United States v. Edward Graham ( 2016 )

Case: 14-20721 Document: 00513506017 Page: 1 Date Filed: 05/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20721 FILED
Summary Calendar May 16, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDWARD GRAHAM,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-732
Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
A jury convicted Edward Graham on one count of conspiracy to commit
mail fraud and on 31 separate counts of mail fraud. He was sentenced within
the applicable guidelines sentencing range to 80 months of imprisonment and
a three-year term of supervised release. Graham was also ordered to pay
$1,192,382.94 in restitution. He now appeals, challenging the sentence
imposed and the restitution order.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-20721
The conspiracy in this case involved recruiting individuals to be clients
of a law firm and then sending those recruited clients to four different
chiropractic clinics for treatment in connection with claims being made against
automobile insurance policies. The auto accidents were real and staged. The
injuries were real, exaggerated, and nonexistent. The recruited clients did
receive some treatment at the chiropractic clinics, but much more treatment
was billed than was given. The four clinics involved in this conspiracy were
the Texas Avenue Chiropractic Clinic, H&E Chiropractic Care, Private
Chiropractic Care, and Lindsey Chiropractic Care.
Graham argues that the district court erred in increasing his offense
level by 16 levels pursuant to U.S.S.G. § 2B1.1(b)(1)(I) based on a finding that
he was responsible for a loss amount in excess of $1,000,000. 1 His argument
is based on his contention that he ceased to take part in the conspiracy after
the closure of H&E Chiropractic Care and that he therefore should not be held
responsible for any loss amount resulting from fraudulent activities at Private
Chiropractic Care (the Private Care clinic) and Lindsey Chiropractic Care (the
Lindsey clinic). He also argues that the district court failed to determine
whether the loss amounts caused by the fraudulent activities at the Private
Care and Lindsey clinics were reasonably foreseeable to him such that those
loss amounts should have been attributed to him as relevant conduct for
purposes of U.S.S.G. § 1B1.3 and § 2B1.1(b)(1). Although he contends that this
is a legal issue that should be reviewed de novo because it is a challenge to the
district court’s method of determining the amount of the loss, the
determination of what constitutes relevant conduct for sentencing purposes is
a factual finding that we review for clear error. United States v. Imo, 739 F.3d
1 Graham was sentenced under the 2014 version of the Sentencing Guidelines.
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226, 240 (5th Cir. 2014); United States v. Mann, 493 F.3d 484, 497 (5th Cir.
2007).
There was, as Graham maintains, some trial evidence to support the
defense’s theory that he did not play any role in the Private Care and Lindsey
clinics. However, other trial evidence showed that Graham owned the Texas
Avenue Chiropractic Clinic and that clinic equipment he bought in establishing
that first clinic was used at all four clinics. There was also evidence that
Graham created bills submitted from all four clinics and that he continued to
receive checks from the recruiting law firm during the time that the Private
Care and Lindsey clinics were operating despite the fact that he was not an
employee of the law firm.
We afford great deference to the credibility finding that Graham
participated in the fraudulent activities that took place at each of the four
chiropractic clinics. Imo, 739 F.3d at 240. Given Graham’s participation in
the continuing scheme at each of the clinics and his role as a leader in the
offense, the finding that the loss amount caused by each of the clinics was
reasonably foreseeable to Graham was not clearly erroneous. Id. Graham does
not contest the presentence report’s recitation of the amount of bills that were
submitted to insurance companies by each of the four clinics or the amounts
that were paid as a result of the bills. Given those amounts, the district court
did not clearly err in finding that Graham was responsible for an intended or
actual loss amount that at least exceeded $1,000,000 and triggered the 16-level
enhancement under § 2B1.1(b)(1)(I). Id.
Graham cursorily challenges the district court’s restitution order. In
doing so, he does not state the standard of review, cite the governing law from
this circuit, or provide any factual or legal analysis in support of his challenge.
Instead, he simply, and incorrectly, states that the district court took the total
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No. 14-20721
loss amount and assessed that amount as restitution, and he then relies on his
relevant-conduct argument to support his restitution challenge. Graham has
failed to meet this court’s standards on appellate briefing requirements, and
he has thereby waived his challenge to the restitution order. See United States
v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010).
AFFIRMED.
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