United States Court of Appeals For the First Circuit

No. 19-1100

UNITED STATES,

Appellee,

v.

RICARDO RIVERA-ORTIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos, Vivianne M. Marrero, Franco L. Pérez-Redondo, Liza L. Rosado- Rodríguez, and Iván Santos-Castaldo were on brief, for appellant. Robert Paul Coleman III, Assistant United States Attorney, with whom B. Kathryn Debrason, Assistant United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and W. Steven Muldrow, United States Attorney, were on brief, for appellee.

September 21, 2021 LIPEZ, Circuit Judge. After suffering a work injury as

a mechanic for the United States Postal Service ("USPS"), Ricardo

Rivera-Ortiz began receiving worker's compensation and Social

Security disability benefits. As a condition of receiving those

benefits, Rivera had to file forms indicating whether he was

undertaking any work or volunteer activities. At some point, after

Rivera had been receiving benefits for years, the USPS Office of

the Inspector General ("OIG") began investigating his case. It

determined that he had continued working and volunteering with his

union, the American Postal Workers' Union ("APWU"), without

disclosing those activities as required. Rivera was eventually

charged with making false statements on the relevant government

forms, theft of government property, and failing to disclose an

event that affected his right to Social Security payments. A jury

found him guilty on all counts. He now challenges the sufficiency

of the evidence to support the convictions, the exclusion of

certain mitigating evidence, and some aspects of his sentence. We

reject these challenges and affirm in all respects.

I.

A. Factual Background

The following facts come from the testimony and exhibits

presented at trial. "Since one of the claims addressed in this

opinion is a challenge to the sufficiency of the evidence, we

- 2 - recount the facts in the light most favorable to the verdict."

United States v. Paz-Alvarez,

(1st Cir. 2015).

On May 25, 2005, while working as a maintenance mechanic

for USPS, Rivera tripped on a mat and fell, hurting his neck and

right knee. As a result of this incident, he filed a claim for

compensation and disability benefits on June 3, 2005 with the

Department of Labor, Office of Workers' Compensation Programs

("OWCP"). OWCP is responsible for administering the Federal

Employees Compensation Act ("FECA"), which provides replacement

wages to federal employees who, like Rivera, are injured on the

job and unable to work as a result. See

, 8145;

.

Rivera's FECA claim was approved. In 2006, he began

receiving regular payments. In order to confirm that he remained

eligible for benefits from OWCP, he had to periodically file

various forms, including CA-1032 forms. A CA-1032 form covers the

15 months prior to the date of the form's completion. As relevant

here, Part A ("EMPLOYMENT") asks (1) "Did you work for any employer

during the past 15 months?"; (2) "Were you self-employed or

involved in any business enterprise in the past 15 months?"; and

(3) "If you answered 'No' to both questions 1 and 2, state whether

you were unemployed for all periods during the past 15 months."

The accompanying Part A instructions require the report of "ALL

employment for which you received a salary, wages, income, sales

- 3 - commissions, piecework, or payment of any kind," as well as "ALL

self-employment or involvement in business enterprises," including

"providing services in exchange for money, goods, or other

services." This section also requires reporting of "what you were

paid," including the "value of such things as housing, meals,

clothing, and reimbursed expenses."

Part B ("VOLUNTEER WORK") was worded slightly

differently in different versions of the form. One version asks

if the beneficiary "perform[ed] any volunteer work for which ANY

FORM of monetary or in-kind compensation was received[.]" Another

version asks if the beneficiary "perform[ed] any volunteer work

including volunteer work for which ANY FORM of monetary or in-kind

compensation was received[.]" Part D ("OTHER FEDERAL BENEFITS OR

PAYMENTS") requires the listing of "any benefits received from the

Social Security Administration (SSA) which you receive as part of

an annuity under the Federal Employees' Retirement System (FERS)."

An OWCP claims examiner explained at trial that all of this

information was important because (1) evidence of capacity to

perform work could lead to a reduction of OWCP benefits and (2) the

receipt of other benefits could trigger an offset of OWCP benefits

or those other benefits, so as to avoid overpayment (i.e., double-

dipping).

Separately, Rivera filed a claim on March 20, 2007 for

Social Security Disability Insurance ("SSDI") benefits. SSDI

- 4 - benefits are paid to individuals who are unable to perform work

and meet other eligibility requirements. Although Rivera had

applied for SSDI benefits back in 2005, his claim was denied. An

SSA-generated summary of Rivera's 2007 SSDI application1 revealed

the following: (1) he was unable to work because of his disabling

condition (based on his May 25, 2005 injury), (2) he had filed or

intended to file for workers' compensation, but was currently not

receiving benefits, and (3) he understood that making a false

statement of a material fact in his application was a criminal

act. As part of his application, Rivera also submitted a work

history form. As relevant here, Rivera listed his employment as

a maintenance worker for USPS (from December 2003 until the time

of his injury in May 2005), but did not mention any other work

activities undertaken during that period.

On November 2, 2007, Rivera was notified that his SSDI

claim was approved, and he began receiving disability benefits.

The approval notification stated that "[t]he decisions we made on

your claim are based on information you gave us" and "[i]f this

information changes, it could affect your benefits." It referred

to an accompanying pamphlet that provided more information on "what

must be reported and how to report[,]" including on "what to do if

Rivera appears to have applied for SSDI benefits orally; 1

SSA "stored the application information electronically" and sent him a "summary of [his] statements" which we draw on here.

- 5 - you go to work or if your health improves." The notification also

informed Rivera that "[i]f you receive workers' compensation

and/or public disability payments, we may have to reduce your

Social Security benefits." It therefore instructed him to

"[p]lease let us know as soon a decision is made on your claim for

these payments."

In 2013, after Rivera had been receiving both OWCP and

SSDI benefits for some years, the USPS Office of the Inspector

General began an investigation into Rivera's receipt of OWCP

payments. The investigation was triggered by reports that Rivera

had been present at the local USPS headquarters and meeting with

other employees there in connection with APWU activities. Rivera,

as it happened, had long ties to the union, having served as its

president from 2002 until 2004. He had also worked as a union

steward, helping represent other employees, while he was employed

as a flat sorter machine operator for USPS from 1995 until 2001.

OIG was interested in whether Rivera was continuing to work for

the union in some capacity without reporting that work to OWCP.

The OIG investigation produced evidence that, among

other things:

(a) Rivera had repeatedly visited APWU and USPS headquarters

in 2011-2013. At times, according to witness testimony,

he appeared to be acting as a union official while doing

so. An APWU security logbook also indicated that he

- 6 - made many visits to APWU headquarters between February

2011 and August 2013.

(b) Rivera had performed work for the APWU. He signed a

contract with the union to work as part of the Election

Committee for the union's 2013 election. Moreover,

Rivera had received payments from APWU in 2011-2013,

including reimbursements for APWU-related travel and

expenses. For example, he received $160 in wages and

$68 in meals and mileage reimbursement relating to work

for the APWU election committee between July 31 and

August 9, 2013. He was also nominated for an OWCP-

sponsored injury compensation training course in

Florida, which he attended in August 2013. According to

his nomination letter, this was because he "currently

work[s] processing Injury Compensation cases[.]"

(c) Rivera had helped fellow employees with various labor-

related issues. For example, he helped represent at

least 56 postal employees in various Equal Employment

Opportunity complaints filed between 2005 and 2012,

assisted one employee with an injury compensation claim

in 2011, and wrote to the Merit Systems Protection Board

on behalf of another employee's claim in 2012.

According to the government, however, Rivera never reported on his

OWCP forms that he worked for the union. Indeed, on August 8,

- 7 - 2013, just over a month after Rivera had filed his latest CA-1032

form, undercover OIG employees (posing as a Department of Labor

contractor and a translator) met with Rivera. They asked him to

complete another CA-1032 while they reviewed the instructions

together. As a government investigator explained at trial, this

arrangement was designed to make sure that Rivera understood the

"importance of being truthful on those forms" and that there was

"no doubt" in his mind about what his answers were. When the

interviewer asked whether, in the past fifteen months, Rivera had

performed any work for an employer, had been self-employed or

involved in any business enterprise, or had performed any volunteer

work, Rivera said "no" each time and indicated similarly on the

form. Likewise, according to the government, Rivera never reported

his work or any income to the SSA.

B. Procedural History

Rivera was indicted on August 30, 2013 and eventually

tried on the following five charges:

(a) three false statements counts (

),

corresponding to three allegedly fraudulent CA-1032s

dated June 25, 2012, June 25, 2013, and August 8, 2013,

(b) a theft of government property count (

-

642), alleging the theft of $6,209.70 in SSDI benefits

between "on or about" July 22, 2013 and August 30, 2013,

and

- 8 - (c) a failure to disclose count (

(a)(4)),

relating to his failure to tell the SSA, between "on or

about" July 22, 2013 and August 30, 2013, about his work

activities, which allegedly resulted in the receipt of

$7,808.80 in SSDI payments to which he was not entitled.

After a nearly two-week jury trial, Rivera was convicted on all

five counts. He was sentenced to three years of probation and

ordered to pay restitution of $4,139.80 to SSA.

II.

On appeal, Rivera makes four arguments. First, he claims

that there was insufficient evidence to support convictions on any

of the five counts. Second, he challenges the district court's

grant of a government motion in limine prohibiting Rivera from

presenting evidence that the "real fault" in the case lay with

USPS, OWCP, or SSA "for failing to prevent the fraud." Rivera

maintains that this ruling unfairly prevented him from presenting

significant exculpatory evidence. Third, Rivera argues that the

district court improperly calculated the relevant "loss amount"

attributable to his offenses, which led in turn to an excessive

offense level calculation under the Sentencing Guidelines.

Finally, Rivera claims that there was insufficient support for the

amount of restitution imposed. We discuss each argument in turn.

- 9 - A. Sufficiency of the Evidence

1. Standard of review

Rivera's sufficiency challenges were raised below in

pre-verdict motions for judgments of acquittal. When preserved,

sufficiency challenges present questions of law and are reviewed

de novo. United States v. Ayala-Vazquez,

(1st Cir.

2014). In conducting that review, we interpret the evidence in

the light most favorable to the jury's verdict. United States v.

Peña-Santo,

(1st Cir. 2015). We then ask

whether, viewing the evidence in that light, any reasonable jury

could have found that the government proved the essential elements

of its case beyond a reasonable doubt.

But here, according to the government, a different

standard applies. The government says that, because Rivera did

not file a post-verdict motion for acquittal, he waived his

sufficiency claim. Waiver applies, the government maintains, even

though Rivera moved for acquittal based on insufficient evidence

after the close of the government's case -- and renewed that motion

after the close of his own.

In support of this position, the government relies

solely on a passing statement from United States v. Dudley,

(1st Cir. 2015). There, we noted that the defendant had

waived his motion for judgment of acquittal by "fail[ing] to renew

[it] at the close of the entire case (after offering evidence in

- 10 - his defense) and following the guilty verdict."

at 519 (citing

United States v. Maldonado–García,

(1st Cir.

2006)). The government suggests that, rather than just explaining

why the claim was waived in that particular case, this line from

Dudley establishes a rule: that both a pre- and post-verdict motion

are needed to avoid waiver of a sufficiency challenge. But, as

made clear by the very case relied upon by Dudley in making that

statement, it is the "combine[d]" omission of a proper pre- and

post-verdict motion for acquittal that constitutes waiver.

Maldonado–García,

; see also 2A Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 469 (4th ed.

2021) ("When defendant files the appropriate motion under Rule 29

during or after trial, then the standard of review for a

sufficiency of the evidence claim is de novo." (emphasis added)).

In other words, as we have said, when a defendant makes a proper

pre-verdict motion for acquittal on a particular count, the motion

is "not waived," even if he "fail[s] to contest his conviction as

to that count in his post-verdict motion." United States v. Pena,

, 111 n.5 (1st Cir. 2009).2 In short, we reject the

2 Reading Dudley as requiring both pre- and post-verdict motions for acquittal is unsustainable for a separate reason. Rule 29 itself provides that a defendant is "not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge." Fed. R. Crim. P. 29(c)(3); see also United States v. Castro-Lara,

(1st Cir. 1992) (confirming that "a defendant who files a time[ly] post-trial motion for acquittal

- 11 - notion that a separate post-verdict motion under Rule 29(c) is

required to avoid waiver even after the filing of a proper pre-

verdict motion under Rule 29(a).

2. Analysis

(a) False statement charges

We first consider the three false statement charges

under

. To sustain a § 1001 conviction, "the

government must prove that the defendant (1) made a material, false

statement (2) in a matter within the jurisdiction of the government

(3) knowing that the statement was false." United States v.

Vázquez-Soto,

(1st Cir. 2019). Rivera concedes

(and conceded at trial) that he did not fill out the three CA-1032

forms correctly, but maintains that there was insufficient

evidence that (1) he knew the statements were false or (2) that

the false statements were material.

As to knowledge, Rivera argues that it was difficult to

understand and fill out the CA-1032 forms, and thus any false

statements were not knowingly false. He also points to his

interview with the undercover OIG investigator, where he openly

expressed an interest in working in some capacity. He also

suggests that he was generally open and unapologetic about his

ongoing work with the union. These statements and actions, Rivera

stands on the same footing as a defendant who moves for acquittal at the close of all the evidence").

- 12 - maintains, are inconsistent with the theory that he knowingly

filled out the forms incorrectly.

The jury, however, also heard testimony from a former

APWU president that Rivera had extensive experience as a union

official and assisted other members with OWCP issues. Indeed, he

was nominated for a special OWCP training course specifically

because he had experience processing injury compensation cases.

Additionally, the CA-1032 forms and related documents repeatedly

warned Rivera about the need to honestly disclose his work and

volunteer activities. For example, the CA-1032 form spelled out,

in all-caps, that "SEVERE PENALTIES MAY BE APPLIED FOR FAILURE TO

REPORT ALL WORK ACTIVITIES THOROUGHLY AND COMPLETELY." A

reasonable jury could infer, based on Rivera's extensive

experience and these repeated warnings, that he knew he had to

disclose his work and volunteer activities but chose not to. See

Vázquez-Soto,

("Evidence of a defendant's culpable

state of mind may be 'gleaned from . . . circumstantial evidence

presented at trial.'" (quoting United States v. Troisi,

(1st Cir. 2017))).

Rivera's strongest argument is that he did not

specifically know that he had to disclose volunteer activities for

which he was not paid. One version of the CA-1032 form -- the

version completed by Rivera during the interview on August 8, 2013

-- is potentially somewhat confusing in this regard, as Part B

- 13 - ("VOLUNTEER WORK") asks if the beneficiary "perform[ed] any

volunteer work for which ANY FORM of monetary or in-kind

compensation was received[.]" Indeed, when the undercover OIG

agents mentioned volunteering, Rivera sought clarification:

MR. RIVERA: That's if I'm getting paid for it; right?

[AGENT 1]: Yeah, or your volunteer activities, you report -- you know, maybe you belong to American Legion if you're a vet. I don't know if they have it here.

MR. RIVERA: Yeah.

[AGENT 1]: Yeah. Some people -- like say you're the treasurer or whatever, you would need to report that, because you do work --

MR. RIVERA: Okay.

[AGENT 1]: -- for them. So --

[AGENT 2]: Church groups and stuff.

[AGENT 1]: Church groups, social organizations, real employment, like maybe you have a contract in business, or you do child care, whatever.

Rivera argues that this muddled exchange -- particularly the

agent's initial reply to Rivera's direct question about payment

-- reasonably suggests that Rivera thought he only had to report

paid volunteer activities.

However, for two of the counts -- Counts 1 and 3 -- this

argument is of no help, since Rivera had actually been paid some

wages for APWU work during the relevant time period (i.e., fifteen

months prior to the completion of each respective form). As for

- 14 - Count 2, there appears to be no evidence that he was paid wages

during the relevant period, but the evidence does show that Rivera

was reimbursed for at least one official union-related expense3 and

regularly logged into the APWU headquarters log-book during that

time. From this evidence, a reasonable jury could conclude -- as

the district court did in denying the motion for judgment of

acquittal on Count 2 -- that the evidence of official reimbursement

showed that Rivera was performing at least some kind of work for

the union during the relevant period. And, crucially, the language

of the specific form pertaining to Count 2 did not include the

arguably confusing language about paid volunteer work. That is,

it did not limit its definition of volunteer work to "volunteer

work" for which some kind of compensation was received; rather, it

asked whether Rivera "perform[ed] any volunteer work including

volunteer work for which ANY FORM of monetary or in-kind

compensation was received" (first emphasis added). Therefore,

regardless of the lack of evidence of paid wages, a reasonable jury

could infer that Rivera was performing volunteer work during the

relevant period, was required to report that activity, and

knowingly failed to do so.

3 Specifically, Rivera was reimbursed for paying the $50 hospital deductible for a union member whom he took to the emergency room after she had a health incident at work.

- 15 - As to materiality, Rivera's argument is brief and

underdeveloped. He suggests, without elaboration, that the

government failed to show exactly how Rivera's benefits would be

impacted by the false statements. But an OWCP claims examiner

explained at trial that reporting work and volunteer activity is

important because evidence of capacity to perform work triggers

further review of a claim and could lead to a reduction of OWCP

benefits. This showing is sufficient. To establish materiality,

a statement "merely ha[s] to be of a type which would have a

'natural tendency' to influence an investigation in the

'abstract.'" United States v. Chen,

(1st Cir. 2021)

(quoting United States v. Phillipos,

(1st Cir.

2017)).

(b) Remaining counts

As mentioned, the final two counts both relate to

Rivera's receipt of Social Security benefits. Under

, it is a crime to "embezzle[], steal[], purloin[], or

knowingly convert[] . . . money, or [a] thing of value of the

United States or of any department or agency." To win a conviction

on this count, the government had to produce evidence "sufficient

to allow a rational factfinder to conclude beyond a reasonable

doubt that [the defendant] had specific intent to 'steal . . . a

thing of value' from the United States." United States v. Donato-

Morales,

(1st Cir. 2004) (quoting

).

- 16 - Under

(a)(4), it is a crime for anyone (1) with

knowledge of an event affecting his or her initial or continued

right to an SSA payment (2) to conceal or fail to disclose that

event to the SSA (3) with an intent to secure payment fraudulently

(i.e., in an amount greater than was due to him or her or when no

payment was authorized). See United States v. Phythian,

(8th Cir. 2008).

Rivera challenges the intent element as to both counts,

claiming that there was no demonstrable intent on his part to

conceal his action or steal from or defraud SSA. But the

government introduced evidence that, when Rivera previously

applied for SSDI benefits (in 2005), he had listed his work as a

union steward, which he undertook as part of his USPS maintenance

job duties from 1995-2001. That 2005 claim was rejected, on the

grounds that he was able to perform at least one prior job. When

Rivera applied again in 2007, he omitted that information. A

reasonable jury could conclude that Rivera "learned his lesson"

and knowingly omitted that information in order to qualify the

second time around. Additionally, Rivera received pamphlets and

instructions making clear that he needed to report jobs or work

activity to SSA. A reasonable jury could likewise conclude that

Rivera was aware of his obligations but chose not to notify SSA in

order to protect his eligibility. Rivera makes no argument as to

why these inferences are unreasonable.

- 17 - B. Motion in Limine

We next consider whether the court properly granted the

government's motion prohibiting Rivera from presenting evidence

that the "real fault" in the case lay with USPS, OWCP, or SSA "for

failing to prevent the fraud." We review a district court's

decision to admit or exclude evidence for abuse of discretion.

See Torres-Arroyo v. Rullán,

(1st Cir. 2006). Under

that standard, we will overturn a particular ruling "only if it

plainly appears that the court committed an error of law or a clear

mistake of judgment."

In this case, the district court repeatedly justified

its exclusionary ruling based on a concern that Rivera, in drawing

attention to the lack of action by the relevant agencies, might be

suggesting a kind of "blame-shifting" defense that would confuse

jurors. In considering the propriety of that ruling, we accept

Rivera's argument that the fact that "USPS, the DOL, OWCP, and SSA

knew that Mr. Rivera was performing duties as a Union

representative" could be relevant, insofar as their knowledge

could suggest that he lacked the requisitely culpable state of

mind. That is, his openness (and the corresponding lack of action

by the relevant agencies, despite their knowledge) might have

confirmed in his mind that "all was well" -- i.e., that he was

disclosing all that he needed to disclose and that he was not

required to report any of his union activities to either OWCP or

- 18 - SSA. "Relevancy, however, is a condition precedent to

admissibility, not an ironclad guarantee of admissibility."

Torres-Arroyo,

. The Federal Rules of Evidence allow

a district court to exclude even relevant evidence if its

"probative value is substantially outweighed by a danger of . . .

confusing the issues [or] misleading the jury." Fed. R. Evid.

403; see also United States v. Schneider,

(1st

Cir. 1997) (finding "evidence [of intent that] may have been

relevant but only to a limited degree" was properly excluded when

"it had a substantial capacity to mislead the jury").

Here, the district court's overall concern of juror

confusion was reasonable. After all, whether or not particular

employees at the agencies were negligent or less-than-diligent in

reporting Rivera's work activities to anyone was not directly at

issue in this case. Particular employees may not have been

familiar with Rivera's status, scope of activities, or reporting

obligations. Indeed, they may have simply assumed that he was

actually reporting his activities as required.

With these general considerations in mind, we turn to

the questions that were ultimately precluded by the in limine

order. In making his argument here, Rivera has identified only

one specific line of witness questioning that he claims was

improperly barred. Namely, Rivera argues that he was prevented at

trial from asking Juan Delgado, a USPS human resources manager,

- 19 - whether Delgado should have notified DOL that Rivera was

volunteering. Rivera was also prevented from eliciting from

Delgado whether Rivera had asked him for a job. While Delgado's

failure to report Rivera's activities and Rivera's request to

Delgado for a job may have been slightly probative as to Rivera's

state of mind, both questions also raised some risk of juror

confusion, as they again arguably suggest that Delgado either had

some duty to report Rivera's request to the proper authorities or

that Rivera had somehow absolved himself by indicating his

willingness and ability to work to someone at USPS. Given that

there was ample other evidence of Rivera's openness about his

activities (e.g., that Rivera had been seen accompanying union

officials at USPS headquarters and, as the district court noted,

that Rivera met with various other USPS officials), additional

evidence of Rivera's openness with Delgado had limited probative

value. See United States v. Varoudakis,

(1st

Cir. 2000) (noting that "[t]he probative value of any particular

bit of evidence is obviously affected by the scarcity or abundance

of other evidence on the same point" (quoting 22 Charles A. Wright

& Kenneth A. Graham, Jr., Federal Practice and Procedure § 5250

(1978))). The district court therefore was "well within the ambit

of [its] discretion" in concluding that the probative value of

these questions was substantially outweighed by the danger of

misleading the jury. Torres-Arroyo,

.

- 20 - C. Loss Calculation

We turn next to Rivera's argument against the loss

calculation the district court performed under the Sentencing

Guidelines. In doing so, "[w]e review the district court's

interpretation and application of the sentencing guidelines de

novo and factual findings for clear error." United States v.

Tavares,

(1st Cir. 2013) (quoting United States v.

Cortés–Cabán,

(1st Cir. 2012)).

We begin with some background. For crimes involving

larceny, embezzlement, or other forms of theft, the Sentencing

Guidelines recommend different offense levels based on the

monetary loss associated with the offense. See U.S. Sent'g

Guidelines Manual ("U.S.S.G.") § 2B1.1(b) (U.S. Sent'g Comm'n

2018). In this context, "loss" can include both "actual" and

"intended" loss. Id. § 2B1.1 cmt. 3(A). In this case, the district

court accepted that Rivera intended a loss of $899,328.38 -- the

total amount of OWCP and SSA benefits paid to Rivera since his

initial applications. That conclusion, in turn, led the court to

apply a 14-point enhancement to Rivera's total offense level.

Rivera claims that this intended loss amount (and corresponding

enhancement) was far too high.

We first confront one argument raised by the government.

It suggests that, even if the district court made a mistake in the

loss calculation, any mistake was harmless, since the district

- 21 - court departed downward from the guidelines recommendation and

imposed only a probationary sentence. But our precedents do not

permit us to assume harmlessness in this fashion. There is still

a reasonable possibility that the high guidelines range calculated

by the district court had an anchoring effect and influenced its

assessment of the appropriate punishment. See United States v.

Alphas,

(1st Cir. 2015) ("Although the court

below imposed a sentence beneath the bottom of the GSR [guideline

sentencing range], there is at least a possibility that the court

would have imposed an even more lenient sentence had it started

with a lower GSR."). Unlike United States v. Arif,

(1st Cir. 2018), upon which the government relies, here there was

no statement by the district court to the effect that "regardless

of the Guidelines calculation," he or she would have "reach[ed]

the same result" as to the appropriate sentence.

(alteration in original) (second internal quotation marks and

citation omitted).

Proceeding to the merits of the loss calculation itself,

we find no error. The Sentencing Guidelines explain that, in cases

of government benefits fraud, loss "shall be considered to be not

less than the value of the benefits obtained by unintended

recipients or diverted to unintended uses." U.S.S.G. § 2B1.1 cmt.

3(F)(ii). In other words, a district court should try to parse

out which benefits were legitimately paid and which were not, and

- 22 - base the loss amount on only the latter. Id. ("For example, if

the defendant was the intended recipient of food stamps having a

value of $100 but fraudulently received food stamps having a value

of $150, loss is $50."); see also Alphas,

("The

best way to gauge the seriousness of a fraud offense is to

determine how much the fraudster set out to swindle -- and no

fraudster sets out to swindle sums that he would have been paid

anyway.").

In Alphas, however, we recognized in our discussion of

intended loss that -- at least where "a defendant's claims [are]

demonstrably rife with fraud" -- "a sentencing court may use the

face value of the claims as a starting point in computing loss."

. The burden of production then shifts to the

defendant, "who must offer evidence to show (if possible) what

amounts represent legitimate claims."

And then, finally,

"the sentencing court must determine the amount of loss that the

government (which retains the burden of proof) is able to

establish."

At the end of the day, the court "need only make

a reasonable estimate of the loss." U.S.S.G. § 2B1.1 cmt. 3(C).

Indeed, "[d]epending on the defendant's offer of proof, the court

might well conclude that the amount of loss is equal to the face

value of the submitted claims." Alphas,

.

Here, the district court used the face value of Rivera's

total benefits as a starting point for the loss calculation, which

- 23 - the government had substantiated by introducing OWCP payment

history reports and Social Security beneficiary lists. As the

district court reasoned, using the face value of the claims was

appropriate given that, "ab initio," Rivera "had an obligation to

report . . . and because he didn't . . . everything is basically

an illegal amount he's receiving since that outset." The court

continued: "[H]ad he reported . . . [his benefits] could have been

recalculated, but because he didn't he's getting the benefit of

everything. And his intent is to get that entire benefit and you

just can't separate that."

Given the court's reasonable acceptance of the face

value of the benefits as the initial basis for the loss

calculation, it then fell to Rivera to establish which portion of

those amounts "represent[ed] legitimate claims." Alphas,

. On appeal, however, Rivera does not point to any evidence

delineating what portion of the benefits were legitimate, or even

how he could establish such a figure. Rather, he argues that it

remained the government's burden to show the amount of fraudulent,

as opposed to legitimate, claims. But that contention is

inconsistent with the framework outlined in Alphas. In light of

Rivera's failure to meet his evidentiary burden, we conclude that

the court reasonably concluded that the amount of loss was equal

to the face value of the claims.

- 24 - Rivera also briefly suggests that the loss calculation

was excessive because it included losses incurred outside of the

timeframe set forth in the indictment. But "[i]n calculating loss

amounts under the Guidelines, a district court evaluates losses

stemming from the conduct of conviction and any relevant conduct."

United States v. Curran,

(1st Cir. 2008) (emphasis

added). In cases like this one, "relevant conduct" includes

conduct that was "part of the same course of conduct or common

scheme or plan as the offense of conviction." U.S.S.G.

§ 1B1.3(a)(2).4 And, significantly, "[r]elevant conduct may

include both acquitted and uncharged conduct." United States v.

Cox,

(1st Cir. 2017). Against this background,

Rivera does not adequately explain why his earlier claims should

not be considered relevant conduct. See United States v. Bennett,

(1st Cir. 1994) (concluding district court erred

in refusing to consider amounts of uncharged fraudulent loans in

its loss calculation when they constituted relevant conduct).

D. Restitution Amount

Finally, we consider Rivera's challenge to the amount of

restitution imposed. Restitution orders imposed under the

4 This definition of relevant conduct governs because it applies to crimes that are "grouped" under U.S.S.G. § 3D1.2(d). Here, Rivera's five offenses -- all involving theft and fraud -- were grouped under that provision because the overall offense level was determined on "the basis of the total amount of harm or loss." U.S.S.G. § 3D1.2(d).

- 25 - Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, are

generally reviewed only for an abuse of discretion, with their

underlying factual findings reviewed for clear error. See United

States v. Hensley,

(1st Cir. 1996). "[W]e

consider only whether the restitution award has 'a rational basis

in the record.'" United States v. González-Calderón,

(1st Cir. 2019) (quoting United States v. Salas-Fernández,

(1st Cir. 2010)).

Here, the government initially requested $899,328.38 in

restitution -- the same amount as the intended loss amount

discussed above, which in turn corresponded to the full amount of

SSA and OWCP benefits paid to Rivera. The district court, however,

decided that it could only impose restitution for the conduct

covered by the offenses of conviction. Hence, for the CA-1032

false statement charges, the court ruled that the government could

only recover for the losses caused between March 25, 2011, and

August 8, 2013, corresponding to the period of 15 months prior to

the execution of the false CA-1032 forms. Similarly, for the SSA-

related charges, the court determined that the government could

only recover for the losses caused between July 22, 2013 and August

30, 2013, the time period spelled out in the indictment for those

charges.

- 26 - The government attempted to comply with the court's

ruling, representing that $144,588.905 in OWCP benefits and

$4,139.80 in SSA benefits were paid during the relevant time

periods. But the district court then determined that the

government could not, as in the Guidelines loss-calculation

context, merely rely on the face value of the benefits paid.

Instead, the district court correctly noted that, in the

restitution context, the government had to demonstrate actual

losses. See United States v. Innarelli,

, 290 & n.4

(1st Cir. 2008) (explaining that intended loss can be used "for

purposes of determining a defendant's sentence" under the

Guidelines, but "for purposes of determining the restitution

portion of a defendant's punishment, only actual loss may be taken

into account"). The district court found the government had met

this standard as to the SSA benefits, but not as to the OWCP

benefits. It therefore ordered Rivera to pay only the $4,139.80

in restitution to SSA.

5 Even though the district court had explicitly limited OWCP restitution to benefits paid between March 25, 2011 and August 8, 2013, the government included amounts paid from March 25, 2011 until August 8, 2014 in its calculation of $144,588.90. The court referred to this figure without noting any incongruity. Since, as we explain below, the court ultimately ruled that restitution was limited to actual losses, which the government failed to establish as to all OWCP benefits, the discrepancy ultimately makes no difference. For the record, though, the government later stated the actual amount of OWCP benefits paid between March 25, 2011 and August 8, 2013 was $140,684.90.

- 27 - Given the posture of the case, our responsibility is

only to review the appropriateness of the final restitution amount

ordered. In challenging that amount of restitution, Rivera again

argues that the district court failed to determine whether some of

those payments were legitimate. Under the MVRA, there is a

causation standard: "restitution should not be ordered if the loss

would have occurred regardless of the defendant's misconduct

underlying the offense of conviction." United States v. Cutter,

(1st Cir. 2002); see also Alphas,

(requiring "a but-for connection between the defendant's fraud and

the victim's loss"). Thus, as Rivera suggests, if the SSA would

have paid Rivera some amount of SSDI benefits absent his

concealment, those funds should not be included in the restitution

order. In essence, they would not be attributable to Rivera's

false statements.

Here, however, there was some evidence that, absent

Rivera's concealment, he would have received no benefits at all.

As discussed above, Rivera originally included his work as a union

steward in his 2005 application for SSA benefits. That application

was denied. When he applied in 2007, he omitted that work, and

his application was approved. This sequence suggests that his

concealment of his union activities was the decisive factor in

whether he received SSDI benefits at all. As a result, the

district court could conclude that the total amount of SSDI

- 28 - benefits paid during the relevant period amounted to SSA's actual

loss. Said differently, Rivera's SSA application history

represents "a modicum of reliable evidence" that the district court

could rely on in determining the appropriate amount of restitution.

González-Calderón,

(quoting United States v.

Naphaeng,

(1st Cir. 2018)).

Affirmed.

- 29 -