United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-10691
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH R. KIRKHAM, JAMES MARK MURPHY,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-11-1
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Before SMITH, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
A jury convicted Joseph Kirkham and James Murphy of health
care fraud in violation of 18 U.S.C. §§ 1347 and 2. In a prior
appeal, we remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005). The district court
imposed the same sentences under the now-advisory Guidelines as
it had imposed under the pre-Booker mandatory Guidelines.
The defendants jointly appeal their sentences and contend
that the loss calculation recounted in the presentence report
*
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this opinion should not be published and is not precedent except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. 05-10691
-2-
(PSR) as the basis for their sentences was improperly based on
the claims paid by insurers, without proof that every claim was
fraudulent. They point to no evidence showing that any
particular calculated claim was not in some way fraudulent.
We review their contention clear error. United States v.
Messervey, 317 F.3d 457, 464 (5th Cir. 2002). Intended loss is a
proper measure of loss in this fraud case. See id. The
sentencing court was not required to determine the loss with
precision, as long as its estimate was reasonable in light of
available information. United States v. Humphrey, 104 F.3d 65,
71 (5th Cir. 1997).
The district court calculated the intended loss based on a
“Victim List” for each defendant setting forth the amount of
funds the victimized insurance companies disbursed based on the
claims submitted by the defendant. Based on the broad extent of
the scheme as demonstrated by the trial evidence, it was not
clearly erroneous for the district court to conclude “that all of
the similar claims under consideration were part and parcel of
the same fraudulent scheme.” See United States v. Austin, 432
F.3d 598, 600 n.2 (5th Cir. 2005). The PSR was sufficiently
reliable to establish the amount of loss intended by the
defendants’ fraud scheme. See Humphrey, 104 F.3d at 71; § 2F1.1,
comment (n.8) (Nov. 2000). Because the defendants submitted no
evidence to show that the information in the PSR was materially
untrue, the district court was free to adopt the PSR without
No. 05-10691
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further explanation. Id.; see United States v. Caldwell,
F.3d , No. 05-30263, 2006 WL 1075594, *1 (5th Cir. Apr. 25,
2006) (post-Booker sentence).
The defendants also contend that the district court’s
assessment of the reasonableness of their sentences in light of
18 U.S.C. § 3553(a) was perfunctory and inadequate. The
defendants were sentenced within properly calculated guideline
ranges, and they have failed to rebut the presumption that their
sentences were reasonable. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
The judgment of the district court is
AFFIRMED.