United States Court of Appeals For the First Circuit

No. 21-1583

UNITED STATES OF AMERICA,

Appellee,

v.

ABDIRASHID AHMED,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

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.

October 12, 2022 LYNCH, Circuit Judge. 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

; see also

(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.

I.

A.

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,

(1st

Cir. 2021) (quoting United States v. Padilla-Colón,

(1st Cir. 2009)); see United States v. Lee,

, 490

n.1 (1st Cir. 2018).

MaineCare reimburses approved providers for covered

health care services for MaineCare clients. See

; 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

- 2 - 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

1 Daigle cooperated with the investigation into Ahmed's conduct. The record does not disclose whether she was ever charged

- 3 - 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

with or convicted of a crime related to her participation in the conspiracy. 2 Borst later pleaded guilty to one count of conspiring to defraud a health care program, see

, 1349, and cooperated with the investigation of Ahmed.

- 4 - 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

3 Facing Change's owner, Nancy Ludwig, was indicted as Ahmed's codefendant and ultimately convicted after a jury trial of one count of conspiracy to commit health care fraud, see

, 1349; one count of conspiracy to receive and pay health care kickbacks, see

§ 371; 42 U.S.C. § 1320a-7b(b); five counts of offering/paying health care kickbacks, see 42 U.S.C. § 1320a- 7b(b)(2); one count of false statements relating to a health care benefit program, see

; and one count of obstruction of a federal audit, see

§ 1516. Multiple other Facing Change employees pleaded guilty to various charges related to the conspiracy and cooperated with the investigation.

- 5 - 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[']."

B.

On April 27, 2018, a federal grand jury indicted Ahmed

and Osman on one count of conspiracy to commit health care fraud,

see

, 1349; one count of conspiracy to defraud

the United States and to pay and receive health care kickbacks,

see

§ 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

; three counts

of conspiracy to commit health care fraud, see

§§ 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

4 The first count of the superseding indictment charged Ahmed with health care fraud in violation of

. As

- 6 - 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

the government notes in a footnote in its brief, however, the judgment ultimately issued by the district court and the revised PSR developed by the probation officer "indicate that Ahmed [pleaded] guilty to conspiracy to commit healthcare fraud," rather than "a substantive count of health care fraud." The government requests "a limited remand to permit the district court to correct the clerical error in the judgment." The record suggests that the government is correct that a clerical error occurred. Under Federal Rule of Criminal Procedure 36, "the [district] court may at any time correct a clerical error in the judgment," and the parties may move it to do so. See United States v. Claudio,

(1st Cir. 1995); see also, e.g., United States v. Davis,

(11th Cir. 2016) (affirming correction of offense listed in judgment under Rule 36). We remand to permit the parties to address the district court on this issue.

- 7 -

§ 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.

5 In briefing both before the district court and on appeal, the government contends that the revised PSR did not accurately adopt the government's proposed loss amount and that the government's figure was higher than the $1,267,309.33 given in the revised report.

- 8 - 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 role enhancement, corresponded to a Total

Offense Level of 25.

- 9 - Ahmed argued for a lower loss amount and against the

application of a leader/organizer role enhancement. On loss

amount, he asserted that he should receive credit for interpreter

services actually provided and that he should not be held

responsible for overbilling by providers for their own services

(as opposed to his interpreter work), because that overbilling was

not foreseeable to him. After discounting for the amount of

interpreter services he estimated himself to have provided and

excluding charges for the providers' services, Ahmed proposed a

loss amount of $436,195. Regarding the role enhancement, Ahmed

asserted that he lacked the necessary control over the

providers -- whom he characterized as "gatekeepers" without whose

cooperation he could not independently bill MaineCare for

interpreter services -- to qualify as a leader or organizer. His

counsel did acknowledge, however, that this "argument [was] less

forceful about whether [Ahmed] was a manager/supervisor" for whom

a three-level enhancement under U.S.S.G. § 3B1.1(b) would be

appropriate, because "it did appear that [Ahmed] . . . was a

manager or supervisor of . . . Osman." Ahmed's proposed Guidelines

calculations would have resulted in a Total Offense Level of 15.

At Ahmed's sentencing hearing, conducted on July 16,

2021, the district court adopted the government's loss amount of

$1,863,264.85 and found that the four-level leader/organizer

enhancement was appropriate. In addressing loss amount, the court

- 10 - rejected Ahmed's offset and foreseeability arguments. Regarding

offset, the court reasoned that Ahmed bore the burden of producing

"evidence to show . . . what amounts represent[ed] legitimate

claims," see United States v. Alphas,

(1st Cir.

2015), and concluded that Ahmed had not supported his assertion

that he performed any reimbursable interpreter services in

connection with covered MaineCare services. Regarding

foreseeability, the court found that Ahmed "knew or should have

known that the providers could only seek reimbursement for

interpreter services in the same units of time as they sought

reimbursement for the counseling services," and that "it was

entirely foreseeable that the providers' records . . . would not

be accurate," so "the amounts paid with respect to [the providers']

claims [were] fairly attributable to . . . Ahmed."

In applying the leader/organizer enhancement, the court

found that "Ahmed was the common denominator as between the three

counseling practices that participated in fraudulent billing";

"was involved from the very beginning" of the fraud; "was a

critically important driving force" in the conspiracy, even if

"not the sole driving force"; "cajoled, encouraged, and pressured

others to participate in the scheme"; "influence[d] the amounts

that were billed" through "his control over the clients and his

demands regarding the number of units that had to be billed"; and

"personally received the largest share of the crime proceeds."

- 11 - The court also noted that "there certainly [was] evidence

that . . . Osman was in some respects subservient to . . . Ahmed."

Based on those rulings, the court determined that

Ahmed's Total Offense Level was 25, with a corresponding GSR of 57

to 71 months.

The court then turned to imposing Ahmed's sentence. It

announced that it had "considered all [the

(a)

sentencing] factors," and gave detailed descriptions of its

reasoning with respect to several of those factors. It highlighted

the "very serious" nature of the crime, which involved a "long-

standing, carefully planned and executed, flagrant scheme to

defraud the government motivated by greed." It also discussed the

need for the sentence "to afford adequate deterrence from criminal

conduct, both by . . . Ahmed [and] by the general public," which

the court felt was "quite important" because "[t]he fraud in this

case lasted years and perhaps expose[d] . . . the weaknesses of

the MaineCare system or its exposure to fraud going undetected."

In addition, the court acknowledged Ahmed's personal

circumstances -- particularly his "parental responsibilities" as

the father of "seven minor children," one of whom "requires an

adult to care for him every waking moment" due to "autism spectrum

disorder and anxiety." The court reasoned that these personal

circumstances "supported" a downward variance from the GSR. It

- 12 - concluded that twenty-four months' imprisonment was "a just and

fair sentence."

After announcing this sentence, the district court

further stated:

I want the record to reflect that I have carefully weighed all the defendant's arguments regarding the [G]uidelines as they affect his total offense level and criminal history category. I want it to be clear that even if I had accepted any of the objections or arguments that I have rejected, the sentence I have announced today would be the same untethered from the [G]uidelines. That is, based on the [§] 3553(a) sentencing factors, I would impose the same sentence, even if the [GSR] had been reduced by my acceptance of an argument that I have not accepted.

Ahmed timely appealed.

II.

Ahmed challenges the procedural and substantive

reasonableness of his sentence. "Where challenges are to the

procedural and substantive reasonableness of a sentence, '[o]ur

review process is bifurcated: we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether it is substantively reasonable.'" United States v.

Flores-Quiñones,

(1st Cir. 2021) (quoting United

States v. Reyes-Torres,

(1st Cir. 2020) (alteration

in original) (internal quotation marks omitted)). "In the

sentencing context, we evaluate claims of unreasonableness in

- 13 - light of the totality of the circumstances."

(quoting United

States v. Flores-Machicote,

(1st Cir. 2013)).

A.

Ahmed asserts that the district court erred procedurally

both in imposing the four-level leader/organizer role enhancement,

see U.S.S.G. § 3B1.1(a), and in calculating the loss amount

attributable to Ahmed, see id. § 2B1.1. He argues that no role

enhancement was warranted and that the court should have (1)

excluded the providers' overbilling for noninterpreter services

from Ahmed's loss amount and (2) reduced the loss amount to give

credit for interpreter services he provided. Ahmed contends that

correcting these alleged errors produces a Total Offense Level of

15, which, with his Criminal History Category of I, would result

in a GSR of 18 to 24 months, as opposed to the Total Offense Level

of 25 and GSR of 57 to 71 months adopted by the district court.6

See id. ch. 5, pt. A.

"When mulling the procedural reasonableness of a

sentence, we afford de novo review to the sentencing court's

6 At one point in his brief, Ahmed also references a loss amount of $558,390.14 -- between his preferred figure of $436,195.00 and the $1,863,264.85 calculated by the district court -- that he says would result if we accepted only one of his two arguments on loss amount. Because we ultimately conclude that any alleged procedural error by the district court was harmless even assuming, favorably to Ahmed, that all of Ahmed's Guidelines arguments are correct on their merits, we need not separately consider this compromise position.

- 14 - interpretation and application of the [Guidelines], assay the

court's factfinding for clear error, and evaluate its judgment

calls for abuse of discretion." United States v. Ouellette,

(1st Cir. 2021) (quoting United States v.

Ruiz-Huertas,

(1st Cir. 2015)).

In this case, however, "we may bypass the substance" of

Ahmed's arguments because "any [procedural] error that the

[d]istrict [c]ourt may have made . . . was harmless." United

States v. Ayala,

(1st Cir. 2021). "[W]e have

consistently held that when a sentencing court makes clear that it

would have entered the same sentence regardless of the Guidelines,

any error in the court's Guidelines calculation is harmless."

Ouellette,

; see, e.g., Ayala,

;

United States v. Graham,

, 62-63 (1st Cir. 2020). In

Ouellette, for example, we concluded that any error in the district

court's Guidelines calculations was harmless because the court had

announced during sentencing that the sentence it imposed was

"untethered from the [G]uidelines" and that it "would impose

precisely the same sentence even if the applicable [GSR] would

have been reduced by any or all of the objections made [by the

parties]." 985 F.3d at 109-10. The district court in this case

used strikingly similar language in stating that Ahmed's sentence

was "untethered from the [G]uidelines" and that the court "would

impose the same sentence, even if the [GSR] had been reduced by

- 15 - [its] acceptance of an argument that [it] ha[d] not accepted." As

in Ouellette, "[b]ecause the district court made clear that it

would have imposed the same sentence regardless of the Guidelines,

any alleged error in calculating [Ahmed's GSR] is harmless." Id.

at 110.

Ahmed argues that the alleged errors were not harmless

because the district court "found that a variance from the low end

of the [GSR] was warranted," and so "if . . . the case is remanded

to the [district court] for resentencing, the sentence could be

lower." But this optimistic view is impossible to square with the

district court's unqualified statement that it "would impose the

same sentence, even if the [GSR] had been reduced by [its]

acceptance of an argument that [it] ha[d] not accepted." For

remand to be appropriate, there must be "at least a possibility

that the [district] court would have imposed an even more lenient

sentence had it started with a lower GSR." Alphas,

(declining to hold any error harmless where the district court

said it was "unlikely," but not impossible, that a lower GSR would

result in a lower sentence). The record "does not admit of such

a possibility" here. Ayala,

. There was no

reversible procedural error.

B.

Ahmed also challenges the substantive reasonableness of

his sentence, arguing that if his Guidelines arguments regarding

- 16 - loss amount and the leader/organizer enhancement are correct, "his

sentence was substantively unreasonable," but acknowledging that

if we affirm the district court's Guidelines calculations, his

substantive unreasonableness claim "is weak at best." Because we

decline to address the merits of Ahmed's Guidelines arguments in

the context of his procedural reasonableness claim, and because

his substantive reasonableness claim turns on those arguments, we

assume, favorably to Ahmed, that he can raise those arguments in

the substantive reasonableness context. Cf. Ouellette,

("[E]ven if we are satisfied that [a procedural] error did

not affect the district court's determination of the sentence, we

still must review the sentence for substantive reasonableness."

(quoting United States v. Tavares,

(1st Cir.

2013))). We determine that there was no Guidelines error and

conclude that his sentence is substantively reasonable.

1.

Ahmed's first Guidelines claim contests the district

court's conclusion regarding loss amount; he argues that the court

erred both in holding him responsible for amounts billed by

providers for their own services and in declining to credit him

for interpreter services he purportedly provided. "We review the

[d]istrict [c]ourt's 'interpretation and application of the

[Guidelines]' de novo, and factual findings, including the

[d]istrict [c]ourt's 'calculation of the amount of loss, for clear

- 17 - error.'" United States v. Cadden,

(1st Cir. 2020)

(citations omitted) (first quoting Flores-Machicote,

; and then quoting United States v. Ihenacho,

(1st Cir. 2013)). "A defendant 'dissatisfied with the sentencing

court's quantification of the amount of loss in a particular case

must go a long way to demonstrate that the finding is clearly

erroneous.'" United States v. Curran,

(1st Cir.

2008) (quoting United States v. Rostoff,

(1st

Cir. 1995)). We conclude that Ahmed's arguments are without merit.

a.

Ahmed first challenges the district court's inclusion of

the amounts billed by coconspirator providers for clinical

services -- rather than interpreter services -- in his loss amount.

"Defendants who engage in a 'jointly undertaken criminal activity'

are responsible for . . . losses that result from 'reasonably

foreseeable acts committed by others in furtherance of the jointly

undertaken criminal activity.'" United States v. Delima,

(1st Cir. 2018) (quoting United States v. Pizarro-Berríos,

(1st Cir. 2006)); see U.S.S.G. § 1B1.3(a)(1)(B). A

"sentencing court must [(1)] 'ascertain what activity fell within

the scope of the specific conduct and objectives embraced by the

defendant's agreement,' and [(2)] then 'determine to what extent

others' acts and omissions that were in furtherance of jointly

undertaken criminal activity likely would have been foreseeable by

- 18 - a reasonable person in [the] defendant's shoes at the time of his

or her agreement.'" Delima,

-73 (quoting United

States v. LaCroix,

(1st Cir. 1994)). We review

each of these "fact-bound determination[s]" for clear error.

United States v. Sandoval,

(1st Cir. 2021); see

United States v. Carrozza,

(1st Cir. 1993) ("Such

determinations are, of course, all inherently fact-bound.").

Ahmed challenges the district court's compliance with

both prongs. With respect to the first inquiry, he asserts both

that the district court failed to "make particularized findings

concerning . . . the scope of Ahmed's agreement and whether the

conduct of the individual counseling providers exceeded the scope

of his agreement" and that "the evidence was insufficient to show

that Ahmed's agreement in any way encompassed the fraud that was

being committed by the counseling providers." With respect to the

second prong, he argues that "there was insufficient evidence from

which to conclude that it was foreseeable that the providers would

overbill for their own services in addition to overbilling for

translation services." We find no error in the district court's

reasoning.

The transcript of Ahmed's sentencing hearing undercuts

his first argument: During the proceeding, the district court made

explicit findings about the nature and scope of Ahmed's agreements

with the counselors involved. The court found, for example, that

- 19 - Ahmed "conspired with mental health counselors to fraudulently

bill MaineCare for mental health counseling services and

accompanying translation services provided to Somali clients";

that he "knew that the records being submitted to MaineCare were

not accurate"; and that submission of such fraudulent claims "was,

in essence, the whole point of the[] scheme."

And contrary to Ahmed's second argument, the evidence

supports the district court's findings. In determining relevant

conduct, a sentencing court "may consider any explicit agreement

or implicit agreement fairly inferred from the conduct of the

defendant and others." U.S.S.G. § 1B1.3 cmt. n.3(B). The

sentencing record showed that Ahmed at least implicitly agreed to

the providers' overbilling for clinical services. Multiple

providers described Ahmed's pressuring them to inflate the number

of units for which they billed. The district court noted that

Daigle, for example, "explained that she [was] . . . pressured by

[Ahmed] . . . to bill for services not provided." Common sense

dictates that, to avoid claims' appearing obviously fraudulent,

providers would need to overbill for clinical services to

correspond to the units billed for interpreter services. Cf. 10-

144 Me. Code R. ch. 101, ch. I, § 1.06-2(A) ("Interpreter services

can only be covered in conjunction with another covered MaineCare

service or medically necessary follow-up visit(s) to the initial

covered service."). The district court did not err in concluding

- 20 - that the providers' overbilling for clinical services fell within

the scope of Ahmed's agreement.

The district court did not err in concluding that the

providers' overbilling was foreseeable to Ahmed. As the district

court recognized, Ahmed "knew or should have known that the

providers could only seek reimbursement for interpreter services

in the same units of time as they sought reimbursement for the

counseling services." A reasonable person in his position would

have foreseen that the providers would overbill for clinical

services in addition to interpreter services.

b.

Ahmed next objects to the district court's refusal to

credit him for interpreter services he purportedly provided in the

course of the scheme.

The Guidelines provide that a defendant's loss amount

"shall be reduced by . . . the fair market value of . . . the

services rendered . . . by the defendant." U.S.S.G. § 2B1.1 cmt.

n.3(E)(i). But "in a case . . . where a defendant's claims were

demonstrably rife with fraud[,] . . . a sentencing court may use

the face value of the claims as a starting point in computing

loss." Alphas,

; see United States v. Iwuala,

(1st Cir. 2015) (applying this framework in a Medicare

fraud case). "'[T]he burden of production will then shift to the

defendant, who must offer evidence to show' why the loss figure

- 21 - should be set at a lower amount." Iwuala,

(quoting

Alphas,

). "After the record is fully formed, the

sentencing court must determine the amount of loss that the

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

establish."

(quoting Alphas,

). The district

court concluded -- and Ahmed does not dispute on appeal -- that

this "case is rife with fraud." The Alphas burden-shifting

framework applies, and Ahmed bore the burden of producing evidence

justifying a reduction in his loss amount from the initial figure

proven by the government.7 We review the district court's findings

regarding loss amount for clear error. See, e.g., Cadden,

.

In the district court, Ahmed sought to meet his

evidentiary burden in two ways. First, based on statements by

Daigle, Borst, and a counselor at Facing Change, he purported to

calculate "rudimentary" ratios representing the degree to which

Ahmed's loss amount related to each practice should be reduced.

For example, Ahmed argued that, because Daigle indicated in a law

enforcement interview that "anything over [five units in a given

7 We note that, although the Alphas burden-shifting framework allows the government to use "the face value of the claims as a starting point" for the loss calculation,

, the government in this case chose "for efficiency purposes" to instead use "the amount[] actually paid by MaineCare, which is roughly $250,000 less than the amount billed." This choice worked to Ahmed's benefit, and he unsurprisingly does not question it on appeal.

- 22 - session] was an overbilling" and because Daigle generally billed

for ten units per session, Ahmed's loss amount related to Daigle's

practice should be reduced by 50%. Second, he submitted records

purporting to show that some of the patients involved in the

conspiracy received mental health care paid for by MaineCare before

and/or after interacting with the conspiracy. We conclude that

the district court did not clearly err in finding that neither

submission warranted a reduction in Ahmed's loss amount.

We first consider Ahmed's proposed offset ratios. The

evidence offered by Ahmed in support of his calculations suffered

from a number of obvious defects. With respect to Daigle, Ahmed's

proposed ratio relied on a report describing an interview with law

enforcement in which Daigle "estimated that anything billed over

5 units was fraudulent." The report does not state that Daigle

was certain that the first five units of each session were

legitimate -- only that anything beyond that was not -- and

characterizes her five-unit figure as an "estimate[]" based on

"preliminary calculations."

With respect to Borst, Ahmed's proposed ratio rested on

the assertion that "Borst told investigators that the typical

session was thirty minutes," or two units. Borst did state in an

interview that in "basically every patient session [Ahmed]

interpreted for, [he] would get up after about thirty minutes and

just leave with the patient." But she did not state that those

- 23 - thirty minutes were spent on legitimate counseling; on the

contrary, she later described many visits as "pretty much

just . . . check-in[s]." Moreover, her description of most

sessions as lasting thirty minutes was contradicted by other record

evidence: Borst testified to the Ludwig grand jury that some visits

never actually took place; that she could not tell from her records

whether any particular visit occurred; and that typical visits

with Somali clients, at least early in the conspiracy, lasted only

"10 or 15 minutes." Further, as the district court noted,

"[g]overnment surveillance of the Borst practice for 13 days

observed that on six of those days Borst saw no patients but

submitted claims for 10 to 12-1/2 hours of service," and "[o]n

other days agents saw patients come into the office for no longer

than 16 minutes, yet Borst submitted claims for every patient for

two and a half hours."

Finally, with respect to Facing Change, Ahmed's proposed

ratio depended on his assertion that one counselor at the agency,

Danielle Defosse-Strout, "told investigators that the typical

session with Mr. Ahmed was 2 to 3-units, or 30 minutes to 45

minutes." Defosse-Strout did say in one interview that "most

visits involving [Ahmed] were 30-40 minutes in length." But she

claimed in a different interview that a "typical visit with

[Ahmed]" lasted fifteen minutes, and she stated that -- whatever

the length of the visits that Ahmed in fact attended -- most

- 24 - patient visits for which Ahmed purportedly provided interpreter

services, and for which she billed MaineCare, did not actually

occur: only one-third of billed visits involved client contact.

Further, Defosse-Strout did not state that those visits that did

take place involved legitimate services.

The district court also considered during sentencing the

evidence that any sessions that did occur did not involve treatment

for MaineCare eligible conditions. As the court recounted, Borst,

for example, "explained that she didn't provide any counseling

services to her Somali patients because her visits with them were

so brief and disorganized." Defosse-Strout testified that she had

had patients who did not require treatment whom Ahmed would resist

discharging, and admitted to falsifying billing codes to obtain

reimbursements for services not covered by MaineCare. Another

Facing Change counselor, Brittany Harrington, described instances

in which Ahmed would bring back former clients whom she did not

believe needed treatment and whom she had recently discharged,

with Ahmed claiming that the clients were experiencing symptoms

they had never before reported.

As the district court also highlighted, testimony at

Ludwig's trial by former Facing Change patients for whom Ahmed

served as interpreter cast further doubt on the legitimacy of the

services offered. One former patient testified that he did not

know why he was brought to the agency and that he attempted to

- 25 - tell staff that he did not need any assistance. Another explained

that he had hoped to receive treatment for asthma and a toothache,

rather than for any mental health concerns.

Finally, the district court "note[d] that there was

substantial testimony calling into question the legitimacy of the

translation services that were provided by [Ahmed]." Harrington

stated both in an interview with law enforcement and in testimony

during Ludwig's trial that she doubted the accuracy of Ahmed's

work. She explained that Ahmed used "clinical-based terms" that

patients "would not know" or were unlikely to use, such as

"flashbacks," and spoke for lengths of time that did not match the

patients' speech -- including instances where he answered without

the patients' having spoken at all. Defosse-Strout raised similar

concerns that "what [Ahmed] was translating back to her wasn't

what the client was actually saying," as his "translated

responses . . . were all suspiciously identical."

On this record, it was not clearly erroneous for the

district court to conclude that Ahmed's back of the envelope

calculations based on a few provider estimates were insufficient

evidence to show that a portion of the claims were legitimate.

See United States v. Arif,

(1st Cir. 2018); see

also, e.g., United States v. Mathew,

(5th

Cir. 2019) (affirming district court's denial of loss amount credit

to defendant despite his submission of "medical documents, patient

- 26 - interviews, and witness testimony" to show legitimacy of services

because "government presented evidence that discredited [his]

claims" and evidence); United States v. Bikundi,

(D.C. Cir. 2019) (affirming denial of loss amount credit where

defendants "did not produce evidence of [legitimate] services with

any specificity").

The other evidence cited by the defense does not

undermine this finding. As the district court pointed out, "even

taking as true that several of the patients involved during the

conspiracy received legitimate mental health diagnoses and

counseling before and/or after the fraudulent diagnoses and

treatment, that does not mean that . . . the [providers] that

[Ahmed] conspired with actually provided treatment for those

conditions." This reasoning is not clearly erroneous.

Ahmed's remaining argument is also unpersuasive. He

asserts that the district court should have credited him for any

legitimate interpreter services he provided "regardless of the

legitimacy of the [clinical] service" delivered by providers. In

support of this contention, Ahmed cites United States v. Klein,

(5th Cir. 2008), in which the Fifth Circuit concluded

that a physician convicted of defrauding insurance companies by

billing for appointments that never happened was entitled to a

credit against his loss amount for the value of medicine he gave

to patients to self-administer. See

. Ahmed

- 27 - characterizes the medication in Klein as a "connected service"

analogous to the interpreter services he purportedly provided.

Even assuming that Ahmed provided genuine interpreter services,

this analogy does not withstand scrutiny: The government in Klein

did not dispute that "the patients needed th[e] drugs and that the

insurers would have had to pay for the drugs had Klein merely

written prescriptions."

. Here, in contrast,

interpreter services would be of value to and reimbursable by

MaineCare only if "necessary and reasonable" for providing covered

services to MaineCare beneficiaries. 10-144 Me. Code R. ch. 101,

ch. I, § 1.06-2(A). The district court properly declined to credit

Ahmed for interpreter services not associated with legitimate

clinical services.8

We find no error in the district court's loss

calculations.

2.

Ahmed also challenges the district court's imposition of

a four-level leader/organizer enhancement. "We review the

imposition of this particular sentencing enhancement, and any

8 Ahmed protests that "the logical extreme [of this] reasoning . . . is that a perfectly legitimate, law-abiding ancillary service provider could be denied payment because of the misdeeds . . . of the primary service provider." But because our decision today addresses only sentencing, any ancillary service provider affected is necessarily not "law-abiding." Moreover, our interpretation of the Guidelines does not bear on an interpreter's right to payment by MaineCare or providers.

- 28 - predicate factual findings, for clear error." United States v.

Appolon,

(1st Cir. 2012); see also United States

v. May,

(1st Cir. 2003) (noting that "battles over

a defendant's status . . . will almost always be won or lost in

the district court" (omission in original) (quoting United States

v. Conley,

(1st Cir. 1998))). The Guidelines

authorize this enhancement "[i]f the defendant was an organizer or

leader of a criminal activity that involved five or more

participants or was otherwise extensive." U.S.S.G. § 3B1.1(a).

"Th[e] enhancement requires a district court to make 'both a status

determination -- a finding that the defendant acted as an organizer

or leader of the criminal activity -- and a scope

determination -- a finding that the criminal activity met either

the numerosity or the extensiveness benchmarks established by the

[G]uideline[s].'" United States v. Hernández,

(1st Cir. 2020) (quoting United States v. Tejada-Beltran,

(1st Cir. 1995)). Ahmed concedes that the conspiracy met

the Guidelines' numerosity requirement because it involved five or

more participants, leaving only the district court's status

determination at issue on appeal. Ahmed challenges this

determination on various grounds, but none are persuasive.

Ahmed's first argument -- that the district court erred

by failing to "specify in its findings the evidentiary basis for

its ruling" -- is a nonstarter both legally and factually.

- 29 - Legally, Ahmed is mistaken in asserting that explicit factual

findings are always required: on the contrary, "there is no

requirement that the district court specifically find whom the

defendant controlled or how he did so." United States v. Payne,

(1st Cir. 2018); see also United States v.

Morales-De Jesus,

(1st Cir. 2018) ("A district

court need not make specific findings justifying its application

of a role-in-the-offense-enhancement if 'the record clearly

reflects the basis of the court's determination.'" (quoting United

States v. Marrero-Ortiz,

(1st Cir. 1998))). In

fact, the district court did make relevant findings in imposing

the role enhancement. In particular, notwithstanding Ahmed's

claim that the court made "no findings about which other

participants Ahmed controlled," the court noted that "there

certainly [was] evidence that . . . Osman was in some respects

subservient to . . . Ahmed," and adopted the PSR's conclusion that

Ahmed "appeared to have a leadership role over . . . Osman."

To the extent Ahmed argues that he did not have the

requisite authority over at least one of his coconspirators, that

argument, too, misses the mark. It is true that, for the

enhancement to apply, Ahmed must have led or organized at least

one other criminal actor -- and not just a criminal activity -- on

at least one occasion. See United States v. García-Sierra,

(1st Cir. 2021); see also United States v. McKinney,

- 30 -

(1st Cir. 2021). But the record supports the

district court's conclusion that, at minimum, Ahmed organized or

led Osman. Defosse-Strout, for example, stated to investigators

that on at least one occasion Ahmed "made [Osman] execute . . .

interpreter sheets even though [Ahmed] was the interpreter for the

actual visit." Cf. Hernández,

(concluding

organizer enhancement warranted where defendant on one occasion

gave coconspirator instruction intended to facilitate criminal

activity). Both she and Harrington also testified at Ludwig's

trial that they understood all of Facing Change's Somali patients,

whether brought in by Ahmed or Osman, to be "[Ahmed's] clients."

Cf. United States v. Carrero-Hernandez,

(1st

Cir. 2011) (noting that defendant's referring to criminal

enterprise as "'his' system" supported conclusion that he led or

organized coconspirators). Facing Change's billing manager

similarly testified that all the firms through which the agency

employed Somali translators, including Osman, were "[Ahmed's]

operations." Indeed, Ahmed's counsel conceded in the district

court that "it did appear that . . . [Ahmed] was a manager or

supervisor of . . . Osman." The district court did not clearly

err in determining that, at minimum, Ahmed exercised the requisite

authority over Osman for the enhancement to apply.

Ahmed next contends that the facts in the record do not

support the imposition of the enhancement. He relies on the

- 31 - factors set forth in an application note to Guidelines section

3B1.1, which provides:

Factors the court should consider [in assessing a defendant's role in an offense] include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4; see also Appolon,

("[T]here need not be proof of each and every factor before a

defendant can be termed an organizer or leader." (quoting

Tejada-Beltran,

)). Contrary to Ahmed's argument,

the district court considered these factors and reasonably

concluded that Ahmed qualified as a leader or organizer.

The court's factual findings from the sentencing hearing

track the Guidelines factors. The district court found that Ahmed

influenced both the providers' schedules and their billing through

"his control over the clients" -- which allowed him, and "not the

clinicians," to "make the appointments for clients" -- and through

"his demands regarding the number of units that had to be billed."

These findings reflect Ahmed's "exercise of decision making

authority," his significant "degree of participation in planning

or organizing the offense," and his "degree of control and

authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4. The

- 32 - district court also found that Ahmed "was a critically important

driving force" in the conspiracy, "was involved from the very

beginning . . . until the end," and "was the common denominator as

between the three counseling practices that participated in

fraudulent billing." Those findings support the conclusion that

Ahmed's "participation in the commission of the offense" was

substantial, and illustrate the wide-reaching, multi-agency

"nature and scope of [his] illegal activity." Id. Further, the

district court plausibly found that Ahmed "proposed and influenced

Daigle and Borst to participate in the scheme," demonstrating

Ahmed's "recruitment of accomplices."9 Id. Finally, the district

court determined that Ahmed "personally received the largest share

of the crime proceeds."10 See id. (listing "the claimed right to

a larger share of the fruits of the crime" as a relevant factor in

the leader/organizer analysis).

9 In his brief, Ahmed asserts without citation that Daigle recruited Ahmed into the scheme, rather than the other way around. The record does not support this view; Daigle stated to investigators, without contradiction in the record, that the idea to overbill originated with Ahmed. 10 On appeal, Ahmed concedes that "his gross proceeds over time were larger than the other participants[']," but contends that this was the result of his "working with multiple providers," and that "his percentage share of the proceeds was not higher." Even taking this claim as true, Ahmed does not explain why his greater gross income from the conspiracy would not be a relevant consideration in assessing his role.

- 33 - The district court also found that Ahmed's "control over

the clients" gave him the necessary leverage to influence the

providers, who relied on his "ability . . . to provide Somali

beneficiaries." The record supports this finding, as multiple

providers described Ahmed's role in billing decisions;

Defosse-Strout, for example, testified to the Ludwig grand jury

that she and Ahmed would negotiate billing amounts and, on

occasion, Ahmed would simply "direct[]" her on what claims to file.

The district court reasonably concluded that Ahmed's inability to

submit claims did not "in any way detract from the initiative and

leadership that he displayed in making possible the fraud that the

providers then committed." The district court did not clearly err

in applying the leader/organizer enhancement.

3.

We turn to Ahmed's substantive challenge and find no

abuse of discretion. "We review a preserved challenge to the

substantive reasonableness of a sentence under an abuse of

discretion standard." Flores-Quiñones, 985 F.3d at 133 (quoting

Reyes-Torres,

). "[A] sentence will be deemed

substantively reasonable as long as it rests on 'a plausible

rationale and . . . represents a defensible result.'" United

States v. Ortiz-Pérez,

(1st Cir. 2022) (omission

in original) (quoting United States v. Rivera-Morales,

(1st Cir. 2020)). "We rarely find a below-[G]uidelines sentence

- 34 - to be substantively unreasonable." United States v.

Millán-Machuca,

, 32 (1st Cir. 2021).

Unsurprisingly, Ahmed's downward variant sentence

readily satisfies the substantive reasonableness standard. The

district court provided a plausible sentencing rationale. It

discussed the § 3553(a) factors, placing particular emphasis on

the need to deter future fraud, as Ahmed's activities had "perhaps

expose[d] . . . the weaknesses of the MaineCare system," and on

Ahmed's personal characteristics and history, including his

parental responsibilities. The court's reasoning that a twenty-

four-month sentence properly balanced these considerations is

plausible.11

That result is also defensible: Even under Ahmed's

proposed Guidelines calculations (with a GSR of 18 to 24 months),

his sentence would fall within the GSR and be "presumptively

reasonable." Reyes-Torres,

. Given our rejection of

his Guidelines arguments, and the substantially higher applicable

GSR of 57 to 71 months, we are still more unlikely to hold the

sentence unreasonable. See Millán-Machuca,

. In

any event, considering that Ahmed admitted to participating in a

11 We note that the district court's reasoning -- grounded in the § 3553(a) factors and untethered from the Guidelines -- would be equally sustainable even if we had accepted Ahmed's loss amount and role enhancement arguments, which bear only on the Guidelines and do not address the district court's sentencing rationale.

- 35 - multiyear scheme to defraud MaineCare in which even by his own

calculations -- let alone those adopted by the district court --

he personally wrongfully received over $436,000, we cannot say

that his twenty-four-month sentence is outside the "universe of

reasonable sentences." United States v. Rivera-González,

(1st Cir. 2015). Medicaid fraud like that committed by

Ahmed "cause[s] significant harm" by corruptly commandeering funds

"meant for the needy." Bikundi,

. After all, every

time Ahmed "fraudulently billed [MaineCare], the government lost

funds that it otherwise could have used to provide medical care to

eligible [Mainers]." United States v. Regueiro,

(11th Cir. 2001). The district court did not abuse its

discretion by responding to this serious offense with a twenty-

four-month sentence.

Ahmed's last argument to the contrary is unpersuasive.12

He contends that the disparity between his sentence and Osman's

renders his sentence substantively unreasonable. It is true that

a sentencing court must consider "the need to avoid unwarranted

12 Ahmed's brief also posits that, if his Guidelines arguments carried the day, leaving his sentence at the high end of his preferred GSR of 18 to 24 months, his sentence would be substantively unreasonable because, since "the [district court] held that a downward variance was appropriate . . . , a sentence at the high end of the [GSR] [would not be] substantively reasonable." Because we reject Ahmed's Guidelines arguments, his sentence is below, rather than at the top of, the applicable GSR, mooting this argument.

- 36 - sentence disparities among defendants with similar records who

have been found guilty of similar conduct."

(a)(6). But because § 3553(a) specifically addresses

"unwarranted sentence disparities among defendants with similar

records" convicted of "similar conduct," id. (emphasis added), a

defendant "must compare apples to apples" by pointing to sentencing

disparities between "similarly situated" individuals, United

States v. Candelario-Ramos,

(1st Cir. 2022)

(first quoting United States v. González-Barbosa,

(1st Cir. 2019); and then quoting United States v. Romero,

(1st Cir. 2018)). Cases involving such apples to

apples comparisons "are unusual." United States v. Grullon,

, 35-36 (1st Cir. 2021).

Ahmed's argument is easily rejected. He has not in the

least shown that Osman was a relevant comparator for these

purposes. Ahmed "is attempting to compare apples to kumquats."

United States v. Gonzalez,

(1st Cir. 2020). For

example, as the district court explained during Ahmed's sentencing

hearing, "[t]he conspiracy . . . was begun by . . . Ahmed" "no

later than early 2015," with Osman not joining until "sometime in

2016"; Ahmed "personally received the largest share of the crime

proceeds"; and "there certainly [was] evidence that . . . Osman

was in some respects subservient to . . . Ahmed." Indeed, defense

counsel acknowledged to the district court that "it did appear

- 37 - that [Ahmed] . . . was a manager or supervisor of . . . Osman."

Cf. United States v. Floyd,

(1st Cir. 2014) ("[A]n

offender who sits at the top of a criminal hierarchy is not

similarly situated to his underlings."). Given Ahmed's and Osman's

disparate situations, the difference in their sentences does not

establish any abuse of discretion.

III.

We affirm Ahmed's sentence and remand for the limited

purpose of addressing the issue identified in footnote 4.

- 38 -