United States v. Clopton

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 14, 2002
• Docket: 01-11461
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11461 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMY RAY CLOPTON,

Defendant-Appellant. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4-01-CR-90-1-E -------------------- August 14, 2002

Before JOLLY, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:*

Tommy Ray Clopton appeals his sentence following his guilty-

plea conviction for health care fraud. Clopton contends that the

district court erred in enhancing his sentence under U.S.S.G.

§ 3A1.1(b)(1) based on its determination that the admittedly

vulnerable adolescents used as instrumentalities of his

fraudulent Medicaid billing scheme were victims of the offense.

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11461 -2-

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 adolescents involved in the instant case “suffered harm

or at least potential harm” due to Clopton’s fraudulent scheme.

See United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999).

The adolescents had their Medicaid counseling benefits exhausted

in whole or part due to the scheme, and they suffered damage to

their dignity and good names because they were falsely labeled

within the Medicaid system as chemically dependent. See Burgos,

137 F.3d at 844; United States v. Roberson, 872 F.2d 597, 609

(5th Cir. 1989). Accordingly, the district court did not clearly

err in determining that the adolescents were victims of Clopton’s

offense for purposes of U.S.S.G. § 3A1.1(b)(1). See Burgos, 137

F.3d at 844.

The judgment of the district court is AFFIRMED.