United States of America v. David James Garrison

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID JAMES GARRISON,
Defendant - Appellant.
No. 12-50456
D.C. No. 2:08-cr-01084-CBM-5
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Defendant David James Garrison appeals his convictions by jury for health
care fraud, 18 U.S.C. § 1347, and conspiracy to commit health care fraud, 18
U.S.C. § 1349. He also appeals his sentence. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
FILED
JUL 22 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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There was sufficient evidence that Garrison knowingly and willfully
defrauded Medicare. Garrison admitted that he saw copies of his patients’
Medicare cards. He filled out and signed ten Medicare “superbills” for billing
patient visits to Medicare. He was familiar with the Medicare requirements for
power wheelchairs. And at least some of the prescriptions Garrison filled out for
power wheelchairs identified the “Medicare Allowance” for each wheelchair
component. Viewing this evidence in the light most favorable to the government, a
rational jury could have concluded that Garrison knew Medicare was the victim of
his fraud. See United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en
banc).
The district court did not err by applying a two-level sentencing
enhancement under § 3B1.3 of the Sentencing Guidelines for Garrison’s abuse of a
position of trust. Whether a defendant occupies a position of trust is a question of
law reviewed de novo. United States v. Laurienti, 731 F.3d 967, 973 (9th Cir.
2013). A district court’s application of § 3B1.3 to the facts is reviewed for abuse
of discretion. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Garrison, a physician assistant, stepped into the shoes of a physician – a Medicare
provider – by issuing medically unjustified prescriptions without authorization
from a supervising physician. See United States v. Rutgard, 116 F.3d 1270, 1293
2

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(9th Cir. 1997) (affirming the application of a § 3B1.1 sentencing enhancement to
a doctor who submitted false claims to Medicare because “the government as
insurer depends upon the honesty of the doctor and is easily taken advantage of if
the doctor is not honest.”). Garrison therefore abused the government’s trust by
issuing fraudulent power wheelchair prescriptions that significantly facilitated the
commission of Medicare fraud. See U.S.S.G. § 3B1.3.
AFFIRMED.
3

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