United States v. Elshingety , 78 F. App'x 271 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4470
MUSA M. ELSHINGETY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-02-196)
Submitted: October 3, 2003
Decided: October 20, 2003
Before MICHAEL and DUNCAN, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph Kaestner, KAESTNER, PITNEY & JONES, Richmond, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, Gregg
R. Nivala, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
2 UNITED STATES v. ELSHINGETY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Musa Elshingety pled guilty to five counts of health care fraud, 18
U.S.C. § 1247 (2000), and was sentenced to a term of eighteen
months’ imprisonment. He contests his sentence on appeal, arguing
that the district court clearly erred in determining that he abused a
position of trust, U.S. Sentencing Guidelines Manual § 3B1.3 (2002),
and in determining that the amount of loss for sentencing purposes
was $104,280.80. USSG § 2B3.1(b)(7). We affirm.
Elshingety contracted with the Virginia Department of Medical
Assistance Services (DMAS) to provide non-emergency transporta-
tion to Medicaid patients so that they could receive covered medical
services. All certified transportation providers such as Elshingety are
compensated by Medicaid at a higher rate for wheelchair patients than
for ambulatory patients. An audit of Elshingety’s company revealed
that he had submitted false claims for patients residing at the Old
Dominion Home by identifying certain ambulatory patients as wheel-
chair patients.
At the guilty plea hearing conducted pursuant to Fed. R. Crim. P.
11, the government attorney stated as part of the factual basis that it
could have proved at trial that Elshingety had over billed DMAS by
$104,280.80 for a total of twenty-five patients and that the administra-
tor of the Old Dominion Home would have testified that none of the
twenty-five persons had ever been confined to a wheelchair. Elshinge-
ty’s attorney conceded that the government could present this evi-
dence.
Nonetheless, after the presentence report was prepared, Elshingety
objected to the use of $104,280.80 as the amount of loss. He submit-
ted a chart which he alleged had been completed by the doctor who
treated all the patients for whom he had over billed. On the chart, five
UNITED STATES v. ELSHINGETY 3
of the patients listed in the presentence report were identified as "not
ambulatory" and seven others as needing assistance into and out of
the van. Relying on this chart, Elshingety argued that he had properly
billed for these patients at the wheelchair rate. The chart contained
only names, categories, and checkmarks, and was not signed by the
doctor. The district court denied Elshingety’s objection to the proba-
tion officer’s calculation of the loss amount, finding that the govern-
ment had stated at the Rule 11 hearing that it could prove a loss
amount of $104,280.80 and that Elshingety and his attorney had
acquiesced in that amount by not objecting to it at the time. The court
also agreed with the government that Elshingety had abused a posi-
tion of trust because his status as a licensed provider gave him discre-
tion in obtaining clients and billing for his services, and allowed him
to commit the offenses by manipulating the billing system. The court
accordingly agreed with the government that a two-level adjustment
was warranted.
In this appeal, Elshingety first challenges the adjustment for abuse
of a position of trust. Whether a defendant occupied or abused a posi-
tion of trust is a factual question reviewed for clear error. United
States v. Bollin, 264 F.3d 391, 415 (4th Cir.), cert. denied, 534 U.S.
935 (2001) and 535 U.S. 989 (2002); United States v. Akinkoye, 185
F.3d 192, 203 (4th Cir. 1999). A defendant’s job title is not determi-
native; instead, the relevant factors are:
(1) whether the defendant had either special duties or special
access to information not available to other employees; (2)
the extent of discretion the defendant possesses; (3) whether
the defendant’s acts indicate that he is more culpable than
others who are in positions similar to him and who engage
in criminal acts; and (4) viewing the entire question of abuse
of trust from the victim’s perspective.
Akinkoye, 185 F.3d at 203 (internal quotations and citations omitted).
Ordinary commercial relationships do not constitute a trust relation-
ship sufficient to trigger an adjustment for abuse of a position of trust.
United States v. Moore, 29 F.3d 175, 178-79 (4th Cir. 1994).
Applying this test, we conclude that the victim, DMAS, gave Elsh-
ingety considerable discretion to bill at a higher rate for wheelchair
4 UNITED STATES v. ELSHINGETY
patients without any mechanism for verifying the claims he submit-
ted. Thus, the district court did not clearly err in finding that DMAS
had placed Elshingety in a position of trust which he violated by sub-
mitting inflated claims for payment.
Elshingety also contests the district court’s calculation of the
amount of loss. Because the facts relating to the amount of loss were
in dispute, the district court’s determination is a factual matter
reviewed for clear error. United States v. Butner, 277 F.3d 481, 488
(4th Cir.), cert. denied, 536 U.S. 932 (2002). Here, Elshingety con-
ceded at the Rule 11 hearing that the government could prove a loss
of $104,280.80. When he later objected to the use of this figure in the
presentence report, Elshingety had the burden of showing that it was
inaccurate. United States v. Randall, 171 F.3d 195, 211 (4th Cir.
1999) (defendant has burden of showing that factual information in
the presentence report that he disputes is inaccurate or unreliable).
Although Elshingety attempted to meet his burden by submitting
the chart allegedly prepared by the patients’ doctor, he provided no
documentation to support his claim that the doctor in fact treated all
the patients listed on it and prepared the chart, or that the chart
described the patients’ condition during the period charged in the
indictment. Therefore, we conclude that the district court did not
clearly err in accepting the government’s figure for the amount of
loss.
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 argu-
ment would not aid the decisional process.
AFFIRMED