United States v. Ahmed
| Docket Number | 21-1583 |
| Decision Date | 12 October 2022 |
| Citation | 51 F.4th 12 |
| Parties | UNITED STATES of America, Appellee, v. Abdirashid AHMED, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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.
Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
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.
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 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 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 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 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[']."
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 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 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.
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...
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