FILED
NOT FOR PUBLICATION OCT 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50186
Plaintiff - Appellee, D.C. No. 2:09-cr-01173-DSF-2
v.
MEMORANDUM *
DONNA WELLS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 9, 2012 **
Pasadena, California
Before: TROTT, KLEINFELD, and McKEOWN, Circuit Judges.
Appellant Donna Wells appeals her judgment of conviction by jury and
sentence for health care fraud, in violation of 18 U.S.C. § 1347, arising from
fraudulent Medicare claims. Because the parties are well acquainted with the facts
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and circumstances of this case, we repeat them only as necessary to illuminate this
disposition.
First, Wells argues that the district court abused its discretion in admitting
pursuant to Fed. R. Evid. 404(b) evidence of uncharged “other acts” relating to her
active recruitment for a fee of Medicare beneficiaries as potential recipients of
medically unnecessary power wheelchairs. Because this evidence was (1) relevant
to show her knowledge, motive, intent, and absence of mistake in an unlawful
scheme, and (2) did not run afoul of Fed. R. Evid. 403, the court’s decision to
admit it was proper.
Second, Wells argues that the amount paid by Medicare for the wheelchairs
was the appropriate measure of loss for which she was responsible pursuant to U.S.
Sentencing Guidelines Manuel § 2B1.1, not the amount billed which the district
court used in determining her sentence of fifty-seven months. She is mistaken.
“Loss” is defined as “the greater of actual loss or intended loss.” Id. cmt. n.3(A).
The district court’s use of the amount billed rather than the lesser amount paid was
an acceptable measure of the conspirators’ intended loss, and the amount of
intended loss chosen was fully supported by the evidence. Moreover, the court
indicated that the amount of actual loss to Medicare “seriously understates what
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would be an intended loss amount, and the court would consider that under the [18
U.S.C. §] 3553(a) factors.”
Finally, the court did not err in sentencing Wells to the high end of the
Guidelines range. In connection with the § 3553(a) factors, the court said, “She
has a long history of criminal conduct and clearly has no respect for the law. Her
criminal history is understated. . . . Based on defendant’s history and
characteristics, it appears likely defendant will defraud the government and the
taxpayers every chance she gets.”
AFFIRMED.
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