                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50186

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01173-DSF-2

  v.
                                                 MEMORANDUM *
DONNA WELLS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                            Submitted October 9, 2012 **
                               Pasadena, California

Before: TROTT, KLEINFELD, and McKEOWN, Circuit Judges.

       Appellant Donna Wells appeals her judgment of conviction by jury and

sentence for health care fraud, in violation of 18 U.S.C. § 1347, arising from

fraudulent Medicare claims. Because the parties are well acquainted with the facts


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and circumstances of this case, we repeat them only as necessary to illuminate this

disposition.

      First, Wells argues that the district court abused its discretion in admitting

pursuant to Fed. R. Evid. 404(b) evidence of uncharged “other acts” relating to her

active recruitment for a fee of Medicare beneficiaries as potential recipients of

medically unnecessary power wheelchairs. Because this evidence was (1) relevant

to show her knowledge, motive, intent, and absence of mistake in an unlawful

scheme, and (2) did not run afoul of Fed. R. Evid. 403, the court’s decision to

admit it was proper.

      Second, Wells argues that the amount paid by Medicare for the wheelchairs

was the appropriate measure of loss for which she was responsible pursuant to U.S.

Sentencing Guidelines Manuel § 2B1.1, not the amount billed which the district

court used in determining her sentence of fifty-seven months. She is mistaken.

“Loss” is defined as “the greater of actual loss or intended loss.” Id. cmt. n.3(A).

The district court’s use of the amount billed rather than the lesser amount paid was

an acceptable measure of the conspirators’ intended loss, and the amount of

intended loss chosen was fully supported by the evidence. Moreover, the court

indicated that the amount of actual loss to Medicare “seriously understates what




                                           2
would be an intended loss amount, and the court would consider that under the [18

U.S.C. §] 3553(a) factors.”

      Finally, the court did not err in sentencing Wells to the high end of the

Guidelines range. In connection with the § 3553(a) factors, the court said, “She

has a long history of criminal conduct and clearly has no respect for the law. Her

criminal history is understated. . . . Based on defendant’s history and

characteristics, it appears likely defendant will defraud the government and the

taxpayers every chance she gets.”

      AFFIRMED.




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