United States v. Denise McCreary , 442 F. App'x 825 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5051
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENISE C. MCCREARY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cr-00104-HEH-1)
Submitted: July 27, 2011 Decided: August 11, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dennis M. Martin, Sr., HARRELL & CHAMBLISS, LLP, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Joseph E. H. Atkinson, Special Assistant United States
Attorney, Michael C. Moore, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Denise McCreary guilty of ten counts of
healthcare fraud, in violation of 18 U.S.C. § 1347 (2006). The
district court sentenced McCreary to a total term of fifty-five
months’ imprisonment and ordered that she pay $601,580 in
restitution. McCreary now appeals her sentence. We affirm.
On appeal, McCreary first contends that the district
court erred in increasing her offense level by fourteen levels
because the court incorrectly attributed a loss to her in the
amount of $601,580. This court “review[s] for clear error the
district court’s factual determination of the amount of loss.”
United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).
“Under this standard, ‘[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.’” United States v.
Thorson, 633 F.3d 312, 317 (4th Cir. 2011) (quoting Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
The Guidelines provide that the amount of loss for
purposes of sentencing enhancements is the greater of the actual
loss or the intended loss. U.S. Sentencing Guidelines Manual
(“USSG”) § 2B1.1 cmt. n.3(A) (2009). A sentencing court makes a
“reasonable estimate of the loss, given the available
2
information.” Miller, 316 F.3d at 503 (internal quotation marks
omitted); USSG § 2B1.1, cmt. n.3(C). A sentencing enhancement
need only be supported by a preponderance of the evidence.
Miller, 316 F.3d at 503. Our review of the record leads us to
conclude that district court did not clearly err in determining
the amount of loss attributable to McCreary.
McCreary also contends that the district court erred
in applying an obstruction of justice enhancement because there
was not proof by a preponderance of the evidence that she
willfully offered materially false testimony. The application
of this enhancement requires a factual determination by the
district court, which we review for clear error. United
States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010); see United
States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (reviewing
“district court’s factual findings [underlying obstruction of
justice enhancement] for clear error”). A two-level enhancement
under § 3C1.1 is warranted when a defendant has “committ[ed],
suborn[ed], or attempt[ed] to suborn perjury.” USSG § 3C1.1
cmt. n.4(b). Application of this enhancement based upon
perjurious trial testimony requires a finding by the sentencing
court that the defendant “(1) gave false testimony;
(2) concerning a material matter; (3) with the willful intent to
deceive (rather than as a result of confusion, mistake, or
faulty memory).” United States v. Jones, 308 F.3d 425, 428 n.2
3
(4th Cir. 2002). “The sentencing court also must specifically
identify the perjurious statements and make a finding either as
to each element of perjury or that encompasses all of the
factual predicates for a finding of perjury.” Id. (internal
quotation marks omitted). After thoroughly reviewing the
record, we conclude that the district court did not clearly err
in applying the obstruction of justice enhancement.
Accordingly, we affirm the judgment of 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
4