United States v. Austin

In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:
Becky Austin appeals her sentence and pre-
sents the issue whether application of the re-
medial opinion in United States v. Booker,
125 S. Ct. 738, 756-69 (2005), to a sentencing
hearing where the underlying offense was
committed pre-Booker violates ex post facto
and due process principles. Finding no mate-
rial difference between the instant case and
United States v. Scroggins, 411 F.3d 572 (5th
Cir. 2005), we affirm.
I.
Austin was indicted on eight counts of
health care fraud and money laundering and
pleaded guilty to the first count, which in-
volved the fraudulent submission of Medicare
claims for a motorized wheelchair. The pre-
sentence report recommended an offense level
of 19, premised on a base offense level of 6,
United States Court of Appeals
Fifth Circuit
F I L E D
December 8, 2005
Charles R. Fulbruge III
Clerk

-- 1 of 3 --

2
plus 14 levels for an intended loss of
$773,722, plus 2 levels for abusing a position
of trust, minus 3 levels for acceptance of re-
sponsibility. After considering extensive evi-
dence, the district court reduced the loss total
to the actual amount paid by Medicare on
Austin’s claims, $265,377.83, dropping her
total offense level to 17, which carries with it
a sentencing range of 24-30 months’ imprison-
ment.
The district court explicitly recognized that,
in light of Booker, the sentencing guidelines
are advisory, not mandatory, and sentenced
Austin to 24 months, the low end of the guide-
line range. Austin objected on the grounds
that applying Justice Breyer’s remedial opinion
in Booker to her case, in which the underlying
offense was committed under a mandatory
guidelines regime, violates constitutional due
process and ex post facto requirements, and
that the court erred with respect to its loss
determination.
II.
Shortly after Austin filed her merits brief in
this case, a panel of this circuit decided Scrog-
gins, which rejected defendant’s argument that
the Booker remedial opinion cannot constitu-
tionally be applied on remand for resentencing,
where the criminal conduct at issue occurred
before Booker was decided. See Scroggins,
411 F.3d at 576. The panel noted that Booker
expressly states that “we must apply today’s
holdingsSSboth the Sixth Amendment holding
and our remedial interpretation of the Sentenc-
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-
cisions stating that defendants suffered no pre-
judice from being sentenced under a pre-Book-
er regime, id. (citing United States v. Mares,
402 F.3d 511 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005)).
Scroggins controls here. The fact that Aus-
tin was sentenced post-Booker, as distin-
guished from Scroggins, whose case was on
appeal when Booker was decided, does not af-
fect the analysis. At the core of Austin’s ex
post facto and due process concerns are the
“concepts of notice, foreseeability, and the
right to fair warning,” Rogers v. Tennessee,
532 U.S. 451, 459 (2001), particularly the
claim that a person would have expected sen-
tencing under a mandatory sentencing regime
at the time when Austin committed her crime.
This anticipation does not depend on the hap-
penstance of when Booker was decided.
Austin’s reliance on receiving a sentence
within a particular guideline range is mis-
placed; 18 U.S.C. § 1347 provided her with
fair warning that she was liable to receive up
to ten years’ imprisonment for the acts she
committed. Regardless of whether the particu-
lar evidentiary standards used by the court, or
the specific division of labor between judge
and jury, would withstand future constitutional
attack, the statute “was intended to provide
maximum deterrence, and its existence on the
statute books provided fair warning as to the
degree of culpability to which the State as-
cribed to the act” of health care fraud. Dob-
bert v. Florida, 432 U.S. 282, 297 (1977).1
Moreover, even though Austin was theoret-
ically exposed to a higher penalty (though still
no higher than the statutory maximum) under
1 See also United States v. Duncan, 400 F.3d
1297, 1307 (11th Cir.), cert. denied, 126 S. Ct.
432 (2005) (finding that application of the Booker
remedial opinion does not violate ex post facto
principles where statute imposes maximum sen-
tence of life imprisonment).

-- 2 of 3 --

3
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 of 3 --