Mercy Ainabe was convicted of several heath-care-related offenses in connection with recruiting and transporting individuals to Texas Tender Care (TTC) for treatment. The district court considered Ainabe’s similar conduct at two other companies and considered the amounts billed by all three companies as the “loss” for sentencing purposes. Ainabe challenged the district court’s two-level enhancement for offenses involving more than 10 victims, an 18-level increase for losses of more than $3.5 million, and a three-level increase for a loss to the government healthcare program of more than $7 million.

The Fifth Circuit rejected Ainabe’s argument that the two-level enhancement for number of victims didn’t apply because the only victim was Medicare. The court ruled that her argument was foreclosed by United States v. Barson, which held that the Sentencing Guidelines define “victim” in such a way that encompasses Medicare beneficiaries individually.

Ainabe’s two other points of error concerned the district court’s consideration of Ainabe’s conduct regarding three heathcare companies, and not just the one involved in her convictions. The court recited USSG 1B1.3(a)(2) of the Guidelines which provides that the relevant conduct that a district court should consider when applying the Guidelines includes “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” The district court found that the fraudulent claims submitted to Medicare by the other two companies were part of the same scheme or plan as the offenses of conviction. It did not matter that Ainabe was not convicted for conduct related to these two companies; the district court could consider “any evidence with a ‘sufficient indica of reliability to support its probable accuracy.’ including non-conclusory statements in a PSR.”

United States v. Ainabe