United States v. Osemwengie

In United States v. Osemwengie, No. 23-20511 (5th Cir. May 2, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s sentence for conspiring to defraud the United States and to pay and receive health care kickbacks, in violation of 18 U.S.C. § 371.

Issue 1: Did the Government present enough evidence for the 6-level enhancement under USSG § 2B1.1(b)(1)? Held: Yes.

The district court imposed that enhancement based on an estimated total loss to Medicare of $68,019.87. Osemwengie argued that the enhancement should not have applied because the Government had failed to meet its burden because it “did not correlate each kickback paid to Osemwengie with a specific beneficiary.” The Government does generally have the burden of proving the amount of loss by preponderance of the evidence, but information in the Presentence Investigation Report (“PSR”) can be sufficient if it “bears some indicia of reliability.”

Here, an investigator testified that the PSR’s loss calculations were “derived from Medicare claims data and based on interviews with beneficiaries conducted during the investigation into Osemwengie.” The mere fact that the numbers “arose out of a law enforcement investigation” made them presumptively reliable. Osemwengie presented no evidence to rebut the PSR, so his challenge to the PSR’s calculations failed.

Issue 2: Did the district court err by calculating the Guidelines based on intended loss rather than actual loss? Held: No.

Although this argument was previously viable in the Fifth Circuit, it has now been foreclosed by the en banc court in United States v. Vargas, 74 F.4th 673, 677–78 (5th Cir. 2023) (en banc), cert. denied, 144 S. Ct. 828 (2024).

Issue 3: The court also rejected Osemwengie’s argument that his sentence was substantively unreasonable. The Guidelines had recommended 15 to 21 months of imprisonment, but the district court varied downward to 12 months, 6 of which would be served in home detention rather than prison. A below-Guidelines sentence is presumptively reasonable in the Fifth Circuit, United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015), and Osemwengie failed to rebut that presumption.