United States v. Kim Ricard , 922 F.3d 639 ( 2019 )


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  •      Case: 18-30047   Document: 00514932907        Page: 1   Date Filed: 04/26/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 18-30047                 United States Court of Appeals
    Fifth Circuit
    FILED
    April 26, 2019
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Plaintiff - Appellee                                       Clerk
    v.
    KIM RICARD,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.
    E. GRADY JOLLY, Circuit Judge:
    Kim Ricard was convicted by a jury of one count of conspiracy to pay and
    receive kickbacks for referring Medicare patients to a particular health care
    provider, three counts of receiving such kickbacks for such referrals, three
    counts of identity theft, and one count of making false statements to a federal
    agent.   The district court sentenced Ricard to a fifty-one-month term of
    imprisonment as to each count, to be served concurrently, and ordered her to
    pay $1,958,000 in restitution to Medicare. On appeal, Ricard challenges her
    convictions and her sentence. We affirm Ricard’s convictions but vacate her
    sentence, reverse and vacate the restitution order, and remand for
    resentencing and dismissal of the restitution order.
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    No. 18-30047
    I.
    Kim Ricard was hired by Progressive Home Care in 2008. Progressive
    was a home health agency owned by Milton Diaz that primarily served
    Medicare patients. As a home health agency, Progressive provided nursing
    services to homebound patients who require continuing care after being
    discharged from a hospital. Medicare provides coverage for home health care
    when a physician certifies home care is necessary. Patients must then be given
    a list of home health agencies to choose from. Medicare requires that the
    patient, not the doctor, choose the home health agency. Once patients choose
    a particular agency to provide the home care services, they are discharged and
    receive such home health care for sixty days. That home health agency may
    recertify the patient for additional sixty-day treatment periods until home
    health care is no longer required. To bill for treatment, a home health agency
    provides Medicare with the patient’s information, including a Medicare Health
    Insurance Claim Number (“HIC number”), which is a unique number
    identifying the patient.
    Ricard’s role at Progressive was to recruit and refer Medicare patients to
    Progressive for home care psychiatric treatment.            Instead of a traditional
    salary, Diaz paid Ricard $250 on each occasion that she referred a patient. He
    later increased that amount to $300 per patient after Ricard requested more
    money. Unlike other employees at Progressive, Ricard’s checks were always
    in round dollar amounts. The memo line on Ricard’s checks often referenced
    the number of new admissions or recertifications for which Ricard was being
    paid. 1 She was the highest paid employee at Progressive from 2008 through
    2013, earning $331,389 during that period.
    1  As examples, Ricard’s check dated October 11, 2010, was for $4,500 and the memo
    line read “5 ADMITS, 13 RECERTS.” A second check, dated October 25, 2010, was for $4,200
    2
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    All of Ricard’s referrals to Progressive for home care came from the
    outpatient psychiatric program provided at Seaside Behavioral Center. It is
    not incidental that Ricard was in a romantic relationship with Joe Haynes, an
    administrative person at Seaside.         Haynes instructed two psychiatrists
    employed by Seaside to refer patients to Progressive. Ricard and Haynes
    demanded that Diaz also pay Seaside’s psychiatrists in exchange for such
    referrals.
    Ricard and Haynes told Diaz that if he stopped paying Ricard per patient
    referral she would stop referring Progressive patients and move Seaside’s
    patients, whom she had previously referred, to another home health provider.
    Haynes also threatened to transfer Seaside’s patients to other home health
    agencies if Ricard was not paid more per referral. On March 8, 2013, a Seaside
    psychiatrist ordered Progressive to “mass discharge all of her patients.”
    According to a Progressive employee, “money issues” between Ricard and Diaz
    caused Ricard to stop referring patients to Progressive; none of the referred
    patients had complained to Progressive or asked to be discharged from
    Progressive’s care. On March 12, 2013, Haynes called Progressive three times
    demanding money owed to Ricard. Haynes and Ricard also called patients they
    had referred to Progressive and told them to refuse treatment from Progressive
    or else they would be kicked out of Seaside’s day program. Most of these
    patients ultimately refused treatment from Progressive and were accordingly
    discharged from Progressive’s care.
    In late 2013, after leaving Progressive, Ricard was hired by Abide Home
    Services, another home health agency. When Ricard first met with Abide’s
    owner, Lisa Crinel, she asked to be paid per patient referral. Crinel told Ricard
    and the memo line read 14@300. A third, dated November 8, 2010, was for $5,700 with a
    memo line reading “16 recerts@300, 3 admits.”
    3
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    that Abide did not pay by referral; instead she would receive an annual salary
    of $50,000 plus a bonus if she referred over six patients per month. According
    to Crinel, Ricard was “a little shocked” by this payment structure and told
    Crinel that she was used to being paid up to $1,000 per patient.           As at
    Progressive, the only work Ricard did at Abide was soliciting and referring
    patients. Unlike other marketers employed by Abide, Ricard did not attend
    orientation or weekly marketing meetings. She also did not go out into the
    field to market for Abide. Crinel and Ricard would exchange text messages
    about patient referrals. In one text message, Ricard wrote “I’m sending five
    face sheets. Let me know if their numbers are good.” Crinel testified that
    “numbers” referred to patient’s HIC numbers. A number was “good” if the
    patient was not connected to another home health agency, allowing Abide to
    bill Medicare for that patient.
    As when Ricard was with Progressive, all the patients she referred to
    Abide were from Seaside. Haynes, still at Seaside, continued his practice of
    calling Ricard’s employer to complain, “in a very stern manner,” that Ricard
    should receive more money for referring patients. During Haynes’s last phone
    call with Abide, he yelled and swore at Crinel and threatened to tear up
    admitting forms that Abide used to bill Medicare because Ricard’s paycheck
    was less than he expected.        Ricard ultimately transferred her recruited
    patients away from Abide.
    In 2014, the Office of the Inspector General of the United States
    Department of Health and Human Services (OIG–HHS) received a tip from
    Progressive’s bank that Progressive was paying Ricard kickbacks. Special
    Agent Brian Reel reviewed Ricard’s checks and, based on the round number
    amounts and reference to the number of “admits” and “recerts” in the checks’
    memo lines, believed Ricard was being paid kickbacks. Agent Reel proceeded
    to interview Diaz in May 2015. According to Agent Reel, Diaz became visibly
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    nervous when asked about Ricard. Agent Reel also found red flags when
    examining Medicare data for Progressive. For instance, he discovered that
    Progressive and Seaside shared nearly fifty patient-beneficiaries, even though
    Progressive’s homebound patients should have been unable to travel to Seaside
    for outpatient treatment. Additionally, he found it significant that twenty
    patients referred from Seaside were discharged in February and March 2013.
    All twenty of those patients were referred by the two Seaside psychiatrists who
    were receiving kickbacks from Progressive. 2               Agent Reel also obtained a
    certification from the IRS that Ricard had failed to file federal income tax
    returns between 2008 and 2014. And Agent Reel discovered that Ricard had
    lied in a credit application, reporting her monthly income as $3,500 when, at
    the time, she was earning approximately $8,000 per month.
    Accompanied by Special Agent Artie DeLaneuville, Agent Reel arranged
    a meeting with Ricard at a coffee shop on July 29, 2015. The interview was
    not recorded or transcribed. Instead, Agent Reel memorialized the interview
    in a written report. It is unclear when the report was prepared. 3 The report
    was not admitted into evidence. According to Agent Reel’s testimony, he asked
    Ricard twice whether she was paid per patient referral at Progressive and she
    denied it each time, saying “there’s no way she was paid per patient referral at
    Progressive.”     Upon being asked about referral payments, Ricard became
    2Agent Reel corroborated that the psychiatrists were being paid by Progressive
    through bank records.
    3 The report was dated January 7, 2015—six months before the interview. Both
    parties agree that this was the result of a typographical error. Ricard suggests that the
    typographical error in the report was in the year, meaning it was prepared January 7, 2016,
    six months after the interview. The government does not indicate when it believes the report
    was prepared. Agent Reel testified that he prepared the report “[s]hortly after the interview,”
    and he was “sure I meant 8” regarding the error. Assuming “8” referred to the number
    representing the month, not the day or part of the year, the report would have been prepared
    August 7, 2015, approximately one week after the interview.
    5
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    “nervous, agitated and jumpy.” After her second denial, Agent Reel showed
    Ricard checks written to her by Progressive and drew her attention to the
    memo lines referencing referrals, admissions, or recertifications. After looking
    at the checks, Ricard told Agent Reel that she “had no idea about kickbacks
    and referrals at Progressive” and that she could not recall the financial
    agreement that she had with Diaz. She then asked Agent Reel how much he
    thought she was paid per referral. He responded $250 per referral. Agent
    DeLaneuville then asked Ricard whether she was paid $250 per referral by
    Progressive. She did not respond.
    II.
    Ricard was indicted on one count of conspiracy to pay and receive health
    care kickbacks, in violation of 18 U.S.C. § 371 (Count One); three counts of
    receiving health care kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A)
    (Counts Two–Four); three counts of unlawful possession, transfer, or use of a
    means of identification, in violation of 18 U.S.C. § 1028(a)(7) (Counts Eight–
    Ten); and one count of making false statements, in violation of 18 U.S.C. § 1001
    (Count Eleven).
    Ricard’s indictment for conspiracy, kickbacks, and identity theft
    stemmed from her involvement with the alleged kickback scheme at
    Progressive. She was not charged with any acts relating to her work at Abide.
    Prior to trial, the government notified Ricard that it intended to introduce
    evidence that Ricard received kickbacks at Abide, arguing that it was intrinsic
    to the charged crimes or, alternatively, admissible pursuant to Federal Rule of
    Evidence 404(b). 4 Ricard objected and moved to prohibit its use. The district
    4Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible
    to prove a person’s character in order to show that on a particular occasion the person acted
    in accordance with the character” but “may be admissible for another purpose, such as
    6
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    court, however, overruled Ricard’s objection and held the evidence admissible
    under Rule 404(b). At the close of trial, Ricard moved, pursuant to Federal
    Rule of Criminal Procedure 29, for a judgment of acquittal, arguing that the
    evidence against her was insufficient. The district court denied the motion. As
    part of its charge, the jury was given a deliberate ignorance instruction over
    Ricard’s objection. The jury convicted Ricard on all eight counts.
    Prior to her sentencing, the United States Probation Office (USPO)
    prepared an initial Presentence Report (PSR). The initial PSR found Ricard’s
    base offense level, pursuant to United States Sentencing Guidelines (U.S.S.G.)
    § 2B4.1(a), to be eight.       The initial PSR also recommended a ten-level
    enhancement, pursuant to U.S.S.G. § 2B1.4(b)(1)(B), because the kickbacks
    totaled $249,300. Based on her total offense level of eighteen and her criminal
    history category of I, her advisory guideline imprisonment range was twenty-
    seven to thirty-three months. The government objected to the initial PSR’s
    calculation of the kickback amount, noting that the evidence at trial indicated
    the actual amount of kickbacks Ricard received was $331,000. Furthermore,
    the government argued that the improper benefit conferred, calculated as the
    total amount of payments Progressive received from Medicare, should be used
    instead because it exceeded the amount paid in kickbacks. According to the
    government, that amount was $1.98 million. The USPO issued a final PSR
    adopting the government’s arguments and concluding that $1.958 million was
    the improper benefit conferred. This calculation resulted in a sixteen-level
    enhancement.      Her revised total offense level of twenty-four produced an
    advisory guideline imprisonment range of fifty-one to sixty-three months.
    proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
    mistake, or lack of accident.” Fed. R. Evid. 404(b)(1)–(2).
    7
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    The initial PSR also recommended that Ricard make $249,000 in
    restitution to Medicare.      The government similarly objected to the victim
    impact calculation, arguing that it should also be $1.98 million. The USPO
    agreed with the government’s reasoning and, in its final PSR, recommended
    that Ricard make $1.958 million in restitution to Medicare.
    The district court overruled Ricard’s objections to the final PSR and
    adopted its recommended finding of facts. The court then sentenced Ricard to
    a fifty-one-month term of imprisonment as to each count, to be served
    concurrently, and ordered her to pay $1.958 million in restitution to Medicare,
    jointly and severally with her co-defendant Diaz
    Ricard has timely appealed.       She challenges the sufficiency of the
    evidence as to each count, the district court’s evidentiary ruling admitting
    evidence of the similar scheme at Abide, inclusion of a deliberate ignorance
    jury instruction, the calculation of her advisory guideline range, and the
    amount of her restitution order. We consider each challenge in turn.
    III.
    A.
    We first address Ricard’s challenges to the sufficiency of the evidence. In
    doing so, we consider Counts One–Four together. That is, Ricard’s convictions
    for one count of conspiracy to receive and pay kickbacks and three counts of
    receiving kickbacks for referring Medicare patients. See 18 U.S.C. § 371; 42
    U.S.C. § 1320a-7b(b)(1)(A).
    Ricard preserved her challenge to the sufficiency of the evidence as to
    Counts One–Four and therefore our review is de novo. See United States v.
    Eghobor, 
    812 F.3d 352
    , 361–62 (5th Cir. 2015). We may only reverse her
    conviction if no “rational trier of fact could have found the essential elements
    of the crime beyond a reasonable doubt.” United States v. Grant, 
    683 F.3d 639
    ,
    642 (5th Cir. 2012) (quoting United States v. Ford, 
    558 F.3d 371
    , 375 (5th Cir.
    8
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    2009)). We must “view all evidence, whether circumstantial or direct, in the
    light most favorable to the government, with all reasonable inferences and
    credibility choices to be made in support of the jury’s verdict.” 
    Id. (quoting Ford,
    558 F.3d at 375).
    The Medicare kickback statute “criminalizes the payment of any funds
    or benefits designed to encourage an individual to refer another party to a
    Medicare provider for services to be paid for by the Medicare program.” 5
    United States v. Miles, 
    360 F.3d 472
    , 479 (5th Cir. 2004). To obtain a conviction
    under the statute for receiving kickbacks, the government must prove beyond
    a reasonable doubt that the defendant (1) solicited or received renumeration,
    (2) in return for referring an individual for a service, (3) that may be paid under
    a federal health care program, and (4) that the defendant acted knowingly and
    willfully. 6 See United States v. St. Junius, 
    739 F.3d 193
    , 210 n.18 (5th Cir.
    2013) (citing 42 U.S.C. § 1320a-7b(b)(1)(A)).               To prove a conspiracy, the
    government must show the defendant knowingly and voluntarily entered into
    an agreement with another person to pursue an unlawful objective and
    5Ricard does not challenge that the statute applies to the conduct with which she is
    charged.
    6   Specifically, the statute provides:
    (1) Whoever knowingly and willfully solicits or receives any
    remuneration (including any kickback, bribe, or rebate) directly or indirectly,
    overtly or covertly, in cash or in kind--
    (A) in return for referring an individual to a person for the furnishing
    or arranging for the furnishing of any item or service for which payment may
    be made in whole or in part under a Federal health care program.
    ...
    shall be guilty of a felony.
    42 U.S.C. § 1320a-7b(b)(1)(A).
    9
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    committed an overt act in furtherance thereof. 7 See United States v. Gibson,
    
    875 F.3d 179
    , 187–88 (5th Cir. 2017) (quoting United States v. Njoku, 
    737 F.3d 55
    , 64 (5th Cir. 2013)).
    Ricard argues that the government failed to prove that she acted
    willfully—in other words, that she knew the payments were unlawful.
    Willfulness in the Medicare kickback statute “means that the act was
    committed voluntarily and purposely with the specific intent to do something
    the law forbids; that is to say, with bad purpose either to disobey or disregard
    the law.” United States v. Davis, 
    132 F.3d 1092
    , 1094 (5th Cir. 1998) (quoting
    United States v. Garcia, 
    762 F.2d 1222
    , 1224 (5th Cir. 1985)). Under this
    definition of willfulness, “knowledge that the conduct is unlawful is all that is
    required.” 8 Bryan v. United States, 
    524 U.S. 184
    , 196 (1998).
    The evidence here supports a finding of willfulness. We keep in mind
    that the evidence must be treated in favor of the verdict. The jury could infer
    from Ricard’s suspicious conduct, misrepresentations, and method of
    compensation that she knew her conduct was unlawful. The jury could also
    conclude that Ricard shuffled psychiatric patients among home health
    agencies, based on a desire for profit rather than their medical needs. Cf.
    United States v. Sanjar, 
    876 F.3d 725
    , 746 (5th Cir. 2017) (inferring fraudulent
    7   The conspiracy statute Ricard was convicted under states:
    If two or more persons conspire either to commit any offense against
    the United States, or to defraud the United States, or any agency thereof in
    any manner or for any purpose, and one or more of such persons do any act to
    effect the object of the conspiracy, each shall be fined under this title or
    imprisoned not more than five years, or both.
    18 U.S.C. § 371.
    8 In contrast, a heightened willfulness standard applies in certain tax and currency
    structuring cases. Those statutes “carve out an exception to the traditional rule that
    ignorance of the law is no excuse and require that the defendant have knowledge of the law.”
    
    Bryan, 524 U.S. at 195
    (internal quotation marks and footnotes omitted).
    10
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    intent when defendant saw patients cycled between services without regard to
    medical need). She misrepresented her monthly income in a loan application
    and, during the entirety of her employment at Progressive did not file income
    tax returns. And Ricard was Progressive’s highest paid employee, earning
    more than the agency’s medical providers. See 
    id. (defendants’ “substantial
    profits from the scheme” supported jury’s finding of fraudulent intent).
    Ricard argues that she is not a medical professional or an owner of a
    health care agency and therefore was not required to sign any documentation
    acknowledging awareness of the Medicare kickback statute, nor did she receive
    training on Medicare rules and regulations. We, however, have never required
    that an employee be a health care professional or own a health care agency to
    willfully violate the Medicare kickback statute.     In Njoku, we upheld the
    conviction of a recruiter for conspiracy to pay and receive kickbacks for patient
    referrals. 737 at 65–66. And in Sanjar, we found there was sufficient evidence
    that an office administrator willfully paid kickbacks, or conspired to do so,
    because she “meticulously monitored patient referrals, tracking patients, their
    referrers, and the billings on their 
    claims.” 876 F.3d at 747
    .
    Ricard is correct that our previous Medicare kickback statute cases
    addressing willfulness have more often dealt with medical professionals or
    health care company owners. See 
    id. 733–35 (doctors,
    health care company
    owners, office administrator, and physician assistant); United States v. 
    Gibson, 875 F.3d at 184
    (health care company owner); United States v. Nowlin, 640 F.
    App’x 337, 339 (5th Cir. 2016) (health care company owner). These opinions,
    however, did not primarily rest on the requirement that medical professionals
    and health care company owners comply with Medicare rules and regulations
    in finding that the defendants acted willfully. In Sanjar, we found that the
    health care company and group-home owners acted willfully because they
    tracked and monitored patient referrals, received referral fees equivalent to
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    ten percent of the Medicare claims, the group-home owners required payments
    for referrals, the conspirators cut out a recruiter from the scheme to increase
    profits, and the payments were made in 
    cash. 876 F.3d at 747
    . Sanjar did not
    refer to the requirement that medical professionals and health care company
    owners must be aware of Medicare rules and regulations when finding that the
    defendants acted willfully. Similarly, in Gibson, we referred to the defendant’s
    “position of authority,” but did not discuss his signing of the Medicare
    enrollment 
    documents. 875 F.3d at 188
    . In Nowlin, we did reference this
    requirement.    640 F. App’x at 344 (“Nowlin personally signed the . . .
    enrollment applications agreeing to comply with all relevant regulations.”).
    But, in finding that the defendant acted willfully, we also relied on evidence
    that commissions for referring Medicare beneficiaries were paid monthly in
    cash at the defendant’s home, the recruiters worked only in the field soliciting
    beneficiaries, and the recruiter did not keep an office or sign a sales contract.
    See 
    id. Ricard’s role
    as a marketer, rather than a medical professional or
    health care company owner, does not preclude a finding that she acted
    willfully.
    Ricard further argues that the evidence tends to show that she believed
    her payment structure was both lawful and the industry norm. A psychiatric
    nurse at Progressive, who pleaded guilty to receiving an illegal kickback,
    testified that when she, the nurse, was arrested she was unclear that receiving
    referral compensation was wrong. Diaz, who owned Progressive and also pled
    guilty to the scheme, testified that he learned at seminars that marketers could
    be paid per patient referral. And Ricard characterizes testimony that she was
    “a little shocked” that Abide would not pay her per patient referral as showing
    she believed such payments were standard practice in the home health care
    industry. A rational juror, however, could temper this evidence with Ricard’s
    cycling of patients, concealment of her income, and disproportionate profits.
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    Thus, we hold that the evidence supports Ricard’s convictions on the kickback
    and conspiracy counts.
    B.
    We turn now to Ricard’s conviction under the identity theft statute. 18
    U.S.C. § 1028(a)(7). A person violates § 1028(a)(7) if he or she (1) “knowingly
    transfers, possesses, or uses,” (2) “without lawful authority,” (3) “a means of
    identification of another person,” (4) “with the intent to commit, or to aid or
    abet, or in connection with, any unlawful activity that constitutes a violation
    of Federal law, or that constitutes a felony under any applicable State or local
    law.” 
    Id. Ricard challenges
    the sufficiency of the evidence as to the first and
    fourth elements.
    When Ricard moved for a judgment of acquittal, she did not specifically
    reference her identity theft counts. Instead she only argued that there was “no
    evidence that [she] knew that receiving money for patient referrals was
    wrong.”   This argument constituted a challenge to the sufficiency of the
    evidence as to the fourth element—whether her unlawful use of another’s
    identification was in connection with another violation of federal law. Ricard
    has thus waived all other arguments. See United States v. Phillips, 
    477 F.3d 215
    , 219 (5th Cir. 2007). We therefore review her challenge to the fourth
    element de novo and her challenge to the first element under the manifest
    miscarriage of justice standard. 
    Id. Under that
    heightened standard, “a claim
    of evidentiary insufficiency will be rejected unless ‘the record is devoid of
    evidence pointing to guilt’ or if the evidence is ‘so tenuous that a conviction is
    shocking.’” 
    Id. (quoting United
    States v. Avants, 
    367 F.3d 433
    , 449 (5th Cir.
    2004)).
    We begin with § 1028(a)(7)’s first element: whether Ricard “knowingly
    transfer[red], possesse[d], or use[d]” a means of identification of another
    person. Ricard’s identity theft conviction was premised on her possession and
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    transfer of the HIC numbers of three Progressive patients, T.M., S.M., and
    B.H., in connection with her violation of the Medicare kickback statute; that
    is, the government contends that Ricard gained unlawful possession of the HIC
    numbers of these Seaside patients in order to transfer the information to
    Progressive for its purposes of billing the Medicare program. Ricard argues,
    however, that the evidence was insufficient to find that she ever transferred,
    possessed, or used the HIC numbers of T.M., S.M., or B.H. We cannot agree.
    Although there was no direct evidence presented at trial that Ricard possessed
    or transferred the HIC numbers of these patients to Progressive, there was
    sufficient circumstantial evidence from which the jury could reasonably make
    this inference. Testimony was introduced that, to bill Medicare, a home health
    agency must provide to Medicare a patient’s HIC number. T.M., S.M., and
    B.H.’s patient files, which contained the referral forms with their HIC
    numbers, were also introduced as evidence. A Progressive nurse, who treated
    T.M., testified that if she needed information about a patient she could contact
    Ricard, who had access to their history, evaluation, and other information. As
    we have noted above, absent an objection below, our review of Ricard’s
    challenge to this element is under the highly deferential manifest miscarriage
    of justice standard.    The jury could infer that Ricard’s access to patient
    information included their HIC numbers. Because the record is not devoid of
    evidence pointing to guilt nor is the evidence so tenuous that a conviction is
    shocking, we reject Ricard’s challenge to the first element.
    Now the fourth element: whether Ricard’s use, possession, or transfer of
    the identifications was done with “the intent to commit, or to aid or abet, or in
    connection with, any unlawful activity that constitutes a violation of Federal
    law.”    18 U.S.C. § 1028(a)(7).     Ricard contends that the evidence was
    insufficient for the jury to find that her use of the HIC numbers was done with
    the intent to commit a violation of the Medicare kickback statute. Ricard,
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    however, merely reasserts her argument that she did not willfully violate the
    kickback statute. Because we have already determined that the evidence was
    sufficient to sustain Ricard’s kickback convictions, this argument fails. We
    therefore affirm Ricard’s identity theft convictions.
    C.
    We now come to Ricard’s conviction for making a false statement to the
    OIG–HHS in violation of 18 U.S.C. § 1001. The indictment alleged that Ricard
    “falsely stated that Progressive did not pay her, on a per patient basis, for
    referring patients to Progressive.” To sustain a conviction under § 1001, the
    government must prove that Ricard “(1) made a statement (2) that was false
    (3) and material (4) knowingly and willfully and (5) that falls within agency
    jurisdiction.” 9 United States v. Jara-Favela, 
    686 F.3d 289
    , 301 (5th Cir. 2012)
    (citing United States v. Hoover, 
    467 F.3d 496
    , 499 (5th Cir. 2006)). Ricard
    contends that the evidence was insufficient to satisfy the first and fourth
    elements.
    Ricard moved for a judgment of acquittal on the false statement count,
    arguing that there was no physical evidence that she made a false statement
    to the agents. Thus, she has preserved her challenge to the first element—
    9   In relevant part, the statute reads:
    (a) Except as otherwise provided in this section, whoever, in any matter within
    the jurisdiction of the executive, legislative, or judicial branch of the
    Government of the United States, knowingly and willfully--
    ...
    (2) makes any materially false, fictitious, or fraudulent statement or
    representation;
    ...
    shall be fined under this title [or] imprisoned not more than 5 years.
    18 U.S.C. § 1001.
    15
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    No. 18-30047
    whether she “made a statement”—and our review of that element is de novo.
    See 
    Eghobor, 812 F.3d at 362
    . Ricard did not preserve her challenge to the
    statute’s mens rea element and we therefore review that challenge under the
    manifest miscarriage of justice standard. See 
    Phillips, 477 F.3d at 219
    .
    The government’s proof that Ricard made a statement rested entirely on
    the testimony of the agent who interviewed her. Agent Reel testified that he
    asked her “if she was paid per patient at Progressive” and that she denied it
    twice, responding that “there’s no way she was paid per patient referral at
    Progressive.”      Ricard contends that this evidence was insufficient.                    The
    interview was not recorded or transcribed.                The only record made of the
    meeting was Agent Reel’s report, prepared at a later but uncertain date.
    Ricard must acknowledge that there is no per se requirement that the
    making of a false statement be corroborated. See United States v. Sorich, 
    523 F.3d 702
    , 717 (7th Cir. 2008); United States v. Fern, 
    696 F.2d 1269
    , 1275 (11th
    Cir. 1983); United States v. Poutre, 
    646 F.2d 685
    , 688 (1st Cir. 1980); Marzani
    v. United States, 
    168 F.2d 133
    , 141 (D.C. Cir.), aff’d by an equally divided court,
    
    335 U.S. 895
    (1948). But a lack of corroboration is of some concern for two
    reasons.     First, the broad scope and lack of safeguards provided by the
    statute. 10 And, second, the effect that a lack of corroboration has on the ability
    10 The false statements statute applies to both oral and written statements, sworn and
    unsworn. The statute lacks the protection of common law perjury’s two-witness rule; falsity
    can be proven by the testimony of a single witness. See Stein v. United States, 
    363 F.2d 587
    ,
    589 (5th Cir. 1966); Gevinson v. United States, 
    358 F.2d 761
    , 766 (5th Cir. 1966). The false
    statement need not actually mislead, or actually influence in any way, a government agency.
    See United States v. Abrahem, 
    678 F.3d 370
    , 375 (5th Cir. 2012) (holding a false statement is
    material if it is “of a type that one would normally predict would influence the given decision-
    making body”). A defendant can be convicted for simply denying an accusation of guilt by
    answering “no.” Brogan v. United States, 
    522 U.S. 398
    , 406–08 (1998). And its scope includes
    not only all matters within the jurisdiction of the three branches of the federal government
    but, oftentimes, extends to matters before state and local agencies. See United States v.
    Taylor, 
    582 F.3d 558
    , 563 (5th Cir. 2009) (affirming false statement conviction based on
    statement made to a state agency charged with administering a federal program). Yet there
    is no requirement that the individual be informed that making a false statement is a criminal
    16
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    of the defendant to defend herself against the accusation of lying. See 
    Poutre, 646 F.2d at 688
    (stating that “what is actually said by a defendant [is] a
    critically important part of any prosecution under § 1001”). For instance, two
    of the few available defenses to a false statement charge are that the defendant
    was responding to a fundamentally ambiguous question or that her answer
    was literally true. See Bronston v. United States, 
    409 U.S. 352
    (1973) (holding
    that the perjury statute does not apply to literally true but unresponsive
    answers); see also, e.g., United States v. Manapat, 
    928 F.2d 1097
    , 1099–1102
    (11th Cir. 1991) (holding that evidence is insufficient in a perjury case “[w]hen
    the question that led to the allegedly false response is fundamentally
    ambiguous”). Both of those defenses hinge heavily on the specific words spoken
    by the defendant and the questioner. See United States v. Clifford, 
    426 F. Supp. 696
    , 701 (E.D.N.Y. 1976) (“The absence of a verbatim record of the interview
    raises serious difficulties in light of the Supreme Court’s decision in
    Bronston.”); United States v. Ehrlichman, 
    379 F. Supp. 291
    , 292 (D.D.C. 1974)
    (“[T]he absence of a transcript would make application of [the Bronston literal-
    truth] test nearly impossible.”).
    In any event, Ricard did not raise either of these defenses below; instead,
    she only argued to the jury that it should not believe Agent Reel’s testimony
    without audio or video proof. The jury was entitled to determine the credibility
    of Agent Reel’s testimony, weighing the lack of corroboration and the
    uncertainty of when he drafted his report of the interview. We may only reject
    that credibility determination in rare circumstances not present here. See
    United States v. Shoemaker, 
    746 F.3d 614
    , 623 (5th Cir. 2014). Thus, on the
    offense. See United States v. Yermian, 
    468 U.S. 63
    , 73–74 (1984). Breathtaking, to be sure,
    in its broad and unsuspecting applications.
    17
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    facts before us, Ricard’s challenge to the first element of the false statement
    charge, that she did not make a statement, fails.
    We move next to Ricard’s challenge to the fourth element; that is,
    whether she knowingly and willfully made a false statement. Ricard makes
    two points. First, invoking her previous argument, she contends that there
    was no supporting evidence of what she was specifically asked, and if Agent
    Reel had asked her if she was paid a “kickback” she would have truthfully
    answered no, unaware of the definition of that technical term. Second, she
    argues that because of the two-year gap between her employment at
    Progressive and the interview, during which time she was employed at other
    home health care agencies, she could not recall her financial arrangement with
    Progressive.
    Reviewing Ricard’s contentions under the extremely limited manifest
    miscarriage of justice standard, these arguments do not prevail. Agent Reel
    testified that he asked Ricard whether she was paid by referral before he asked
    her the more technical question relating to kickbacks. And, according to Agent
    Reel’s testimony, Ricard did not respond that she could not recall her payment
    structure at Progressive; instead, she affirmatively denied she was paid per
    referral. We thus affirm Ricard’s conviction for making false statements and
    turn toward a different topic.
    IV.
    With respect to Ricard’s challenge to the evidentiary ruling, the
    government introduced evidence that, after Ricard left Progressive, she
    engaged in a similar kickback scheme while employed by Abide.             Ricard
    objected, but the district court ruled that this evidence was admissible under
    Federal Rule of Evidence 404(b) because Ricard’s “participation in a scheme
    similar to the one charged could demonstrate [her] modus operandi and inform
    18
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    No. 18-30047
    the jury’s conclusion as to whether [she] had knowledge of the charged acts and
    their unlawfulness.” 11
    Ricard has properly preserved her objection to this evidence and we
    review the district court’s ruling for abuse of discretion. See United States v.
    Lewis, 
    796 F.3d 543
    , 545 (5th Cir. 2015). When evidence is admitted under
    Rule 404(b), “the abuse-of-discretion standard is ‘heightened’ . . . because
    ‘evidence in criminal trials must be strictly relevant to the particular offense
    charged.’” United States v. Kinchen, 
    729 F.3d 466
    , 470 (5th Cir. 2013) (bracket
    omitted) (quoting United States v. Jackson, 
    339 F.3d 349
    , 354 (5th Cir. 2003)).
    “A trial court abuses its discretion when its ruling is based on an erroneous
    view of the law or a clearly erroneous assessment of the evidence.” 
    Id. at 470–
    71 (quoting United States v. Yanez Sosa, 
    513 F.3d 194
    , 200 (5th Cir. 2008)).
    Evidence erroneously admitted under Rule 404(b) is subject to a harmless error
    inquiry and, therefore, “[a]ny error, defect, irregularity, or variance that does
    not affect substantial rights must be disregarded.” United States v. Sumlin,
    
    489 F.3d 683
    , 688 (5th Cir. 2007) (alteration in original) (quoting Fed. R. Crim.
    P. 52(a)).
    Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not
    admissible to prove a person’s character in order to show that on a particular
    occasion the person acted in accordance with the character.” But bad act
    evidence “may be admissible for another purpose, such as proving motive,
    opportunity, intent, preparation, plan, knowledge, identity, absence of
    mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). We apply a two-step test
    for admissibility which “requires a determination that (1) ‘the extrinsic offense
    11 The government also argued below that the evidence was admissible because it was
    intrinsic to the charged crimes. The district court rejected that argument and, because we
    affirm the district court’s Rule 404(b) ruling, we will not address the government’s argument
    on appeal that the evidence was intrinsic.
    19
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    evidence is relevant to an issue other than the defendant’s character’ and (2)
    the evidence ‘possess[es] probative value that is not substantially outweighed
    by its undue prejudice . . . and meet[s] the other requirements of [Federal Rule
    of Evidence] 403.’” United States v. Juarez, 
    866 F.3d 622
    , 627 (5th Cir. 2017)
    (alterations in original) (quoting United States v. Beechum, 
    582 F.2d 898
    , 911
    (5th Cir. 1978) (en banc)).
    Ricard argues that the district court erroneously concluded that the
    evidence related to the uncharged Abide scheme was evidence of modus
    operandi, knowledge, or intent. She also argues that the probative value was
    not substantially outweighed by its prejudicial effect. Ricard contends that
    Crinel’s testimony was unduly prejudicial because it allowed in irrelevant
    testimony regarding Ricard’s work ethic and professionalism while she was
    employed at Abide.           Specifically, testimony that she, unlike the other
    marketers, would come into the office “like she just rolled out of bed” and had
    difficulty articulating her thoughts. She also points to testimony concerning
    Haynes’s referral of patients to Abide so that she could be paid. Ricard claims
    that admitting this evidence permitted the introduction of specific bad acts by
    Haynes, such as his threatening phone calls, which the jury would connect to
    Ricard. Ricard argues that the evidence had no probative value because her
    compensation structure with Abide differed from her compensation at
    Progressive. At Abide, Ricard was paid a salary for referring six patients per
    month, with a bonus for exceeding that quota, while at Progressive she was
    allegedly paid per patient referral.
    As to the first prong, the evidence was clearly admissible under our
    precedent for the purpose of demonstrating intent. 12 See United States v.
    12We disagree with the district court that the evidence was admissible to show modus
    operandi. Evidence of modus operandi is admissible to prove identity “only if the
    circumstances of the extraneous act were so similar to the offense in question that they evince
    20
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    No. 18-30047
    Peterson, 
    244 F.3d 385
    , 392–93 (5th Cir. 2001) (holding admissible “evidence
    of similar subsequent conduct (relatively closely linked in time), and evidence
    of his intent on that subsequent occasion, to draw inferences about the intent
    underlying his conduct”). As to the second prong, to determine whether the
    probative value of Ricard’s uncharged kickback scheme at Abide was
    substantially outweighed by its undue prejudice, we look to four factors: “(1)
    the government’s need for the extrinsic evidence, (2) the similarity between the
    extrinsic and charged offenses, (3) the amount of time separating the two
    offenses, and (4) the court’s limiting instructions.” United States v. Smith, 
    804 F.3d 724
    , 736 (5th Cir. 2015) (quoting United States v. Kinchen, 
    729 F.3d 466
    ,
    473 (5th Cir. 2013)). We also consider whether the uncharged bad act is “of a
    heinous nature” that would “incite[] the jury to irrational decision by its force
    on human emotion.” 
    Id. (quoting Beechum,
    582 F.2d at 917). Here, there was
    a justifiable need for the extrinsic evidence of the Abide scheme because
    Ricard’s intent—whether she acted knowingly and willfully—was the central
    issue at trial. 
    Id. The schemes
    were also similar; at both agencies she referred
    only patients from Seaside, had an unusual working arrangement, and would
    threaten, through Haynes, to discharge patients if not paid more per referral.
    The substantive difference between the charged and uncharged schemes was
    in the manner of her compensation; at Progressive she was paid per referral
    whereas at Abide she received a bonus for making more than six referrals.
    Only four months elapsed between the schemes, and, in fact, the Progressive
    scheme morphed into the Abide scheme. Ricard transferred her patients and
    a signature quality—marking the extraneous act as ‘the handiwork of the accused.’” United
    States v. Sanchez, 
    988 F.2d 1384
    , 1393 (5th Cir. 1993) (quoting 
    Beechum, 582 F.2d at 912
    n.15). Identity, however, was never at issue in this case; there could be no dispute that Ricard
    was the person receiving kickbacks at Abide. Additionally, there is no indication that the
    jury considered the evidence for an improper purpose. The jury charge focused on intent, not
    modus operandi.
    21
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    No. 18-30047
    began her scheme at Abide because Progressive refused to pay her more in
    referral fees. Furthermore, the district court also gave a limiting instruction
    both during Crinel’s testimony and as part of its charge to the jury. Finally,
    the evidence relating to the Abide scheme lacks the “hallmarks of highly
    prejudicial evidence” that could lead the jury to an irrational decision. United
    States v. Hernandez-Guevara, 
    162 F.3d 863
    , 872 (5th Cir. 1998). It did not
    involve violent acts, was similar in magnitude to the charged crimes, and did
    not occupy a disproportionate amount of the jury’s time. 
    Id. Thus, the
    district
    court did not abuse its discretion in admitting into evidence the Abide scheme
    under Rule 404(b).
    V.
    Ricard’s final challenge to her conviction is the inclusion of a deliberate
    ignorance instruction in the jury charge. We review the decision to issue a
    deliberate ignorance instruction for abuse of discretion. See United States v.
    Miller, 
    588 F.3d 897
    , 905 (5th Cir. 2009) (citing United States v. Orji-Nwosu,
    
    549 F.3d 1005
    , 1008 (5th Cir. 2008)). Ricard objected to the deliberate
    ignorance instruction, 13 arguing that it was “covered by” the instruction
    concerning “inferring [the] required mental state” 14 and that only one or the
    13   The deliberate ignorance charge read:
    You may find that a defendant had knowledge of a fact if you find that
    the defendant deliberately closed his eyes to what would otherwise have been
    obvious to him. While knowledge on the part of the defendant cannot be
    established merely by demonstrating that the defendant was negligent,
    careless, or foolish, knowledge can be inferred if the defendant deliberately
    blinded himself to the existence of a fact.
    See Pattern Crim. Jury Instr. 5th Cir. § 1.37A (2015).
    14   The “inferring required mental state” charge read:
    Ordinarily, there is no way that a defendant’s state of mind can be
    proved directly, because no one can read another person’s mind and tell what
    that person is thinking.
    22
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    No. 18-30047
    other charge should be given. The district court overruled the objection, saying
    that “while they both deal with the mental element” the deliberate ignorance
    instruction “is a different charge.”
    On appeal, Ricard argues that the elements required to give a deliberate
    ignorance instruction were not met. Because her argument on appeal differs
    from her objection below—that the deliberate ignorance charge was
    duplicative—our review is for plain error. See United States v. Fuchs, 
    467 F.3d 889
    , 901 (5th Cir. 2006); see also United States v. Heath, 
    970 F.2d 1397
    , 1407
    (5th Cir. 1992) (“A party may not state one ground when objecting to an
    instruction and attempt to rely on a different ground for the objection on
    appeal.”). Under the plain error standard, we have discretion to reverse a
    forfeited error only if “there is (1) error, (2) that is plain, and (3) that affects
    substantial rights.” United States v. Martinez-Rodriguez, 
    821 F.3d 659
    , 662
    (5th Cir. 2016) (internal quotation marks and citation omitted). Even if these
    three elements are met, we may only exercise this discretion if “(4) the error
    seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.”    
    Id. at 663
    (internal quotation marks and citation omitted).
    Furthermore, even if a deliberate ignorance charge is error, it is harmless
    “where substantial evidence of actual knowledge exists.” United States v.
    But a defendant’s state of mind can be proved indirectly from the
    surrounding circumstances. This includes things like what the defendant said,
    what the defendant did, how the defendant acted, and any other facts or
    circumstances in evidence that show what was in the defendant’s mind.
    You may also consider the natural and probable results of any acts that
    the defendant knowingly did or did not do, and whether it is reasonable to
    conclude that the defendant intended those results. This, of course, is all for
    you to decide.
    See Pattern Crim. Jury Inst. 6th Cir. § 2.08 (2013 ed.).
    23
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    Boutte, 
    13 F.3d 855
    , 859 (5th Cir. 1994) (citing United States v. Cartwright, 
    6 F.3d 294
    , 301 (5th Cir. 1993)).
    A deliberate ignorance instruction serves to “inform the jury that it may
    consider evidence of the defendant’s charade of ignorance as circumstantial
    proof of guilty knowledge.” United States v. Wofford, 
    560 F.3d 341
    , 352 (5th
    Cir. 2009) (quoting United States v. Wells, 
    262 F.3d 455
    , 465 (5th Cir. 2001)).
    It guards against a defendant who “choos[es] to remain ignorant so he can
    plead lack of positive knowledge in the event he should be caught.” 
    Id. (quoting United
    States v. Lara-Valesquez, 
    919 F.2d 946
    , 951 (5th Cir. 1990)). The
    danger of such an instruction, however, is that, when a defendant must have
    acted knowingly or willfully, “the jury might convict for negligence or
    stupidity.” 
    Id. Thus, a
    deliberate ignorance instruction “should only be given
    when a defendant claims a lack of guilty knowledge and the proof at trial
    supports an inference of deliberate ignorance.” 
    Id. An inference
    of deliberate
    ignorance exists if there is evidence showing “(1) subjective awareness of a high
    probability of the existence of illegal conduct, and (2) purposeful contrivance to
    avoid learning of the illegal conduct.” 
    Id. (quoting Wells,
    262 F.3d at 465).
    There is no dispute that Ricard claimed a lack of guilty knowledge; her
    central defense at trial, and the main focus of this appeal, is that she did not
    know that receiving payments for patient referrals, as she did, was itself
    unlawful. See 
    id. at 353
    (holding that a deliberate ignorance instruction was
    proper when defendant argued he was not aware his conduct was illegal); see
    also United States v. Wisenbaker, 
    14 F.3d 1022
    , 1027 (5th Cir. 1994) (holding
    a deliberate ignorance instruction was proper in a tax evasion case when the
    core defense was lack of a willful mental state).
    Thus, we turn to the two-prong test, asking first if there was sufficient
    evidence showing that Ricard had a subjective awareness of a high probability
    that the referral payments were unlawful. The evidence showed that Ricard
    24
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    No. 18-30047
    shifted patients, unrelated to the welfare of those patients, to and from
    different home health agencies, and did so in pursuit of greater personal
    profits; such transfers are sufficient to infer her subjective awareness of a high
    probability that her referral payments were legally improper. See 
    Sanjar, 876 F.3d at 742
    .
    Next, as to the second prong, we ask whether the evidence “raises the
    inference that the defendant purposefully contrived to avoid learning of the
    illegal conduct.” 
    Wofford, 560 F.3d at 353
    –54 (citing 
    Lara-Velasquez, 919 F.2d at 953
    ). The government points to two items of evidence as demonstrating
    Ricard purposefully contrived to avoid learning of the illegality of the referral
    payments. First, when she went to work for Abide, Crinel, Abide’s owner,
    refused to pay Ricard on a referral basis; yet Ricard, despite being apparently
    “shocked” by this decision, did not ask for an explanation of why the referral
    arrangement was inappropriate. Second, while employed at Abide, Ricard did
    not attend orientation, meetings, and trainings held for other marketers; she
    continued to consider her sole task to only be procuring referrals on her own
    terms.
    We are skeptical that either of these items of evidence raise the inference
    that Ricard purposefully contrived to avoid learning of the illegality of her
    conduct. Both acts occurred months after the charged scheme at Progressive
    was completed. Any error, however, was not plain. See 
    Fuchs, 467 F.3d at 901
    (“A plain error is one [that] is clear under current law.” (internal quotation
    marks omitted) (alteration in original) (quoting United States v. Palmer, 
    456 F.3d 484
    , 491 (5th Cir. 2006))). There is no clearly established law in this
    circuit that the conduct which raises an inference of purposeful contrivance
    must occur during commission of the charged offenses, rather than during a
    subsequent, similar scheme. Therefore, we reject Ricard’s challenge to the
    inclusion of a deliberate ignorance jury instruction.
    25
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    VI.
    We now consider Ricard’s objection to her sentence.
    A.
    Ricard was sentenced to a fifty-one-month term of imprisonment, which
    was at the lowest end of her guideline range.                   Her guideline range was
    calculated using U.S.S.G. § 2B4.1(b)(1), which states that “[i]f the greater of
    the value of the bribe or improper benefit to be conferred . . . exceeded $6,500”
    the offense level is “increase[d] by the number of levels from the table in
    § 2B1.1.” 15 The final PSR determined that the improper benefit conferred was
    $1.958 million, which exceeded the amount she received in kickbacks. Thus,
    the PSR used the $1.958 million figure to calculate her specific offense level,
    resulting in a sixteen-level increase. At sentencing, Ricard objected to this
    number.      She argued that, as a matter of fairness, the improper benefit
    conferred should be identical to the amount the government agreed to in Diaz’s
    plea agreement: $249,000. She also contended that there was no evidence
    presented at trial that Progressive was not providing legitimate treatment to
    its patients. 16
    On appeal, Ricard argues that the improper benefit conferred was
    improperly calculated because it equaled the total amount paid by Medicare to
    Progressive, rather than the net value earned by Progressive. In other words,
    Ricard argues that the district court erred by failing to subtract the cost
    incurred by Progressive in treating patients from the total amount paid by
    15 The commentary defines “value of the improper benefit to be conferred” as “the value
    of the action to be taken or effected in return for the bribe.” U.S.S.G. § 2B4.1 cmt. n.2. Ricard
    does not dispute that Medicare’s payments to Progressive were “the action to be taken or
    effected in return” for her kickback payments.
    16Ricard also argued, in the alternative, that the improper benefit amount should
    equal the income she earned at Progressive: $331,000. That argument is not relevant to this
    appeal.
    26
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    Medicare.     The government contends that this argument differs from her
    objection below, limiting our review to plain error. See United States v. Garcia-
    Perez, 
    779 F.3d 278
    , 281 (5th Cir. 2015), overruled on other grounds by United
    States v. Reyes-Contreras, 
    910 F.3d 169
    (5th Cir. 2018) (en banc). We disagree.
    Ricard objected to the PSR’s calculation of the improper benefit conferred
    based on Progressive’s provision of legitimate treatment to its patients. This
    objection “‘gave the district court the opportunity to address’ the gravamen of
    the argument presented on appeal.” 
    Id. at 281–82
    (quoting United States v.
    Ocana, 
    204 F.3d 585
    , 588–89 (5th Cir. 2000)). Our review is therefore de novo.
    
    Id. at 282.
          In United States v. Landers, we interpreted the meaning of “value of the
    improper benefit conferred” used in § 2B4.1 and held that direct costs must be
    deducted from the gross value to determine a net value. 
    68 F.3d 882
    , 884–85
    (5th Cir. 1995). The government argues that Landers is inapplicable for two
    reasons.
    We first turn to the government’s argument that Landers does not apply
    in cases where a transaction is unlawful on its face. The government argues
    that the transactions—Medicare’s payments to Progressive—were facially
    unlawful because Medicare will not pay for services procured through
    kickbacks. The government relies on the Third Circuit’s decision in United
    States v. Pena, which held that “the concept of netting out costs to arrive at
    profit is inappropriate under the Guidelines section when the transactions are
    entirely illegitimate.”   
    268 F.3d 215
    , 219 (3d Cir. 2001).        That case is
    inapplicable. Pena dealt with a police officer who accepted bribes in return for
    permitting illegal poker video gambling machines to operate without police
    interference. 
    Id. at 217.
    As the Third Circuit noted, “the illegal gambling
    operations involved no legitimate object or service of value” and “therefore
    there was no other value to ‘net out.’” 
    Id. at 220.
    In contrast, the underlying
    27
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    activity here—home health care—is not inherently illegitimate or criminal; it
    is a service “where something of legitimate value was provided to an
    individual.” 
    Id. But the
    government argues, in any event, that Ricard did not carry her
    burden to demonstrate which costs were deductible.                  We think that the
    government is a bit off track. It is the government that bears the ultimate
    burden of proving the facts supporting a sentencing enhancement. See United
    States v. Conner, 
    537 F.3d 480
    , 492 (5th Cir. 2008). At most, Ricard’s burden
    was “to establish that [Progressive] incurred any direct costs.” 
    Landers, 68 F.3d at 885
    . We think that Ricard has satisfied her basic burden to proffer
    evidence that Progressive’s services were legitimate. At sentencing, Ricard
    offered testimony from trial to show patients were receiving legitimate
    treatment from Progressive. Thus, the district court erred by not deducting
    Progressive’s direct costs—the value of the treatment Progressive provided—
    in calculating the improper benefit conferred. We therefore vacate Ricard’s
    sentence and remand for recalculation of her Sentencing Guidelines range and
    resentencing not inconsistent with this opinion. 17
    B.
    Lastly, we turn to the restitution order. The victim of Ricard’s offenses
    was Medicare. Ricard objected to the restitution order at sentencing, arguing
    that Progressive provided legitimate treatment, Medicare had failed to return
    a Declaration of Victims Losses Affidavit, and there was no evidence on the
    record of Medicare’s true loss amount.             The district court rejected these
    arguments and, relying on Medicare billing data presented at trial, ordered
    17 Citing a report to Congress on home health agency margins, Ricard argues that the
    net benefit to Progressive was $323,070. We leave it for the district court to determine the
    value of the improper benefit conferred and whether that amount is greater than the value
    of the kickbacks Ricard received.
    28
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    No. 18-30047
    Ricard to pay $1.958 million to Medicare in restitution pursuant to the
    Mandatory Victim Restitution Act (MVRA). 18 U.S.C. § 3663A.
    Ricard argues on appeal that we should vacate the restitution order
    because Progressive rendered legitimate medical services and she is entitled
    to credit for those services. Because Ricard challenges the legality of the
    restitution order, and objected on similar grounds below, our review is de novo.
    See United States v. Adams, 
    363 F.3d 363
    , 365 (5th Cir. 2004).
    Restitution under the MVRA is limited “to the actual loss directly and
    proximately caused by the defendant’s offense of conviction.” United States v.
    Mahmood, 
    820 F.3d 177
    , 196 (5th Cir. 2016) (quoting United States v. Echols,
    574 F. App’x 350, 359 (5th Cir. 2014)). We have previously explained that, “in
    health-care fraud cases, an insurer’s actual loss for restitution purposes must
    not include any amount that the insurer would have paid had the defendant
    not committed the fraud.” United States v. Sharma, 
    703 F.3d 318
    , 324 (5th
    Cir. 2012). In other words, a defendant is entitled to have Medicare’s actual
    loss amount offset by the the value of services provided to the patients. See
    
    Mahmood, 820 F.3d at 195
    .
    The burden to demonstrate “the amount of the loss sustained by a victim”
    is on the government. 18 U.S.C. § 3664(e). The MVRA, however, approves
    burden shifting based on which party is “best able to satisfy those burdens and
    who [has] the strongest particular incentive to litigate the particular issues
    involved.” 18 United States v. Sheinbaum, 
    136 F.3d 443
    , 449 (5th Cir. 1998).
    In Sharma, we explained that “at least a portion of the burden . . . to establish
    [an] entitlement to a restitution credit” should be transferred to the defendant
    18 The statute places the burden on the defendant to demonstrate his “financial
    resources” and “financial needs.” 18 U.S.C. § 3664(e). The burden of demonstrating other
    matters falls “upon the party designated by the court as justice requires.” 
    Id. 29 Case:
    18-30047      Document: 00514932907        Page: 30    Date Filed: 04/26/2019
    No. 18-30047
    in Medicare cases where the defendant claims that legitimate medical services
    were 
    provided. 703 F.3d at 325
    –26. The defendant therefore has a burden to
    show entitlement to an offset against the amount of actual loss. See United
    States v. Mathew, 
    916 F.3d 510
    , 521 (5th Cir. 2019). The defendant meets this
    burden by establishing “(1) ‘that the services [he provided to Medicare
    beneficiaries] were legitimate’ and (2) ‘that Medicare would have paid for those
    services but for his fraud.’” 
    Id. (alteration in
    original) (quoting 
    Mahmood, 820 F.3d at 194
    ). If the defendant satisfies this burden, “the government can rebut
    with additional evidence.” 
    Id. Here, the
    government met its initial burden by pointing to Medicare
    billing data and Medicare’s rule that it does not pay for services procured
    through kickbacks. See 
    id. at 521
    (holding that the government established
    actual loss by “proffer[ing] evidence that Medicare would not have paid the
    claims of the sixteen patients had it known that Mathew had compromised
    their identities”). Thus, the burden therefore shifts back to Ricard to establish,
    using Mahmood’s two-factor test, that she is entitled to an offset.
    We think that the evidence established that Ricard is entitled to an offset
    against the actual loss amount. As to the first factor, Ricard pointed to trial
    testimony suggesting Progressive provided actual treatment to its patients. 19
    The government did not present any evidence at sentencing that the treatment
    was illusory or medically unnecessary to rebut Ricard’s evidence.                   The
    government now argues that it was not “undisputed” below that Progressive
    was providing legitimate medical services reimbursable by Medicare. Agent
    Reel testified at trial that he considered it a “red flag” that the volume of
    19 For instance, the government itself elicited testimony from Hopkins that none of
    Ricard’s patients complained about the care they received or asked to be discharged from
    Progressive.
    30
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    No. 18-30047
    patients shared between Progressive and Seaside was high, since Progressive’s
    homebound patients presumably could not travel to Seaside’s outpatient center
    for treatment. But the government did not point to this evidence at any point
    in the sentencing. Instead, the government relied solely on the Medicare
    billing data that showed the total amount paid to Progressive. Additionally,
    even if the government had pointed to this “red flag” testimony at sentencing,
    it amounts only to speculation that the services provided were illegitimate.
    There is no factual evidence, such as testimony from patients or medical
    personnel at Progressive, or even from the government, which suggests that
    Progressive was not providing the medical services it billed to Medicare. Cf.
    
    id. at 522
    (holding that the government rebutted defendant’s evidence that the
    services were legitimate by “methodically proffer[ing] evidence for each of the
    fifteen patients at issue that undercut Mathew’s contentions and supports the
    opposite”).
    As to the second factor, there is no suggestion from the record but that
    Medicare would have paid for Progressive’s services except for the kickback
    scheme. Nor is there any evidence that Progressive’s services did not meet
    Medicare’s basic standards of care. The government’s only rebuttal argument
    is that Medicare does not pay for services of patients procured through
    kickbacks. But “Medicare’s conditions of payment that require[] compliance
    with ‘Medicare laws, regulations and program instructions that apply to the
    provider’” are “not the type of treatment standard[s] that render[] health care
    services illegitimate.” 
    Mahmood, 820 F.3d at 195
    n.12 (citing United States v.
    Jones, 
    664 F.3d 966
    (5th Cir. 2011)).
    Thus, based on the record evidence, Ricard is entitled to a credit to her
    restitution order equivalent to the full amount that Medicare reimbursed
    Progressive for its services; and to the point here—after offsetting the amount
    that Medicare would have paid had there been no kickback scheme, Medicare’s
    31
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    No. 18-30047
    actual loss is zero. 20 See 
    Mahmood, 820 F.3d at 196
    ; see also United States v.
    Liss, 
    265 F.3d 1220
    (11th Cir. 2001). The district court erred by ordering
    Ricard to pay restitution in any amount. We therefore reverse, and vacate, the
    district court’s restitution order, and remand the same for dismissal.
    VII.
    In sum, we AFFIRM Ricard’s convictions in toto for: conspiracy to pay
    and receive health care kickbacks, in violation of 18 U.S.C. § 371, receipt of
    health care kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A), unlawful
    possession, transfer, or use of a means of identification, in violation of 18 U.S.C.
    § 1028(a)(7), and making false statements, in violation of 18 U.S.C. § 1001.
    As relates to her sentence, however, the district court committed error
    in calculating the improper benefit conferred under U.S.S.G. § 2B4.1 by failing
    to deduct the value of the services Progressive rendered from the total amount
    Progressive received from Medicare. We therefore VACATE Ricard’s sentence
    and REMAND for resentencing not inconsistent with this opinion.
    The district court also committed error in ordering restitution when it
    failed to offset the amount Medicare would have reimbursed Progressive for
    the services rendered had there been no illegal kickback scheme. We therefore
    REVERSE and VACATE the district court’s restitution order and REMAND
    for dismissal.
    Accordingly, the convictions are AFFIRMED.                     The sentence is
    VACATED and REMANDED for resentencing.                      The restitution order is
    REVERSED, VACATED, and REMANDED for dismissal.
    20  The question of whether the amount of restitution could be related to the amount
    paid in kickbacks is not presented in this appeal and, consequently, we do not address it.
    32