                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                    December 6, 2004

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 03-51000
                               Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JACQUELINE O. RICHARDSON,

                                          Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                       USDC No. A-01-CR-233-1-WWJ
                          --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

     Jacqueline O. Richardson appeals her sentence following her

conviction by a jury for conspiracy, health care fraud, aiding and

abetting,    false      statements   relating     to   health   care     fraud,

conspiracy     to    launder   monetary   instruments,    money     laundering

promotion, and aiding and abetting health care fraud.               Richardson

contends that the district court erred in adjusting her sentence

under U.S.S.G. § 3A1.1(b)(1) based on its determination that

Richardson knew that the victims, most of whom were over the age of

65 and physically disabled, were vulnerable.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                No. 03-51000
                                     -2-

       Under U.S.S.G. § 3A1.1(b)(1), a defendant’s offense level is

increased by two levels “[i]f the defendant knew or should have

known that a victim of the offense was a vulnerable victim.”                     A

“vulnerable victim” is defined as “a person (A) who is a victim of

the offense of conviction and any conduct for which the defendant

is accountable under [U.S.S.G.] § 1B1.3 (Relevant Conduct); and (B)

who    is   unusually    vulnerable    due    to   age,   physical     or   mental

condition, or who is otherwise particularly susceptible to the

criminal     conduct.”      U.S.S.G.   §     3A1.1,   comment.   (n.2).        The

determination whether one is a victim for purposes of U.S.S.G. §

3A1.1(b) is a factual finding subject to clear-error review.

United States v. Burgos, 137 F.3d 841, 843-44 (5th Cir. 1998).

       The patients involved in the instant case “suffered harm or at

least potential harm” due to Richardson’s fraudulent scheme.                   See

United States v. Gieger, 190 F.3d 661, 664 (5th Cir. 1999).                    The

PSR and trial testimony indicated, inter alia, that patients were

promised things that were never delivered, did not receive items

that they needed, and in some cases received substandard items.

Also, victims were falsely diagnosed, and part of their benefits

were    exhausted.        Despite   Richardson’s      billing    for    diabetic

supplies, beneficiaries could not get diabetic supplies                when they

needed them.     Victims received used hospital beds with dirty and

worn mattresses.        Although Richardson objected to the application

of U.S.S.G. § 3A1.1(b), she did not offer evidence to refute the

facts set forth in the PSR, which were supported by the trial
                           No. 03-51000
                                -3-

testimony, and which established that the victims of Richardson’s

fraudulent scheme suffered harm or potential harm by her actions.

See United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (the

defendant bears the burden of demonstrating that the information

relied upon by the district court at sentencing is materially

untrue).   Accordingly, the district court did not clearly err in

determining that the U.S.S.G. § 3A1.1(b) adjustment was warranted

because Richardson knew that the victims, most of whom were over

the age of 65 and physically disabled, were vulnerable.        See

Burgos, 137 F.3d at 844.

     Richardson also argues that the district court erred when it

applied U.S.S.G. § 3A1.1(b)(2) and increased her sentence by two

levels because the offense involved a large number of vulnerable

victims.   This argument misconstrues the district court’s ruling.

The district court did not make an adjustment pursuant to U.S.S.G.

§ 3A1.1(b)(2). To the extent that Richardson’s argument challenges

the district court’s application of U.S.S.G. § 3A1.1(b)(2), this

argument is moot since the district court did not apply U.S.S.G.

§ 3A1.1(b)(2).   To the extent that Richardson’s argument regarding

the number of vulnerable victims could be construed as an appeal of

the district court’s decision to increase her offense level by four

levels pursuant to U.S.S.G. § 2B1.1(b)(2)(B), which provides for a

four-level increase if the offense involved 50 or more victims,

this argument is inadequately briefed because Richardson does not

address this guideline nor does she discuss facts relevant to it in
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                                     -4-

her brief. Richardson has therefore abandoned any argument she may

have had regarding the district court’s application of U.S.S.G.

§ 2B1.1(b)(2)(B) by failing to brief such an argument.           See Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Richardson   has   filed    a   supplemental   brief   in   which   she

contends that her sentence is illegal in light of Blakely v.

Washington, 124 S. Ct. 2531 (2004), because the facts supporting

the U.S.S.G. § 3A1.1(b) adjustment were not determined by a jury.

This issue is foreclosed by the court’s holding in United States v.

Pineiro, 377 F.3d 464, 465-66 (5th Cir.), petition for cert. filed,

(July 14, 2004) (No. 04-5263).

     The judgment of the district court is AFFIRMED.
