                                   NOT FOR PUBLICATION
                                    File Name: 05a0507n.06
                                      Filed: June 15, 2005

                                           NO. 04-3613

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                            ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
v.                                                    COURT FOR THE NORTHERN
                                                      DISTRICT OF OHIO
BELITA M. BUSH,

      Defendant-Appellant.
_________________________________/

BEFORE: SUHRHEINRICH, BATCHELDER, and GIBSON*, Circuit Judges.

       SUHRHEIHRICH, J., Defendant-Appellant Belita M. Bush, (“Bush”), appeals from the

sentence imposed by the district court following her plea agreement with the government, in which

she pled guilty to wire fraud, mail fraud, and health care fraud, stemming from theft of funds from

her employment. She claims the district court’s two-level enhancement under the federal Sentencing

Guidelines for abuse of a position of trust violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, ___U.S. ___, 124 S.Ct. 2531 (2004), because it was not based on facts

admitted by her or proven beyond a reasonable doubt by a jury. In light of the Supreme Court’s

decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), we VACATE Bush’s

sentence and REMAND to the district court for re-sentencing.




       *
        The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
                                                  I.

       From November 1998 to May 2002, Bush was employed as a billing/payroll manager by

Nurses Calling, and as of mid-2001, by its successor, Personal Touch Home Care, (“Personal

Touch”), companies that provide home health visits to patients. Bush worked at Personal Touch

offices within the Northern District of Ohio; however, Personal Touch was headquartered in

Bayside, New York.

       Bush devised a scheme to defraud Personal Touch and numerous federal health care

programs by creating false and fraudulent time sheet computer entries representing home health

visits that never occurred, and by using these time sheets to generate paychecks to nurses and aides.

When Bush received the paychecks, she deposited them in her own account. Personal Touch then

received the fraudulent data in New York and unknowingly generated bills to patients’ health

insurance companies, including Medicaid, Veterans Affairs, Passport and Ryan White programs, for

visits that were never provided.

       As a result of this fraud, Bush caused a loss of approximately $78,000 to Medicaid, Veterans

Affairs, Passport, and Ryan White; approximately $145,000 to Personal Touch in falsely paid wages

that she received; and an indeterminate amount to Personal Touch nurses and aides due to the tax

liabilities associated with their inflated reported incomes.

       On October 22, 2003, Bush was indicted on four counts of mail fraud, pursuant to 18 U.S.C.

§ 1341; three counts of wire fraud, pursuant to 18 U.S.C. § 1343; and three counts of health care

fraud pursuant to 18 U.S.C. § 1347. On January 14, 2004, she entered into a Rule 11(c)(1) plea

agreement with the government, pleading guilty to one count of mail fraud, one count of wire fraud,

and one count of health care fraud. The government agreed to dismiss the remaining charges. The


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parties agreed that the base offense level under the United States Sentencing Guidelines would be

set at 6, pursuant to § 2B1.1; that it would be enhanced twelve levels to 18 due to losses between

$200,000 and $400,000, pursuant to § 2B1.1(b)(1)(G); and that there may be a three-level reduction

for acceptance of responsibility under § 3E1.1(a). See United States Sentencing Commission,

Guidelines Manual, §§ 2B1.1, 2B1.1(b)(1)(G) & 3E1.1. The parties further agreed that no other

Sentencing Guideline adjustments applied.

        As part of its pre-sentence investigation, the Probation Office interviewed Bush, during

which she provided information about her training and employment history. The pre-sentence report

subsequently set Bush’s Criminal History Category at II. It also recommended a four-level increase

pursuant to § 2B1.1(b)(2)(B) due to the number of victims, and a two-level increase pursuant to §

3B1.3 because Bush had abused a position of trust.

        Bush objected to both enhancements at her sentencing hearing. As to the upward adjustment

for abuse of position of trust, she argued that she was not the end in the chain of authority, but rather,

that there were others above her who reviewed her billings, both in her office and in the main office

in New York. The Court sustained Bush’s objection as to the number of victims under §

2B1.1(b)(2)(B), but overruled her objection as to § 3B1.3, stating that the two-level enhancement

was warranted because she held a professional or managerial position and possessed a high degree

of skill due to her bachelor’s degree in health information management and business administration.

        Accordingly, the court calculated Bush’s sentence by beginning with a base offense level of

6, as per the plea agreement, then added a 12-level enhancement because the total loss was between

$200,000 and $4 million, bringing the level to 18. The court also added the two-level adjustment

for abuse of trust, bringing the level to 20. Finally, the court granted a three-level reduction for


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acceptance of responsibility, arriving at a total adjusted offense level of 17. With a Criminal History

Category of II and an offense level of 17, the Guidelines range was between twenty-seven (27) and

thirty-three (33) months. USSG § Ch. 5 Pt. A, Sentencing Table. The court sentenced Bush to thirty

(30) months on each of the three counts, to be served concurrently, and supervised release for three

years; and ordered her to pay $145,000 in restitution.

                                                  II.

       On appeal, Bush contends that the district court erred in applying the two-level enhancement

for abuse of trust or use of special skill pursuant to USSG § 3B1.3 because she did not admit to

holding a position of trust in her plea agreement. The government counters that because Bush

admitted both to misappropriating funds from her employer and to having special training as an

accountant, she “admitted the facts that supported the court’s enhancement” and therefore it was not

necessary for her to acquiesce in the enhancement itself.

       Even though the district court issued Bush’s sentence pre-Booker, we review the validity of

Bush’s Sixth Amendment claim based on Booker. See United States v. Oliver, 397 F.3d 369, 377

(6th Cir. 2005) (citing Booker, ___U.S. at ___, 125 S.Ct. 738, 769) (noting that Booker’s

interpretation of the federal Sentencing Guidelines applies to all cases pending on direct review)).

Booker holds that the Sixth Amendment as construed in Blakely applies to the federal Sentencing

Guidelines, and that under the Sixth Amendment “[a]ny fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 125 S. Ct. at 756, 769 (reaffirming the rule of Apprendi); Apprendi, 530

U.S at 490. Booker also holds that, given this Sixth Amendment right, the guidelines are advisory,


                                                  4
not mandatory. Booker, 125 S. Ct. at 765. Here, there is a Sixth Amendment violation because

Bush did not admit to, nor did a jury find, the ultimate fact that she held and abused a position of

trust. Yet, the district court imposed a two-level sentencing enhancement pursuant to USSG. §

3B1.3.

         Since Bush did not properly raise his Sixth Amendment argument in the district court, we

review for plain error. See United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005); Oliver, 397

F.3d at 375; United States v. Milan, 398 F.3d .445, 450-51 (6th Cir. 2005). This Circuit recently

ruled that it is plain error for a defendant “to be sentenced under a mandatory Guidelines regime that

has now become advisory.” United States v. Barnett, 398 F.3d 525, 526 (6th Ct. 2005). We also

presume prejudice as to pre-Booker sentences absent explicit record evidence to rebut that

presumption, id. at 526-529, and there is nothing in the record here to rebut that presumption.

Finally, given the change in the applicable law, it would be fundamentally unfair to allow Bush’s

sentence, imposed under a mandatory Guidelines regime, to stand. See id. at 530. Therefore, we

vacate Bush’s sentence and remand to the district court for re-sentencing.

                                                 III.

         In sum, we hold that the district court’s mandatory application of the federal Sentencing

Guidelines amounted to plain error in this case. We therefore VACATE Bush’s sentence and

REMAND for re-sentencing consistent with this opinion and the Supreme Court’s decision in

Booker.




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