Case: 09-10612 Document: 00511055518 Page: 1 Date Filed: 03/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2010
No. 09-10612
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERRY DEAN WEST,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:08-CR-77-1
Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Terry Dean West appeals the sentence imposed upon his conviction for
making false statements related to healthcare matters and aiding and abetting.
See 18 U.S.C. §§ 1035, 2. West presents four arguments: (1) that the district
court erred at sentencing by enhancing his offense level by two pursuant to
United States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) §
3B1.3 for abuse of a position of trust, (2) that the district court erred at
sentencing by enhancing his offense level by two pursuant to U.S.S.G. §
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-10612
2B1.1(b)(9)(C) for the use of sophisticated means in committing the offense, (3)
that the district court erred by declining to award West a nonguideline sentence
or a downward departure, and (4) that an alleged violation of the victim’s
statutory rights at sentencing violated his due process rights.
Section 3B1.3 of the Guidelines provides in pertinent part that “[i]f the
defendant abused a position of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of the offense, increase
by 2 levels.” Sava Care Corporation (Sava), West’s employer, placed West in a
position of trust that significantly facilitated the commission of the offense.
West’s employment gave him access to Sava’s accounting and billing information
and gave him a unique opportunity to alter those records without any immediate
supervision under which the alterations were likely to be discovered before West
received any money from them. See United States v. Brown, 7 F.3d 1155, 1161
(5th Cir. 1993). The district court did not err in overruling West’s objection to
the § 3B1.3 enhancement.
Section 2B1.1(b)(9) of the Guidelines provides for a sentencing level
increase if the offense involved “sophisticated means.” “Conduct such as hiding
assets or transactions, or both, through the use of fictitious entities, corporate
shells, or offshore financial accounts . . . ordinarily indicates sophisticated
means.” U.S.S.G. § 2B1.1 cmt. n.8. West’s offense conduct involved
(1) manipulation of a facility’s computer system by altering patient records,
financial information, and names and addresses, (2) directing others to send
refund checks to alias identities, and (3) obtaining post office boxes in multiple
locations, some of which were rented under aliases. The district court’s
determination that West used sophisticated means was not clearly erroneous.
See, e.g., United States v. Wright, 496 F.3d 371, 379 (5th Cir. 2007); United
States v. Clements, 73 F.3d 1330, 1340 (5th Cir. 1996).
There is no merit in West’s argument that the district court abused its
discretion in denying his motion for a nonguideline sentence or a downward
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No. 09-10612
departure. The claim is conclusory. West has not shown that the sentence
imposed is procedurally unsound or that the calculation of the advisory
guidelines range is incorrect. See Gall v. United States, 552 U.S. 38, 49-51
(2007). Moreover, a court of appeals is generally without jurisdiction to review
a district court’s refusal to grant a downward departure when its decision is
based upon a determination that a departure was not warranted. United States
v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Regarding the district court’s
refusal to impose a lesser, nonguideline sentence, the sentence is within the
applicable guideline range of imprisonment and is therefore presumptively
reasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th
Cir.), cert. denied, 129 S. Ct. 328 (2008). The district court did not abuse its
discretion in imposing a sentence within the applicable guideline range. See
Gall, 552 U.S. at 51.
West argues that because Sava was not identified as the victim until the
morning of sentencing, it was not provided the rights afforded victims under
18 U.S.C. § 3771(b). West argues that his due process rights were violated in
that he would have benefitted from knowing the identity of the alleged victim
before he was sentenced.
This argument is patently frivolous. Section § 3771 specifically provides
that “[a] person accused of the crime may not obtain any form of relief under this
chapter.” § 3771(d)(1).
AFFIRMED.
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