In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4088
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OLAND B ORRASI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 916-2—William J. Hibbler, Judge.
A RGUED O CTOBER 22, 2010—D ECIDED M AY 4, 2011
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Roland Borrasi, a medical doctor,
was convicted of Medicare fraud after he accepted a
salary from a hospital in exchange for continually
referring patients to the facility, a violation of 42 U.S.C.
§ 1320a-7b. In this appeal, Borrasi attacks both his con-
viction and his sentence. We find that the district court
did not err by admitting minutes from hospital committee
meetings to prove attendance records while excluding
2 No. 09-4088
discussion of reports to which the minutes refer, as the
latter constituted inadmissible hearsay. Because the
Medicare fraud statute criminalizes payments when
induction of referrals is among the purposes for the
payments, we also find that the district court did not err
in instructing the jury. Accordingly, we affirm his con-
viction. In addition, we find that the district court
did not err in sentencing Borrasi. It reasonably estimated
the loss amount in determining his offense level, it prop-
erly assessed a leadership enhancement to his offense
level, and it expressed adequate reasons to sentence
Borrasi to a longer term than his co-defendant. Accord-
ingly, we affirm his sentence as well.
I. B ACKGROUND
Dr. Borrasi owned Integrated Health Centers, S.C.
(“Integrated”), a corporate group of healthcare providers
in Romeoville, Illinois. He worked primarily at nursing
homes and hospitals. Through this work, he became ac-
quainted with Chief Executive Officer Wendy Mamoon,
Director of Operations Mahmood Baig, and other officers
and directors of Rock Creek Center, L.P., a licensed inpa-
tient psychiatric hospital in Lemont, Illinois. Reimburse-
ments from the Medicare federal health care program
constituted the vast majority of payments received by
Rock Creek.
At some time between 1999 and 2002, Borrasi, Mamoon,
Baig, and others conspired to pay bribes to Borrasi and
other individuals at Integrated in exchange for an in-
creasing stream of Medicare patient referrals. Doctors Zafer
No. 09-4088 3
Jawich, Bruce Roper, and Abhin Singla, as well as psychol-
ogist Agnes Jonas, were among those employed at Inte-
grated at that time. Over that period, a sum of $647,204
in potential bribes was paid to Borrasi and Integrated
physicians by Rock Creek. In 2001 alone, Borrasi referred
approximately 484 Medicare patients to Rock Creek.
In order to conceal these bribes, Borrasi and other
Integrated employees were placed on the Rock Creek
payroll, given false titles and faux job descriptions, and
asked to submit false time sheets. Borrasi, for example,
was named “Service Medical Director” and was allegedly
required to be available at all times; Baig later testified
that Borrasi was not expected to perform any of the
duties listed in his job description. According to minutes
of Rock Creek’s various committee meetings, Borrasi
and some Integrated physicians occasionally attended
meetings and submitted reports of their work. But they
attended only a very small percentage of the actual meet-
ings, and multiple witnesses testified to rarely seeing
them in the Rock Creek facility for meetings or other
duties. Jonas, Jawich, and Roper each testified that the
Integrated physicians did not perform their assigned
administrative duties, their reports and time sheets
notwithstanding. Baig testified that he, Borrasi, and
Mamoon did not expect the Integrated physicians to
perform any actual administrative duties.
In addition, Rock Creek paid the salary for Integrated’s
secretary, as well as lease payments for one of Integrated’s
offices. This arrangement purportedly gave Rock Creek
an outpatient clinic at Borrasi’s building and certainly
4 No. 09-4088
supplemented Borrasi’s rent. Further, Baig was paid
both to oversee the admission and stays of Integrated’s
referrals to Rock Creek and also to ensure the referred
patients were returned to nursing homes and facilities
that Borrasi could access and control. These methods
enabled Rock Creek and Borrasi to maximize their
Medicare reimbursement claims.
In December 2006, a grand jury returned an indictment
against Borrasi, Mamoon, and Baig, charging them with
one count of conspiracy to defraud the United States
government, in violation of 18 U.S.C. § 371, and six
counts each of Medicare-related bribery, in violation of
42 U.S.C. § 1320a-7b et seq. Baig pled guilty to all seven
counts, but Mamoon and Borrasi proceeded to trial. The
three-week trial included testimony from Integrated
and Rock Creek employees; documentary evidence com-
prising time sheets, attendance records from meeting
minutes, and Medicare reimbursement claims; and re-
cordings of Borrasi’s conversations with Integrated phy-
sicians recorded by Singla, including one in which
Borrasi admitted to referring patients in exchange for
“free money” from Rock Creek. The jury returned verdicts
of guilty on each count against Borrasi and Mamoon.
The district court then held a joint, two-day sentencing
hearing for Borrasi and Mamoon. Both defendants were
in criminal history category I. After considering the
presentence report (PSR) and the parties’ arguments
regarding increasing the offense level to reflect the
loss amount and enhancing the offense level due to their
leadership roles, the court calculated Borrasi’s offense
No. 09-4088 5
level at 28 (yielding a range of 78-97 months’ imprison-
ment) and Mamoon’s offense level at 26 (yielding a range
of 63-78 months’ imprisonment). The district court then
heard the defendants’ mitigation evidence, including
testimony regarding a severely debilitating accident
Mamoon’s son had suffered that left Mamoon as his
sole caregiver. The court sentenced Borrasi to seventy-
two months’ imprisonment and two years’ supervised
release. Mamoon was sentenced to six months’ imprison-
ment, one year of home confinement, and five years’
supervised release. Each defendant was required to pay
$497,204 in restitution.
Borrasi then moved the district court to reconsider
his sentence, arguing that it should be significantly
lower to comport with Mamoon’s. After holding a hearing
on the matter, the district court denied his motion, con-
cluding that the disparate sentences were justified by
the facts of the case and the individual defendants’ char-
acteristics. Borrasi then timely appealed.
II. A NALYSIS
Borrasi challenges both his conviction and his sen-
tence in this appeal. He first argues that two errors
during the guilt phase of his trial require a new trial. He
then argues that, even if his conviction stands, we must
remand for resentencing because of three errors during
the sentencing phase. The government argues that the
decisions about which Borrasi complains were not errone-
ous. We will consider each of Borrasi’s five issues in
turn, beginning with the alleged infirmities in his convic-
tion.
6 No. 09-4088
A. Challenges to Conviction
At the conclusion of his trial, Borrasi moved for a new
trial or, in the alternative, a judgment of acquittal,
alleging twelve separate grounds for relief that included
alleged evidentiary, procedural, and instructional errors.
On appeal, he wisely limits his attack on his conviction
to two allegations of error. See Ehrhart v. Sec’y of Health
and Human Servs., 969 F.2d 534, 537 n.2 (7th Cir. 1992)
(“[I]t behooves litigants to choose with care a few select
issues for review, preferably those not forfeited by
waiver.”). His first allegation of error involves an eviden-
tiary ruling, and the second focuses on the government’s
commentary during closing arguments regarding the
statute he was charged with violating. We find neither
argument persuasive.
1. Exclusion of Hearsay
Borrasi first argues that the district court erroneously
interpreted and applied the Federal Rules of Evidence
when it prevented him from using comments in
meeting minutes during his defense, despite its earlier
decision to allow the government to introduce the minutes
into evidence and use them for a different purpose.
According to Borrasi, this ruling prejudiced his case
and warrants reversal of his conviction. We review the
district court’s decision to exclude the evidence or limit
its use for an abuse of discretion, but we review its inter-
pretation of the Rules de novo. United States v. Rogers, 587
F.3d 816, 819 (7th Cir. 2009). Even if we determine the
evidentiary decision was erroneous, we will not reverse
No. 09-4088 7
it if the jury’s ultimate decision was not influenced by
the error. United States v. Oros, 578 F.3d 703, 707 (7th Cir.
2009).
The meeting minutes at issue were taken during Rock
Creek committee meetings. The face sheet of each set of
minutes lists attendees at the meetings. The govern-
ment sought to introduce them to support its expert’s
summary of the attendance of Borrasi and his Integrated
physicians at Rock Creek meetings. This summary pur-
ported to show that they did not participate sufficiently
in their assigned committees to justify receiving salaries
from Rock Creek for their respective activities. The gov-
ernment and Borrasi stipulated to the minutes’ admissi-
bility, and Borrasi now argues that the scope of the stip-
ulation agreement was not limited to specific contem-
plated uses of the evidence.
Some of the minutes contained comments about com-
mittee reports submitted to Rock Creek’s board of direc-
tors. Borrasi sought to introduce the minutes as exhibits
so the jury could consider the information in those refer-
enced reports, including the descriptions of medical
services he and his employees allegedly performed for
Rock Creek. He believed the substantive information in
the reports—partially incorporated by the minutes—
would refute the government’s assertion that he and the
other Integrated employees did not have to perform
any work to receive a salary from Rock Creek.
On the government’s objection, the district court ruled
the minutes’ substantive descriptions of the reports
inadmissible because the statements would constitute
8 No. 09-4088
hearsay. It did allow Borrasi to examine Rock Creek
witnesses about whether they received the reports,
and Borrasi questioned Mamoon about the reports and
committee meetings at length. Nevertheless, Borrasi
contends that the exclusion was erroneous because the
reports met the business-records exception to the
hearsay prohibition.
Federal Rule of Evidence 803(6) excepts certain “records
of regularly conducted activity” from Rule 802’s general
ban on the admission of hearsay evidence. Borrasi argues
that hospital committee meeting minutes plainly fall
within the scope of the business records exception
because they were “record[s] . . . of acts, events, conditions,
opinions, or diagnoses, made at or near the time . . . kept
in the course of a regularly conducted business activity”
and because it was Rock Creek’s regular practice to take
minutes of business meetings. Fed. R. Evid. 803(6). The
district court accepted the parties’ stipulation that the
minutes themselves would fall within this exception.
Borrasi now contends that, because the government
did not limit the uses to which the minutes could be
put upon their admission, it waived any opportunity to
later limit the evidentiary uses to which he could apply
the minutes. To support this broad premise, he cites
Rule 105,1 yet he cites no case for his proposition that the
1
Federal Rule of Evidence 105 provides: “When evidence
which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is ad-
(continued...)
No. 09-4088 9
Rule has such a preclusive effect at the moment of admis-
sion. Indeed, this argument inverts the very spirit of the
Rule. Rule 105 is a vehicle for the enforcement of the
Federal Rules of Evidence, but Borrasi’s attorney would
turn it into a trap—set upon admission of evidence and
sprung later in trial—to effectively prevent enforcement
of the Rules.
The meeting minutes almost certainly fell within Rule
803(6), especially given that—despite the involvement of
Rock Creek officers in the fraudulent scheme—the govern-
ment did not question the reliability of the documents.
See Fed. R. Evid. 803(6) (excluding from the business
records exception those records whose “source of infor-
mation or . . . method or circumstances of preparation
indicate lack of trustworthiness”). Borrasi, however,
challenges the exclusion of the reports referenced in
the minutes and any comments in the minutes re-
garding the substance of those reports. Those reports
and any statements therefrom are hearsay, as each com-
prises statements written by physicians not testifying
before the court that Borrasi wished to introduce for the
truth of the matters asserted. See Fed. R. Evid. 801(c).
The government argues—and Borrasi does not re-
fute—that Borrasi never laid any additional foundation
for the admission of these reports or the minutes’ substan-
tive discussion of them. That alone justifies the district
1
(...continued)
mitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly.”
10 No. 09-4088
court’s decision to bar the jury’s receipt of the reports, as
courts may not permit the introduction of hearsay con-
tained within hearsay unless each layer is properly admit-
ted under an exception to Rule 802. Fed. R. Evid. 805.
Specifically, “statements made by third parties in an
otherwise admissible business record cannot properly be
admitted for their truth unless they can be shown inde-
pendently to fall within a recognized hearsay excep-
tion.” United States v. Christ, 513 F.3d 762, 769 (7th Cir.
2008) (quoting Woods v. City of Chicago, 234 F.3d 979, 986
(7th Cir. 2000)). Borrasi broadly concludes that the
minutes are not “double hearsay” because the minutes
did not contain statements of outsiders to Rock Creek,
but rather statements of reports by Integrated physicians
with privileges at Rock Creek. But he does not—and
could not—argue that the reports were themselves trust-
worthy business records falling within Rule 803(6) or
any other exception. Accordingly, the statements con-
tained in the reports, as well as any quotations from
or specific references to them in the minutes, constituted
inadmissible hearsay.
The district court did not erroneously interpret
Rules 802 and 803(6). It properly allowed Borrasi to
argue that certain reports were made and then tendered
during the meetings, and it allowed him to use the admit-
ted minutes in an attempt to prove those arguments.
But the court did not abuse its discretion in refusing to
admit any substantive descriptions of the reports in
the minutes or the reports themselves.
Had we found the exclusion erroneous, we would
nevertheless have found it to constitute harmless error
No. 09-4088 11
because it could not have had a substantial and
injurious effect on the outcome of the trial. See Oros, 578
F.3d at 709. Borrasi argues that he was prejudiced in his
defense because he was barred from showing the jury
that he and other Integrated physicians earned their
salaries. Yet Borrasi was able to expound on this theory
of defense throughout his cross-examinations, his case-in-
chief, and his closing arguments. Even if the court
allowed Borrasi to introduce the minutes’ specific dis-
cussions of the reports purporting to show the Integrated
physicians’ work, it is highly unlikely that the evidence
would have offset the overwhelming evidence that
Borrasi and the other physicians were being paid in
significant part for their referrals instead of their ser-
vices. Baig testified that he paid kickbacks to Borrasi;
Jawich testified that he did minimal administrative
work for Rock Creek and that his contract’s job descrip-
tion was not accurate; and the jury heard recorded con-
versations in which Borrasi described the “free money”
Integrated received for their referrals. Accordingly, “any
error the district court committed was harmless and
a reversal is not warranted.” Id. at 710.
2. Interpretation of 42 U.S.C. § 1320a-7b
Borrasi’s second challenge to his conviction turns on
the interpretation of the criminal statute he was charged
with violating and conspiring to violate. Because med-
ical services for the patients Borrasi referred to Rock Creek
were paid for by Medicare, his referrals and conduct
were subject to certain statutory restrictions. Borrasi was
12 No. 09-4088
charged, for example, with violating one statute de-
signed to help combat health care fraud:
[W]hoever knowingly and willfully solicits or
receives any remuneration (including any kick-
back, bribe, or rebate) . . . in return for referring
an individual to a person for the furnishing or
arranging for the furnishing of any item or service
for which payment may be made in whole or in
part under a Federal health care program . . . shall
be guilty of a felony and upon conviction thereof,
shall be fined not more than $25,000 or imprisoned
for not more than five years, or both.
42 U.S.C. § 1320a-7b(b)(1). The government theorized
that Borrasi and the other Integrated physicians received
payments—in the guise of salaries—from Rock Creek
for their referrals of Medicare patients.
Borrasi points out, however, that the statute exempts
some behavior from its coverage. It does not criminalize
“any amount paid by an employer to an employee (who
has a bona fide employment relationship with such
employer) for employment in the provision of covered
items or services.” 42 U.S.C. § 1320a-7b(b)(3). Seizing
this language, Borrasi argues that the prosecution prej-
udicially misstated the law in its closing argument
by suggesting that it did not matter if any portion of
Rock Creek’s payments to him or other Integrated phy-
sicians was pursuant to legitimate employment relation-
ships because the statute was violated if any portion of
the payments was for patient referrals. He contends that
the government’s argument to the jury nullified his
No. 09-4088 13
theory of defense and that the district court did not cure
the misconduct by striking the argument and by giving
an adequate curative instruction.
Because Borrasi’s challenge to the district court’s jury
instructions necessarily implicates a question of law—the
scope of § 1320a-7b(b)(3)’s exemption—we review the
district court’s instructions de novo. United States v.
DiSantis, 565 F.3d 354, 359 (7th Cir. 2009). We also review
de novo whether a particular instruction was appropriate
as a matter of law. United States v. Tanner, 628 F.3d 890,
904 (7th Cir. 2010). We will affirm Borrasi’s conviction
if the jury instructions fairly and accurately summarized
the law, and we will reverse only if the instructions
misled the jury and prejudiced his defense. United States
v. Quintero, 618 F.3d 746, 753 (7th Cir. 2010).
Borrasi urges us to adopt a “primary motivation”
doctrine, under which the trier of fact would determine
the defendants’ intent in any given case and find
them not guilty if the primary motivation behind the
remuneration was to compensate for bona fide services
provided. Under the primary motivation doctrine, the
district court’s instructions in this case would have been
both inaccurate as to the law and inadequate to cure
any prejudice from the government’s statements during
its closing arguments. He contends that such a construc-
tion is necessary both to avoid the possibility of convic-
tion based on innocent or de minimis conduct and also to
give effect to the rule of lenity in the face of statutory
ambiguity.
Persuasive authority weighs heavily against Borrasi’s
proposal. He relies on United States v. Bay State Am-
14 No. 09-4088
bulance and Hosp. Rental Serv., Inc., 874 F.2d 20 (1st Cir.
1989), where the First Circuit affirmed the appellants’
convictions after “the district court instructed that the
defendants could only be found guilty if the payments
were made primarily as [referral] inducements.” Id. at 30.
But contrary to his allegation, there does not appear to
be a circuit split regarding the appropriate interpreta-
tion of § 1320a-7b(b). The First Circuit did not decide in
Bay State “whether the government must show that such
payments were made primarily or solely with a corrupt
intent.” Id. Rather, it held that the district court’s instruc-
tion at least “comport[ed] with congressional intent.” Id.
Each circuit to actually reach the issue has rejected
the primary motivation theory Borrasi advocates. See
United States v. Greber, 760 F.2d 68, 71 (3d Cir. 1985) (“The
text refers to ‘any remuneration.’ That includes not only
sums for which no actual service was performed but
also those amounts for which some professional time was
expended.”); United States v. Davis, 132 F.3d 1092, 1094
(5th Cir. 1998) (holding that § 1320a-7b(b)(2) is violated
whenever the benefits extended were partially to induce
patient referrals); United States v. Kats, 871 F.2d 105, 108
(9th Cir. 1989) (“[T]he Medicare fraud statute is violated
if ‘one purpose of the payment was to induce future
referrals.’ ” (quoting Greber, 760 F.2d at 69)); United States
v. McClatchey, 217 F.3d 823, 835 (10th Cir. 2000) (“[A]
person who offers or pays remuneration to another
person violates the Act so long as one purpose of the
offer or payment is to induce Medicare or Medicaid
patient referrals.”).
We find the reasoning of the Third, Fifth, Ninth, and
Tenth Circuits convincing, and we decline Borrasi’s
No. 09-4088 15
invitation to create a circuit split. Nothing in the
Medicare fraud statute implies that only the primary
motivation of remuneration is to be considered in
assessing Borrasi’s conduct. We join our sister circuits in
holding that if part of the payment compensated past
referrals or induced future referrals, that portion of the
payment violates 42 U.S.C. § 1320a-7b(b)(1).
The district court’s instructions comported with this
common-sense holding. The instruction tracked the
language of § 1320a-7b(b)(1), combining it with a defini-
tion of remuneration. To convict Borrasi, the instruction
required the jury to find—beyond a reasonable doubt—that
some amount was paid not pursuant to a bona fide em-
ployment relationship. The trial court did not err in
instructing the jury, and the government’s comments
during its closing arguments did not entitle Borrasi to a
curative instruction. Because at least part of the pay-
ments to Borrasi was “intended to induce” him to refer
patients to Rock Creek, “the statute was violated, even
if the payments were also intended to compensate
for professional services.” Greber, 760 F.2d at 72.
B. Challenges to Sentencing
Borrasi also attacks his sentence, arguing that three
errors require us to remand for resentencing. First, he
alleges the district court did not make adequate findings
as to his offense level based upon the value he received
from his Rock Creek activities. Second, he contends the
district court erred by increasing his offense level due
to his purported leadership role in the criminal scheme.
16 No. 09-4088
Finally, he asserts that the great disparity between
his sentence and that of his co-defendant warrants
resentencing. We are unpersuaded by his three conten-
tions and will affirm his sentence.
1. Sufficiency of Loss Calculation
Borrasi argues that the district court did not make
findings as to the loss amount sufficient to determine
the appropriate level of his offense. Specifically, he con-
tends that the district court should have given him
more than the $150,000 credit it gave him for the value
of the actual services he performed for Rock Creek. Ac-
cording to Borrasi, the district court’s findings lacked the
requisite specificity to deny him a greater discount
based upon his objections to the PSR. The government
argues that any credit was inappropriate and that the
loss amount should have been the full amount listed in
the PSR.
Based on Borrasi’s criminal conduct, the district court
assessed his base offense level at 8 under U.S.S.G. § 2B4.1,
Bribery in Procurement of Bank Loan and Other Com-
mercial Bribery. That section requires augmenting the
base offense level according to § 2B1.1, considering the
value of benefits received through the crime. U.S.S.G.
§ 2B4.1(b)(1). After considering the PSR and arguments
from both Borrasi and the government, the district court
determined that Borrasi accepted bribes totaling $647,204,
a sum that included the administrative salaries of
Borrasi and his Integrated group, the value of the lease
Rock Creek paid for Borrasi, and a portion of Baig’s salary.
No. 09-4088 17
Borrasi did not object to that calculation, but rather
argued that he should have received a significant credit
against that amount based on the 24-hour on-call services
his team rendered, their membership and participation
in Rock Creek committees, and various administrative
services they provided to Rock Creek.
The district court noted that the $647,204 loss amount
corresponded to a 14-level increase. It then found that
Borrasi had performed some valuable services for Rock
Creek, but noted that it was difficult to measure the
exact value of that benefit. The district court reduced the
loss amount by $150,000 to “compensate for the efforts
of the various individuals which did in fact benefit the
patients at [Rock Creek], and some adjustment for the
availability 24 hours a day of certain medical personnel
to be at the beck and call for the residents of [Rock
Creek].” (Sent. Tr. 52.) This reduction did not change
the offense level, see U.S.S.G. § 2B1.1, but did reduce
the restitution required of Borrasi to $497,204.
The loss amount calculated by the district court for
sentencing is a factual determination, one which we
review for clear error. United States v. Ali, 619 F.3d 713, 720
(7th Cir. 2010). We will uphold the district court’s loss
calculation unless we are left with a definite and firm
conviction that the district court made a mistake. United
States v. Salem, 597 F.3d 877, 884 (7th Cir. 2010). Our
deference will not excuse an absence of findings al-
together, id. at 886, but a court’s findings need only be a
reasonable estimate of the loss, United States v. Christianson,
586 F.3d 532, 537 (7th Cir. 2009). Borrasi’s burden of
18 No. 09-4088
proof on appeal requires him to demonstrate that the
district court’s determination was inaccurate and out-
side the realm of permissible computations. Id.
Borrasi argues that he must be resentenced because
the district court’s determination of how much to reduce
the loss amount—based on the fair market value of the
services he rendered—was not sufficiently detailed to
constitute a reasonable estimate based on the evidence.
He asserts that the district court did not identify the
formula or methodology it used and thus did not provide
the particularity required for sentencing determinations.
We disagree with Borrasi’s contention. The govern-
ment proved the loss value to be $647,204. Borrasi did not
object to that amount, and he bore the burden of pro-
viding “substantiated evidence . . . to counter the govern-
ment’s explicit proof of loss.” United States v. Gordon, 495
F.3d 427, 432 (7th Cir. 2007). He needed to convincingly
refute the government’s proof with his own, but there
was no testimony as to the value of the on-call services,
and there was much evidence showing that the alleged
administrative services were nonextant or de minimis.
See United States v. Sensmeier, 361 F.3d 982, 989 (7th Cir.
2004) (“[W]hile we acknowledge that the burden is on
the government to prove loss, the defendants’ wholly
unsubstantiated statements are not enough to under-
mine, nor even question, the court’s acceptance of the
government’s proof of loss.”). Were we to give effect to
each of Borrasi’s vague valuations, in fact, the credits for
services rendered would have exceeded the total loss
proven by the government. Ultimately, Borrasi has not
No. 09-4088 19
met his heavy burden of proving that the district court’s
determination was “outside the realm of permissible
computations.” United States v. Peterson-Knox, 471 F.3d
816, 822 (7th Cir. 2006) (quoting United States v. Lopez,
222 F.3d 428, 437 (7th Cir. 2000)).
The government argues—and from the cold record we
are inclined to agree—that “if anything, the district
court was overly generous in crediting Borrasi with
$150,000” because the services he allegedly rendered
were either illusory or valueless. (Appellee’s Br. at 36-37.)
The district court gave Borrasi the benefit of the doubt
by crediting his alleged services in any amount, and it is
the district court’s lack of specificity in doing so that he
now attacks. Granted, the district court could have been
more specific in discussing how it calculated the credit
against the loss amount generated by Borrasi’s criminal
activities. But we have previously found such estimation
reasonable to determine the loss amount for sentencing,
notably in a fraud case in which factual complexities about
the existence and value of medical services abounded. See
United States v. Vivit, 214 F.3d 908, 914-16 (7th Cir. 2000).
Given the complexities of this Medicare fraud case, as
well as the lack of evidence to establish the existence
and value of any legitimately rendered services, we
find the district court’s estimate of the amount to credit
Borrasi reasonable. The district court did not clearly err
when it determined the loss value attributed to Borrasi’s
crime.
20 No. 09-4088
2. Application of Leadership Enhancement
Borrasi next argues that the district court was not
justified in assessing a four-level leadership enhance-
ment against him while assessing only a two-level en-
hancement against Mamoon. The district court increased
Borrasi’s offense level under U.S.S.G. § 3B1.1(a) after
finding that he was an organizer or leader of Integrated
and Rock Creek’s criminal activities. Borrasi argues that
the court did not consider the appropriate enhancement
factors on the record. He also argues that he was only
a middleman between the Integrated physicians and
the Rock Creek hierarchy—a hierarchy that included
Mamoon, who Borrasi venomously asserts should
have borne the brunt of any leadership enhancement.
We review the district court’s factual finding regarding
the four-level enhancement for clear error, and Borrasi’s
arguments do not leave us with a “firm and definite
conviction that an error has been made.” Tanner, 628 F.3d
at 907. The court explicitly adopted the PSR’s assessment
of the leadership enhancement. The PSR examined seven
factors relevant in determining Borrasi’s role in this
criminal scheme, see United States v. Curb, 626 F.3d 921, 924-
25 (7th Cir. 2010), and concluded that each supported
the enhancement in this case. Of particular note, Borrasi
actively recruited physicians into his scheme, controlled
the Integrated physicians, solidified and expanded the
relationship between Integrated and Rock Creek, and
established Baig’s role in Rock Creek’s admissions depart-
ment to facilitate the scheme. See United States v. House,
110 F.3d 1281, 1284 (7th Cir. 1997) (affirming organizer
No. 09-4088 21
and leader enhancement where the appellant was the
common connection between the criminals, where he
“brought . . . people together, both individually and as
a group, to further the business of the conspiracies,” and
where he had substantial decision-making authority).
Although the district court assessed only a two-level
enhancement to Mamoon, Rock Creek’s CEO, her actual
role in the fraudulent scheme was less extensive and
fundamental than Borrasi’s. We conclude that the
district court did not clearly err in assessing a four-level
enhancement to Borrasi based on his role in the offense.
3. Sentencing Discrepancy
Borrasi finally argues that his sentence was unrea-
sonable because it was much longer than that imposed
on his co-defendant. We review the district court’s sen-
tencing procedures, including its consideration of the 18
U.S.C. § 3553(a) factors, de novo. United States v. Pulley,
601 F.3d 660, 664 (7th Cir. 2010). If the court properly
applied those procedures, we review the sentence’s
substantive reasonableness for an abuse of discretion. Id.
When determining the appropriate sentence for a
given defendant, the district court should consider “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The
district court found that the guidelines range was rea-
sonable and fair for Borrasi, but gave him a minimal
downward adjustment accounting for his medical
22 No. 09-4088
service to under-served groups; it ultimately sentenced
him to 72 months’ incarceration. By contrast, the district
court found Mamoon’s case to be outside the heartland
of the statute, found her to be the critical caregiver for
her profoundly disabled son, and found the guidelines
range to be considerably longer than necessary to
prevent Mamoon from re-offending; it ultimately sen-
tenced her to 6 months’ incarceration. In denying
Borrasi’s motion to reconsider his sentence based on
this disparity, the district court explained that the dis-
crepancy in sentencing was not only justified but de-
manded by their respective actions and circumstances.
Borrasi now argues that a plain application of
§ 3553(a)(6) mandates vacature of his sentence in light of
Mamoon’s, which he complains was markedly lenient
compared to his own. We disagree because § 3553(a)(6)
allows for warranted disparities among co-defendants’
sentences. Pulley, 601 F.3d at 668. Here, the district court
made individual, particularized sentencing determina-
tions based on the § 3553(a) factors as to Borrasi and
Mamoon during both the sentencing hearing and the
hearing on Borrasi’s motion for reconsideration. It
followed the appropriate procedures and considered the
avoidance of disparity in arriving at its sentences.
We find that the district court properly calculated the
guidelines range in Borrasi’s case and that the below-
guidelines sentence it imposed is reasonable. See id. at 668
(“[I]f the district court provides an adequate statement of
reasons, consistent with § 3553(a), for believing that the
sentence is appropriate, and it is within the Guidelines
range, we presume the sentence is substantively reason-
No. 09-4088 23
able.”). Accordingly, the district court did not err in
sentencing Borrasi.
III. C ONCLUSION
The district court erred in neither its evidentiary rulings
nor its jury instructions, so we A FFIRM the district court’s
judgment of conviction. The district court reasonably
estimated the amount of loss in determining Borrasi’s
offense level, properly enhanced the offense level due
to his leadership role, and correctly considered and
rejected his disparate sentencing argument. Accordingly,
we A FFIRM the sentence imposed.
5-4-11