United States v. Richardson , 117 F. App'x 931 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2004
Charles R. Fulbruge III
Clerk
No. 03-51000
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACQUELINE O. RICHARDSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-233-1-WWJ
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Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
Jacqueline O. Richardson appeals her sentence following her
conviction by a jury for conspiracy, health care fraud, aiding and
abetting, false statements relating to health care fraud,
conspiracy to launder monetary instruments, money laundering
promotion, and aiding and abetting health care fraud. Richardson
contends that the district court erred in adjusting her sentence
under U.S.S.G. § 3A1.1(b)(1) based on its determination that
Richardson knew that the victims, most of whom were over the age of
65 and physically disabled, were vulnerable.
*
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this opinion should not be published and is not precedent except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.
No. 03-51000
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Under U.S.S.G. § 3A1.1(b)(1), a defendant’s offense level is
increased by two levels “[i]f the defendant knew or should have
known that a victim of the offense was a vulnerable victim.” A
“vulnerable victim” is defined as “a person (A) who is a victim of
the offense of conviction and any conduct for which the defendant
is accountable under [U.S.S.G.] § 1B1.3 (Relevant Conduct); and (B)
who is unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to the
criminal conduct.” U.S.S.G. § 3A1.1, comment. (n.2). The
determination whether one is a victim for purposes of U.S.S.G. §
3A1.1(b) is a factual finding subject to clear-error review.
United States v. Burgos, 137 F.3d 841, 843-44 (5th Cir. 1998).
The patients involved in the instant case “suffered harm or at
least potential harm” due to Richardson’s fraudulent scheme. See
United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999). The
PSR and trial testimony indicated, inter alia, that patients were
promised things that were never delivered, did not receive items
that they needed, and in some cases received substandard items.
Also, victims were falsely diagnosed, and part of their benefits
were exhausted. Despite Richardson’s billing for diabetic
supplies, beneficiaries could not get diabetic supplies when they
needed them. Victims received used hospital beds with dirty and
worn mattresses. Although Richardson objected to the application
of U.S.S.G. § 3A1.1(b), she did not offer evidence to refute the
facts set forth in the PSR, which were supported by the trial
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testimony, and which established that the victims of Richardson’s
fraudulent scheme suffered harm or potential harm by her actions.
See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (the
defendant bears the burden of demonstrating that the information
relied upon by the district court at sentencing is materially
untrue). Accordingly, the district court did not clearly err in
determining that the U.S.S.G. § 3A1.1(b) adjustment was warranted
because Richardson knew that the victims, most of whom were over
the age of 65 and physically disabled, were vulnerable. See
Burgos, 137 F.3d at 844.
Richardson also argues that the district court erred when it
applied U.S.S.G. § 3A1.1(b)(2) and increased her sentence by two
levels because the offense involved a large number of vulnerable
victims. This argument misconstrues the district court’s ruling.
The district court did not make an adjustment pursuant to U.S.S.G.
§ 3A1.1(b)(2). To the extent that Richardson’s argument challenges
the district court’s application of U.S.S.G. § 3A1.1(b)(2), this
argument is moot since the district court did not apply U.S.S.G.
§ 3A1.1(b)(2). To the extent that Richardson’s argument regarding
the number of vulnerable victims could be construed as an appeal of
the district court’s decision to increase her offense level by four
levels pursuant to U.S.S.G. § 2B1.1(b)(2)(B), which provides for a
four-level increase if the offense involved 50 or more victims,
this argument is inadequately briefed because Richardson does not
address this guideline nor does she discuss facts relevant to it in
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her brief. Richardson has therefore abandoned any argument she may
have had regarding the district court’s application of U.S.S.G.
§ 2B1.1(b)(2)(B) by failing to brief such an argument. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Richardson has filed a supplemental brief in which she
contends that her sentence is illegal in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004), because the facts supporting
the U.S.S.G. § 3A1.1(b) adjustment were not determined by a jury.
This issue is foreclosed by the court’s holding in United States v.
Pineiro, 377 F.3d 464, 465-66 (5th Cir.), petition for cert. filed,
(July 14, 2004) (No. 04-5263).
The judgment of the district court is AFFIRMED.