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.
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Appeal from the United States District Court
for the Western District of Louisiana
(91-CR-20040-1)
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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that this opinion should not be published and is not precedent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
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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.
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