United States v. Booker: The Fourth Circuit Upholds the Anti-Kickback Statute, Narrows “Merger” Concerns in Money-Laundering, and Re-Affirms Post-Kisor Loss-Calculation Principles

Introduction

On 22 July 2025 the United States Court of Appeals for the Fourth Circuit published its opinion in United States v. Donald Booker, No. 23-4612. The case arises from a large-scale Medicaid drug-testing fraud orchestrated through Booker’s companies—United Youth Care Services and United Diagnostic Laboratories—alongside two “recruiter” entities, Do It 4 the Hood and Legacy Housing. After a three-week jury trial the defendant was convicted on ten counts, including conspiracy, five Anti-Kickback Statute (“AKS”) violations, money-laundering conspiracy, and three concealment-money-laundering counts.

Booker challenged (i) the sufficiency of the evidence, (ii) the constitutionality of the AKS under the non-delegation doctrine, (iii) the viability of the money-laundering counts under the Santos “merger problem,” (iv) two evidentiary rulings (audit findings and $1 million bank transfer), and (v) the loss calculation and substantive reasonableness of his 200-month sentence.

Chief Judge Diaz, writing for a unanimous panel (Agee & Benjamin, JJ.), affirmed on all fronts. Although the factual storyline will resonate with typical health-care-fraud prosecutions, the decision is doctrinally significant in three principal respects:

It squarely rejects a non-delegation attack on the AKS, providing the Fourth Circuit’s first precedential treatment of the issue post-Gundy.
It clarifies that, after Congress’s 2009 amendment defining “proceeds,” concealment money laundering predicated on structuring or false memos does not trigger the Santos “merger” concern.
It re-affirms—after Kisor—that loss under Guideline §2B1.1 remains “the greater of actual or intended loss,” aligning with the circuit’s own recent decisions (Campbell, Boler) and rejecting the Third Circuit’s restrictive approach.

Summary of the Judgment

Sufficiency of Evidence: Ample testimony linked Booker to (a) medically unnecessary testing protocols, (b) direct kickback negotiations and approvals, and (c) personal enrichment.
Anti-Kickback Statute Non-Delegation Challenge: The court held that 42 U.S.C. §1320a-7d supplies at least nine “intelligible-principle” factors, satisfying Gundy/Whitman requirements.
Money-Laundering “Merger”: Because (i) Congress has now defined “proceeds” to include gross receipts and (ii) the convictions were for concealment (not promotional) laundering, Santos poses no bar.
Evidentiary Rulings: (a) Audit findings were admissible once Booker “opened the door”; offered for notice, not truth, avoiding Confrontation concerns. (b) The $1 million “same-day” transfer was highly probative of motive; bank ledger not testimonial.
Sentencing: District court correctly used the ~$12 million billed to Medicaid as intended—and actual—loss; 200-month sentence (10 months below the low end) was substantively reasonable despite lower sentences for co-defendants.

Analysis

A. Precedents Cited and Their Influence

United States v. Torrez (2017) – Framing of facts in the light most favorable to the verdict.
Smith v. United States (2013) – Conspiracy liability for co-conspirators’ acts; used to deflect Booker’s “I never billed Medicaid” argument.
Gundy v. United States (2019) & FCC v. Consumers’ Research (2025) – Provide modern non-delegation framework; court applied them to reject Booker’s delegation claim.
United States v. Santos (2008) – “Merger” problem in money-laundering cases; Booker relied on it, but the court explained its statutory supersession.
Whitman v. American Trucking (2001) – Baseline for “intelligible-principle” test; used to show AKS satisfies the test.
Kisor v. Wilkie (2019), United States v. Campbell (4th Cir. 2022), and United States v. Boler (4th Cir. 2024) – Address interpretive deference to Guidelines commentary; paved way for reaffirmed loss analysis.
United States v. Miller (4th Cir. 2003) – Endorsed use of amounts billed as evidence of intended loss; relied on for sentencing.
United States v. Banks (3d Cir. 2022) – Contrasting precedent limiting “loss”; court declined to follow under inter-circuit non-precedent rule.

B. Legal Reasoning in Depth

1. Non-Delegation Doctrine and the Anti-Kickback Statute

Section 1320a-7b(b) criminalises illegal remuneration tied to federally reimbursed health services, while §1320a-7d(a) authorises HHS to craft regulatory “safe harbors.” Booker argued that the statute hands HHS unfettered power to define crimes. The Fourth Circuit:

Applied the Gundy/Consumers’ Research “intelligible principle” standard.
Identified explicit statutory guideposts—nine factors Congress told HHS to consider (quality of care, patient freedom of choice, fair competition, cost to programs, etc.).
Held the breadth of delegated discretion permissible; result aligns with nearly every other circuit to consider the issue.

2. The Santos “Merger” Problem Revisited

Booker tried to extend Santos to his concealment-laundering counts. The court distinguished:

Statutory Amendment: 18 U.S.C. §1956(c)(9) (2009) now defines “proceeds” as gross receipts, undercutting Santos’s rule-of-lenity interpretation.
Concealment vs. Promotional: Even pre-amendment, “merger” applied primarily to promotional laundering; here, the transactions (false memos, structuring to sub-$10k) were aimed at concealing or avoiding CTRs—acts “not necessary” to the underlying kickback fraud, so double-jeopardy concerns evaporate.

3. Loss Calculation after Kisor

Post-Kisor, circuits have grappled with whether to follow Guideline commentary. Building on Campbell and Boler the Fourth Circuit:

Found “loss” textually ambiguous; therefore the commentary definition governs.
Approved intended loss measured by claims submitted ($11.8–$12 million) absent credible evidence of legitimate portions.
Emphasised that defendants bear the burden of producing evidence that billed amounts overstate loss; Booker produced none.

4. Evidentiary “Open-the-Door” Doctrine & Confrontation Clause

Because Booker elicited testimony suggesting audits found no wrong-doing, Rule 403 allowed the government to rebut with the adverse administrative decision. The excerpt was used not to prove substantive facts but to show Booker’s notice—hence no hearsay or Crawford violation.

5. Sentencing Disparity Argument

The court reminded that §3553(a)(6) targets national, not co-defendant, disparities. Lower sentences for cooperating co-conspirators do not make a sentence for the leader unreasonable.

C. Potential Impact of the Decision

Health-Care-Fraud Prosecutions: Defendants frequently raise non-delegation or safe-harbor arguments; this decision forecloses non-delegation challenges in the Fourth Circuit, streamlining AKS prosecutions.
Money-Laundering Charges: Government can confidently pair AKS/health-care-fraud counts with concealment laundering counts where defendants take post-payment steps to obscure proceeds.
Sentencing Litigation: Reinforces that, absent granular proof segregating “clean” from “dirty” claims, courts may use total amounts billed to determine loss; defense counsel must gather alternative calculations early.
Guideline Commentary After Kisor: Provides a roadmap—show statutory or Guideline ambiguity, then the commentary survives; otherwise, commentary may fail. Future panels will likely cite Booker to sustain commentary-based enhancements.

Complex Concepts Simplified

Anti-Kickback Statute (AKS): Federal law that makes it a crime to pay or receive anything of value to induce referrals of items/services reimbursable by Medicare/Medicaid. “Safe harbors” are regulatory exceptions that permit certain arrangements (e.g., bona-fide employment) if detailed criteria are met.
Non-Delegation Doctrine: Constitutional principle forbidding Congress from giving away its law-making power unless it provides an “intelligible principle” to guide the agency.
Money-Laundering “Merger” Problem: Risk that normal expenses of running a criminal scheme (e.g., paying an illegal bribe) could be double-counted as both the underlying offense and laundering. The problem mostly applies to “promotional” laundering (using proceeds to keep committing the crime); concealment laundering is different.
Intended vs. Actual Loss: “Actual loss” is what the victim actually lost. “Intended loss” is what the wrong-doer tried to make the victim lose, even if unsuccessful.
Structuring: Breaking large transactions into sub-$10,000 pieces to evade banks’ Currency Transaction Report requirements.
Kisor/Auer Deference & Guidelines Commentary: Courts once deferred automatically to an agency’s interpretation of its own rules. After Kisor the court must find ambiguity and conduct a “serious” analysis before deferring. The Sentencing Commission’s commentary is treated similarly.

Conclusion

United States v. Booker is more than an affirmance in a routine health-care-fraud case. Three doctrinal threads emerge:

The Fourth Circuit joined other courts in decisively upholding the Anti-Kickback Statute against non-delegation challenges, preserving a critical enforcement tool.
It clarified that, after Congress’s definition of “proceeds,” Santos rarely shields defendants, especially where the government charges concealment laundering.
It solidified the circuit’s post-Kisor stance that Guidelines commentary on “loss” still controls, absent a showing that amounts billed overstate harm.

Practitioners should thus expect: (i) AKS defenses to focus on statutory elements and safe harbors rather than non-delegation; (ii) laundering counts to survive merger attacks when tethered to concealment conduct; and (iii) sentencing battles to hinge on meticulous, contemporaneous evidence separating legitimate from illegitimate claims—simply pointing to “kickback totals” will not suffice. Booker therefore stands as a touchstone for future litigation in health-care-fraud, money-laundering, and sentencing within the Fourth Circuit and beyond.