United States v. Ward ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4353
WOODROW WARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-97-3)
Submitted: October 28, 1997
Decided: November 19, 1997
Before MURNAGHAN and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Hunter P.
Smith, Jr., Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Woodrow Ward pled guilty to a single count of mail fraud,1 and
was sentenced to a term of twenty-four months imprisonment. Ward,
an ambulance driver for the Big Creek Volunteer Rescue Squad, Inc.
(Big Creek), participated with other Big Creek employees in a scheme
to defraud Medicaid by billing for unnecessary and"phantom" ambu-
lance runs. The scam consisted of Big Creek employees routinely
operating improperly as a taxi service for Medicaid recipients by
transporting them to unnecessary doctor appointments, or creating
claims for "phantom" trips which did not occur. Ward appeals his sen-
tence asserting that the district court clearly erred in finding that he
was not a minor participant in the offense.2 Because the district
court's determination was not clearly erroneous, we affirm Ward's
sentence.
After the probation officer failed to recommend any role adjust-
ment, Ward objected and argued that he should receive a two-level
reduction as a minor participant.3 At sentencing, Ward claimed that
his lack of reading skills and susceptibility to being easily led by oth-
ers entitled him to a minor participant reduction. While the Govern-
ment did not contest Ward's educational and mental limitations, it
contended that Ward was as culpable as many of the other partici-
pants in the scheme.
Ultimately, the district court determined that Ward did not qualify
for a mitigating role adjustment. Although the court found Ward less
culpable than the leaders of the rescue squad, the court found that
Ward did not establish that he was less culpable than most other par-
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1 See 18 U.S.C. § 1341 (1994).
2 See U.S. SENTENCING GUIDELINES MANUAL§ 3B1.2 (1995).
3 See USSG § 3B1.2(b).
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ticipants. Although Ward did not have decision-making authority in
the operation of Big Creek, he acknowledged that he signed the Med-
icaid forms, whether they were valid or dishonest, before they were
submitted through the mail for reimbursement. Further, Ward admit-
ted that he solicited a Medicaid recipient for unnecessary ambulance
trips to the doctor, and asked another individual not to report the
unnecessary and "phantom" ambulance runs to the authorities. A
defendant seeking a mitigating adjustment bears the burden of show-
ing by a preponderance of the evidence that he is entitled to it.4 We
find no clear error in the district court's factual determination,5 and
note that the court properly considered all relevant conduct in making
its decision, not simply the acts alleged in the count of conviction.6
The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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4 See United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th
Cir. 1989).
5 See United States v. Daughtrey , 874 F.2d 213, 218 (4th Cir. 1989).
6 See USSG § 1B1.3(a);United States v. Fells, 920 F.2d 1179, 1183-84
(4th Cir. 1990) (adjustments determined on the basis of relevant con-
duct).
3