United States v. Price

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30934 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID ELLIS PRICE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana (91-CR-20040-1) -------------------- April 18, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant David Ellis Price was convicted on his

guilty plea of filing a false claim against the United States, in

violation of 18 U.S.C. § 287. Pursuant to his plea agreement, the

court dismissed a count alleging conspiracy to defraud, 18 U.S.C.

§ 286. Price has not appealed his conviction but has appealed his

sentence to serve a 24-month prison term. We affirm.

We “review a trial court’s factual findings at sentencing for

clear error and its legal application of the sentencing guidelines

de novo.” United States v. Gray, 105 F.3d 956, 969 (5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1997). Price contends that the district court erred by considering

allegations of the conspiracy count as “relevant conduct” for

sentencing purposes. Based on the presentence report (PSR) the

district court determined that, pursuant to U.S.S.G.

§ 2F1.1(b)(1)(E)(1987), four levels should be added to Price’s base

offense level because the offense involved more than $20,000. This

was grounded in findings that Price submitted a false claim for

$9,647 and that he aided and abetted Albert Womack in submitting

three false claims totaling $36,768. This finding is not clearly

erroneous; neither is the sentencing court’s application of the

guidelines erroneous as a matter of law.

Price contends that he should not be held accountable for

Womack’s false claims, as alleged in the conspiracy count, because

there was no evidence of an agreement or conspiracy and because

Price merely told Womack how to file a false claim. The PSR shows,

however, that Price helped Womack file his false claims, employing

the same scheme that Price used for his own false claim.

Accordingly, the district court neither clearly erred in crediting

these facts nor committed legal error in including the quantum of

Womack’s claims for purposes of calculating Price’s offense level.

See U.S.S.G. § 1B1.3(a); United States v. Bryant, 991 F.2d 171, 177

(5th Cir. 1993).

Price also asserts that the district court erred when it

increased his offense level by two for “more than minimal

planning,” pursuant to U.S.S.G. § 2F1.1(b)(2)(A). Section 1B1.1,

comment. (n.1(f)) (1987) states in part: “‘More than minimal

2 planning’ is deemed present in any case involving repeated acts

over a period of time, unless it is clear that each instance was

purely opportune.” The PSR shows, without contradiction, that

Price aided and abetted Womack in filing three claims between

September 12, 1987, and June 10, 1989. Price filed his own similar

claim on or about August 10, 1988. The district court did not

clearly err in finding that Price engaged in “more than minimal

planning.”

Finally, Price advances that the district court erred when it

added two points to his criminal history category (CHC), on the

ground that he engaged in some of the relevant conduct prior to the

expiration of his term of probation imposed in an earlier case.

Price completed his earlier probationary term on October 3, 1987;

Womack’s first false claim was filed in September 1987, and Price

had helped Womack in that endeavor. Guidelines § 4A1.1, comment.

(n.4) (1987) states in part: “Two points are added [to the CHC] if

the defendant committed any part of the instant offense (i.e., any

relevant conduct) while under . . . probation.” Price’s contention

is based on his assertion that Womack’s filing false claims was not

“relevant conduct” as to Price’s offense. The lack of legal or

factual merit of this contention is demonstrated in our foregoing

discussion of Price’s efforts in support of Womack’s false claims

filings.

AFFIRMED.