                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50456

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01084-CBM-5

  v.
                                                 MEMORANDUM*
DAVID JAMES GARRISON,

              Defendant - Appellant.


                  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.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         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
(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.




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