United States Court of Appeals
In the Fifth Circuit
FILED
United States Court of Appeals December 8, 2005
for the Fifth Circuit Charles R. Fulbruge III
_______________ Clerk
m 05-10239
______________
UNITED STATES OF AMERICA
Plaintiff-Appellee.
VERSUS
BECKY EKAETE AUSTIN,
Defendant-Appellant,
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before DAVIS, SMITH, and DENNIS, rial difference between the instant case and
Circuit Judges. United States v. Scroggins, 411 F.3d 572 (5th
Cir. 2005), we affirm.
PER CURIAM:
I.
Becky Austin appeals her sentence and pre- Austin was indicted on eight counts of
sents the issue whether application of the re- health care fraud and money laundering and
medial opinion in United States v. Booker, pleaded guilty to the first count, which in-
125 S. Ct. 738, 756-69 (2005), to a sentencing volved the fraudulent submission of Medicare
hearing where the underlying offense was claims for a motorized wheelchair. The pre-
committed pre-Booker violates ex post facto sentence report recommended an offense level
and due process principles. Finding no mate- of 19, premised on a base offense level of 6,
plus 14 levels for an intended loss of Ct. 43 (2005)).
$773,722, plus 2 levels for abusing a position
of trust, minus 3 levels for acceptance of re- Scroggins controls here. The fact that Aus-
sponsibility. After considering extensive evi- tin was sentenced post-Booker, as distin-
dence, the district court reduced the loss total guished from Scroggins, whose case was on
to the actual amount paid by Medicare on appeal when Booker was decided, does not af-
Austin’s claims, $265,377.83, dropping her fect the analysis. At the core of Austin’s ex
total offense level to 17, which carries with it post facto and due process concerns are the
a sentencing range of 24-30 months’ imprison- “concepts of notice, foreseeability, and the
ment. right to fair warning,” Rogers v. Tennessee,
532 U.S. 451, 459 (2001), particularly the
The district court explicitly recognized that, claim that a person would have expected sen-
in light of Booker, the sentencing guidelines tencing under a mandatory sentencing regime
are advisory, not mandatory, and sentenced at the time when Austin committed her crime.
Austin to 24 months, the low end of the guide- This anticipation does not depend on the hap-
line range. Austin objected on the grounds penstance of when Booker was decided.
that applying Justice Breyer’s remedial opinion
in Booker to her case, in which the underlying Austin’s reliance on receiving a sentence
offense was committed under a mandatory within a particular guideline range is mis-
guidelines regime, violates constitutional due placed; 18 U.S.C. § 1347 provided her with
process and ex post facto requirements, and fair warning that she was liable to receive up
that the court erred with respect to its loss to ten years’ imprisonment for the acts she
determination. committed. Regardless of whether the particu-
lar evidentiary standards used by the court, or
II. the specific division of labor between judge
Shortly after Austin filed her merits brief in and jury, would withstand future constitutional
this case, a panel of this circuit decided Scrog- attack, the statute “was intended to provide
gins, which rejected defendant’s argument that maximum deterrence, and its existence on the
the Booker remedial opinion cannot constitu- statute books provided fair warning as to the
tionally be applied on remand for resentencing, degree of culpability to which the State as-
where the criminal conduct at issue occurred cribed to the act” of health care fraud. Dob-
before Booker was decided. See Scroggins, bert v. Florida, 432 U.S. 282, 297 (1977).1
411 F.3d at 576. The panel noted that Booker
expressly states that “we must apply today’s Moreover, even though Austin was theoret-
holdingsSSboth the Sixth Amendment holding ically exposed to a higher penalty (though still
and our remedial interpretation of the Sentenc- no higher than the statutory maximum) under
ing ActSSto all cases on direct review,” id.
(citing Booker, 125 S. Ct. at 769, and that a
contrary holding would run counter to our de- 1
See also United States v. Duncan, 400 F.3d
cisions stating that defendants suffered no pre- 1297, 1307 (11th Cir.), cert. denied, 126 S. Ct.
judice from being sentenced under a pre-Book- 432 (2005) (finding that application of the Booker
er regime, id. (citing United States v. Mares, remedial opinion does not violate ex post facto
402 F.3d 511 (5th Cir.), cert. denied, 126 S. principles where statute imposes maximum sen-
tence of life imprisonment).
2
an advisory guideline regime, her sentence
was on the low end of the guideline range she
would have faced regardless of Booker. For
the above reasons, her ex post facto and due
process arguments fail.2
AFFIRMED.
2
We likewise reject Austin’s argument that the
district court erred in its calculation of the amount
of loss. We review a loss calculation for clear er-
ror. See United States v. Anderson, 174 F.3d 515,
526 (5th Cir. 1999). The district court based its
loss calculation on the amount paid by Medicare on
Austin’s claims, and made the reasonable inference
from Austin’s stipulation to one fradulent claim
that all of the similar claims under consideration
were part and parcel of the same fraudulent
scheme.
3