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United States v. Ahaoma Ohia , 618 F. App'x 225 ( 2015 )


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  •      Case: 14-31344      Document: 00513221453         Page: 1    Date Filed: 10/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31344
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
AHAOMA BONIFACE OHIA,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CR-139-1
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Ahaoma Boniface Ohia was convicted by a jury of seven counts of health
care fraud, in violation of
    18 U.S.C. § 1347
    . He received a sentence of 120
months on the first count and 36 months on each of the remaining counts, the
latter sentences to run concurrently with each other and consecutively to the
sentence imposed for Count One; Ohia was also sentenced to two years of
supervised release and ordered to pay a $700 special assessment and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-31344      Document: 00513221453    Page: 2   Date Filed: 10/06/2015
No. 14-31344
$1,239,283.58 in restitution. On appeal, Ohia asserts that the evidence is
insufficient to support his convictions for Counts Two, Three, and Four because
the evidence showed that the purported Medicare beneficiaries met directly
with his codefendant and did not recognize Ohia. Ohia contends that the
evidence shows that he was duped by his codefendant’s fraudulent actions. We
“view[] all evidence, whether circumstantial or direct, in the light most
favorable to the Government with all reasonable inferences to be made in
support of the jury’s verdict.” United States v. Moser,
    123 F.3d 813
    , 819 (5th
Cir. 1997). After reviewing the testimony and the summaries of the evidence
presented at trial, we conclude that a reasonable juror could have found that
Ohia knowingly and willfully acted to defraud a health care benefit program.
See § 1347; United States v. Mitchell,
    484 F.3d 762
    , 768 (5th Cir. 2007).
At sentencing, the district court assessed a 16-level enhancement after
determining that Ohia had intended a loss of $2,239,784.55, the amount of
Ohia’s billings to Medicare for brace kits, prosthetic gloves, and replacement
power wheelchairs. Ohia contends that this amount overstates the amount of
loss because the Government failed to prove that all of this medical equipment
was medically unnecessary or was not actually prescribed. He asserts that the
district court should have considered only the significantly lower loss amount
alleged in the indictment.
We review the district court’s method of determining loss de novo and its
factual findings for clear error. United States v. Harris,
    597 F.3d 242
    , 250-51
(5th Cir. 2010).     “There is no clear error if the district court’s finding is
plausible in light of the record as a whole.” United States v. Juarez-Duarte,
    513 F.3d 204
    , 208 (5th Cir. 2008).          The Government must “prove by a
preponderance of the evidence that the defendant had the subjective intent to
cause the loss that is used to calculate his offense level.” United States v.
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Case: 14-31344     Document: 00513221453    Page: 3   Date Filed: 10/06/2015
No. 14-31344
Isiwele,
    635 F.3d 196
    , 203 (5th Cir. 2011) (internal quotation marks and
citation omitted).
The use of the amounts fraudulently billed to Medicare constituted
prima facie, although not conclusive, evidence of the amount of intended loss.
    Id.
       The district court was not bound by the loss amounts alleged in the
indictment and could take into account relevant conduct.            See U.S.S.G.
§ 1B1.3(a)(1)(A).      Ohia’s objections to the loss amount did not constitute
competent rebuttal evidence. See United States v. Alaniz,
    726 F.3d 586
    , 619
(5th Cir. 2013). Ohia has failed to establish that the information included in
the PSR was “materially untrue, inaccurate or unreliable.” United States v.
Gomez-Alvarez,
    781 F.3d 787
    , 796 (5th Cir. 2015) (internal quotation marks
and citation omitted).      The district court’s determination that Ohia had
intended a loss of over $1,000,000, which would trigger the 16-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(I) (Nov. 2008), was “plausible in
light of the record as a whole.” Juarez-Duarte,
    513 F.3d at 208
    . The judgment
of the district court is therefore AFFIRMED.
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