United States v. Kalu, 083019 FED5, 18-20399

Docket Nº:18-20399
Opinion Judge:KURT D. ENGELHARDT, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. ELEKWACHI KALU, Defendant-Appellant
Judge Panel:Before KING, ELROD, and ENGELHARDT, Circuit Judges.
Case Date:August 30, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

ELEKWACHI KALU, Defendant-Appellant

No. 18-20399

United States Court of Appeals, Fifth Circuit

August 30, 2019

Appeal from the United States District Court for the Southern District of Texas

Before KING, ELROD, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, CIRCUIT JUDGE.

Elekwachi Kalu pleaded guilty, without the benefit of a plea agreement, to conspiracy to commit healthcare fraud. The district court sentenced Kalu at the bottom of the guideline range to 70 months of imprisonment and three years of supervised release. Kalu appeals his sentence, contending that the district court procedurally erred in imposing two sentencing enhancements. We AFFIRM.

I.

Elekwachi Kalu pleaded guilty, without the benefit of a plea agreement, to conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349. In sum, Kalu, his wife, and other coconspirators recruited Medicare beneficiaries, paid doctors to certify them as needing home healthcare, and submitted fraudulent Medicare claims for those beneficiaries through Kalu's company, Rhythmic Home Health Care Services, Inc. (Rhythmic).1 The beneficiaries did not qualify for such services, and in some cases, received cash payments from Kalu for their participation. Between August 2012 and January 2017, Rhythmic billed Medicare approximately $3, 191, 997.04 for purported home health care services that were either medically unnecessary or that were not performed. Medicare paid Rhythmic approximately $2, 878, 120.59 on those claims.

As calculated in the presentence report (PSR), [2] Kalu's total offense level of 27 combined with a category I criminal history yielded a guideline range of 70-87 months of imprisonment. Overruling Kalu's objections to the sentencing enhancements, the district court sentenced Kalu at the bottom of the guideline range to 70 months of imprisonment and three years of supervised release. At sentencing, the trial judge explicitly stated that a sentence within the guidelines was appropriate. Additionally, Kalu was ordered to pay restitution to Medicare in the amount of $2, 878, 120.59. Kalu timely appealed his sentence.

On appeal, Kalu challenges the district court's application of two sentencing enhancements. First, he disputes the two-level sentencing enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i), contending that his offense did not involve the use of a means of identification to produce another means of identification. Second, Kalu challenges the increase of his offense level by two under U.S.S.G. § 2B1.1(b)(2)(A)(i) because he argues the offense did not involve 10 or more victims, asserting that Medicare was the only victim of the offense.

II.

For issues preserved in district court, we review the district court's application of the Guidelines de novo and its factual findings for clear error. United States v.

Suchowolski, 838 F.3d 530, 532 (5th Cir. 2016). If erroneous, we must then determine if the procedural error was harmless. United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018). "[I]ssues not raised in district court are reviewed only for plain error." Suchowolski, 838 F.3d at 532.

Kalu filed written objections to both offense-level enhancements in district court. However, Kalu's arguments on appeal with regard to the § 2B1.1(b)(11)(C)(i) enhancement extend beyond the legal basis for his objection in district court, which succinctly stated: "The Medicare number is used in the claim reimbursement process and no other means of identification is thereafter produced." See United States v. Chikere, 751 Fed.Appx. 456, 463 (5th Cir. 2018) (citing United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012)). Despite the government's failure to assert plain-error review, "[i]t is well-established that our court, not the parties, determines the appropriate standard of review." Suchowolski, 838 F.3d at 532 (citing United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc)). Nevertheless, we need not determine the standard of review because, assuming arguendo they were sufficiently preserved, his claims still fail. See id.

III.

Kalu challenges the district court's application of §...

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