                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-51018
                           Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

EMMANUEL EWUZIE; DANIEL ORHIUNU,

                                          Defendants-Appellants.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                         (SA-00-CR-290-3)
                       --------------------
                          August 8, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Emmanuel Ewuzie appeals his conviction and

sentence for scheming to commit health care fraud and aiding and

abetting, in violation of 18 U.S.C. §§ 2, 1347.   He argues that the

evidence was insufficient to support his conviction and that the

district court erred in calculating the amount of loss suffered by

Medicare.      Through counsel, Defendant-Appellant Daniel Orhiunu

appeals the district court’s decision to sentence him in absentia.

We AFFIRM.


     *
        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this opinion should not be published and is not precedent except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.
       Ewuzie argues that the evidence failed to demonstrate that he

knowingly or wilfully submitted a false cost report to Medicare.

We must determine whether, viewing the evidence and the inferences

that may be drawn from it in the light most favorable to the

verdict, a rational jury could have found the essential elements of

the offense beyond a reasonable doubt.                    See United States v.

Charroux, 3 F.3d 827, 830-31 (5th Cir. 1993).                 The evidence need

not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and this

court will accept all credibility choices that tend to support the

verdict.    United States v. Pofahl, 990 F.2d 1456, 1467 (5th Cir.

1993).     The intent to defraud may be proven by circumstantial

evidence.     See United States v. Ismoila, 100 F.3d 380, 389 (5th

Cir. 1996).

       The record is replete with evidence from which the jury could

reasonably have inferred that Ewuzie acted knowingly and willfully.

For example, after Ginger Wilson explained to Ewuzie that Classic

owed $55,000 back to Medicare, Ewuzie retained Yap, who calculated

that   Medicare      owed     Ewuzie    $5,525.      Even   accepting    Ewuzie’s

assertion that he did not know how a cost report was prepared, it

was not unreasonable for the jury to assume that Ewuzie had

knowledge     that      the    report    was     inaccurate   given     the   huge

discrepancies      between      the     two    figures.     Moreover,    Ewuzie’s

discussions with Wilson reflect that he had a working understanding

of   the   items   on    the   trial     balances,   and    that   he   sought   to

                                           2
reclassify items to avoid repayment to Medicare.                 The jury could

also reasonably infer that, as owner of the company, Ewuzie surely

knew that he did not give his employees bonuses totaling $70,000,

as reflected in the fraudulent cost report. Ewuzie’s argument that

the evidence was insufficient is without merit.

     Ewuzie    also   argues    that       the   district    court    erred    in

determining that the loss to Medicare was $213,200.17, resulting in

an eight-level increase in his offense level.                    See U.S.S.G. §

2F1.1(b)(1)(I)(loss of more than $200,000 resulting in eight-level

increase).    He argues that this loss amount was improper, as there

was no shown relationship between the impact figure and the actual

loss to the government. Ewuzie also challenges the calculations of

FBI Agent Whitworth because he was not an accountant and had no

experience in Medicare reimbursement.            The district court rejected

Ewuzie’s objection to the eight-level increase, concluding that the

amount   calculated    was     appropriate       because    it    included    the

overpayment and tentative settlement by Medicare.

     The district court’s determination of the amount of loss for

sentencing purposes is a factual finding, which we review for clear

error.   See United States v. Peterson, 101 F.3d 375, 384 (5th Cir.

1996); United States v. Narviz-Guerra, 148 F.3d 530, 540 (5th Cir.

1998). The amount of loss need not be determined with precision as

long as it is reasonable given the available information.                     See

U.S.S.G. § 2F1.1, comment. (n.9).



                                       3
      After the filing of the false cost report, which claimed

$190,000 in non-reimbursable expenses, Classic sought an additional

refund of $5,225.11, for a total loss of over $213,000.                     Thus,

regardless    of   Ewuzie’s     assertions    to     the    contrary,    Whitworth

established that the Medicare suffered an actual loss of such

amount.   Ewuzie has not demonstrated clear error.

      Through counsel, Orhiunu argues that the district court erred

by sentencing him in absentia after he failed to appear at the

sentencing hearing. Counsel argues that to sentence a defendant in

absentia, the defendant’s failure to appear must be found to be

voluntary, insisting that the record in this case does not support

such a finding.         Although he argues that the district court’s

determination that Orhiunu was a fugitive is unsupported by the

record, Orhiunu’s counsel does not assert that Orhiunu has since

been located; neither does he provide any explanation for Orhiunu’s

disappearance. Although we decline to dismiss Orhiunu’s appeal, we

perceive no error in the district court’s decision to sentence him

in absentia and therefore affirm.

      Under   Fed.   R.   Crim.     P.   43(b)(2),    the    defendant    will   be

considered to have waived the right to be present whenever he is

initially present at trial and thereafter is “is voluntarily absent

at the imposition of sentence[.]”            The rule is intended to cover

the   situation    in   which   a    defendant     voluntarily    flees     before

sentence is imposed.      Id., advisory comm. note (1995).              An absence

is voluntary if the defendant knows that the proceedings are taking

                                         4
place and does not attend.        See Crosby v. United States, 506 U.S.

255, 259-30 (1993).

     The     district   court’s     determination   that   Orhiunu     had

voluntarily absented himself was not unreasonable.         The district

court had advised Orhiunu that sentencing would take place in

August.     The court had before it evidence that Orhiunu failed to

report to Pretrial Services as required.        In addition, the court

extended the sentencing date for one week for the specific purpose

of finding Orhiunu; however, such effort was unavailing.             Under

such circumstances, it cannot be said that the district court erred

in concluding that Orhiunu had voluntarily absented himself from

the sentencing proceeding.

     The judgments of conviction and the sentences imposed by the

district court are, in all respects,

AFFIRMED.




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