author: WYNN, Circuit Judge:

text:
    Misty SIMMS, next friend of C.J., an infant, and individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant, and Richard Booth, M.D.; Valley Health Systems, Inc.; United States Department of Health & Human Services, Defendants.
    No. 15-2161
    United States Court of Appeals, Fourth Circuit.
    Argued: January 27, 2016
    Decided: October 7, 2016

      ARGUED: Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Mark Davis Moreland, MORELAND & MORELAND, Lewisburg, West Virginia, for Appellees. ON BRIEF: Benjamin C. Mizei’, Principal Deputy Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Rachel Hanna, LAW OFFICE OF RACHEL HANNA, Lewisburg, West Virginia, for Appellees.
    Before WYNN and HARRIS, Circuit Judges, and LORETTA C. BIGGS, United States District Judge for the Middle District of North Carolina, sitting by designation.
   Affirmed in part, vacated in part, and remanded by published opinion. Judge WYNN wrote the opinion, in which Judge HARRIS and Judge BIGGS joined.

WYNN, Circuit Judge:

Plaintiff Misty Simms brought this “wrongful birth” action against the United States under the Federal Tort Claims Act (“FTCA”) after her prenatal care provider—a federally-supported health center— failed to timely inform her that her child would be born with severe congenital abnormalities. Following a bench trial, the district court found in favor of Simms and awarded her over $12 million in economic and noneconomic damages.

The government appeals the award of damages for past and future medical expenses and the district court’s decision not to order the creation of a reversionary trust for future medical expenses. After careful review, we conclude that the district court properly awarded Simms damages attributable to her child’s past medical expenses. We further conclude that the district court correctly measured Simms’ damages using the amount medical providers billed for her child’s care, rather than the amount the West Virginia Medicaid program paid those providers. But the district court erred in failing to hold a post-verdict, prejudgment collateral source hearing. Accordingly, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I.

A.

Simms received prenatal care at Valley Health Systems, Inc. (“Valley Health”), a federally-supported health care center located in West Virginia. On February 25, 2008, when Simms was eighteen weeks pregnant, her Valley Health physician detected potential fetal abnormalities during a routine ultrasound. But due to errors on its part, Valley Health did not inform Simms of the abnormalities until May 2008, three months later. In a series of follow-up appointments, Simms learned that the fetus’s brain was extremely underdeveloped, and, if not stillborn, her child would never walk or talk and would be severely mentally disabled. Because at that point Simms was well into her third trimester, the laws of West Virginia and nearby states barred Simms from terminating her pregnancy.

On June 18, 2008, Simms gave birth to her son, C.J. C.J. survived birth but, as expected, suffered severe brain malformation and multiple other related developmental and muscular conditions. As a result, C.J. lives in what his physicians refer to as a “vegetative state.” And although C.J. is able to live at home with Simms, he requires twenty-four-hour care and monitoring. To daté, the extraordinary medical bills resulting from the requisite care provided for C.J. have been paid by West Virginia’s Medicaid and Medicaid Waiver programs.

B.

On November 21, 2011, Simms filed this wrongful birth action individually, and on behalf of her son, C.J., in the United States District Court for the Southern District of West Virginia. Because Valley Health is a federally-supported health center, Simms sought relief under the FTCA. See 42 U.S.C. § 288(g).

Because this case arises under the FTCA, the law of West Virginia—the state where Valley Health’s negligent act took place—governs. See 28 U.S.C. § 1346(b)(1); Starns v. United States, 923 F.2d 34, 37 (4th Cir. 1991); see also 28 U.S.C. § 2674 (providing that “[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances”). We therefore apply the law of West Virginia in evaluating the government’s claims. See Myrick v. United States, 723 F.2d 1158, 1159 (4th Cir. 1983). To the extent we are faced with an unsettled issue of West Virginia law, our task is “to predict how [the state’s highest] court would rule if presented with the issue.” Ellis v. La.-Pac. Corp., 699 F.3d 778, 782-83 (4th Cir. 2012) (internal quotation omitted); see Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1298 (7th Cir. 1991).

In West Virginia, “[t]he failure of a [healthcare provider] to discover a birth defect and to advise the parents of its consequences will give rise to a cause of action” for “wrongful birth.” James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872, 882 (1985). The theory underlying a wrongful birth action is that the provider’s failure to advise of the birth defect caused the parents to lose the opportunity make an informed decision as to whether to terminate the pregnancy. Id. at 879.

After a bench trial, the district court issued a memorandum opinion and order finding the government liable. Simms v. United States, 107 F.Supp.3d 561, 563-64 (S.D.W. Va. 2015). The court held that Valley Health’s failure to provide follow-up care after the February 25, 2008, ultrasound “proximately caused [Simms] to be deprived of essential information” regarding the fetus’s condition and thereby “prevented] [Simms] from exercising her right to terminate [the] pregnancy.” Id. at 567. The court entered judgment in favor of Simms individually and dismissed the claim brought by Simms on C.J.’s behalf, holding that C.J. did not have a cause of action for wrongful birth under West Virginia law. Id. at 563 n.1.

The district court awarded Simms a total of $12,222,743 in damages, distributed as follows: (1) $2,722,447 for past billed medical expenses, (2) $8,683,196 for future medical expenses—the present value of the projected future medical costs for C.J.’s care over a twenty-one-year life expectancy, (3) $175,526 for lost income, and (4) $641,544 in noneconomic damages. The government timely appealed.

II.

On appeal to this Court, the government does not challenge the district court’s liability determination. Rather, the government disputes the district court’s award of damages attributable to C.J.’s past and future medical expenses.

We review the district court’s conclusions of law, including those regarding the availability and calculation of damages, de novo. See Rice v. Cmty. Health Ass’n, 203 F.3d 283, 287 (4th Cir. 2000). We review factual findings relating to the calculation of damages for clear error. United States ex rel. Maddux Supply Co. v. St. Paul Fire & Marine Ins. Co., 86 F.3d 332, 334 (4th Cir. 1996) (per curiam).

A.

In its appeal, the government challenges the district court’s award of damages for past and future medical expenses on a number of grounds, each relating to the West Virginia Medicaid program’s payment of C.J.’s medical expenses. The government first contends that Simms does not have a right to recover past medical expenses because, in light of CJ.’s Medicaid coverage, Simms has not, to date, paid out-of-pocket for C.J.’s medical care. According to the government, awarding Simms damages related to medical care costs she did not incur would contravene the basic tort principle that damages must compensate only for actual loss. We disagree.

Under West Virginia law, a parent who successfully brings a wrongful birth suit against a healthcare provider is entitled to recover the “extraordinary costs for rearing a child with birth defects.” Caserte, 332 S.E.2d at 882; see id. at 878 n.12 (“[T]he rule is that the ... costs of extraordinary child care arising from the defects are recoverable in a wrongful birth action.”). These damages include “the medical or educational costs attributable to the birth defect during the child’s minority” as well as medical and support costs “after the child reaches the age of majority if the child is unable to support himself.” Id. at 882-83. The entitlement to such recovery stems from parents’ legal duty to support their children. Id.; see State ex rel. Packard v. Perry, 221 W.Va. 526, 655 S.E.2d 548, 554 (2007) (“[Pjarents ha[ve] a duty to support their child, and in turn [are] therefore obligated to pay for their child’s medical expenses.”); see also 67A C.J.S. Parent and Child § 167 (2016) (“Each parent has a duty to support his or her minor children.”).

Here, the fact that Simms has not had to pay out-of-pocket for CJ.’s past medical care does not obviate her injury. Simms has a legal obligation to support her child and the weight of that obligation increased as a result of Valley Health’s negligence. And the fact that Medicaid has, to date, paid C.J.’s medical costs does not change this analysis.

West Virginia has long recognized the common law “collateral source rule,” which is “an exception to the general rule that in a tort action, the measure of damages is that that will compensate and make the plaintiff whole.” 25 C.J.S. Damages § 189 (2016); see Kenney v. Liston, 233 W.Va. 620, 760 S.E.2d 434, 440 (2014). “The collateral source rule protects payments made to or benefits conferred upon an injured party from sources other than the tortfeasor by denying the .tortfeasor any corresponding offset or credit against the injured party’s damages.” Kenney, 760 S.E.2d at 440. The rationale underlying the collateral source rule is that “it is better for injured plaintiffs to receive the benefit of collateral sources in addition to actual damages than for defendants to be able to limit their liability for damages merély by the fortuitous presence of these sources.” Id. at' 446 (citation omitted) (internal quotation marks omitted); see also Ilosky v. Michelin Tire Corp„ 172 W.Va. 435, 307 S.E.2d 603, 615 (1983) (“The purpose of the collateral source doctrine is to prevent reduction in the damage liability of defendants simply because the victim had the good fortune to be insured or have other means of compensation”)."

The collateral source rule protects Medicaid payments. Kenney, 760 S.E.2d at 434. Accordingly, under the collateral source rule, the government is not entitled to a credit or offset against Simms’ damages based on Medicaid’s payment of C.J.’s medical expenses. We therefore reject the government’s argument that common law tort principles preclude Simms from recovering damages related to C.J.’s past medical expenses,

B.

The government further contends that, even if the collateral source rule applies and Simms is entitled to recover damages attributable to C.J.’s past. medical expenses, the district court erred in calculating those damages because the court used the amount CJ.’s medical providers billed for his care, rather than the amount the Medicaid program actually paid.

Under West Virginia law, the “proper measure of damages [for medical expenses] is not simply the expenses or liability incurred, or that which may be incurred in the future, but rather the [reasonable value of medical services made [n]ecessary because of the injury.” Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618, 637 (1974); see also Delong v. Kermit Lumber & Pressure Treating Co., 175 W.Va. 243, 332 S.E.2d 256, 258 (1985) (“The proper measure of damages for future medical expenses is ‘the reasonable value of medical services as will probably be necessary by reason of the permanent effects of a party’s injuries.’” (citation omitted)). Thus, when a tortfeasor causes a plaintiff an injury requiring medical services, the plaintiff is entitled to recover the reasonable value of those services, regardless of the amount actually paid or whether the services were rendered gratuitously. Kenney, 760 S.E.2d at 445-46.

In Kenney, the West Virginia Supreme Court of Appeals addressed the application of the collateral source rule in situations in which a healthcare provider discounts or writes off a portion of a medical bill pursuant to an agreement with a plaintiffs health insurer. Id. at 439-40. The court held that, under the collateral source rule, a plaintiff is entitled to “the total amount billed by his medical providers absent his health insurance coverage,” and therefore, that “[t]he tortfeasor is not entitled to receive the benefit of the reduced, discounted or written-off amount.” Id. at 446.

The government principally attempts to distinguish Kenney on grounds that Ken-ney dealt with discounts obtained by a private insurer, whereas the West Virginia Medicaid program reimbursed C.J.’s medical costs. But the Kenney Court drew no such distinction between benefits conferred by private and governmental entities. To the contrary, Kenney held that benefits rendered by “social legislation” “are not [to be] subtracted from a plaintiffs recovery.” Id. at 445-46; see also id. at 446 (“[T]he law does not differentiate between the nature of ... collateral source benefits — ”). And Kenney identified benefits conferred by numerous specific governmental entities and programs—including Medicaid—as falling within the collateral source rule. Id. at 628-632, 760 S.E,2d 434 (identifying as collateral sources “veteran’s and military hospitals,” “government pension programs such as Social Security,” “other government programs like Medicare and Medicaid,” and “social services,” among others). Accordingly, Kenney provides no basis to distinguish between benefits conferred by public and private payers.

The government also suggests that the difference between the amount billed by C.J.’s medical providers and the amount paid by Medicaid does not constitute a “benefit” for purposes of the collateral source rule because C.J.’s providers were required by federal law to accept the amount paid by Medicaid as payment in full. But Kenney expressly refused to restrict the universe of benefits protected by the collateral source rule to “payments” made to a plaintiff or on a plaintiffs behalf, explaining that “the collateral source rule applies to any benefit received by a plaintiff from any source in line with the plaintiffs interests.” Id. at 445; see also id. at 440 (“The collateral source rule protects payments made to or benefits conferred upon an injured party from sources other than the tortfeasor.... ” (emphasis added)). And the Kenney court specifically identified discounted rates negotiated by payers as one type of “benefit” subject to the collateral source rule. Id. at 445-46 (“The damage is sustained when the plaintiff incurs the liability, and the method by which that liability is later discharged has no effect on the measure of damages.” (internal quotation omitted)). That C.J.’s medical providers accepted the discounted reimbursement rates as condition of participation in the Medicaid program rather than a private insurance plan does not change the analysis because, as explained above, the West Virginia collateral source rule does not distinguish between benefits conferred by public and private entities.

Accordingly, we conclude that, as a matter of West Virginia law, regardless of whether a provider decides to discount a medical bill by agreement with a private health insurer or by virtue of voluntary participation in the Medicaid program, proof of the original medical bill remains “prima facie evidence the expense was necessary and reasonable.” Id. at 438. The district court, therefore, did not err in calculating Simms’ damages award using the amount C.J.’s medical providers billed the Medicaid program.

C.

Finally, we address the government’s argument that the district court erred in refusing to reduce the damages award under the provisions of West Virginia’s Medical Professional Liability Act (the “Professional Liability Act”).

The Professional Liability Act modifies the common law collateral source rule in the context of medical professional liability actions, like the instant case. Manor Care, Inc, v. Douglas, 234 W.Va. 57, 763 S.E.2d 73, 87 (2014); see W. Va. Code § 55-7B-9a. The statute entitles a defendant to a post-verdict, prejudgment hearing regarding payments received by the plaintiff from collateral sources. W. Va. Code § 55-7B-9a(a) (“[A] defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources.”). At the hearing, if the court finds that certain statutory preconditions are met, the defendant may also “present evidence of future payments from collateral sources.” Id. § 55-7B-9a(b) (emphasis added). After making findings based on the evidence, the court then reduces the economic damages award by the “net amount of collateral source payments received or to be received by the plaintiff” before entering judgment. Id. § 55-7B-9a(f). The court may not reduce the award, however, with respect to any amqunts “which the collateral source has a right.to recover from the plaintiff .through subro-gation, lien, or reimbursement.” Id. § 55-7B-9a(g)(1). Medicaid payments qualify as collateral source payments under the Professional Liability Act. See id. § 55-7B-2(b) (defining the term “[cjollateral source” to include “[a]ny federal or state act, public program or insurance which provides payments for medical expenses”).

Here, the district court did not hold a collateral source hearing before it entered judgment. Instead, the district court ruled that, as a matter of law, the Professional Liability Act did not entitle the government to any damages reduction because “the West Virginia state Medicaid program has a subrogation lien against any verdict in Plaintiffs’ favor.” Simms v. United States, No. CIV.A. 3:11-0932, 2015 WL 128101, at *3 (S.D.W. Va. Jan. 8, 2015).

The district court did not explain its basis for concluding that the Medicaid pro-grant holds a subrogation lien against Simms’ judgment. And the parties disagree as to whether the Medicaid program holds such a lien. In particular, Simms asserts that the Medicaid program holds a subrogation lien by virtue of Section 9-5-11(b), which provides that when a Medicaid “recipient” recovers, damages from a third party related to medical expenses previously paid by the Medicaid program, the state Medicaid agency holds a “priority right to be paid first” out of the recovery. W. Va. Code § 9-5-ll(b)(6). To that end, the West Virginia Medicaid program “shall be legally subrogated to the rights of the recipient ” Id. § 9-5-ll(b)(5). By contrast, the government argues that Section 9-5-11 does not apply because C.J.—not Simms—is the Medicaid “recipient” for purposes of the subrogation provision. See id. § 9-5-ll(a)(3) (defining “[recipient,” “unless the context otherwise requires,” as “a person who applies for and receives assistance under the Medicaid Program”).

■ Because the district court did not squarely address the government’s argument that Simms does not qualify as a “recipient” under W. Va. Code § 9-5-11, we believe the district court should have held a collateral source hearing before entering judgment in Simms’ favor. Accordingly, remand is warranted so the district court can determine, in the first instance, whether Simms, in her individual capacity, qualifies as a “recipient” under W. Va. Code § 9-5-11. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 160, 109 S.Ct. 1693, 104 L.Ed.2d 139 (1989) (“[Because appellants’ argument raises a question of statutory interpretation not touched upon by the [district [c]ourt, we leave these matters for that court to decide in the first instance.”).

A collateral source hearing is necessary for several additional reasons. First, even if the state Medicaid program does not hold a subrogation lien by virtue of Section 9-5-11(b), the state of West Virginia may have “a right to recover” the amount it has paid for C.J.’s medical care by some other means that would bar the district court from reducing Simms’ award. To that end, Simms contends that the Medicaid application she completed and signed on CJ.’s behalf gives the Medicaid program a right to seek reimbursement related to any damages she recovers. The record, however, does not include a copy of Simms’ Medicaid application so we are in no position to evaluate that argument. Complicating matters further, the government asserts that there are “lien letters” demonstrating that any lien asserted by the state of West Virginia runs only against a damages award for C.J., not Simms. Reply Br. at 8. Again, we can find nothing in the record establishing the existence of such letters, let alone their contents. We believe a collateral source hearing is the proper vehicle for the parties to present such evidence for consideration by the district court in the first instance.

Finally, regardless of whether West Virginia has a right to reimbursement with respect to the damages awarded for past medical expenses, such a right would not resolve whether the Professional Liability Act requires a reduction in the damages award for future medical expenses. See W. Va. Code § 9—5—11(g)(3) (indicating that the amount the West Virginia Medicaid program may recoup shall “not exceed the amount of past medical expenses paid”). Under the statute, a liable defendant “may present evidence of future payments from collateral sources” and receive a damages reduction on account thereof, if the court finds that:

(1) There is a preexisting contractual or statutory obligation on the collateral source to pay the benefits;
(2) The benefits, to a reasonable degree of certainty, will be paid to the plaintiff for expenses the trier of fact has determined the plaintiff will incur in the future; and
(3) The amount of the future expenses is readily reducible to a sum certain.

Id. § 55-7B-9a(b). The district court did not make any findings—one way or the other—as to these three statutory preconditions before it entered judgment.

Accordingly, we vacate the district court’s judgment solely with respect to damages awarded for past and future medical expenses and remand the case to the district court so that it may hold a collateral source hearing. At the hearing, the court should accept evidence from the parties, hear argument, and decide whether, and to what extent, the Professional Liability Act entitles the government to a damages reduction. Among other issues, the court should address whether, in light of C.J.’s dismissal, West Virginia’s Medicaid program may recover from Simms “through subrogation, lien or reimbursement,” W, Va. Code § 55-7B-9a(g)(l), some or all of the damages awarded for past medical expenses. The district court also should determine whether Medicaid has any other “right to recover” against Simms. In addition, the district court should make findings relevant to the issue of future collateral source payments, including whether there is a “reasonable degree of certainty” that C.J.’s medical care will continue to be covered by West Virginia’s Medicaid program. Id. § 55-7B-9a(b)(2).

III.

For the foregoing reasons, we vacate the district court’s judgment solely with respect to damages award for past and future medical expenses and remand to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

      . In this 'opinion, we refer to West Virginia's Medicaid and Medicaid Waiver programs collectively as the “West Virginia Medicaid program” or “Medicaid.”

      . The district court’s memorandum opinion and order indicates a different damages award. See Simms, 107 F.Supp.3d at 579-80. Following initial entry of judgment, the district court entered an amended judgment order revising the damages award to account for a clerical error in the damages calculation.

      . Shortly after oral argument, in response to Simms’s unopposed motion, we entered an order partially affirming the district court’s judgment with respect to the undisputed portion of the damages award for lost income and noneconomic damages.

      . The district court never addressed whether Medicaid held a subrogation lien against Simms because, before trial, the court ruled that Medicaid had a subrogation lien against C J., who was still a party to the action at that point. Simms, 2015 WL 128101, at *3. Neither party appears to have disputed that mi-ing. After trial, the district court dismissed C.J. as a plaintiff, see Simms, 107 F.Supp.3d at 563 n.l, making it necessary for the court to determine whether Medicaid's lien against any recovery by C.J. extends to recoveries by Simms.

      . Because we remand for a collateral source hearing under the Professional Liability Act, we need not—and thus do not-address Defendant’s alternative argument that there should be a damages setoff to account for the financial contribution the federal government made to the West Virginia Medicaid program. Additionally, on remand, the district court may consider anew, if the issue arises, whether it is an appropriate exercise of its discretion to order the Creation of a reversionary trust.


source: Caselaw Access Project

author: KING, Circuit Judge:

license: Public Domain

text:
    Carlos REYNA, individually and on behalf of all other similarly situated, Plaintiff-Appellee, v. INTERNATIONAL BANK OF COMMERCE, Defendant-Appellant.
    No. 16-40057
    United States Court of Appeals, Fifth Circuit.
    FILED October 4, 2016

      Gurdip Atwal, Jacob Rusch, Timothy J. Becker, Esq., David H. Grounds, Esq., Johnson Becker, P.L.L.C., Saint Paul, MN, James Rick Holstein, Corpus Christi, TX, for Plaintiff-Appellee.
    Donna Kay MeElroy, Melanie Lynn Fry, Dykema Cox Smith, San Antonio, TX, Christopher D. Kratovil, Esq., Dykema Cox Smith, Dallas, TX, Kristina Marie Williams, Dykema Cox Smith, Austin, TX, for Defendant-Appellant.
    Before KING, SMITH, and COSTA, Circuit Judges.
   KING, Circuit Judge:

Plaintiff-Appellee Carlos Reyna brought an action on his own behalf and on behalf of other similarly situated individuals against his former employer, Defendant-Appellant International Bank of Commerce, contending that IBC violated the Fair Labor Standards Act by failing to pay proper overtime rates. IBC moved to compel arbitration of Reyna’s claim, but the district court denied the motion, concluding that it could not consider the applicability of any arbitration agreement until later in the certification process for a FLSA collective action. IBC now brings this interlocutory appeal, arguing that the district court erred in denying its motion to compel arbitration. For the following reasons we REVERSE the district court’s denial of the motion to compel arbitration and REMAND the case to the district court with instructions to refer the dispute to arbitration.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2015, Plaintiff-Appellee Carlos Reyna filed suit against Defendants Appellant International Bank of Commerce (IBC) alleging that IBC violated the Fair Labor Standards Act (FLSA) by failing to properly pay overtime to its bank teller employees. From July 2012 through August 2013, Reyna was employed as a bank teller by IBC. Reyna alleged that when he worked overtime, IBC only paid him “a rate of one-half times his regular rate,” rather than the “premium overtime pay at a rate of not less than one and one-half times his regular rate of pay” required by the FLSA. See 29 U.S.C. § 207(a) (requiring that employees receive “a rate not less than one and one-half times the regular rate at which [the employee] is employed” for overtime hours). He also sought to bring his suit as a collective action pursuant to the FLSA. See 29 U.S.C. § 216(b). Such collective actions under the FLSA usually proceed in two stages, a conditional certification stage and a final certification stage. 7B Charles Alan Wright et al., Federal Practice & Procedure § 1807 (3d ed. 2016). Reyna defined his proposed collective as:

All persons who are or have been employed by IBC as Bank Tellers, or other job titles performing similar job duties, who did not receive premium overtime pay at a rate of not less than one and one-half times the regular rate of pay when they worked more than forty (40) hours in a week, at any time from three years prior to the filing of this Complaint and through the entry of final judgment....

On November 13, 2015, IBC moved to dismiss Reyna’s complaint or, in the alternative, moved to compel arbitration, strike class claims, and stay or dismiss the proceeding. IBC argued that Reyna agreed to be bound by IBC’s Open Door Policy for Dispute Resolution (the Policy), which provides that the “exclusive remedy for challenging employment actions” is a four-step grievance process, culminating in binding arbitration. The Policy states that it applies to “all disputes arising out of [the employee’s] relationship with IBC or any IBC Entity, including but not limited to ... [cjlaims regarding wages or other compensation due under the [FLSA] ... including, ... claims for non-payment or untimely payment of wages and overtime .... ” The Policy does not mention FLSA collective' actions but does provide that employees may bring class actions “only ... upon the agreement of all the parties.” The Policy contains a delegation clause giving the arbitrator “the exclusive authority” to both “determine the arbitra-bility of any dispute” and “resolve any dispute relating to the interpretation, applicability, enforceability or formation of the [Policy].” Finally, the Policy forecloses employees from seeking remedies for covered claims outside of the four-step grievance process, instructing:

By continuing or beginning employment after the effective date [of the Policy], you are agreeing that this Policy shall •be your exclusive remedy for challenging employment actions and seeking redress for all claims covered by this Policy. In so agreeing, you are also waiving your right to seek any remedy for those claims covered by this Policy outside of the grievance and arbitration procedures ■established by this Policy.

In its motion, IBC contended that the suit should be dismissed because Reyna failed to exhaust the four-step grievance process provided for in the Policy or, alternatively, that the district court should compel arbitration of Reyna’s FLSA claim per the terms of the Policy. IBC also argued that any compelled arbitration must be done on an individual basis because both parties did not consent to bringing the claim as a collective action, as required under the Policy. Reyna opposed the motion, arguing that “[i]n collective action suits brought under the FLSA, courts rule on first-stage conditional certification and notice before ruling on the validity and enforceability of any purported arbitration agreement.”

After converting IBC’s motion to a motion for summary judgment, the district court held a hearing on the motion on January 6, 2016. After hearing the parties’ arguments, the district court denied IBC’s motion. The district court agreed with Reyna that “at this stage [of the litigation] the only issue is whether the plaintiff is similarly situated to potential class members so that notice should be authorized.” The district court declined to address the merits of whether Reyna should be compelled to arbitrate his claim because the question of whether the Policy requires arbitration is a “merits-based argument” that should not be addressed until “the second stage” of the FLSA collective action litigation. Based on the district court’s refusal to send the matter to arbitration, IBC timely filed its notice of interlocutory appeal pursuant to the Federal Arbitration Act (FAA). Despite subsequent developments in the case, our review on appeal is limited to whether the district court erred in denying IBC’s motion to compel arbitration.

II. ARBITRABILITY

IBC argues that the district court erred in denying its motion to compel Reyna to arbitrate his claim. “We review a district court’s denial of a motion to compel arbitration ... de novo.” Auto Parts Mfg. Miss., Inc. v. King Constr. of Hous., L.L.C., 782 F.3d 186, 196 (5th Cir. 2015). We agree with IBC that, upon being presented with IBC’s motion to compel arbitration, the district court was required to address the arbitrability of Reyna’s claim at the outset of the proceedings, prior to considering conditional certification. We also conclude that the Policy required that Reyna’s claim be referred to arbitration for determination of arbitrability issues.

A. Arbitrability is a gateway issue

Reyna argues that district courts “consistently” conditionally certify a collective action before determining the arbitrability of a claim, but the cases he relies on have distinct procedural postures from that at issue here. In particular, he cites eases where (1) the district court declined to determine the validity of arbitration agreements with 'potential opt-in plaintiffs, not arbitration agreements with the sole named plaintiff; (2) the named plaintiff was potentially covered by an arbitration agreement, but the defendant failed to move to compel that plaintiff to arbitrate his claim; (3) the court was not addressing a motion to compel arbitration; and (4) the district court had already compelled those named plaintiffs who had signed arbitration agreements to arbitrate their claims but nonetheless granted conditional certification of the collective because there existed at least one remaining plaintiff not subject to arbitration.

None of the cases cited by Reyna presented the same posture as this case: a defendant who promptly moved to compel the sole plaintiff to arbitrate his claim, pursuant to an arbitration agreement that undisputedly exists. Those courts that have addressed eases with similar postures are in agreement that “whether the named plaintiffs must arbitrate their claims should be decided well before the nationwide notification issue is reached.” Carter v. Countrywide Credit Indus., Inc., 189 F.Supp.2d 606, 618 (N.D. Tex. 2002), dismissed on other grounds, 57 Fed.Appx. 212 (5th Cir. 2008); see also, e.g., White v. Turner, No. H-15-1485, 2016 WL 1090107, at *3-6 (S.D. Tex. Mar. 21,2016) (rejecting plaintiffs’ argument that the court should defer consideration of arbitration agreements until after the conditional certificar tion‘stage); Dixon v. NBCUniversal Media, LLC, 947 F.Supp.2d 390, 405-06 (S.D.N.Y. 2013) (denying the motion for conditional certification as moot because the only named plaintiff “ha[d] agreed to arbitrate her FLSA claims, and ha[d] waived the right to bring a collective action with regard to those claims”),- We therefore disagree with Reyna’s argument that courts typically delay consideration of the arbitrability of a claim until after conditional certification is granted.

In addition, we have instructed that a district court must consider an agreement to arbitrate as a “threshold question.” Auto Parts, 782 F.3d at 196. To hold otherwise would present a justiciability issue: a court could conditionally certify a collective action solely on the basis of a claim that the plaintiff was bound to arbitrate and was therefore barred from bringing it in court in the first place. Cf. James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001) (“If the litigant fails to establish standing, he or she may not seek relief on behalf of himself or herself or any other members of the class.” (citing O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974))). Furthermore, deciding whether Reyna should be compelled to arbitrate his FLSA claim prior to conditional certification more closely aligns with the “national policy favoring arbitration” embodied by the FAA. AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006)); see also Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004) (“[T]here is a strong presumption in favor of arbitration _”). Accordingly we have instructed that “a court is required to enforce a party’s commitment to arbitrate his federal statutory claims.” Carter, 362 F.3d at 297. We conclude that the district court erred when it deferred deciding the “threshold question” of whether Reyna is required to arbitrate his claims until after the conditional certification stage. Auto Parts, 782 F.3d at 196. Upon a motion to compel arbitration, a court should address the ar-bitrability of the plaintiffs claim at the outset of the litigation.

B. Only the arbitrator has the authority to decide issues of arbitra-bility

Having concluded that the district court was required to consider the arbitra-bility of Reyna’s claim before conditionally certifying the collective, we now turn to the issue of who has authority to determine arbitrability. Because IBC contends that the Policy contains a delegation clause, we apply the framework outlined in Kubala v. Supreme Production Services, Inc. for analyzing arbitration agreements that contain a delegation clause. 830 F.3d 199, 201-02 (5th Cir. 2016). Under this framework, if a party asserts that an arbitration agreement contains a delegation clause, this court only asks (1) whether the parties entered into a valid arbitration agreement and, if so, (2) whether the agreement contains a valid delegation clause. Id. “If there is a delegation clause, the motion to compel arbitration should be granted in almost all cases.” Id.

First, it is undisputed that Reyna and IBC entered into a valid arbitration agreement. Reyna has not denied signing the Policy nor has he raised any challenges to the validity of the Policy either before the district court or on appeal. And we have long recognized that FLSA claims are subject to arbitration. Carter, 362 F.3d at 298. Second, the arbitration agreement between IBC and Reyna contains a valid delegation clause. A delegation clause is a provision in an arbitration agreement that “transfer[s] the power to decide threshold questions of arbitrability to the arbitrator.” Kubala, 830 F.3d at 201. The Supreme Court “ha[s] recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether them agreement covers a particular controversy.” Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010). The delegation clause in the Policy provides: “The arbitrator(s) shall have the exclusive authority to determine the arbitrability of any dispute which the employee or the employer asserts is subject to the [Policy].” It also grants the arbitrator “the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the [Policy].” This language is strikingly similar to the delegation clause in the arbitration agreement at issue in Rent-A-Center, which provided: “The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this [arbitration] Agreement....” Id. at 66, 130 S.Ct. 2772. In that case, the Supreme Court concluded that the clause clearly evinced an intent by the parties to delegate the authority to decide arbitrability issues to the arbitrator. Id. at 69-70, 130 S.Ct. 2772. Similarly here the Policy contains a valid delegation clause that delegates the authority to resolve arbitrability disputes to the arbitrator. See Kubala, 830 F.3d at 204 (relying on similarity between the language of the clause in Rentr-A-Center and the clause at issue in that case to conclude that clause was a valid delegation clause). Because the arbitration agreement contains a delegation clause, any disputes about the arbitra-bility of Reyna’s claim or the scope of the arbitration agreement must be decided by the arbitrator, not the courts. Accordingly, the district court erred in denying IBC’s motion to compel arbitration.

III. CONCLUSION

We REVERSE the judgment of the district court and REMAND the case to the district court with instructions to refer the dispute to arbitration. The stay pending appeal issued by this court on September 1, 2016 is VACATED when this court’s mandate issues.

      . The FLSA permits an individual to bring a collective action “for and in behalf of himself ... and other employees similarly situated.” 29 U.S.C. § 216(b). A similarly situated employee may become a party plaintiff to the collective action only if “he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Id. The FLSA grants courts "the requisite procedural authority” to facilitate the opt-in of potential plaintiffs into a collective action. Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170-73, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The court therefore oversees the joinder of additional parties to the collective action by issuing court-authorized notice to potential plaintiffs in order "to assure that the task is accomplished in an efficient and proper way.” Id.

      . The first stage begins when the plaintiff moves for conditional certification of the collective action. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008). The district court must “determinen whether the putative [collective] members' claims are sufficiently similar to merit sending notice of the action to possible members of the [collective].” Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010). If it finds sufficient similarity, the district court conditionally certifies ‘ the collective and orders that notice be provided to potential opt-in plaintiffs. Id. The second stage of the collective action typically begins when the employer moves to decertify the collective, which usually occurs after discovery is complete. Sandoz, 553 F.3d at 915 n.2. The district court must then "make[] a final determination of whether all plaintiffs are sufficiently similarly situated to proceed together in a single action.” Acevedo, 600 F.3d at 519. "If so, the collective action may proceed, arid if not, the court must dismiss the opt-in employees, leaving only the named plaintiff’s original claims.” Id.

      .Under the FAA, “a party may seek interlocutory review of ‘an order ... denying an application ... to compel arbitration.’ ” At Rushaid v. Nat’l Oihvell Varco, Inc., 757 F.3d 416, 419 (5th Cir. 2014) (quoting 9 U.S.C. § 16(a)(1)(C)). On this interlocutory appeal we do not consider the district court’s denial of IBC’s motion for summary judgment, See Tamez v. City of San Marcos, 62 F.3d 123, 124 (5th Cir. 1995) (“Generally, this Court does not have jurisdiction over interlocutory appeals of the denial of motions for summary judgment because such pretrial orders are not ‘final decisions’ for the purposes of 28 U.S.C. § 1291.”).

      . After IBC filed its notice of appeal, the district court granted Reyna’s motion to conditionally certify the proposed collective and issue notice to potential opt-in plaintiffs. IBC then moved to stay further proceedings in the district court pending appeal, which this court granted on September 1, 2016. At oral argument both Reyna and IBC stated that no notice had been sent to potential opt-in plaintiffs, Therefore Reyna remains the only named plaintiff in the suit.

      . See Romero v. La Revise Assocs., L.L.C., 968 F.Supp.2d 639, 645-48 (S.D.N.Y. 2013); Hernandez v. Immortal Rise, Inc., No. 11-CV-4360, 2012 WL 6720734, at *2 (E.D.N.Y. Dec. 27, 2012); Green v. Plantation of La., LLC, No. 2:10-0364, 2010 WL 52S6348, at *1 & n.4 (W.D. La. Dec. 15, 2010); Ali v. Sugarland Petroleum, No. 4:09-CV-0170, 2009 WL 5173508, at *4 (S.D. Tex. Dec. 22, 2009); Villatoro v. Kim Son Rest., L.P., 286 F.Supp.2d 807, 811 (S.D. Tex. 2003).

      . See Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 818 (W.D. Mo. 2005) (“In the present matter, defendants have not moved to compel arbitration at all, although the case has been pending for over a year.”).

      . See Hernandez, 2012 WL 6720734, at *1 (denying defendants’ request to set aside an order granting plaintiffs' motion for conditional certification); Krstic v. J.R. Contracting & Envtl. Consulting, No. 09-2459, 2011 WL 1042732, at *2 (D.N.J. Mar. 6, 2011) (“Defendants contend that this case should be dismissed in its entirety ... because Plaintiffs signed arbitration agreements_”); Mowdy v. Beneto Bulk Transp., No. C06-05682, 2008 WL 901546, at *1 (N.D. Cal. Mar. 31, 2008) (“Now before this court is plaintiffs’ motion for approval of ... notice and conditional certification of an FLSA opt-in class_”).

        . See Bowman v. Doe Run Res. Corp., No. 4:13-CV-2519, 2014 WL 3579885, at *7 (E.D. Mo. July 21, 2014) (granting smelters’ motion for conditionally certifying a collective action after compelling several named smelters to arbitrate their claims); D’Antuono v. C & G of Groton, Inc., No, 3:11-cv-33, 2011 WL 5878045, at *2, *6 (D. Conn. Nov. 23, 2011) (granting the remaining representatives’ motion to conditionally certify after the other representatives were compelled to arbitrate their claims).

      . Reyna contends, for the first time on appeal, that the Policy does not apply to FLSA collective actions because it only explicitly mentions “class actions.” Because Reyna failed to raise this argument in the district court, we consider it waived. XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008). But even were we to consider this argument, the Policy’s silence on the permissibility of collective actions does not counsel against compelling arbitration of Reyna’s claim because the Policy’s delegation clause requires that any dispute over the scope of the Policy be determined by the arbitrator, not the courts.

      . For this reason we are foreclosed from considering IBC’s argument that the district court erred in denying the motion to compel arbitration because the arbitrator should have determined whether Reyna adequately participated in the Policy's mandatory four-step grievance process. Under the delegation clause, questions of arbitrability are for the arbitrator alone. Our only basis for finding that the district court erred is the existence of the delegation clause.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff - Appellee v. Vincent BAZEMORE, Defendant - Appellant
    No. 15-10805
    United States Court of Appeals, Fifth Circuit.
    FILED October 5, 2016

      Emily Baker Falconer, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Dallas, TX, for Plaintiff—Appellee.
    Kevin Joel Page, Federal Public Defender’s Office, Dallas, TX, for Defendant— Appellant.
    Before KING, SMITH, and COSTA, Circuit Judges.
   PER CURIAM:

Defendant-Appellant Vincent Bazemore was convicted of mail fraud for his part in a scheme to procure life insurance policies by misrepresenting the applicants’ net worths and their intention to transfer the policies to a third party. This court previously affirmed Bazemore’s conviction but vacated his sentence and the restitution order. On remand for resentencing, the district court applied an 18-level enhancement to Bazemore’s base offense level due to the actual loss caused by Bazemore’s scheme to insurers and a lender. Bazemore again appeals his sentence, raising several challenges to the district court’s application and calculation of the actual loss enhancement. For the following reasons, we AFFIRM the district court’s sentence in full.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of an insurance fraud scheme perpetrated by Defendant-Appellant Vincent Bazemore. In resolving Bazemore’s original appeal, we described the scheme and procedural history in detail, United States v. Bazemore (Bazemore I), 608 Fed.Appx. 207, 209 (5th Cir. 2015), and we now recount the scheme and procedural history as relevant to the sentencing question before us today. “Bazemore’s scheme involved tricking insurance companies into issuing stranger-owned (or originated) life insurance (“STOLI”) policies to unqualified applicants.” Id. Bazemore first convinced senior citizens of relatively modest means to apply for multi-million dollar life insurance policies intended for high net-worth individuals. Id. Bazemore secured the policies by grossly inflating the applicants’ net worths on the policy applications and falsely claiming that the applicants did not intend to transfer the policy to a third party and that the premiums would not be financed by a third party. Id. However Bazemore did not misrepresent the applicants’ age or health status on any application. Id. Bazemore paid the first two years of the policy premiums using loan proceeds from a lender, Portigon AG, at which point he planned to sell the policy to a third party investor, use the proceeds to repay the loan, and share the remainder with the applicant. Id. After each policy issued, Bazemore, in his role as an insurance agent, received a commission roughly equivalent to the cost of the first year’s premium. Id.

As a result of this scheme, “Bazemore was charged and convicted of four counts of mail fraud, each relating to a STOLI policy for which he received a commission payment.” Id. at 209-10. At Bazemore’s first sentencing, “[t]he district court calculated a [Guidelines range of 292 to 365 months’ imprisonment based on an offense level of 39 and criminal history category of II.” Id. at 210. “The offense level was largely the product of a 24-point enhancement for the scheme’s intended loss to the insurers, which the district calculated to be $81 million, the sum of the death benefits for all of the policies issued to Bazemore’s applicants.” Id. The district court also calculated that Bazemore owed restitution of $4,014,627.13. Id. That figure was the sum of two distinct amounts: (1) an actual loss of $2,266,665.13 suffered by insurers who paid commissions to Bazemore, and (2) an actual loss of $1,747,962 suffered by Porti-gon. Id. Based on these findings, the district court sentenced Bazemore to 292 months’ imprisonment and ordered restitution of $4,104,627.13. Id.

Bazemore appealed his conviction, sentence, and restitution order. Id. The court affirmed Bazemore’s conviction but vacated his sentence and the restitution order: Id. at 217. As to his sentence, the court found that the district court erred in using the sum face value of the insurance policies—$81 million—to calculate the intended loss from Bazemore’s scheme. Id. at 213-14. The court noted that Bazemore made no misrepresentation as to the applicants’ age or health status and this mitigated some of the potential harm from the fraud. Id. at 214-16. Accordingly, it concluded that the district court could not apply an intended loss enhancement based on the $81 million sum face value unless the Government proved by a preponderance of the evidence that the fraudulent policies posed a risk of financial loss to the insurers that the same policies issued to qualified insureds did not. Id. at 216. As to the restitution order, the court found-, that the district court incorrectly calculated the actual loss amounts suffered by the insurers. Id. at 217. The court instructed that the formula to use for actual loss on a rescinded STOLI policy (in the restitution context) on remand was “the commission the insurer paid to Bazemore less any premium payments that it retained.” Id.

On remand, the probation officer issued an addendum to the presentence report (“PSR”), concluding that actual loss, rather than intended loss, should be used to calculate the loss enhancement at resentenc-ing. For purposes of the loss enhancement, the PSR calculated a total actual loss of $1,282,636 to the insurers targeted by Bazemore, using the formula described by the court in Bazemore I (commissions paid by the insurers less any premium payments they retained). Id. at 216-17. The PSR also calculated an actual loss, of $1,747,962 to the lender, i.e., the same loss calculated by the district court for Porti-gon at Bazemore’s first sentencing. But the PSR noted that Portigon transferred its loan and securities portfolio to EAA PF LLP in January 2015, so EAA replaced Portigon as the victim of Bazemore’s scheme.

On August 17, 2015, the district court held Bazemore’s resentencing hearing. The district court adopted the PSR’s calculation of actual loss to the insurers, finding they suffered a total actual loss of $937,612. The district court then calculated the actual loss to Bazemore’s lender. Looking to Fifth Circuit caselaw, the court found that actual loss should be calculated “at the time of the original sentencing,” thereby ignoring Portigon’s transfer of the loans (and its related security interest in the insurance policies) to EAA because the transfer occurred after the first sentencing. The district court included only the nine loans that had been rescinded, settled, or lapsed in calculating the lender’s total actual loss of $1,747,962. The district court did not include any actual loss for the four loans related to active policies, noting that the Government stated that any loss for those loans was “speculative.”

Because the loss to the insurers and the lender combined for a total actual loss of $2,685,574, the district court applied an 18-level enhancement. See U.S. Sentencing Guidelines Manual § 2B1,1(b) (U.S. Sentencing Comm’n 2012) (providing for an 18-level enhancement for offense causing losses between $2.5 and 7 million). The district court calculated a Guidelines range of 151 to 188 months’ imprisonment based on á total offense level of 33 and a criminal history category of II. Similar to the first sentence, Bazemore’s offense level was largely the -product of the loss enhancement. The court sentenced Bazemore to 188 months’ imprisonment, ordered restitution in the amount of $2,685,574, and further explained that it would have imposed the same sentence even if it had not overruled Bazemore’s objections. Baze-more timely appeals the actual loss enhancement to his base offense level.

II. THE ACTUAL LOSS CALCULATION

A. The law of the case doctrine and the mandate rule

On appeal, Bazemore argues, as he did before the district court, that the district court erred in applying a loss enhancement based on a finding of actual loss because both the law of the case doctrine and the mandate rule compelled a finding of zero actual loss. Under the law of the case doctrine, “an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (quoting Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002)). “[A] corollary or specific application of the law of the case doctrine” is the mandate rule. United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006) (per curiam). That rule “prohibits a district court on remand from reexamining an issue of law or fact previously decided on appeal and not resubmitted to the trial court on remand.” Id. “Moreover, the [mandate] rule bars litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). Accordingly, a district court cannot “reconsider-its own rulings made before appeal and not raised on appeal.” 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478.3 (2d ed. 2016). Both the law of the case doctrine and the mandate rule apply to issues decided expressly or implicitly. See Pineiro, 470 F.3d at 205; Lee, 358 F.3d at 320. “We review de novo a district court’s application of the remand order, including whether the law-of-the-case doctrine or mandate rule forecloses the district court’s actions on remand.” United States v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010); accord Pineiro, 470 F.3d at 204.

Bazemore’s argument rests on two objections that he made at his first sentencing, In these objections Bazemore argued that (1) actual loss to the insurers for the commissions they paid Bazemore should be calculated based on losses to the insurers rather than gains to Bazemore because gains should only be used as an alternative measure of loss when loss could not be determined (Objection No. 2); and (2) any actual loss suffered by the insurers in entirely refunding the premiums was not “reasonably foreseeable” to Bazemore and thus “there was no actual loss in this case” (Objection No. 3). In addressing the two objections the district court stated:

With respect to Mr. Bazemore’s Objection No. 2 that commission payments were not losses to the insurance company, ... i
[Guidelines] Application Note 3(B) defines gain and [says that gain] applies as an alternative measure of loss only if there is a loss but it reasonably cannot be determined. Mr. Bazemore says you should not be able to use gain [as a measure of the loss he caused] ■... under Application Note 3(B) when you can ascertain the loss ....
I will sustain Mr. Bazemore’s objection to this figure [i.e., the gains to Bazemore from commissions]. But I will note that it does not change the loss amount. That means I will not include this figure in the loss amount under Mr. Bazemore’s Objection No. 3.

Bazemore argues that the district court’s rulings on these objections show that it found zero actual loss for purposes of determining a loss enhancement, and because the Government failed to appeal these rulings, the finding was binding at resentenc-ing and precluded an actual loss enhancement to his sentence.

As an initial matter we note that both of these objections were limited to the calculation of actual loss suffered by the insurers, and did not involve the actual loss to the lender, Portigon. Indeed, calculation of actual loss suffered by Portigon was not added to the PSR until after Bazemore made these objections. There is no indication in the record that Bazemore filed an objection to the actual loss calculation as to Portigon during his first sentencing. During the first sentencing, the district court did not make any factual findings regarding the lender’s actual loss for the purposes of a loss enhancement and therefore the law of the case doctrine did not dictate any outcome with respect to this loss at resentencing.

With respect to the district court’s findings on the insurers’ actual loss, we conclude that neither the law of the case doctrine nor the mandate rule required a finding of zero actual loss by the insurers at resentencing. The district court, in responding to Bazemore’s objections, did not make a factual finding on the actual loss amount. Rather, it made a factual finding regarding how the insurer’s actual loss could be calculated. The district court’s statement that it would “not include this figure [i.e., the gains to Bazemore from commissions] in the [insurers’] loss amount” did not involve an expansive finding that there was no actual loss at all. Furthermore, as the district court recognized, sustaining Bazemore’s objection to the actual loss calculation method “d[id] not change the loss amount” because the district court ultimately used intended loss, not actual loss, to calculate the loss enhancement. See U.S. Sentencing Guidelines Manual § 2B.1.1 cmt. n.3(A) (providing that the greater of actual loss or untended loss should be used for determining the loss enhancement). And the district court did not address Bazemore’s reasonable foreseeability objection during the hearing, which was the only objection where Bazemore contended that actual loss should be zero. In the cursory discussion that Bazemore cites, the district court did not make any implicit finding regarding the amount of actual loss for the loss enhancement, let alone a finding of zero actual loss. Thus, the district court was not bound by the law of the case doctrine or the mandate rule at resentencing to find zero actual loss to the insurers for purposes of the loss enhancement. See Lee, 358 F.3d at 321 (noting that “the [mandate] rule bars litigation of issues decided by the district court” (emphasis added)); see also Wright et al., supra, at § 4478 (“Actual decision of an issue is required to establish the law of the case. Law of the case does not reach a matter that was not decided.” (footnote omitted)).

B. Bazemore’s actual loss enhancement

The Guidelines provide for a tiered enhancement to the base offense level depending on the dollar amount of loss relating to a defendant’s offense. U.S. Sentencing Guidelines Manual § 2Bl.l(b). The Guidelines define “loss” as “the greater of actual loss or intended loss.” Id. § 2B.1.1 cmt. n.3(A). “Actual loss” is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A)(i). To be “reasonably foreseeable,” the harm must be “pecuniary harm that the defendant knew or, under the -circumstances, reasonably should have known, was a potential result of the offense.” Id. § 2B1.1 cmt. n.3(A)(iii)-(iv). In calculating, the amount of loss for purposes of the enhancement, the district court “need only make a reasonable estimate of the loss.” Id. § 2B1.1 cmt. n.3(C). We recognize that the district court is “in a unique position to assess the evidence and estimate the loss based upon that evidence,” id. and accordingly we give the district court’s loss determination “wide latitude”’ United States v. Taylor, 582 F.3d 558, 564 (5th Cir. 2009) (per curiam) (quoting United States v. Brewer, 60 F.3d 1142, 1145 (5th Cir. 1995)).

Bazemore challenges several aspects of the district court’s actual loss determination. We review “the district court’s method of determining the amount of loss, as well as its interpretation of the meaning of a sentencing guideline, de novo.” United States v. Harris, 821 F.3d 589, 601 (5th Cir. 2016) (quoting United States v. Nelson, 732 F.3d 504, 520 (5th Cir. 2013)). After determining that the method of calculation is “legally acceptable,” United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005), we review the embedded factual findings—such as whether the loss amount was reasonably foreseeable or resulted from the offense—for clear error, United States v. Brown, 727 F.3d 329, 341 (5th Cir. 2013); United States v. Valdez, 726 F.3d 684, 696 (5th Cir. 2013). “We will uphold a district court’s factual finding on clear error review so long as the enhancement is plausible in light of the record as a whole.” United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).

Bazemore alleges the district court committed three distinct errors in calculating his loss enhancement: (1) the district court failed to consider Portigon’s transfer of its interest to EAA; (2) the district court failed to include potential profits to the lender from the loans on currently active policies; and (3) the district court erroneously found that the losses to the insurers and the lender were reasonably foreseeable harms that resulted from Bazemore’s fraud. In response the Government argues that any challenge to the actual loss suffered by the lender was waived and that the challenges to the actual loss suffered by the insurers lack merit. We first address the issue of waiver and then proceed to the merits of each of the errors alleged by Bazemore.

1. Waiver

As an initial matter, the Government argues that Bazemore waived any challenge to the actual loss suffered by the lender because he challenged only the loss calculation as to the insurers in his original appeal. On remand the district court may not consider issues “which could have been brought in the original appeal” but were not. United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (emphasis omitted) (quoting Lee, 358 F.3d at 323). At the first sentencing the district court adopted the factual findings of the PSR, which included a finding of a $1,747,962 actual loss to Portigon for the purposes of restitution. Bazemore did not appeal this specific finding of actual loss; he appealed only the district court’s findings of actual loss relating to the insurers. See Bazemore I, 608 Fed.Appx. at 216-17 (vacating the district court’s order of restitution, concluding that the district court had improperly calculated the actual loss suffered by insurers). But we disagree that this resulted in waiver. While Bazemore did not challenge the Portigon actual loss finding, the PSR expressly recognized that finding was “for restitution purposes.” The “ ‘loss’ for determining the offense level is different from the ‘loss’ for restitution purposes.” Robert W. Haines, Jr., et al., Federal Sentencing Guidelines Handbook 1556-57 (2015-2016 ed.) [hereinafter Sentencing Handbook]; see also United States v. Patterson, 595 F.3d 1324, 1327 (11th Cir. 2010) (“While the Mandatory Victims Restitution Act .. requires a judge to order restitution to compensate the full amount of each victim’s losses ... it does not require restitution to match the loss figure used for sentencing. Indeed, the amounts of loss and restitution can and do differ.” (citations omitted)). And the district court did not make any findings during the first sentencing on actual loss suffered by Por-tigon for the purposes of determining the loss enhancement. Bazemore therefore had “no reason” to challenge the actual loss suffered by the lender in his original appeal. Lee, 358 F.3d at 324. His failure to do so did not result in waiver.

2. Portigon’s transfer of interest to EAA

Bazemore contends that the district court erred at resentencing in finding that the lender suffered an actual loss. He notes that after his first sentencing, EAA purchased Portigon’s interest in the policies and argues that this sale demonstrates that Portigon was fully reimbursed for its loans to Bazemore and therefore suffered no actual loss. He also contends that EAA did not suffer any harm from his scheme— and therefore had no actual loss—because it was fully informed about the fraudulent nature of the loans when it purchased the interest in the policies from Portigon. He disagrees with the district court’s finding that actual loss is determined at the time of the first sentencing, and instead contends that because Portigon had recouped all of its losses by his resentencing and EAA was not harmed, there was no actual loss to the lender. Finally he argues that Portigon’s subsequent sale of its interest in the policies provides the best estimate of the policies’ value and the loss enhancement should therefore reflect the sale because that value existed at the time of the first sentencing.

We conclude ■ that the district court did not err when it calculated the actual loss caused .by Bazemore’s. scheme based on the time of his first sentencing. The Guidelines provision containing the tiered enhancement for actual loss, U.S. Sentencing Guidelines Manual § 2B1.1, “contains no general time of measurement rule.” Sentencing Handbook, supra, at 369. The Guidelines do contain some specific time of measurement rules for applying certain credits against a loss amount, see, e.g., U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(E)(i)-(ii), but lack any direction as to “when [actual] loss should be measured,” Sentencing Handbook, supra, at 368. Because no general time of measurement rule exists, the district court relied on our decision in United States v. Goss, 549 F.3d 1013 (5th Cir. 2008), to find that actual loss should be measured at the time of the first sentencing. In Goss, this court explained that “focusing on the [fair market value of the collateral] at thé timé of the initial sentencing best comports with the [Guidelines’ plain language.” Id. at 1019 (emphasis added); see also U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(E)(ii) (providing that the value of collateral is measured “at the time of sentencing”). Goss reasoned that first sentencing should be the time of measurement because a defendant “should be neither penalized nor rewarded for whatever effects the time spent on appeal ... may have on the fair market value of the collateral.” Goss, 549 F.3d at 1019.

While the court in Goss dealt with valuation of collateral for purposes of determining' the credits against loss, the court’s concern about the potential effects of changes in market value is just as relevant to the determination of actual loss. If the actual loss amount resulting from Baze-more’s insurance fraud scheme was not determined at the time of the first sentencing, Bazemore would be (fortuitously) “rewarded” with a reduced actual loss amount for no other reason than “the time spent on appeal.” Id. Moreover, while the court in Goss did not establish a “blanket rule,” id. measuring the actual loss amount at the time of the first sentencing does not run contrary to any provision in the Guidelines, see Sentencing Guidelines, supra, at 369 (noting that “the current [Gjuideline contains no general time of measurement rule”). Thus, the district court’s method of calculating actual loss based on the time of the first sentencing is “legally acceptable.” Olis, 429 F.3d at 545. Bazemore’s argument that the sale of the collateral to EAA provides insight into the actual loss amount at the time of the first sentencing is therefore unavailing because that sale occurred subsequent to the first sentencing. The district court therefore did not err when it declined to factor Portigon’s sale of its portfolio to EAA into its actual loss calculation and instead calculated the actual loss amount based on the time of the first sentencing.

3. Profits from active policy loans

Bazemore next argues that the district court erred by failing to offset losses to the lender with any profits that may arise from loans on policies that are still active. The district court, in calculating actual loss on the loans held by the lender, only included the actual loss for the nine loans related to inactive life insurance policies. The district court excluded from the actual loss calculation any actual loss for the four loans on active policies, i.e., the policies on which the lender was still paying premiums and could recover the loan proceeds “if and when the death benefit [on the policy] is paid.” While the district court did not explain why those active polices were excluded from the calculation, the court did note that the Government had excluded the active policy loans from its proposed actual loss calculation as “speculative.”

We conclude that the district court did not err by failing to include these potential profits in its actual loss calculation for the lender. The Guidelines require only that the district court make a “reasonable estimate of the loss” based on the information available to it. U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C) (emphasis added). Determining what future gains are likely to be earned on active policy loans, or whether any gains are likely at all, is a necessarily speculative task. Whereas the , actual loss for inactive policy loans can be calculated with reasonable precision and certainty, gains for active policy loans, if any, are difficult to calculate and likely to change in the future. The Second Circuit recently addressed how .to calculate similarly uncertain loan outcomes in United States v. Binday, 804 F.3d 558 (2d Cir. 2015). In Binday the district court calculated actual loss from a similar insurance scheme based on the commissions and death benefits paid under the STOLI policies, reduced by the premiums received by insurers on policies where “the outcome [was] known,” i.e., the actual loss figure did not include any active policies “except to consider the commission defendants received on those policies.” Id. at 596. On appeal, the Second Circuit held that this method of calculating actual loss was reasonable because the “ ‘actual’ gain or loss” could be calculated only for “[t]he policies for which the results [we]re already known,” not for active policies where gains or losses were a mere “possibility.” Id. at 598.

Similarly, the only actual gains or losses from Bazemore’s scheme which are known with reasonable certainty are the losses related to the inactive policy loans. While Bazemore contends that the lender could potentially profit from the active policy loans because the death benefits could be greater than the premiums paid, Bazemore has provided little support for this contention beyond his own speculation. And, as the Government correctly notes, the evidence in the record speaks only to potential future recoupment of the loan proceeds plus interest and fees, not of potential profit. For example the FBI report summarizing an interview with Portigon representatives explains that “Portigon has a secured interest in the policies and could recover the loan proceeds if and when the death benefit is paid.” Another report states that Portigon representatives acknowledge that Portigon has a security interest in active policies involved in the schemes but cautions “it is uncertain whether making the premium payments through maturity will be beneficial because it is uncertain whether the insurance company will honor these policies, due to [Bazemore’s] fraudulent actions.” Thus, the potential profits urged by Bazemore on the active policy loans appear to be, at best, only a “possibility.” Binday, 804 F.3d at 598. We conclude that the district court’s decision to base its actual loss calculation solely on the inactive policy loans was a “reasonable estimate of the loss” based on the information available to the court. U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C).

I. Reasonable foreseeability of the actual losses

Finally, Bazemore contends that the district court erred in finding that actual losses to the insurers and the lender were a reasonably foreseeable result of Bazemore’s scheme. The Guidelines define “actual loss” as “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A)(i). This definition “incorporates [a] causation standard that, at a minimum, requires factual causation ... and provides a rule for legal causation.” Olis, 429 F.3d at 545 (alteration in original) (quoting U.S. Sentencing Guidelines Manual Supp. to App. C Amendment 617 (Nov. 1, 2001)). Accordingly, a defendant’s sentence should be based only on “losses ... caused directly by the offense conduct.” Id. at 546. “District courts must take a ‘realistic, economic approach to determine what losses the defendant truly caused or intended to cause.’ ” Id. (quoting United States v. W. Coast Aluminum Heat Treating Co., 265 F.3d 986, 991 (9th Cir. 2001)).

Bazemore contends that any losses to the insurers were not caused by his fraudulent scheme but rather resulted from the insurers’ independent decisions to refund the premiums. Noting that only some of the insurers chose to refund premiums and that the lender chose to continue paying premiums on some policies, Bazemore asserts that any actual losses on policies were the result of the insurers’ independent, erroneous determinations that the policies were not profitable— namely, “miscalculations regarding the applicants’ likely life-span.” In addition he argues that he did not cause any loss to EAA because the causal chain- was “broken” by EAA’s “fully informed decision ... to buy the policies” from Portigon. Therefore he concludes that he did not cause any actual loss to either the insurers or the lender.

Reviewing the record as a whole, we conclude that the district court did not err in finding that losses from the insurance policies were a reasonably foreseeable harm that resulted from Bazemore’s fraudulent misrepresentations. The record demonstrates that insurers would not have issued the insurance policies but for Baze-more’s misrepresentations of the applicant’s net worth and intention to transfer the policy to an investor. See Bazemore I, 608 Fed.Appx. at 209 (“The insurers that issued policies to Bazemore’s applicants would, without exception, deny life insurance policies to applicants that intended from the outset to transfer the policy to a third party.”); Sentencing Handbook, supra, at 352 (“[A] loss that ‘resulted from’ an offense is one that would not have occurred but for the occurrence of the offense.”). And Bazemore knew that, as the agent responsible for the sale, he would receive a commission on each issued policy roughly equivalent to the amount of the first year’s premium. Id. Thus, when Bazemore made fraudulent misrepresentations to the insurers regarding the net worth and intentions of the applicant, he “knew or, under the circumstances,. reasonably should have known” that a potential result was monetary harm to the insurers—namely, the commissions they paid to Bazemore. See U.S. Sentencing Guidelines § 2B1.1 cmt. n.3(A)(iv) (defining “reasonably foreseeable, pecuniary harm”). Furthermore the record indicates that life insurance policies for high net-worth individuals are often used as investment vehicles or financial instruments, thus it was foreseeable that the lender could transfer its interest in these policies to . another party. Because the policies were the sole purpose behind (and the collateral supporting) the loans by the lender, Bazemore knew or reasonably should have known that losses to the lender would result from his fraudulent misrepresentations on the policy applications. See U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A)(i)(iv).

We reject Bazemore’s argument to the contrary. In particular, he fails to provide any meaningful support in the record for his argument that the divergent outcomes of some of the policies and loans show that any loss resulted from the victims’ own “miscalculations regarding the applicants’ likely life-span.” Standing alone, Baze-more’s argument is insufficient to conclude that the district court did not make a plausible factual finding of causation based on the record as a whole. See Caldwell, 448 F.3d at 290. Thus, the district court did not commit clear error in finding that the actual losses to the insurers and the lender were “reasonably foreseeable pecuniary harm that resulted from [Bazemore’s] offense.” U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A)(i).

III. VIOLATION OF THE PROFFER AGREEMENT

The Guidelines generally prohibit information provided by the defendant “pursuant to” a cooperation agreement from being used to determine the applicable sentencing range. U.S. Sentencing Guidelines Manual § lB1.8(a). Bazemore shared the details of his insurance fraud scheme with an FBI agent while he was covered by an agreement to proffer evidence in an unrelated securities fraud case. Bazemore contends that these statements to the FBI agent were covered by his proffer agreement and the district court, via imposition of the loss enhancement, improperly used information gleaned from these statements to determine his Guidelines sentencing range. We review de novo whether the Government has breached a proffer agreement. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).

Here we do not reach the merits of Bazemore’s argument because we conclude that he waived it by failing to raise it in his original appeal. During Bazemore’s first sentencing (like his resentencing), the district court used evidence that the Government obtained following Bazeraore’s statements to the FBI in order to calculate the appropriate loss enhancement to his sentence. In response, Bazemore objected that his proffer agreement precluded the Government from using this information, but the district court expressly overruled that objection. Bazemore failed to challenge that ruling when he appealed his first sentence. His failure to do so bars him from making this argument now.

Bazemore attempts to circumvent waiver by arguing that his original appeal involved an objection to the intended loss amount rather than the actual loss amount and that “[t]he mandate rule does not require parties to raise all issues that are similar or analogous to claims that might be made on remand.” This distinction is unpersuasive. As clearly stated in the Guidelines, the loss enhancement is based on the “greater of actual loss or intended loss.” U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n,3(A). And as Bazemore articulated in his objections during his first sentencing, “any enhancements regarding loss or committing, insurance fraud ... [were] protected under ... the proffer agreement and cannot be used to increase Bazemore’s [Guideline range.” (Emphasis added). The alleged violation of the proffer agreement affected the district court’s first loss enhancement calculation (using intended loss) as much as it affected the court’s loss enhancement recalculation (using actual loss) on resentencing. Therefore Bazemore had every reason to raise this alleged error when appealing his first sentence. Bazemore has waived this proffer agreement argument by failing to raise it in his original appeal. See Griffith, 522 F.3d at 610.

IV. APPRENDI CHALLENGE

It is well established that any fact—other than a prior conviction—that increases a defendant’s maximum sentence “must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Bazemore argues that the district court violated this principle by making a factual finding— actual loss amount—that increased his maximum sentence. Although recognizing that this court has previously rejected this argument in United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013), Bazemore suggests that the Supreme Court’s recent decision in Hurst n Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 604 (2016), .which was decided after his original appeal, calls Tuma into question. We review alleged violations of Apprendi de novo. See Matthews, 312 F.3d at 661.

To the extent that Bazemore is arguing that Hurst provides an intervening change in law that excuses his failure to raise this issue on his original appeal, see Pineiro, 470 F.3d at 205, this argument is unavailing because Hurst’s holding is inapplicable. Hurst held unconstitutional a statutory scheme in which “the maximum sentence a capital felon [could] receive on the basis of the [jury] conviction alone [was] life imprisonment” and the felon could receive a death sentence only if the court made additional findings at a subsequent sentencing proceeding. 136 S.Ct. at 620. Hurst therefore applies only to statutory schemes in which judge-made findings increase the maximum sentence that a defendant can receive. Id. at 622. In contrast, here the district court’s actual loss findings did not increase the maximum punishment that Bazemore could receive; it sentenced him to 188 months’ imprisonment, less than the 20 year statutory maximum for a mail fraud conviction. See 18 U.S.C. § 1341; see also Tuma, 738 F.3d at 686, 693 (upholding that district court statutory maximum sentence). This “broad sentencing discretion, informed by judicial fact-finding, does not violate the Sixth Amendment.” Tuma, 738 F.3d at 693; see also United States v. Mares, 402 F.3d 611, 619 (5th Cir. 2005) (“The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence.”).

Because Hurst does not provide a new basis for challenging his sentence, Bazemore waived this challenge to his sentence by failing to raise it in his original appeal. This Apprendi argument was relevant to Bazemore’s prior appeal; at his first sentencing, the district, court used its own findings of fact to determine the loss enhancement to Bazemore’s sentence. It makes no material difference that the finding of fact at the first sentencing was on the intended loss amount whereas the re-sentencing finding was on the actual loss amount. See U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A) (stating that the loss enhancement is based on the “greater of actual loss or intended loss”). Thus, whether judicial factfinding of a loss enhancement violated Apprendi “could have been brought in the original appeal,” Griffith, 522 F.3d at 610 (emphasis omitted) (quoting Lee, 358 F.3d at 323), and is therefore waived in this subsequent appeal, id. at 611.

V. CONCLUSION

For the foregoing reasons we AFFIRM Bazemore’s sentence.

      . STOLI policies are life insurance policies held by a third party who has no insurable interest in the insured. Bazemore I, 608 Fed.Appx. at 209. As discussed in Bazemore’s presentence report (“PSR”), “STOLI policies are not illegal; however they circumvent state insurable interest laws and are inconsistent with the established and legitimate purposes of life insurance.”

      . "The insurers that issued policies to Baze-more's applicants would, without exception, deny life insurancé policies to applicants that intended from the outset to transfer the policy to a third party” who had no insurable interest in the insured. Id.

      .Although the loan proceeds originated with Portigon, the First Bank of Delaware actually issued the loans to Bazemore because Porti-gon did not have a retail license to make direct loans.

      . Through a complicated series of transactions, the details of which are not relevant to the issues in this appeal, EAA has assumed what appears to be an identical role to that previously held by Portigon and now possesses the interest in the loans originally used to finance Bazemore’s insurance fraud scheme. Specifically, Portigon during the first sentencing (and EAA during the resentencing) held the interest in thirteen insurance premium loans. At the time of the first sentencing, nine of the loans were inactive either because (1) the insurer had rescinded the underlying life insurance policy and refunded the premium, resulting in Portigon recovering the loan proceeds, interest, and fees; (2) Portigon had reached agreements with the policyholders for repayment of the loans, resulting in Porti-gon recovering most, but not all, of the loan proceeds; or (3) the insurance policies had lapsed for failure to pay the premiums, resulting in Portigon’s failing to recover any of the loan proceeds. Four of the loans, however, remained active and were still being used to pay the premiums on their related life insurance policies.

      . The district court excluded the actual loss suffered by one of the insurers because the evidence of that loss was incomplete at the time of the first sentencing.

      . The Government also argues that any error in calculating the loss enhancement was harmless. But because we find no such error, we do not address this argument further.

      . The Government contends that this argument is foreclosed by the law of the case doctrine, which required the district court to apply the actual loss formula described in Bazemore I for losses on rescinded policies. See 608 Fed.Appx. at 217 ("The actual loss on a rescinded STOLI policy is the commission the insurer paid to Bazemore less any premium payments it retained.”). But this argument is inapposite because here Bazemore is not challenging the method of calculating actual loss' to the insurers; rather, he is challenging the district court’s factual finding that he caused the loss to the insurers.

      . While Bazemore alleges that a similar issue underlies the district court’s application of a role enhancement to his sentence, Bazemore also failed to raise any objection to that enhancement during the original appeal and thus it is also waived. Bazemore I, 608 Fed.Appx. at 213.

      . The court’s actual finding did alter Baze-more’s advisory Guidelines sentencing range, but it did not change the maximum punishment allowable by law,