United States v. Olusola Akingbade

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-11382

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OLUSOLA ADEREMI AKINGBADE,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-164-5

Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
A jury convicted Olusola Aderemi Akingbade of conspiracy to commit
healthcare fraud and three discrete acts of healthcare fraud. At sentencing, the
district court calculated an offense level of 28 and criminal history of I under
the Sentencing Guidelines, leading to a recommendation of 78 to 97 months in
prison. The court varied downward and sentenced Akingbade to 65 months.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 10, 2020

Lyle W. Cayce
Clerk
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On appeal, as in the district court, Akingbade challenges his offense-level
calculation. We review the district court’s interpretation of the Guidelines de
novo and its factual findings for clear error. See United States v. Velasco, 855
F.3d 691, 693 (5th Cir. 2017). A court may adopt facts contained in the Pre-
Sentence Report “without further inquiry” if those facts have an “adequate
evidentiary basis with sufficient indicia of reliability.” United States v. Sparks,
941 F.3d 748, 756 (5th Cir. 2019) (quoting United States v. Harris, 702 F.3d
226, 230 (5th Cir. 2012)).
Akingbade first argues that he didn’t abuse a position of trust under
U.S.S.G. § 3B1.3. In United States v. Njoku, 737 F.3d 55 (5th Cir. 2013), we
held that a registered nurse in a supervisory position abused a position of trust
when she fraudulently “made the determination that specific patients qualified
for home health care.” Id. at 78. We have also held that a person “occupies a
position of trust” when “Medicare relies on the honesty and forthrightness” of
his “claim submissions.” United States v. Willett, 751 F.3d 335, 344 (5th Cir.
2014). This case is analogous to Njoku because Akingbade is a registered nurse
in a supervisory position who fraudulently certified patients for home
healthcare services. And, as in Willett, Medicare relied on Akingbade’s honesty
and forthrightness in making certifications. The district court did not clearly
err in finding that Akingbade abused a position of trust.
Akingbade next argues that he didn’t harm ten or more victims under
U.S.S.G. § 2B1.1(b)(2)(A)(i) because the only victim of his conspiracy was the
United States. That argument is foreclosed by United States v. Barson, 845
F.3d 519, 167 (5th Cir. 2016) (per curiam), and our subsequent decisions
applying that case. See United States v. Mazkouri, 945 F.3d 293, 305 n.3 (5th
Cir. 2019); United States v. Ainabe, 938 F.3d 685, 689 (5th Cir. 2019); United
States v. Kalu, 936 F.3d 678, 683 (5th Cir. 2019). These cases “hold that
individuals whose identities are used to fraudulently bill the Government are
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‘victims’” for purposes of § 2B1.1(b)(2). Mazkouri, 945 F.3d at 305 n.3.
Akingbade’s brief does not dispute the Pre-Sentence Report’s finding that his
conspiracy involved the fraudulent use of more than 350 Medicare
beneficiaries’ identities. That is sufficient to establish that there were ten or
more victims under § 2B1.1(b)(2)(A)(i).
AFFIRMED.
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