United States v. Hickman

United States Court of Appeals
Fifth Circuit
F I L E D
Revised June 23, 2004
June 15, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-20839 c/w 03-20840

UNITED STATES OF AMERICA,

Respondent-Appellee,

v.

JOYCE LEE HICKMAN a/k/a/ JOYCE SAUNDERS,

Petitioner-Appellant.

Appeals from the United States District Court
for the Southern District of Texas

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:

The defendant was convicted of 32 counts of health care fraud

by a jury. On original appeal, this court reversed her conviction

on the first three counts of the first indictment and remanded for

resentencing. In this appeal the defendant asserts the district

court erred in (1) enhancing her sentence under U.S.S.G. §

2F1.1(b)(8)(B) because an insurance company is not a “financial

institution,” (2) orally imposing an amount of restitution different

from that contained in the written judgment, thereby causing the

written judgment to be illegal, (3) omitting two essential elements

of the charged offense and failing to require proof beyond a

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reasonable doubt as to a third element, and (4) granting the

prosecution’s motion to remove a venireperson “for cause” over the

objection of the defendant. We find no error, and AFFIRM.

I.

On July 24, 2001 Joyce Lee Hickman (“Hickman”), also known as

Joyce Saunders, was convicted on 32 counts of health care insurance

fraud in violation of 18 U.S.C. § 1347. Hickman was sentenced to

serve 210 months in confinement followed by three years of

supervised release and was ordered to pay restitution of $9,348,654.

On appeal, this court affirmed Hickman’s conviction on counts four

through thirty-two of the indictment. United States v. Hickman, 331

F.3d 439, 448 (5th Cir. 2003). We reversed Hickman’s conviction on

counts one through three of the first indictment and remanded the

case to the district court for resentencing. Id. On remand, the

district court again sentenced Hickman to 210 months confinement

followed by three years supervised release.1 Because Hickman’s

conviction was reversed with regard to the first three counts of the

indictment, the restitution order also was reduced. Hickman filed

a timely appeal to this court.

II.

Hickman first argues that the district court erred in enhancing

1
Originally, Hickman was sentenced to two concurrent 120
month sentences followed by a consecutive 90 month sentence. On
remand, Hickman was sentenced to one 120 month sentence and one
90 month sentence to be served consecutively.

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her sentence four levels pursuant to U.S.S.G. § 2F1.1(b)(8)(B),

because an insurance company does not qualify as a “financial

institution.”2 Hickman acknowledges that insurance companies are

specifically included in the definition of “financial institution”

provided in Application Note 19 to U.S.S.G. 2F1.1.3 Hickman

nevertheless argues that our decision in United States v. Soileau,

309 F.3d 877 (5th Cir. 2002), and the Seventh Circuit’s decision in

United States v. Tomasino, 206 F.3d 739 (7th Cir. 2000), render

Application Note 19 invalid--she avers that the Sentencing

Commission violated Congress’s directive by expanding the definition

of “financial institution” to include entities not specifically

listed in 18 U.S.C. § 20.4 Hickman further argues that the

Sentencing Commission’s attempt to limit the effects of Tomasino

cannot be applied retroactively.

Hickman’s argument is unavailing. In Tomasino the Sentencing

Commission had determined that pension funds were “financial

2
Hickman advanced this argument in her last appearance
before this Court, but we did not reach the merits of the issue.
Hickman, 331 F.3d at 441.
3
Application Note 19 to U.S.S.G. § 2F1.1 provides, in
pertinent part: “‘Financial institution,’ as used in this
guideline, is defined to include any institution described in 18
U.S.C. §§ 20, 656, 657, 1005-1007, and 1014; any state or foreign
bank, trust company, credit union, insurance company . . . .”
4
18 U.S.C. § 20 defines “financial institution” as
including only banks, credit unions, small business investment
companies, and other “depository institutions.” 18 U.S.C. §
20(1)-(9).

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institutions” under the guidelines. The Seventh Circuit held that

the Commission’s determination was merely an interpretation of the

statutory definition of “financial institutions” set out in 18

U.S.C. § 20 and that such an interpretation was inappropriately

broad. The court recognized, however, that the Sentencing Commission

would be permitted to expand the definition of “financial

institution” if it were clearly taking on its legislative role.

In response to Tomasino the Sentencing Commission issued

Amendment 617, which stated: “this amendment also makes a minor

revision (adding ‘in broader form’) to the background commentary

regarding the implementation of the directive in section 2507 of

Public Law 101-647, nullifying the effect of United States v.

Tomasino.” U.S.S.G., Appendix C, Amendment 617 (citation omitted).

The Seventh Circuit, which decided Tomasino, recently discussed the

effect of Amendment 617 in United States v. Collins:

Tomasino recognized that if the Commission were to add
this language to the background commentary it would be
“clear” evidence “that the Commission . . . was
exercising its legislative power” in promulgating the
broader definition of financial institutions.

When the Sentencing Commission amended the background
commentary to show that it was exercising its legislative
power to expand the congressional definition of
“financial institutions,” it merely clarified its
authority to enact the preexisting definition in
Application Note [19] to [§ 2F1.1(b)(8)(B)], and so there
is no issue in applying the clarification retroactively.
See Tomasino, 206 F.3d at 742-43 (“A clarifying guideline
can lawfully be applied retroactively.[.]”); see also
United States v. Hartz, 296 F.3d 595, 598 (7th Cir. 2002)
(court may apply clarifying amendments retroactively).
Consequently, we may look to the Sentencing Commission’s

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 expanded definition of “financial institutions.”

361 F.3d 343, 347 (7th Cir. 2004). Hickman has not offered, nor can

we think of, any reason not to follow the Seventh Circuit’s

interpretation of its own caselaw.

We also find unavailing Hickman’s argument that in Soileau this

court held that U.S.S.G. § 2F1.1(b)(8)(B) cannot be applied to any

entities not specifically listed in the definition of “financial

institution” provided in 18 U.S.C. § 20. Soileau is clearly

distinguishable from the instant case. In Soileau we faced the

question of whether Medicare was a financial institution for

purposes of U.S.S.G. § 2F1.1(b)(8)(B). Medicare is not listed as

a “financial institution” under Application Note 19, nor has

Congress ever defined the term “financial institution” to include

Medicare. Insurance companies, on the other hand, are specifically

listed as a “financial institution” under Application Note 19 in

what was a valid use of the Commission’s legislative powers.

Collins, 361 F.3d at 347; see also United States v. Lauersen, 348

F.3d 329, 343 & n.15 (2d Cir. 2003).

For these reasons, we conclude that the definition of

“financial institution” contained in Application Note 19 of U.S.S.G.

§ 2F1.1 may be used to determine sentence enhancements under §

2F1.1(b)(8)(B). Because Amendment 617 merely clarified the intent

of the sentencing commission we are satisfied that the amendment may

be applied retroactively. See Collins, 361 F.3d at 347. Because

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insurance companies are considered “financial institutions” by

Application Note 19, the district court did not err in applying the

§ 2F1.1(b)(8)(B) enhancement to Hickman’s sentence.

III.

Hickman next argues that there is a conflict between the oral

sentence and written judgment. Hickman argues that at resentencing

the district court orally ordered restitution in the amount of

$9,042,154, but the written judgment orders restitution in the

amount of $9,048,654.49, a difference of $6,500.49. Hickman argues

that because the written judgment imposes a greater punishment it

must be amended to conform with the oral sentence.

A defendant has a constitutional right to be present at

sentencing. United States v. Martinez, 250 F.3d 941, 942 (5th Cir.

2001). Generally, when a written sentence is in conflict with the

oral pronouncement, the oral pronouncement controls. United States

v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000). However,

it is the district court’s intention that ultimately determines the

final judgment. Id. Therefore, where there is merely ambiguity

between the two sentences, rather than conflict, the entire record

must be examined in order to ascertain the district court’s true

intent. Id. The written judgment may be considered in determining

the true intent of the district court. See United States v. Warden,

291 F.3d 363, 365 (5th Cir. 2002) (citing United States v.

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Truscello, 168 F.3d 61, 63 (2d Cir. 1999) (finding the written

judgment simply clarified the meaning of the oral sentence)).

At the original sentencing, the district court imposed

restitution in the amount of $9,348,654.49. On appeal we reversed

the first three counts of the first indictment and remanded the case

to the district court for resentencing. Hickman, 331 F.3d at 448.

Based on our belief that the amount of restitution represented by

counts one through three was $6,400.14, the Presentence Report for

the resentencing hearing recommended the restitution be reduced to

$9,342,254.35.5 Immediately prior to the resentencing hearing,

Hickman filed a written pleading arguing that the amount of

restitution should be reduced by $300,000 “rather than by

$6,400.14.”6 This argument, made just before the hearing, was not

addressed in the Presentence Report.

At resentencing, the district court initially ordered

restitution in the amount recommended in Presenence Report, i.e.,

$9,342,154. At that time, Hickman reminded the district court of

5
We noted that the amount of restitution originally ordered
by the district court “included $6,400.14 for counts one through
three of the first indictment.” Hickman, 331 F.3d at 447.
6
Hickman argued that she “has discovered that the Fifth
Circuit erred in its opinion assuming that counts 1-3 of the
first indictment only encompassed a loss amount of $6,400.14.
The indictment’s first three counts specifically allege a loss
amount of “over $300,000.” Thus, [the] restitution obligation
must be reduced by that amount rather than by $6,400.14.”
Defendant’s Reply to Government’s Response, Record on Appeal,
Vol. 1 at 573 (emphasis added)(citation omitted).

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her pleading arguing that the proper reduction was $300,000. In

response, the district court stated, “How about the Government

agrees we take $300,000 off?”, to which the government offered no

objection.7 The district court then stated the amount of

restitution would be $9,042,154.

After reviewing the transcript from resentencing, we conclude

that the discrepancy between the oral sentence and written judgment

is an ambiguity rather than a conflict. It is impossible to discern

exactly what amount of restitution was agreed to by the government.

We cannot tell from the record whether the government agreed that

the restitution be reduced by a total of $300,000 (consistent with

the written judgment) or the figure the defendant contends is

proper, $306,400.14. Moreover, Hickman herself specifically asked

7
The transcript reads, in pertinent part:

THE COURT: The only data I have is that the restitution
needs to be adjusted for the voided counts, and I can’t
take out “about” $300--$300,000.

[GOVERNMENT]: Your looking at a lame person. I have no
way--unfortunately, I have no way of knowing. I wish I
did.

THE COURT: How about the Government agrees we take
$300,000 off? The chance of her making 9 million–-

* * *

[GOVERNMENT]: No objection.

Transcript of Resentencing at 44, United States v.
Hickman, Nos. 00-250 and 01-376 (S.D. Tex Aug. 6,
2003).

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for the restitution amount listed in the written judgment by arguing

in her written pleading that the “restitution obligation must be

reduced by [$300,000] rather than by $6,400.14.” See supra note 6.

It is unclear from the transcript whether Hickman intended to expand

her argument and argue that the amount should be reduced by $300,000

“in addition to” the $6,400.14. Taking the written judgment into

consideration, however, the issue becomes clear. Instead of

conflicting with the oral sentence, the written judgment expresses

the true intent of the district court in setting the amount of

restitution. For these reasons, we reject Hickman’s claim that the

amount of restitution contained in the written judgment is improper.

IV.

Hickman next argues that the district court’s instructions to

the jury were in error. Hickman argues that the district court

improperly omitted two essential elements of the charged offense and

also failed to require proof beyond a reasonable doubt regarding a

third element of the offense.

Where an issue of law or fact has been decided on appeal, the

law of the case doctrine prevents reexamination of that issue or

fact either by the district court on remand or by the appellate

court in a subsequent appeal. United States v. Bacerra, 155 F.3d

740, 752 (5th Cir. 1998). Exceptions to this rule will only be made

where (1) the evidence on a subsequent trial was substantially

different, (2) controlling authority has since made a contrary

decision of law applicable to such issues, or (3) the decision was

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clearly erroneous and would result in manifest injustice. Id.

Hickman raised this same issue in her first appeal to this

court, and her argument was rejected. See Hickman, 331 F.3d at 441,

443-445. Hickman does not argue that any of the three exceptions

to the law of the case doctrine are applicable to this case.

Indeed, Hickman concedes that this issue is foreclosed by the law

of the case doctrine and states that she only raises the issue in

order to preserve it for review by the Supreme Court. For these

reasons we decline to reconsider this argument.

V.

Hickman next argues that the district court abused its

discretion in granting the prosecution’s motion to remove

venireperson Dennis Wilson for cause over her objection. Hickman

raised this issue in her first appeal to this court, and it was

rejected. Hickman, 331 F.3d at 441-445. Again this issue is

foreclosed by the law of the case doctrine, and we decline to

reconsider this argument in the instant appeal.

VI.

For the reasons stated above, we affirm the judgment of the

district court.

AFFIRMED

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