United States v. Loving , 321 F. App'x 246 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4075
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEBORAH LOVING,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr.,
District Judge. (2:07-cr-00066-WDK-JEB-1)
Submitted: October 30, 2008 Decided: November 25, 2008
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Alan M.
Salsbury, Assistant United States Attorney, Marin B.
Hoplamazian, Third Year Law Student, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Loving was convicted by a jury of health care
fraud, 18 U.S.C. § 1347 (2006) (Count 1), and false statements
relating to health care matters, 18 U.S.C. § 1035 (2006) (Counts
2-30). She received a sentence of forty-one months
imprisonment. Loving appeals her sentence, contesting the
district court’s determination that she abused a position of
trust, U.S. Sentencing Guidelines Manual § 3B1.3 (2007), and
arguing that the district court mistakenly believed it lacked
authority to impose a variance sentence below the guideline
range under 18 U.S.C. § 3553(a) (2006). We affirm.
Loving, who was a registered nurse, owned and operated
a private care nursing service which served Medicaid patients.
To qualify for Medicaid reimbursement, Loving was required to
employ an approved registered nurse to supervise all her
personal care aides and visit each patient every thirty days.
She also had to provide documentation showing that her personal
care aides had completed a forty-hour training program approved
by the Virginia Department of Medical Assistance Services, and
provide a criminal history background check for each aide to
show that none of them had been convicted of certain crimes that
would disqualify them from working with the elderly and
disabled. Loving did not comply with these requirements. When
her company was audited, she falsely claimed to have employed
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until recently a registered nurse named Nataly Alfrede, for whom
she provided a fake resume and licensing information. She also
gave the auditors thirty-three faked criminal background checks.
At trial, Loving testified that she had performed the monthly
supervisory visits herself, and denied creating the fake
criminal background checks. She said Nataly Alfrede was a real
person she had hired, but who failed to show up for work,
although the auditors found no evidence that such a person
existed.
In sentencing Loving, the district court gave her a
two-level adjustment for abuse of a position of trust, finding
that its decision was controlled by United States v. Bolden, 325
F.3d 471, 504-05 (4th Cir. 2003) (applying abuse of trust
adjustment to nursing home operator who carried out scheme to
defraud Medicaid). The court decided against a downward
variance sentence and sentenced Loving at the bottom of the
advisory guideline range.
Under § 3B1.3, an adjustment is required if “the
defendant abused a position of public or private trust . . . in
a manner that significantly facilitated the commission or
concealment of the offense.” A “position of trust” is
“characterized by professional or managerial discretion.” USSG
§ 3B1.1, comment. (n.1). This court reviews de novo the
district court’s determination that the defendant held a
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position of trust under § 3B1.3, and reviews the factual
findings that support the adjustment for clear error. United
States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005); United
States v. Caplinger, 339 F.3d 226, 235-36 (4th Cir. 2003).
Loving argues on appeal that she did not occupy a position of
trust with respect to Medicaid because she did not receive
“prospective payments” from Medicaid, as the defendants in
Bolden did in connection with their operation of a nursing home.
However, the timing of payments fraudulently obtained from
Medicare or Medicaid is not significant. See United States
v. Hoogenboom, 209 F.3d 665, 671 (7th Cir. 2000) (psychologist
who billed Medicare for services not provided abused position of
trust); United States v. Gieger, 190 F.3d 661, 665 (5th Cir.
1999) (owners of ambulance service who falsely billed Medicare
for non-ambulatory patients abused position of trust).
Loving also contends that her relationship with
Medicaid was merely contractual, not fiduciary, because Medicaid
required her to provide certain services without giving her any
discretion about what services to render, such as a physician
dealing with Medicaid might have. Loving relies on United
States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998) (following
United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)),
and United States v. Williams, 527 F.3d 1235 (11th Cir. 2008).
In Williams, which involved wire fraud and theft of federal
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funds in a federal program for community service, the Eleventh
Circuit reiterated its view, set out in Mills and Garrison, that
“lying to Medicare did not constitute any breach of public
trust,” and stated that, “for the abuse-of-trust adjustment to
apply in the fraud context, there must be a showing that the
victim placed a special trust in the defendant beyond ordinary
reliance on the defendant’s integrity and honesty that underlies
every fraud scenario.” Williams, 527 F.3d at 1250-51.
Loving’s argument is unavailing because, in Bolden, we
rejected the Eleventh Circuit’s approach and agreed with the
Second Circuit that “[b]ecause of the discretion Medicaid
confers upon care providers . . . such providers owe a fiduciary
duty to Medicaid.” Bolden, 325 F.3d at 471 n.1 (“[W]e see it as
paramount that Medicaid be able to ‘trust’ its service
providers”) (citing United States v. Wright, 160 F.3d 905, 910-
11 (2d Cir. 1998)). Therefore, we conclude that the district
court did not err in deciding that Loving had a position of
trust.
On appeal, Loving argues for the first time that the
abuse of trust adjustment should not apply because the conduct
on which it is based is the same as the offense for which she
was convicted. Because Loving did not raise the issue of double
counting in the district court, our review is for plain error.
United States v. Olano, 507 U.S. 725, 732-37 (1993).
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Guideline section 3B1.3 expressly provides that,
“[t]his adjustment may not be used if an abuse of trust or skill
is included in the base offense level or specific offense
characteristic.” Loving contends that both her base offense
level under § 2B1.1 and the adjustment for abuse of a position
of trust under § 3B1.3 were based on the submission of false
information to Medicaid. Her reliance on United States
v. Cruz-Laureano, 440 F.3d 44, 48-49 (1st Cir. 2006), is
misplaced because her abuse of trust was not addressed either in
the base offense level under § 2B1.1 or in a specific offense
characteristic.
In addition, Loving relies on the alternative holding
in Garrison that it was impermissible double counting to give an
adjustment for abuse of trust when the conduct underlying the
adjustment and the “base fraud crime” (submission of false
statements for Medicare reimbursement) was the same. See
Garrison, 133 F.3d at 842-43. Last, she cites United States
v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995), which held that
“[t]he conduct that is the basis of the conviction must be
independently criminal . . . and not itself the abuse of trust.”
However, we have not adopted the Eleventh Circuit’s restrictive
holding on double counting in fraud offenses. We are satisfied
that the district court did not plainly err in giving Loving an
adjustment for abuse of a position of trust.
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Finally, Loving contends that the district court
erroneously believed it lacked the authority to impose a
sentence below the guideline range based solely on its view that
the guideline was too high for her offense, in effect treating
the guideline as mandatory. In imposing Loving’s sentence, the
court stated the following:
[W]hile I think that the guideline range is probably
too harsh for what you did, I don’t think it’s too
harsh for what you did in the sense of the billing
problems. I don’t think it’s too harsh in terms of
what followed next and all of the creation of
documents and the falsifications and then the lying on
the stand.
A sentence is reviewed for abuse of discretion, Gall
v. United States, 128 S. Ct. 586, 597 (2007), with the review
encompassing both procedural soundness and substantive
reasonableness. Id. In Gall and in Kimbrough v. United States,
128 S. Ct. 558 (2007), the Supreme Court clarified the
sentencing judge’s authority to impose a sentence outside the
guideline range “based solely on the judge’s view that the
Guidelines range fails properly to reflect § 3553(a)
considerations.” Kimbrough, 128 S. Ct. at 575 (internal
quotation and citation omitted). Loving was sentenced before
Gall and Kimbrough were decided, so the district court did not
have the benefit of those decisions.
Either treating the Guidelines as mandatory or failing
to consider the § 3553(a) factors adequately would constitute a
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“significant procedural error.” Gall, 128 S. Ct. at 597.
However, in this case, after stating its belief that the
guideline range was too severe for the crime Loving committed,
the court went on to say that the guideline range was not too
harsh in light of her attempt to cover up the crime, which led
her to create false documents of various kinds and ultimately to
commit perjury at her trial. Thus, the court concluded that the
guideline range was not too high in light of Loving’s overall
conduct, and that none of the § 3553(a) factors warranted a
sentence outside the guideline range.
Applying a presumption of reasonableness to the
guideline sentence, see United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008); see also Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding presumption of reasonableness
for within-guideline sentence), we conclude that Loving has not
rebutted the presumption and that her sentence is reasonable.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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