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United States v. Posada

United States Court of Appeals, Seventh Circuit

July 18, 2019

United States of America, Plaintiff-Appellee,
v.
Henry Posada, Defendant-Appellant.

          Argued April 3, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 CR 00165-1 - Edmond E. Chang, Judge.

          Before Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.

          BAUER, CIRCUIT JUDGE.

         Henry 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.

         I. BACKGROUND

         Posada 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.

         At 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.

         To 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.

         II. DISCUSSION

         Posada 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.

         A. Standard of Decision

         We 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 omitted).

         During 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 ...


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