United States v. Ahmed
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Opinion
United States Court of Appeals For the First Circuit
No. 21-1583
UNITED STATES OF AMERICA,
Appellee,
v.
ABDIRASHID AHMED,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
Daniel Dube, with whom Peter E. Rodway was on brief, for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
October 12, 2022 LYNCH, Circuit Judge. Abdirashid Ahmed pleaded guilty
to health care fraud in connection with a multiyear scheme to
defraud MaineCare, the state run program that administers Medicaid
benefits in Maine and reimburses health care providers for
MaineCare services. See 18 U.S.C. § 1347; see also Me. Rev. Stat.
Ann. tit. 22, § 3173 (establishing MaineCare). The district court
sentenced him to twenty-four months' imprisonment. His appeal
challenges the procedural and substantive reasonableness of that
sentence. We affirm.
I.
A.
Because this appeal follows a guilty plea, "we draw the
facts from the plea colloquy, the unchallenged portions of the
presentence investigation report [(PSR)], . . . the transcript of
the sentencing hearing," and the parties' sentencing memoranda and
exhibits. United States v. De la Cruz, 998 F.3d 508, 509 (1st
Cir. 2021) (quoting United States v. Padilla-Colón, 578 F.3d 23,
25 (1st Cir. 2009)); see United States v. Lee, 892 F.3d 488, 490
n.1 (1st Cir. 2018).
MaineCare reimburses approved providers for covered
health care services for MaineCare clients. See Me. Rev. Stat.
Ann. tit. 22, § 3173; 10-144 Me. Code R. ch. 101, ch. I, § 1.06.
Part of the reimbursement to providers is for the costs of
interpreter services "necessary and reasonable to communicate
- 2 - effectively with [MaineCare] members regarding health needs." 10-
144 Me. Code R. ch. 101, ch. I, § 1.06-2(A). All claims must be
submitted by the provider, who then compensates the interpreter.
See id. § 1.06-2(A), (D), (F). MaineCare rules forbid false or
fraudulent reimbursement claims. See id. § 1.20-1. MaineCare
providers typically track time in fifteen-minute "unit[s]." See
id. § 1.03-8(M)(2).
Ahmed, a naturalized U.S. citizen born in Somalia,
became a certified Somali-English translator in 2014. From late
2014 to approximately April 2018, Ahmed, as an interpreter with
various mental health counseling providers, defrauded MaineCare
through fraudulent reimbursement claims made for mental health
treatment and interpreter services. Ahmed (and another Somali
interpreter, Garat Osman, who joined the conspiracy in 2016) would
purport to bring the provider Somali MaineCare beneficiaries. The
provider then submitted to MaineCare inflated or otherwise
falsified reimbursement requests -- including claims for
interpreter services -- involving the beneficiaries and paid Ahmed
(and Osman) for the interpreter services supposedly provided.
One MaineCare provider with whom Ahmed admitted to
conspiring, Elizabeth Daigle, began submitting fraudulent claims
in late 2014.1 Each claim sought reimbursement for a client visit
1 Daigle cooperated with the investigation into Ahmed's conduct. The record does not disclose whether she was ever charged
- 3 - that purportedly employed Ahmed's interpretive services and lasted
2.5 hours, when in fact the visits were far shorter in length.
This activity continued until Daigle went on maternity leave in
December 2014.
While Daigle was on maternity leave, another MaineCare
provider, Heather Borst, filled in at her practice. From January
2015 until June 2017, Borst continued the overbilling, submitting
almost exclusively claims for 2.5-hour visits, 80% of which
purportedly required interpreter services.2 Borst frequently
submitted claims, including inflated claims for Ahmed's
interpretive services, for over 10 hours of service per day, and
on at least one occasion billed for over 24 hours in a single day.
When approached by investigators in June 2017, Borst admitted to
frequently falsifying claims, including for visits that never
happened or that were much shorter than her reimbursement claims
showed. She told investigators that Ahmed had instructed her
always to bill for 2.5 hours. With Borst's cooperation,
investigators recorded a conversation among Borst, Ahmed, and
Osman in which Ahmed agreed to bring Somali patients to Borst for
short visits (lasting about 15 minutes) that Borst would
with or convicted of a crime related to her participation in the conspiracy. 2 Borst later pleaded guilty to one count of conspiring to defraud a health care program, see 18 U.S.C. §§ 1347, 1349, and cooperated with the investigation of Ahmed.
- 4 - nonetheless claim in reimbursements to have lasted 1.75 hours.
Ahmed and Osman followed through on this agreement in the following
few days by bringing Somali clients to Borst's office for brief
visits; Borst then billed MaineCare for 1.75-hour sessions and
paid Ahmed and Osman with law enforcement funds.
A third provider, a behavioral health agency named
Facing Change, P.A., also worked with Ahmed to defraud MaineCare.3
From February 2015 until approximately May 2016, the agency paid
Ahmed a 10% premium above his hourly rate in exchange for referring
his Somali clients to Facing Change. Beginning in late 2015,
Facing Change staff also began submitting false claims to MaineCare
for patient visits -- in which Ahmed purportedly served as an
interpreter -- that did not occur, were of shorter duration than
reported, or involved falsified patient diagnoses. This activity
continued until roughly April 2018.
In total, the providers billed -- and MaineCare paid --
over $1.8 million in connection with the fraudulent claims. Ahmed
3 Facing Change's owner, Nancy Ludwig, was indicted as Ahmed's codefendant and ultimately convicted after a jury trial of one count of conspiracy to commit health care fraud, see 18 U.S.C. §§ 1347, 1349; one count of conspiracy to receive and pay health care kickbacks, see id. § 371; 42 U.S.C. § 1320a-7b(b); five counts of offering/paying health care kickbacks, see 42 U.S.C. § 1320a- 7b(b)(2); one count of false statements relating to a health care benefit program, see 18 U.S.C. § 1035; and one count of obstruction of a federal audit, see id. § 1516. Multiple other Facing Change employees pleaded guilty to various charges related to the conspiracy and cooperated with the investigation.
- 5 - acknowledges that throughout the conspiracy "he often pressed
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United States Court of Appeals For the First Circuit
No. 21-1583
UNITED STATES OF AMERICA,
Appellee,
v.
ABDIRASHID AHMED,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
Daniel Dube, with whom Peter E. Rodway was on brief, for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
October 12, 2022 LYNCH, Circuit Judge. Abdirashid Ahmed pleaded guilty
to health care fraud in connection with a multiyear scheme to
defraud MaineCare, the state run program that administers Medicaid
benefits in Maine and reimburses health care providers for
MaineCare services. See 18 U.S.C. § 1347; see also Me. Rev. Stat.
Ann. tit. 22, § 3173 (establishing MaineCare). The district court
sentenced him to twenty-four months' imprisonment. His appeal
challenges the procedural and substantive reasonableness of that
sentence. We affirm.
I.
A.
Because this appeal follows a guilty plea, "we draw the
facts from the plea colloquy, the unchallenged portions of the
presentence investigation report [(PSR)], . . . the transcript of
the sentencing hearing," and the parties' sentencing memoranda and
exhibits. United States v. De la Cruz, 998 F.3d 508, 509 (1st
Cir. 2021) (quoting United States v. Padilla-Colón, 578 F.3d 23,
25 (1st Cir. 2009)); see United States v. Lee, 892 F.3d 488, 490
n.1 (1st Cir. 2018).
MaineCare reimburses approved providers for covered
health care services for MaineCare clients. See Me. Rev. Stat.
Ann. tit. 22, § 3173; 10-144 Me. Code R. ch. 101, ch. I, § 1.06.
Part of the reimbursement to providers is for the costs of
interpreter services "necessary and reasonable to communicate
- 2 - effectively with [MaineCare] members regarding health needs." 10-
144 Me. Code R. ch. 101, ch. I, § 1.06-2(A). All claims must be
submitted by the provider, who then compensates the interpreter.
See id. § 1.06-2(A), (D), (F). MaineCare rules forbid false or
fraudulent reimbursement claims. See id. § 1.20-1. MaineCare
providers typically track time in fifteen-minute "unit[s]." See
id. § 1.03-8(M)(2).
Ahmed, a naturalized U.S. citizen born in Somalia,
became a certified Somali-English translator in 2014. From late
2014 to approximately April 2018, Ahmed, as an interpreter with
various mental health counseling providers, defrauded MaineCare
through fraudulent reimbursement claims made for mental health
treatment and interpreter services. Ahmed (and another Somali
interpreter, Garat Osman, who joined the conspiracy in 2016) would
purport to bring the provider Somali MaineCare beneficiaries. The
provider then submitted to MaineCare inflated or otherwise
falsified reimbursement requests -- including claims for
interpreter services -- involving the beneficiaries and paid Ahmed
(and Osman) for the interpreter services supposedly provided.
One MaineCare provider with whom Ahmed admitted to
conspiring, Elizabeth Daigle, began submitting fraudulent claims
in late 2014.1 Each claim sought reimbursement for a client visit
1 Daigle cooperated with the investigation into Ahmed's conduct. The record does not disclose whether she was ever charged
- 3 - that purportedly employed Ahmed's interpretive services and lasted
2.5 hours, when in fact the visits were far shorter in length.
This activity continued until Daigle went on maternity leave in
December 2014.
While Daigle was on maternity leave, another MaineCare
provider, Heather Borst, filled in at her practice. From January
2015 until June 2017, Borst continued the overbilling, submitting
almost exclusively claims for 2.5-hour visits, 80% of which
purportedly required interpreter services.2 Borst frequently
submitted claims, including inflated claims for Ahmed's
interpretive services, for over 10 hours of service per day, and
on at least one occasion billed for over 24 hours in a single day.
When approached by investigators in June 2017, Borst admitted to
frequently falsifying claims, including for visits that never
happened or that were much shorter than her reimbursement claims
showed. She told investigators that Ahmed had instructed her
always to bill for 2.5 hours. With Borst's cooperation,
investigators recorded a conversation among Borst, Ahmed, and
Osman in which Ahmed agreed to bring Somali patients to Borst for
short visits (lasting about 15 minutes) that Borst would
with or convicted of a crime related to her participation in the conspiracy. 2 Borst later pleaded guilty to one count of conspiring to defraud a health care program, see 18 U.S.C. §§ 1347, 1349, and cooperated with the investigation of Ahmed.
- 4 - nonetheless claim in reimbursements to have lasted 1.75 hours.
Ahmed and Osman followed through on this agreement in the following
few days by bringing Somali clients to Borst's office for brief
visits; Borst then billed MaineCare for 1.75-hour sessions and
paid Ahmed and Osman with law enforcement funds.
A third provider, a behavioral health agency named
Facing Change, P.A., also worked with Ahmed to defraud MaineCare.3
From February 2015 until approximately May 2016, the agency paid
Ahmed a 10% premium above his hourly rate in exchange for referring
his Somali clients to Facing Change. Beginning in late 2015,
Facing Change staff also began submitting false claims to MaineCare
for patient visits -- in which Ahmed purportedly served as an
interpreter -- that did not occur, were of shorter duration than
reported, or involved falsified patient diagnoses. This activity
continued until roughly April 2018.
In total, the providers billed -- and MaineCare paid --
over $1.8 million in connection with the fraudulent claims. Ahmed
3 Facing Change's owner, Nancy Ludwig, was indicted as Ahmed's codefendant and ultimately convicted after a jury trial of one count of conspiracy to commit health care fraud, see 18 U.S.C. §§ 1347, 1349; one count of conspiracy to receive and pay health care kickbacks, see id. § 371; 42 U.S.C. § 1320a-7b(b); five counts of offering/paying health care kickbacks, see 42 U.S.C. § 1320a- 7b(b)(2); one count of false statements relating to a health care benefit program, see 18 U.S.C. § 1035; and one count of obstruction of a federal audit, see id. § 1516. Multiple other Facing Change employees pleaded guilty to various charges related to the conspiracy and cooperated with the investigation.
- 5 - acknowledges that throughout the conspiracy "he often pressed
[providers] to overbill for translation services," and he does not
dispute that "his gross proceeds over time were larger than the
other participants[']."
B.
On April 27, 2018, a federal grand jury indicted Ahmed
and Osman on one count of conspiracy to commit health care fraud,
see 18 U.S.C. §§ 1347, 1349; one count of conspiracy to defraud
the United States and to pay and receive health care kickbacks,
see id. § 371; 42 U.S.C. § 1320a-7b(b)(1); and six counts of
receiving health care kickbacks, see 42 U.S.C. § 1320a-7b(b)(1).
On November 16, 2018, a grand jury returned a superseding
indictment, which added a codefendant -- Nancy Ludwig, the owner
of Facing Change -- and charged Ahmed with eighteen total counts:
one count of health care fraud, see 18 U.S.C. § 1347; three counts
of conspiracy to commit health care fraud, see id. §§ 1347, 1349;
two counts of conspiracy to receive and pay health care kickbacks,
see id. § 371; 42 U.S.C. § 1320a-7b(b); and twelve counts of
receiving health care kickbacks, see 42 U.S.C. § 1320a-7b(b)(1).
After initially pleading not guilty on all counts,
Ahmed, during a May 24, 2019 change of plea hearing, pleaded guilty
to the first count of the superseding indictment.4 Although
4 The first count of the superseding indictment charged Ahmed with health care fraud in violation of 18 U.S.C. § 1347. As
- 6 - Ahmed's guilty plea was not pursuant to a written plea agreement,
the government orally agreed to dismiss the remaining counts at
sentencing in exchange for Ahmed's plea.
On October 17, 2019, the probation officer issued an
initial PSR. The initial PSR determined that the total loss amount
attributable to Ahmed was $1,020,073.79. This loss amount resulted
in an increase of 16 levels in Ahmed's Total Offense Level: 14
levels for a loss amount over $550,000 but not more than $1.5
million, and 2 additional levels because Ahmed was convicted of a
federal health care offense involving a federal health care program
with a loss amount over $1 million. See U.S. Sent'g Guidelines
Manual § 2B1.1(b)(1)(I), (b)(7) (U.S. Sent'g Comm'n 2018)
[hereinafter U.S.S.G.]. The report also recommended a four-level
role enhancement because Ahmed "was a leader or organizer of a
criminal activity that involved five or more participants." See
the government notes in a footnote in its brief, however, the judgment ultimately issued by the district court and the revised PSR developed by the probation officer "indicate that Ahmed [pleaded] guilty to conspiracy to commit healthcare fraud," rather than "a substantive count of health care fraud." The government requests "a limited remand to permit the district court to correct the clerical error in the judgment." The record suggests that the government is correct that a clerical error occurred. Under Federal Rule of Criminal Procedure 36, "the [district] court may at any time correct a clerical error in the judgment," and the parties may move it to do so. See United States v. Claudio, 44 F.3d 10, 16-17 (1st Cir. 1995); see also, e.g., United States v. Davis, 841 F.3d 1253, 1265 (11th Cir. 2016) (affirming correction of offense listed in judgment under Rule 36). We remand to permit the parties to address the district court on this issue.
- 7 - id. § 3B1.1(a). Based on these calculations, the initial PSR
recommended a Total Offense Level of 23, which, given Ahmed's
Criminal History Category of I, corresponded to a Guidelines
sentencing range (GSR) of 46 to 57 months.
Both the government and Ahmed filed objections to the
initial PSR. Based on a new assessment by a loss analyst, the
government asserted that a higher loss amount applied. The
defense, conversely, argued both that the loss amount was too high
and that the role enhancement was inappropriate. In particular,
the defense contended that the loss amount should be offset by the
value of any interpreter services Ahmed actually provided and that
it should not include the sums MaineCare paid for provider
services, rather than interpreter services.
In response to these objections, the probation officer
issued a revised PSR on November 12, 2019. The revised report
adopted the government's updated loss amount by changing the total
to $1,267,309.33,5 but -- beyond adding some clarifying
language -- rejected Ahmed's objections. The revisions did not
affect the Total Offense Level or GSR, which remained 23 and 46 to
57 months, respectively.
5 In briefing both before the district court and on appeal, the government contends that the revised PSR did not accurately adopt the government's proposed loss amount and that the government's figure was higher than the $1,267,309.33 given in the revised report.
- 8 - Following the revised PSR's issuance, the parties
continued to litigate the loss amount and role enhancement issues
through multiple rounds of briefing and a series of hearings.
During this process, both parties submitted evidence, including
provider billing records; materials generated by law enforcement
during the investigation of the conspiracy; reports from law
enforcement interviews with the providers with whom Ahmed
conspired; and transcripts of grand jury and trial testimony from
the government's prosecution of Ahmed's coconspirator, Ludwig.
The substance of this evidence is discussed in more detail below.
The government maintained that the four-level role
enhancement was warranted and that the loss amount should include
the amounts fraudulently billed by providers for their own services
as part of the conspiracy in addition to the amount billed for
Ahmed's interpreter services. The government also contended that
Ahmed was not entitled to offset the loss amount by the value of
interpreter services actually delivered, as he had failed to show
that he provided legitimate interpreter services in connection
with MaineCare reimbursable treatment. The exact loss amount
proposed by the government varied over time; at sentencing, the
government submitted a figure of $1,863,264.85, which, together
with the four-level role enhancement, corresponded to a Total
Offense Level of 25.
- 9 - Ahmed argued for a lower loss amount and against the
application of a leader/organizer role enhancement. On loss
amount, he asserted that he should receive credit for interpreter
services actually provided and that he should not be held
responsible for overbilling by providers for their own services
(as opposed to his interpreter work), because that overbilling was
not foreseeable to him. After discounting for the amount of
interpreter services he estimated himself to have provided and
excluding charges for the providers' services, Ahmed proposed a
loss amount of $436,195. Regarding the role enhancement, Ahmed
asserted that he lacked the necessary control over the
providers -- whom he characterized as "gatekeepers" without whose
cooperation he could not independently bill MaineCare for
interpreter services -- to qualify as a leader or organizer. His
counsel did acknowledge, however, that this "argument [was] less
forceful about whether [Ahmed] was a manager/supervisor" for whom
a three-level enhancement under U.S.S.G. § 3B1.1(b) would be
appropriate, because "it did appear that [Ahmed] . . . was a
manager or supervisor of . . . Osman." Ahmed's proposed Guidelines
calculations would have resulted in a Total Offense Level of 15.
At Ahmed's sentencing hearing, conducted on July 16,
2021, the district court adopted the government's loss amount of
$1,863,264.85 and found that the four-level leader/organizer
enhancement was appropriate. In addressing loss amount, the court
- 10 - rejected Ahmed's offset and foreseeability arguments. Regarding
offset, the court reasoned that Ahmed bore the burden of producing
"evidence to show . . . what amounts represent[ed] legitimate
claims," see United States v. Alphas, 785 F.3d 775, 784 (1st Cir.
2015), and concluded that Ahmed had not supported his assertion
that he performed any reimbursable interpreter services in
connection with covered MaineCare services. Regarding
foreseeability, the court found that Ahmed "knew or should have
known that the providers could only seek reimbursement for
interpreter services in the same units of time as they sought
reimbursement for the counseling services," and that "it was
entirely foreseeable that the providers' records . . . would not
be accurate," so "the amounts paid with respect to [the providers']
claims [were] fairly attributable to . . . Ahmed."
In applying the leader/organizer enhancement, the court
found that "Ahmed was the common denominator as between the three
counseling practices that participated in fraudulent billing";
"was involved from the very beginning" of the fraud; "was a
critically important driving force" in the conspiracy, even if
"not the sole driving force"; "cajoled, encouraged, and pressured
others to participate in the scheme"; "influence[d] the amounts
that were billed" through "his control over the clients and his
demands regarding the number of units that had to be billed"; and
"personally received the largest share of the crime proceeds."
- 11 - The court also noted that "there certainly [was] evidence
that . . . Osman was in some respects subservient to . . . Ahmed."
Based on those rulings, the court determined that
Ahmed's Total Offense Level was 25, with a corresponding GSR of 57
to 71 months.
The court then turned to imposing Ahmed's sentence. It
announced that it had "considered all [the 18 U.S.C. § 3553(a)
sentencing] factors," and gave detailed descriptions of its
reasoning with respect to several of those factors. It highlighted
the "very serious" nature of the crime, which involved a "long-
standing, carefully planned and executed, flagrant scheme to
defraud the government motivated by greed." It also discussed the
need for the sentence "to afford adequate deterrence from criminal
conduct, both by . . . Ahmed [and] by the general public," which
the court felt was "quite important" because "[t]he fraud in this
case lasted years and perhaps expose[d] . . . the weaknesses of
the MaineCare system or its exposure to fraud going undetected."
In addition, the court acknowledged Ahmed's personal
circumstances -- particularly his "parental responsibilities" as
the father of "seven minor children," one of whom "requires an
adult to care for him every waking moment" due to "autism spectrum
disorder and anxiety." The court reasoned that these personal
circumstances "supported" a downward variance from the GSR. It
- 12 - concluded that twenty-four months' imprisonment was "a just and
fair sentence."
After announcing this sentence, the district court
further stated:
I want the record to reflect that I have carefully weighed all the defendant's arguments regarding the [G]uidelines as they affect his total offense level and criminal history category. I want it to be clear that even if I had accepted any of the objections or arguments that I have rejected, the sentence I have announced today would be the same untethered from the [G]uidelines. That is, based on the [§] 3553(a) sentencing factors, I would impose the same sentence, even if the [GSR] had been reduced by my acceptance of an argument that I have not accepted.
Ahmed timely appealed.
II.
Ahmed challenges the procedural and substantive
reasonableness of his sentence. "Where challenges are to the
procedural and substantive reasonableness of a sentence, '[o]ur
review process is bifurcated: we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable.'" United States v.
Flores-Quiñones, 985 F.3d 128, 133 (1st Cir. 2021) (quoting United
States v. Reyes-Torres, 979 F.3d 1, 6-7 (1st Cir. 2020) (alteration
in original) (internal quotation marks omitted)). "In the
sentencing context, we evaluate claims of unreasonableness in
- 13 - light of the totality of the circumstances." Id. (quoting United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)).
Ahmed asserts that the district court erred procedurally
both in imposing the four-level leader/organizer role enhancement,
see U.S.S.G. § 3B1.1(a), and in calculating the loss amount
attributable to Ahmed, see id. § 2B1.1. He argues that no role
enhancement was warranted and that the court should have (1)
excluded the providers' overbilling for noninterpreter services
from Ahmed's loss amount and (2) reduced the loss amount to give
credit for interpreter services he provided. Ahmed contends that
correcting these alleged errors produces a Total Offense Level of
15, which, with his Criminal History Category of I, would result
in a GSR of 18 to 24 months, as opposed to the Total Offense Level
of 25 and GSR of 57 to 71 months adopted by the district court.6
See id. ch. 5, pt. A.
"When mulling the procedural reasonableness of a
sentence, we afford de novo review to the sentencing court's
6 At one point in his brief, Ahmed also references a loss amount of $558,390.14 -- between his preferred figure of $436,195.00 and the $1,863,264.85 calculated by the district court -- that he says would result if we accepted only one of his two arguments on loss amount. Because we ultimately conclude that any alleged procedural error by the district court was harmless even assuming, favorably to Ahmed, that all of Ahmed's Guidelines arguments are correct on their merits, we need not separately consider this compromise position.
- 14 - interpretation and application of the [Guidelines], assay the
court's factfinding for clear error, and evaluate its judgment
calls for abuse of discretion." United States v. Ouellette, 985
F.3d 107, 110 (1st Cir. 2021) (quoting United States v.
Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015)).
In this case, however, "we may bypass the substance" of
Ahmed's arguments because "any [procedural] error that the
[d]istrict [c]ourt may have made . . . was harmless." United
States v. Ayala, 991 F.3d 323, 326 (1st Cir. 2021). "[W]e have
consistently held that when a sentencing court makes clear that it
would have entered the same sentence regardless of the Guidelines,
any error in the court's Guidelines calculation is harmless."
Ouellette, 985 F.3d at 110; see, e.g., Ayala, 991 F.3d at 326-27;
United States v. Graham, 976 F.3d 59, 62-63 (1st Cir. 2020). In
Ouellette, for example, we concluded that any error in the district
court's Guidelines calculations was harmless because the court had
announced during sentencing that the sentence it imposed was
"untethered from the [G]uidelines" and that it "would impose
precisely the same sentence even if the applicable [GSR] would
have been reduced by any or all of the objections made [by the
parties]." 985 F.3d at 109-10. The district court in this case
used strikingly similar language in stating that Ahmed's sentence
was "untethered from the [G]uidelines" and that the court "would
impose the same sentence, even if the [GSR] had been reduced by
- 15 - [its] acceptance of an argument that [it] ha[d] not accepted." As
in Ouellette, "[b]ecause the district court made clear that it
would have imposed the same sentence regardless of the Guidelines,
any alleged error in calculating [Ahmed's GSR] is harmless." Id.
at 110.
Ahmed argues that the alleged errors were not harmless
because the district court "found that a variance from the low end
of the [GSR] was warranted," and so "if . . . the case is remanded
to the [district court] for resentencing, the sentence could be
lower." But this optimistic view is impossible to square with the
district court's unqualified statement that it "would impose the
same sentence, even if the [GSR] had been reduced by [its]
acceptance of an argument that [it] ha[d] not accepted." For
remand to be appropriate, there must be "at least a possibility
that the [district] court would have imposed an even more lenient
sentence had it started with a lower GSR." Alphas, 785 F.3d at
780 (declining to hold any error harmless where the district court
said it was "unlikely," but not impossible, that a lower GSR would
result in a lower sentence). The record "does not admit of such
a possibility" here. Ayala, 991 F.3d at 327. There was no
reversible procedural error.
Ahmed also challenges the substantive reasonableness of
his sentence, arguing that if his Guidelines arguments regarding
- 16 - loss amount and the leader/organizer enhancement are correct, "his
sentence was substantively unreasonable," but acknowledging that
if we affirm the district court's Guidelines calculations, his
substantive unreasonableness claim "is weak at best." Because we
decline to address the merits of Ahmed's Guidelines arguments in
the context of his procedural reasonableness claim, and because
his substantive reasonableness claim turns on those arguments, we
assume, favorably to Ahmed, that he can raise those arguments in
the substantive reasonableness context. Cf. Ouellette, 985 F.3d
at 111 ("[E]ven if we are satisfied that [a procedural] error did
not affect the district court's determination of the sentence, we
still must review the sentence for substantive reasonableness."
(quoting United States v. Tavares, 705 F.3d 4, 27 (1st Cir.
2013))). We determine that there was no Guidelines error and
conclude that his sentence is substantively reasonable.
1.
Ahmed's first Guidelines claim contests the district
court's conclusion regarding loss amount; he argues that the court
erred both in holding him responsible for amounts billed by
providers for their own services and in declining to credit him
for interpreter services he purportedly provided. "We review the
[d]istrict [c]ourt's 'interpretation and application of the
[Guidelines]' de novo, and factual findings, including the
[d]istrict [c]ourt's 'calculation of the amount of loss, for clear
- 17 - error.'" United States v. Cadden, 965 F.3d 1, 31 (1st Cir. 2020)
(citations omitted) (first quoting Flores-Machicote, 706 F.3d at
20; and then quoting United States v. Ihenacho, 716 F.3d 266, 276
(1st Cir. 2013)). "A defendant 'dissatisfied with the sentencing
court's quantification of the amount of loss in a particular case
must go a long way to demonstrate that the finding is clearly
erroneous.'" United States v. Curran, 525 F.3d 74, 79 (1st Cir.
2008) (quoting United States v. Rostoff, 53 F.3d 398, 407 (1st
Cir. 1995)). We conclude that Ahmed's arguments are without merit.
Ahmed first challenges the district court's inclusion of
the amounts billed by coconspirator providers for clinical
services -- rather than interpreter services -- in his loss amount.
"Defendants who engage in a 'jointly undertaken criminal activity'
are responsible for . . . losses that result from 'reasonably
foreseeable acts committed by others in furtherance of the jointly
undertaken criminal activity.'" United States v. Delima, 886 F.3d
64, 72 (1st Cir. 2018) (quoting United States v. Pizarro-Berríos,
448 F.3d 1, 8 (1st Cir. 2006)); see U.S.S.G. § 1B1.3(a)(1)(B). A
"sentencing court must [(1)] 'ascertain what activity fell within
the scope of the specific conduct and objectives embraced by the
defendant's agreement,' and [(2)] then 'determine to what extent
others' acts and omissions that were in furtherance of jointly
undertaken criminal activity likely would have been foreseeable by
- 18 - a reasonable person in [the] defendant's shoes at the time of his
or her agreement.'" Delima, 886 F.3d at 72-73 (quoting United
States v. LaCroix, 28 F.3d 223, 227 (1st Cir. 1994)). We review
each of these "fact-bound determination[s]" for clear error.
United States v. Sandoval, 6 F.4th 63, 106 (1st Cir. 2021); see
United States v. Carrozza, 4 F.3d 70, 76 (1st Cir. 1993) ("Such
determinations are, of course, all inherently fact-bound.").
Ahmed challenges the district court's compliance with
both prongs. With respect to the first inquiry, he asserts both
that the district court failed to "make particularized findings
concerning . . . the scope of Ahmed's agreement and whether the
conduct of the individual counseling providers exceeded the scope
of his agreement" and that "the evidence was insufficient to show
that Ahmed's agreement in any way encompassed the fraud that was
being committed by the counseling providers." With respect to the
second prong, he argues that "there was insufficient evidence from
which to conclude that it was foreseeable that the providers would
overbill for their own services in addition to overbilling for
translation services." We find no error in the district court's
reasoning.
The transcript of Ahmed's sentencing hearing undercuts
his first argument: During the proceeding, the district court made
explicit findings about the nature and scope of Ahmed's agreements
with the counselors involved. The court found, for example, that
- 19 - Ahmed "conspired with mental health counselors to fraudulently
bill MaineCare for mental health counseling services and
accompanying translation services provided to Somali clients";
that he "knew that the records being submitted to MaineCare were
not accurate"; and that submission of such fraudulent claims "was,
in essence, the whole point of the[] scheme."
And contrary to Ahmed's second argument, the evidence
supports the district court's findings. In determining relevant
conduct, a sentencing court "may consider any explicit agreement
or implicit agreement fairly inferred from the conduct of the
defendant and others." U.S.S.G. § 1B1.3 cmt. n.3(B). The
sentencing record showed that Ahmed at least implicitly agreed to
the providers' overbilling for clinical services. Multiple
providers described Ahmed's pressuring them to inflate the number
of units for which they billed. The district court noted that
Daigle, for example, "explained that she [was] . . . pressured by
[Ahmed] . . . to bill for services not provided." Common sense
dictates that, to avoid claims' appearing obviously fraudulent,
providers would need to overbill for clinical services to
correspond to the units billed for interpreter services. Cf. 10-
144 Me. Code R. ch. 101, ch. I, § 1.06-2(A) ("Interpreter services
can only be covered in conjunction with another covered MaineCare
service or medically necessary follow-up visit(s) to the initial
covered service."). The district court did not err in concluding
- 20 - that the providers' overbilling for clinical services fell within
the scope of Ahmed's agreement.
The district court did not err in concluding that the
providers' overbilling was foreseeable to Ahmed. As the district
court recognized, Ahmed "knew or should have known that the
providers could only seek reimbursement for interpreter services
in the same units of time as they sought reimbursement for the
counseling services." A reasonable person in his position would
have foreseen that the providers would overbill for clinical
services in addition to interpreter services.
Ahmed next objects to the district court's refusal to
credit him for interpreter services he purportedly provided in the
course of the scheme.
The Guidelines provide that a defendant's loss amount
"shall be reduced by . . . the fair market value of . . . the
services rendered . . . by the defendant." U.S.S.G. § 2B1.1 cmt.
n.3(E)(i). But "in a case . . . where a defendant's claims were
demonstrably rife with fraud[,] . . . a sentencing court may use
the face value of the claims as a starting point in computing
loss." Alphas, 785 F.3d at 784; see United States v. Iwuala, 789
F.3d 1, 14 (1st Cir. 2015) (applying this framework in a Medicare
fraud case). "'[T]he burden of production will then shift to the
defendant, who must offer evidence to show' why the loss figure
- 21 - should be set at a lower amount." Iwuala, 789 F.3d at 14 (quoting
Alphas, 785 F.3d at 784). "After the record is fully formed, the
sentencing court must determine the amount of loss that the
government (which retains the burden of proof) is able to
establish." Id. (quoting Alphas, 785 F.3d at 784). The district
court concluded -- and Ahmed does not dispute on appeal -- that
this "case is rife with fraud." The Alphas burden-shifting
framework applies, and Ahmed bore the burden of producing evidence
justifying a reduction in his loss amount from the initial figure
proven by the government.7 We review the district court's findings
regarding loss amount for clear error. See, e.g., Cadden, 965
F.3d at 31.
In the district court, Ahmed sought to meet his
evidentiary burden in two ways. First, based on statements by
Daigle, Borst, and a counselor at Facing Change, he purported to
calculate "rudimentary" ratios representing the degree to which
Ahmed's loss amount related to each practice should be reduced.
For example, Ahmed argued that, because Daigle indicated in a law
enforcement interview that "anything over [five units in a given
7 We note that, although the Alphas burden-shifting framework allows the government to use "the face value of the claims as a starting point" for the loss calculation, 785 F.3d at 784, the government in this case chose "for efficiency purposes" to instead use "the amount[] actually paid by MaineCare, which is roughly $250,000 less than the amount billed." This choice worked to Ahmed's benefit, and he unsurprisingly does not question it on appeal.
- 22 - session] was an overbilling" and because Daigle generally billed
for ten units per session, Ahmed's loss amount related to Daigle's
practice should be reduced by 50%. Second, he submitted records
purporting to show that some of the patients involved in the
conspiracy received mental health care paid for by MaineCare before
and/or after interacting with the conspiracy. We conclude that
the district court did not clearly err in finding that neither
submission warranted a reduction in Ahmed's loss amount.
We first consider Ahmed's proposed offset ratios. The
evidence offered by Ahmed in support of his calculations suffered
from a number of obvious defects. With respect to Daigle, Ahmed's
proposed ratio relied on a report describing an interview with law
enforcement in which Daigle "estimated that anything billed over
5 units was fraudulent." The report does not state that Daigle
was certain that the first five units of each session were
legitimate -- only that anything beyond that was not -- and
characterizes her five-unit figure as an "estimate[]" based on
"preliminary calculations."
With respect to Borst, Ahmed's proposed ratio rested on
the assertion that "Borst told investigators that the typical
session was thirty minutes," or two units. Borst did state in an
interview that in "basically every patient session [Ahmed]
interpreted for, [he] would get up after about thirty minutes and
just leave with the patient." But she did not state that those
- 23 - thirty minutes were spent on legitimate counseling; on the
contrary, she later described many visits as "pretty much
just . . . check-in[s]." Moreover, her description of most
sessions as lasting thirty minutes was contradicted by other record
evidence: Borst testified to the Ludwig grand jury that some visits
never actually took place; that she could not tell from her records
whether any particular visit occurred; and that typical visits
with Somali clients, at least early in the conspiracy, lasted only
"10 or 15 minutes." Further, as the district court noted,
"[g]overnment surveillance of the Borst practice for 13 days
observed that on six of those days Borst saw no patients but
submitted claims for 10 to 12-1/2 hours of service," and "[o]n
other days agents saw patients come into the office for no longer
than 16 minutes, yet Borst submitted claims for every patient for
two and a half hours."
Finally, with respect to Facing Change, Ahmed's proposed
ratio depended on his assertion that one counselor at the agency,
Danielle Defosse-Strout, "told investigators that the typical
session with Mr. Ahmed was 2 to 3-units, or 30 minutes to 45
minutes." Defosse-Strout did say in one interview that "most
visits involving [Ahmed] were 30-40 minutes in length." But she
claimed in a different interview that a "typical visit with
[Ahmed]" lasted fifteen minutes, and she stated that -- whatever
the length of the visits that Ahmed in fact attended -- most
- 24 - patient visits for which Ahmed purportedly provided interpreter
services, and for which she billed MaineCare, did not actually
occur: only one-third of billed visits involved client contact.
Further, Defosse-Strout did not state that those visits that did
take place involved legitimate services.
The district court also considered during sentencing the
evidence that any sessions that did occur did not involve treatment
for MaineCare eligible conditions. As the court recounted, Borst,
for example, "explained that she didn't provide any counseling
services to her Somali patients because her visits with them were
so brief and disorganized." Defosse-Strout testified that she had
had patients who did not require treatment whom Ahmed would resist
discharging, and admitted to falsifying billing codes to obtain
reimbursements for services not covered by MaineCare. Another
Facing Change counselor, Brittany Harrington, described instances
in which Ahmed would bring back former clients whom she did not
believe needed treatment and whom she had recently discharged,
with Ahmed claiming that the clients were experiencing symptoms
they had never before reported.
As the district court also highlighted, testimony at
Ludwig's trial by former Facing Change patients for whom Ahmed
served as interpreter cast further doubt on the legitimacy of the
services offered. One former patient testified that he did not
know why he was brought to the agency and that he attempted to
- 25 - tell staff that he did not need any assistance. Another explained
that he had hoped to receive treatment for asthma and a toothache,
rather than for any mental health concerns.
Finally, the district court "note[d] that there was
substantial testimony calling into question the legitimacy of the
translation services that were provided by [Ahmed]." Harrington
stated both in an interview with law enforcement and in testimony
during Ludwig's trial that she doubted the accuracy of Ahmed's
work. She explained that Ahmed used "clinical-based terms" that
patients "would not know" or were unlikely to use, such as
"flashbacks," and spoke for lengths of time that did not match the
patients' speech -- including instances where he answered without
the patients' having spoken at all. Defosse-Strout raised similar
concerns that "what [Ahmed] was translating back to her wasn't
what the client was actually saying," as his "translated
responses . . . were all suspiciously identical."
On this record, it was not clearly erroneous for the
district court to conclude that Ahmed's back of the envelope
calculations based on a few provider estimates were insufficient
evidence to show that a portion of the claims were legitimate.
See United States v. Arif, 897 F.3d 1, 11 (1st Cir. 2018); see
also, e.g., United States v. Mathew, 916 F.3d 510, 521-22 (5th
Cir. 2019) (affirming district court's denial of loss amount credit
to defendant despite his submission of "medical documents, patient
- 26 - interviews, and witness testimony" to show legitimacy of services
because "government presented evidence that discredited [his]
claims" and evidence); United States v. Bikundi, 926 F.3d 761, 798
(D.C. Cir. 2019) (affirming denial of loss amount credit where
defendants "did not produce evidence of [legitimate] services with
any specificity").
The other evidence cited by the defense does not
undermine this finding. As the district court pointed out, "even
taking as true that several of the patients involved during the
conspiracy received legitimate mental health diagnoses and
counseling before and/or after the fraudulent diagnoses and
treatment, that does not mean that . . . the [providers] that
[Ahmed] conspired with actually provided treatment for those
conditions." This reasoning is not clearly erroneous.
Ahmed's remaining argument is also unpersuasive. He
asserts that the district court should have credited him for any
legitimate interpreter services he provided "regardless of the
legitimacy of the [clinical] service" delivered by providers. In
support of this contention, Ahmed cites United States v. Klein,
543 F.3d 206 (5th Cir. 2008), in which the Fifth Circuit concluded
that a physician convicted of defrauding insurance companies by
billing for appointments that never happened was entitled to a
credit against his loss amount for the value of medicine he gave
to patients to self-administer. See id. at 208, 213-14. Ahmed
- 27 - characterizes the medication in Klein as a "connected service"
analogous to the interpreter services he purportedly provided.
Even assuming that Ahmed provided genuine interpreter services,
this analogy does not withstand scrutiny: The government in Klein
did not dispute that "the patients needed th[e] drugs and that the
insurers would have had to pay for the drugs had Klein merely
written prescriptions." Id. at 213. Here, in contrast,
interpreter services would be of value to and reimbursable by
MaineCare only if "necessary and reasonable" for providing covered
services to MaineCare beneficiaries. 10-144 Me. Code R. ch. 101,
ch. I, § 1.06-2(A). The district court properly declined to credit
Ahmed for interpreter services not associated with legitimate
clinical services.8
We find no error in the district court's loss
calculations.
2.
Ahmed also challenges the district court's imposition of
a four-level leader/organizer enhancement. "We review the
imposition of this particular sentencing enhancement, and any
8 Ahmed protests that "the logical extreme [of this] reasoning . . . is that a perfectly legitimate, law-abiding ancillary service provider could be denied payment because of the misdeeds . . . of the primary service provider." But because our decision today addresses only sentencing, any ancillary service provider affected is necessarily not "law-abiding." Moreover, our interpretation of the Guidelines does not bear on an interpreter's right to payment by MaineCare or providers.
- 28 - predicate factual findings, for clear error." United States v.
Appolon, 695 F.3d 44, 70 (1st Cir. 2012); see also United States
v. May, 343 F.3d 1, 7 (1st Cir. 2003) (noting that "battles over
a defendant's status . . . will almost always be won or lost in
the district court" (omission in original) (quoting United States
v. Conley, 156 F.3d 78, 85 (1st Cir. 1998))). The Guidelines
authorize this enhancement "[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive." U.S.S.G. § 3B1.1(a).
"Th[e] enhancement requires a district court to make 'both a status
determination -- a finding that the defendant acted as an organizer
or leader of the criminal activity -- and a scope
determination -- a finding that the criminal activity met either
the numerosity or the extensiveness benchmarks established by the
[G]uideline[s].'" United States v. Hernández, 964 F.3d 95, 101
(1st Cir. 2020) (quoting United States v. Tejada-Beltran, 50 F.3d
105, 111 (1st Cir. 1995)). Ahmed concedes that the conspiracy met
the Guidelines' numerosity requirement because it involved five or
more participants, leaving only the district court's status
determination at issue on appeal. Ahmed challenges this
determination on various grounds, but none are persuasive.
Ahmed's first argument -- that the district court erred
by failing to "specify in its findings the evidentiary basis for
its ruling" -- is a nonstarter both legally and factually.
- 29 - Legally, Ahmed is mistaken in asserting that explicit factual
findings are always required: on the contrary, "there is no
requirement that the district court specifically find whom the
defendant controlled or how he did so." United States v. Payne,
881 F.3d 229, 231 (1st Cir. 2018); see also United States v.
Morales-De Jesus, 896 F.3d 122, 125-26 (1st Cir. 2018) ("A district
court need not make specific findings justifying its application
of a role-in-the-offense-enhancement if 'the record clearly
reflects the basis of the court's determination.'" (quoting United
States v. Marrero-Ortiz, 160 F.3d 768, 779 (1st Cir. 1998))). In
fact, the district court did make relevant findings in imposing
the role enhancement. In particular, notwithstanding Ahmed's
claim that the court made "no findings about which other
participants Ahmed controlled," the court noted that "there
certainly [was] evidence that . . . Osman was in some respects
subservient to . . . Ahmed," and adopted the PSR's conclusion that
Ahmed "appeared to have a leadership role over . . . Osman."
To the extent Ahmed argues that he did not have the
requisite authority over at least one of his coconspirators, that
argument, too, misses the mark. It is true that, for the
enhancement to apply, Ahmed must have led or organized at least
one other criminal actor -- and not just a criminal activity -- on
at least one occasion. See United States v. García-Sierra, 994
F.3d 17, 37 (1st Cir. 2021); see also United States v. McKinney,
- 30 - 5 F.4th 104, 109 (1st Cir. 2021). But the record supports the
district court's conclusion that, at minimum, Ahmed organized or
led Osman. Defosse-Strout, for example, stated to investigators
that on at least one occasion Ahmed "made [Osman] execute . . .
interpreter sheets even though [Ahmed] was the interpreter for the
actual visit." Cf. Hernández, 964 F.3d at 102-05 (concluding
organizer enhancement warranted where defendant on one occasion
gave coconspirator instruction intended to facilitate criminal
activity). Both she and Harrington also testified at Ludwig's
trial that they understood all of Facing Change's Somali patients,
whether brought in by Ahmed or Osman, to be "[Ahmed's] clients."
Cf. United States v. Carrero-Hernandez, 643 F.3d 344, 352 (1st
Cir. 2011) (noting that defendant's referring to criminal
enterprise as "'his' system" supported conclusion that he led or
organized coconspirators). Facing Change's billing manager
similarly testified that all the firms through which the agency
employed Somali translators, including Osman, were "[Ahmed's]
operations." Indeed, Ahmed's counsel conceded in the district
court that "it did appear that . . . [Ahmed] was a manager or
supervisor of . . . Osman." The district court did not clearly
err in determining that, at minimum, Ahmed exercised the requisite
authority over Osman for the enhancement to apply.
Ahmed next contends that the facts in the record do not
support the imposition of the enhancement. He relies on the
- 31 - factors set forth in an application note to Guidelines section
3B1.1, which provides:
Factors the court should consider [in assessing a defendant's role in an offense] include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4; see also Appolon, 695 F.3d at 70
("[T]here need not be proof of each and every factor before a
defendant can be termed an organizer or leader." (quoting
Tejada-Beltran, 50 F.3d at 111)). Contrary to Ahmed's argument,
the district court considered these factors and reasonably
concluded that Ahmed qualified as a leader or organizer.
The court's factual findings from the sentencing hearing
track the Guidelines factors. The district court found that Ahmed
influenced both the providers' schedules and their billing through
"his control over the clients" -- which allowed him, and "not the
clinicians," to "make the appointments for clients" -- and through
"his demands regarding the number of units that had to be billed."
These findings reflect Ahmed's "exercise of decision making
authority," his significant "degree of participation in planning
or organizing the offense," and his "degree of control and
authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4. The
- 32 - district court also found that Ahmed "was a critically important
driving force" in the conspiracy, "was involved from the very
beginning . . . until the end," and "was the common denominator as
between the three counseling practices that participated in
fraudulent billing." Those findings support the conclusion that
Ahmed's "participation in the commission of the offense" was
substantial, and illustrate the wide-reaching, multi-agency
"nature and scope of [his] illegal activity." Id. Further, the
district court plausibly found that Ahmed "proposed and influenced
Daigle and Borst to participate in the scheme," demonstrating
Ahmed's "recruitment of accomplices."9 Id. Finally, the district
court determined that Ahmed "personally received the largest share
of the crime proceeds."10 See id. (listing "the claimed right to
a larger share of the fruits of the crime" as a relevant factor in
the leader/organizer analysis).
9 In his brief, Ahmed asserts without citation that Daigle recruited Ahmed into the scheme, rather than the other way around. The record does not support this view; Daigle stated to investigators, without contradiction in the record, that the idea to overbill originated with Ahmed. 10 On appeal, Ahmed concedes that "his gross proceeds over time were larger than the other participants[']," but contends that this was the result of his "working with multiple providers," and that "his percentage share of the proceeds was not higher." Even taking this claim as true, Ahmed does not explain why his greater gross income from the conspiracy would not be a relevant consideration in assessing his role.
- 33 - The district court also found that Ahmed's "control over
the clients" gave him the necessary leverage to influence the
providers, who relied on his "ability . . . to provide Somali
beneficiaries." The record supports this finding, as multiple
providers described Ahmed's role in billing decisions;
Defosse-Strout, for example, testified to the Ludwig grand jury
that she and Ahmed would negotiate billing amounts and, on
occasion, Ahmed would simply "direct[]" her on what claims to file.
The district court reasonably concluded that Ahmed's inability to
submit claims did not "in any way detract from the initiative and
leadership that he displayed in making possible the fraud that the
providers then committed." The district court did not clearly err
in applying the leader/organizer enhancement.
3.
We turn to Ahmed's substantive challenge and find no
abuse of discretion. "We review a preserved challenge to the
substantive reasonableness of a sentence under an abuse of
discretion standard." Flores-Quiñones, 985 F.3d at 133 (quoting
Reyes-Torres, 979 F.3d at 9). "[A] sentence will be deemed
substantively reasonable as long as it rests on 'a plausible
rationale and . . . represents a defensible result.'" United
States v. Ortiz-Pérez, 30 F.4th 107, 113 (1st Cir. 2022) (omission
in original) (quoting United States v. Rivera-Morales, 961 F.3d 1,
21 (1st Cir. 2020)). "We rarely find a below-[G]uidelines sentence
- 34 - to be substantively unreasonable." United States v.
Millán-Machuca, 991 F.3d 7, 32 (1st Cir. 2021).
Unsurprisingly, Ahmed's downward variant sentence
readily satisfies the substantive reasonableness standard. The
district court provided a plausible sentencing rationale. It
discussed the § 3553(a) factors, placing particular emphasis on
the need to deter future fraud, as Ahmed's activities had "perhaps
expose[d] . . . the weaknesses of the MaineCare system," and on
Ahmed's personal characteristics and history, including his
parental responsibilities. The court's reasoning that a twenty-
four-month sentence properly balanced these considerations is
plausible.11
That result is also defensible: Even under Ahmed's
proposed Guidelines calculations (with a GSR of 18 to 24 months),
his sentence would fall within the GSR and be "presumptively
reasonable." Reyes-Torres, 979 F.3d at 9. Given our rejection of
his Guidelines arguments, and the substantially higher applicable
GSR of 57 to 71 months, we are still more unlikely to hold the
sentence unreasonable. See Millán-Machuca, 991 F.3d at 32. In
any event, considering that Ahmed admitted to participating in a
11 We note that the district court's reasoning -- grounded in the § 3553(a) factors and untethered from the Guidelines -- would be equally sustainable even if we had accepted Ahmed's loss amount and role enhancement arguments, which bear only on the Guidelines and do not address the district court's sentencing rationale.
- 35 - multiyear scheme to defraud MaineCare in which even by his own
calculations -- let alone those adopted by the district court --
he personally wrongfully received over $436,000, we cannot say
that his twenty-four-month sentence is outside the "universe of
reasonable sentences." United States v. Rivera-González, 776 F.3d
45, 52 (1st Cir. 2015). Medicaid fraud like that committed by
Ahmed "cause[s] significant harm" by corruptly commandeering funds
"meant for the needy." Bikundi, 926 F.3d at 796. After all, every
time Ahmed "fraudulently billed [MaineCare], the government lost
funds that it otherwise could have used to provide medical care to
eligible [Mainers]." United States v. Regueiro, 240 F.3d 1321,
1324 (11th Cir. 2001). The district court did not abuse its
discretion by responding to this serious offense with a twenty-
four-month sentence.
Ahmed's last argument to the contrary is unpersuasive.12
He contends that the disparity between his sentence and Osman's
renders his sentence substantively unreasonable. It is true that
a sentencing court must consider "the need to avoid unwarranted
12 Ahmed's brief also posits that, if his Guidelines arguments carried the day, leaving his sentence at the high end of his preferred GSR of 18 to 24 months, his sentence would be substantively unreasonable because, since "the [district court] held that a downward variance was appropriate . . . , a sentence at the high end of the [GSR] [would not be] substantively reasonable." Because we reject Ahmed's Guidelines arguments, his sentence is below, rather than at the top of, the applicable GSR, mooting this argument.
- 36 - sentence disparities among defendants with similar records who
have been found guilty of similar conduct." 18 U.S.C.
§ 3553(a)(6). But because § 3553(a) specifically addresses
"unwarranted sentence disparities among defendants with similar
records" convicted of "similar conduct," id. (emphasis added), a
defendant "must compare apples to apples" by pointing to sentencing
disparities between "similarly situated" individuals, United
States v. Candelario-Ramos, 45 F.4th 521, 526 (1st Cir. 2022)
(first quoting United States v. González-Barbosa, 920 F.3d 125,
131 (1st Cir. 2019); and then quoting United States v. Romero, 906
F.3d 196, 211 (1st Cir. 2018)). Cases involving such apples to
apples comparisons "are unusual." United States v. Grullon, 996
F.3d 21, 35-36 (1st Cir. 2021).
Ahmed's argument is easily rejected. He has not in the
least shown that Osman was a relevant comparator for these
purposes. Ahmed "is attempting to compare apples to kumquats."
United States v. Gonzalez, 981 F.3d 11, 23 (1st Cir. 2020). For
example, as the district court explained during Ahmed's sentencing
hearing, "[t]he conspiracy . . . was begun by . . . Ahmed" "no
later than early 2015," with Osman not joining until "sometime in
2016"; Ahmed "personally received the largest share of the crime
proceeds"; and "there certainly [was] evidence that . . . Osman
was in some respects subservient to . . . Ahmed." Indeed, defense
counsel acknowledged to the district court that "it did appear
- 37 - that [Ahmed] . . . was a manager or supervisor of . . . Osman."
Cf. United States v. Floyd, 740 F.3d 22, 39 (1st Cir. 2014) ("[A]n
offender who sits at the top of a criminal hierarchy is not
similarly situated to his underlings."). Given Ahmed's and Osman's
disparate situations, the difference in their sentences does not
establish any abuse of discretion.
III.
We affirm Ahmed's sentence and remand for the limited
purpose of addressing the issue identified in footnote 4.
- 38 -
Related
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