Case: 14-11262 Document: 00513306798 Page: 1 Date Filed: 12/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11262
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 14, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
REGINALD GUY; ABBAS ZAHEDI,
Defendants-Appellants
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-87-4
USDC No. 4:14-CR-87-2
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Defendants-Appellants Reginald Guy and Abbas Zahedi were convicted
by a jury of one count of conspiracy to commit health care fraud, five counts of
health care fraud, and four counts of aggravated identity theft. Guy was
sentenced to a total of 156 months of imprisonment, three years of supervised
release, and restitution of $2,406,844. Zahedi was sentenced to a total of 145
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-11262
months of imprisonment, three years of supervised release, and the same
amount of restitution. They appeal their convictions and sentences.
1. Zahedi
Zahedi argues that the evidence was insufficient to support his
conviction for a single conspiracy because the evidence established two
separate conspiracies. He preserved his objection, so we review his sufficiency
challenge de novo. See United States v. Grant, 683 F.3d 639, 642 (5th Cir.
2012).
The evidence was sufficient for a reasonable factfinder to find that
Zahedi and others participated in a single overall conspiracy to commit health
care fraud. See Grant, 683 F.3d at 643. The evidence established that Zahedi,
a chiropractor, allowed Metroplex Sports Rehab Center (Metroplex) to submit
false claims for services he did not provide, and he received a percentage of the
health insurance payments. After Zahedi opened another clinic, he continued
to submit false bills, using Gregory Wattron’s provider identification number,
and he continued to coordinate with Sterns to prevent double billing. The
jury’s finding that there was a single overall conspiracy is supported by the
evidence. See United States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999).
Zahedi also contends that there was a material variance between the
indictment and the evidence presented at trial. Zahedi did not raise this
objection in the district court, so our review is limited to the plain error
standard. See United States v. Collins, 774 F.3d 256, 262 (5th Cir. 2014); see
also Puckett v. United States, 556 U.S. 129, 135 (2009).
Zahedi has not shown that there was a material variance between the
indictment and the evidence presented at trial. The indictment specifically
alleged that Zahedi and others conspired to commit health care fraud at
Metroplex and continued the same scheme at DFW Rehab and Diagnostics
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(DFW). The government presented sufficient evidence to establish that Zahedi
participated in a single overall conspiracy, so he failed to show that there was
a material variance between the indictment and the evidence presented at
trial. See United States v. Mitchell, 484 F.3d 762, 770 (5th Cir. 2007); United
States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007). But even if there had been
a variance, Zahedi has not shown that it affected his substantial rights for
purposes of plain error review because the government established Zahedi’s
involvement in at least one of the proved conspiracies. See Mitchell, 484 F.3d
at 770.
Zahedi also contends that the indictment was duplicitous because it
charged multiple conspiracies in a single count. As he concedes, he did not
raise this contention in the district court. “Objections to the indictment, such
as objections on the basis of duplicity, must be raised prior to trial.” United
States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005) (internal quotation marks
and citation omitted). Zahedi waived this issue by failing to raise it prior to
trial. See id. In any case, as discussed above, the evidence showed one
conspiracy, so the indictment was not duplicitous.
Zahedi next asserts that the district court erred in finding that he was
responsible for the money billed and collected by Metroplex after he withdrew
from the conspiracy. He did not raise this argument in the district court, so
our review is limited to plain error. See Puckett, 556 U.S. at 135. He has not
shown that the district court plainly erred in finding that he was responsible
for a loss of less than $2,500,000. Ordinarily, the district court’s finding of loss
is a factual one reviewed for clear error. See United States v. Harris, 597 F.3d
242, 250-51 (5th Cir. 2010). The failure to object to a district court’s factual
finding forecloses our reversal on plain error review because “[q]uestions of fact
capable of resolution by the district court on proper objection at sentencing can
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never constitute plain error.” United States v Claiborne, 676 F.3d 434, 438 (5th
Cir. 2012). Neither has Zahedi shown that the district court plainly erred in
finding him responsible for this loss amount because the evidence established
a single overall conspiracy from which he did not withdraw. And Zahedi would
be responsible for the entire loss because he was responsible for the reasonably
foreseeable relevant conduct of his coconspirators. See United States v. Torres,
114 F.3d 520, 527 (5th Cir. 1997); United States v. Scurlock, 52 F.3d 531, 540
(5th Cir. 1995).
Zahedi next asserts that his 145-month within-guidelines sentence was
substantively unreasonable and disproportionate to his codefendants’
sentences. Zahedi’s within-guidelines sentence is presumptively reasonable.
See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
The district court considered the record, the presentence report (PSR), and
Zahedi’s arguments, then determined that a sentence within the advisory
guidelines range was appropriate. Zahedi has not shown that there was a
sentencing disparity among similarly situated defendants nationwide, and his
focus on his nonsimilar codefendants is misplaced. See United States v.
Candia, 454 F.3d 468, 476 (5th Cir. 2006). Zahedi has failed to rebut the
presumption of reasonableness. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
For the first time on appeal, Zahedi contends that the district court
violated his due process rights by improperly imposing a harsher sentence on
him for exercising his right to a jury trial. Our review is again limited to plain
error. See Puckett, 556 U.S. at 135. Because Zahedi’s codefendants received
leniency from the government based on their agreement to cooperate and
testify against Zahedi and Guy at trial, he has shown no due process violation.
See United States v. Devine, 934 F.2d 1325, 1338-39 (5th Cir. 1991).
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2. Guy
Guy argues that the district court erred in imposing a two-level sentence
enhancement for obstruction of justice because it did not make specific fact
findings, it relied on nonmaterial testimony, and the PSR did not identify his
alleged false testimony. Guy did not make these objections in the district court,
so our review is limited to plain error. See Puckett, 556 U.S. at 135. The
district court’s finding that Guy obstructed justice is a factual finding. See
United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). Guy’s failure
to object to the district court’s factual finding forecloses appellate review. See
Claiborne, 676 F.3d at 438. Even if review is not foreclosed, the district court
did not plainly err in finding that Guy obstructed justice by testifying falsely
at trial. The PSR expressly stated, and provided record citations to show, that
Guy’s testimony was in conflict with the evidence presented at trial and the
jury’s findings. The district court adopted the PSR and did not plainly err in
ruling that the obstruction of justice enhancement was warranted based on
Guy’s false testimony. See United States v. Perez-Solis, 709 F.3d 453, 469 (5th
Cir. 2013); United States v. Flores, 640 F.3d 638, 644 (5th Cir. 2011).
Guy next contends that the district court erred in imposing a three-level
enhancement under U.S.S.G. § 3B1.1(b) based on its finding that he was a
manager or supervisor. Guy was a union representative at Lear Corporation
and used that position to recruit Lear employees to be patients at Metroplex
and DFW. The patients participated in the conspiracy by allowing Metroplex
and DFW to use their health insurance information to submit fraudulent bills.
See U.S.S.G. § 3B1.1, comment. (n.1). Guy’s recruitment of patients supports
the district court’s finding that he was a manager or supervisor. See United
States v. Rodriguez-Lopez, 756 F.3d 422, 434-435 (5th Cir. 2014). He also
delivered payments to the patients, worked at Metroplex, submitted
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fraudulent bills, was involved in meetings and had input in decisions at
Metroplex, and helped create fraudulent patient files in an attempt to conceal
the fraud. Moreover, Sterns testified that without Guy’s participation, the
magnitude of the conspiracy would not have been as great. The district court
did not clearly err in finding that he was a supervisor or manager and imposing
the three-level enhancement under § 3B1.1. See id. at 434-35.
Guy further contends that the district court erred in determining that he
should be held responsible for a loss amount of approximately $3,000,000.
After considering the PSR, Blue Cross’s fee schedule, and Guy’s arguments,
the district court made a reasonable determination that the loss should be
based on the fee schedules, rather than the amount billed or the amount
actually paid. See United States v. Umawa Oke Imo, 739 F.3d at 240.
Therefore, Guy has not shown that the district court clearly erred in finding
that the loss was approximately $3,000,000. See United States v. Harris, 597
F.3d 242, 250-51 (5th Cir. 2010).
For the first time on appeal, Guy argues that the allowed amount should
not be used because of the lack of information concerning the allowed amounts.
As there was no objection, this factual determination cannot be plain error.
See Claiborne, 676 F.3d at 438. And, as Guy did not present any evidence to
demonstrate that the allowed amounts in the fee schedule were inaccurate, the
district court did not plainly err in using those amounts to make a reasonable
estimate of the loss. See Umawa Oke Imo, 739 F.3d at 240; see also United
States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012).
AFFIRMED.
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