USA v. Fred Cole, Jr.


UNPUBLISHED OPINION FILED. [10-20650 Affirmed in Part ] Judge: JES , Judge: RHB , Judge: LHS Mandate pull date is 11/23/2011 for Appellant Fred Jessie Cole Jr. [10-20650]

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Case: 10-20650 Document: 00511652601 Page: 1 Date Filed: 11/02/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-20650 Summary Calendar November 2, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. FRED JESSIE COLE, JR., Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CR-26-1 Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM:* Fred Jessie Cole, Jr., challenges the restitution order imposed following his guilty-plea conviction for health-care fraud, aiding and abetting. Cole contends the district court committed reversible plain error by ordering him to pay $937,567.54 because that amount was not based on Medicaid’s actual loss. Cole contends the court failed to consider the number of units he actually delivered. See United States v. Klein, 543 F.3d 206, 215 (5th Cir. 2008) (“[Cole’s] gross is not equivalent to [Medicaid’s] loss” (citing 18 U.S.C. § 3663A)). The * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 10-20650 Document: 00511652601 Page: 2 Date Filed: 11/02/2011 No. 10-20650 Government concedes error and requests our court vacate the restitution order and remand for resentencing. CONVICTION AFFIRMED; SENTENCE IN PART AFFIRMED; RESTITUTION ORDER VACATED; REMANDED for resentencing consistent with this opinion. 2

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