ched a ple a agree me nt cont aining an 3 8 expr es s agree me nt as to the range of los s)

. 12 Case: 11-20102 Document: 00512091609 Page: 12 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

the plea agreement stated that p articular properties listed in the indictment and in forfeiture notices were subject to forfeiture, it did not limit forfeiture to those listed items or accounts. Rather, Arun agreed categorically “to forfeit whatever interest [he] has in assets related to this case.” The government did not breach the plea agreement. III. Conclusion The e v i d ence is not sufficient to support the district court’s entire $43,318,170.93 restitution a w a r d. The Sharmas both identified these deficiencies and provided rebuttal evidence c o nfirming that the PSRs’

r e c o m m e n d e d r e s tit u ti o n a m o u n t exceeded the insurers’ actual loss e s b y m il l i o n s of dollars. Thus, th e d i s t r i c t c o urt abused its discretion as a matter of law in awarding the entire amount recommended in the PSRs. The district court did not, however, a buse its discretion in declining to allow the Sharmas credit for injections that were not shown to be medically necessary or reimbursable by the insurers. Accordingly, w e vacate the order of restitution and remand for recalculation consistent with this opinion and based solely on evidence already in the record. On remand, the district court must sp e c i f y , on the record, its 3 9 findings and reasons regarding each insurer’s actual loss. And, as the Sharmas’ plea agreements stipulated to a forfeiture money judgment in the same amount

as the restitution award, we also vacate the amount of the forfeiture award and remand for recalculation. Finally, the government did not breach t he plea 4 0 agreements with the Sharmas.

See Ar l e d

ge , 553 F.3d at 899 (vac ating ord er of res tit utio n and rem andi ng “f or a 3 9
rec alcul atio n of act ual los s bas ed upon the evide nce in the rec ord”) ; Beydo un , 469 F.3d at 108 (r em andi ng “to the dist ric t cour t to re- analyze the governm ent’ s evide nce” and to rec alcul ate res tit utio n). O ur hold ing ha s no eff ectonany othe r for fei tur e s ought by t he governm ent. 4 0 13 Case: 11-20102 Document: 00512091609 Page: 13 Date Filed: 12/20/201211-20102, 11-20167, 11-20 204

In summary, we vacate the district c ourt’s order of restitution and order of forfeiture, and we remand this matter to that court for it to recalculate those amounts in a manner consistent with this opinion. VACATED and REMANDED with instructions.

14 Case: 11-20102 Document: 00512091609 Page: 14 Date Filed: 12/20/2012