April 3, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 CR 00165-1 -
Edmond E. Chang, Judge.
Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.
Posada ("Posada") was found guilty of 18 counts of
health care fraud by a jury At sentencing, the district court
found a loss amount of $4, 087, 736, and imposed a sentence
of 60 months in the custody of the Bureau of Prisons. Posada
appeals his sentencing, arguing that the district court's
loss calculation is clearly erroneous. We disagree, and for
the following reasons, affirm.
was a licensed chiropractor and the owner-operator of
Associated Back Care and Rehabilitation, doing business as
Spine Clinics of America, SC ("Spine Clinics").
Spine Clinics provided chiropractic and physical therapy
services and was a Medicare enrolled provider. In March 2017,
Posada was indicted for a scheme to defraud Medicare and
other health care benefits programs ("Insurers") by
submitting fraudulent claims and falsely representing that
certain health care related services were provided.
trial, the Government presented evidence that Posada billed
Insurers for deceased patients and services never performed,
created fake files to cover-up his fraud, and failed to
document the actual services rendered. Witnesses from
Medicare and an Insurer testified regarding the thousands of
claims submitted. Two physical therapists also testified
about the services they performed for Spine Clinics, how they
billed Posada, and that they never performed many of the
services for which he charged Insurers and Medicare.
Following Posada's conviction, the Government submitted a
Presentence Investigation Report ("PSIR") that had
an offense level of 26, due in large part to a loss amount of
$4, 087, 736, and recommended a term of incarceration between
63 and 78 months.
calculate the loss amount the Government reviewed files
seized from Spine Clinics, and when no documentation in
support of treatment was present, the amount billed was
treated as a loss. The Government also credited Posada with,
among other things, treating 20 patients a day (10 Insurer
patients and 10 Medicare patients), three days a week every
week during the period of the fraud. Posada argued for an
estimate of 25 or 26 patients per day and a loss amount less
than $3.5 million dollars. But, the district court found that
the Government's loss calculation was premised on a
reasonable estimate and found a loss amount of $4, 087, 736.
contends that the district court's loss amount
determination was clearly erroneous. Posada argues that the
Government relied on flawed assumptions to determine the
number of patients treated in a day and the district court
inappropriately discounted evidence demonstrating he saw in
excess of 20 patients per day, three days per week. He
suggests the total loss amount was below $3.5 million, and he
saw far more than 20 patients per day.
Standard of Decision
review the district court's loss determination for clear
error. United States v. Frith, 461 F.3d 914, 917
(7th Cir. 2006). "A loss determination must be based on
the conduct of conviction and relevant conduct that is
criminal or unlawful, and the government must demonstrate by
a preponderance of the evidence that the loss amount is
attributable to that criminal or unlawful conduct."
United States v. Orillo, 733 F.3d 241, 244 (7th Cir.
2013) (citing United States v. Littrice, 666 F.3d
1053, 1060 (7th Cir. 2012)). We will only disturb the
district court's findings if "we are left with the
definite and firm conviction that a mistake has been
committed." United States v. Severson, 569 F.3d
683, 689 (7th Cir. 2009) (internal citations and quotations
sentencing, the district court may rely on information
presented in the PSIR "so long as this information
'has sufficient indicia of reliability to support its
probable accuracy/" United States v. Sunmola,887 F.3d 830, 839 (7th Cir. 2018) (quoting United States
v. Vivit,214 F.3d 908, 916 (7th Cir. 2000)). "When
the district court relies on information contained in the
[PSIR], the defendant bears the burden of showing the
information is inaccurate or unreliable." Id.
(citing United States v. Meckel,570 F.3d 791, 795
(7th Cir. 2009)). A bare ...