                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4075


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DEBORAH LOVING,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Walter D. Kelley, Jr.,
District Judge. (2:07-cr-00066-WDK-JEB-1)


Submitted:    October 30, 2008              Decided:   November 25, 2008


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Alan M.
Salsbury,   Assistant  United   States   Attorney,   Marin   B.
Hoplamazian, Third Year Law Student, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Deborah Loving was convicted by a jury of health care

fraud, 18 U.S.C. § 1347 (2006) (Count 1), and false statements

relating to health care matters, 18 U.S.C. § 1035 (2006) (Counts

2-30).        She     received      a   sentence        of     forty-one     months

imprisonment.         Loving     appeals       her   sentence,      contesting    the

district court’s determination that she abused a position of

trust,   U.S.      Sentencing    Guidelines      Manual      § 3B1.3   (2007),   and

arguing that the district court mistakenly believed it lacked

authority     to    impose   a   variance      sentence     below    the   guideline

range under 18 U.S.C. § 3553(a) (2006).                We affirm.

            Loving, who was a registered nurse, owned and operated

a private care nursing service which served Medicaid patients.

To qualify for Medicaid reimbursement, Loving was required to

employ   an     approved     registered        nurse   to     supervise    all    her

personal care aides and visit each patient every thirty days.

She also had to provide documentation showing that her personal

care aides had completed a forty-hour training program approved

by the Virginia Department of Medical Assistance Services, and

provide a criminal history background check for each aide to

show that none of them had been convicted of certain crimes that

would    disqualify      them    from   working        with    the     elderly    and

disabled.     Loving did not comply with these requirements.                     When

her company was audited, she falsely claimed to have employed

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until recently a registered nurse named Nataly Alfrede, for whom

she provided a fake resume and licensing information.                                  She also

gave the auditors thirty-three faked criminal background checks.

At trial, Loving testified that she had performed the monthly

supervisory        visits     herself,         and        denied     creating         the        fake

criminal background checks.                  She said Nataly Alfrede was a real

person    she    had    hired,      but      who    failed    to     show    up       for    work,

although     the    auditors       found      no     evidence       that    such      a     person

existed.

              In sentencing Loving, the district court gave her a

two-level adjustment for abuse of a position of trust, finding

that its decision was controlled by United States v. Bolden, 325

F.3d   471,     504-05      (4th    Cir.      2003)        (applying       abuse      of     trust

adjustment to nursing home operator who carried out scheme to

defraud    Medicaid).             The     court      decided        against       a    downward

variance     sentence       and    sentenced        Loving     at    the    bottom          of    the

advisory guideline range.

              Under     § 3B1.3,        an    adjustment        is    required         if        “the

defendant abused a position of public or private trust . . . in

a   manner      that    significantly          facilitated           the    commission            or

concealment        of   the       offense.”           A     “position       of     trust”          is

“characterized by professional or managerial discretion.”                                        USSG

§ 3B1.1,      comment.      (n.1).           This     court     reviews       de      novo        the

district      court’s       determination           that      the     defendant           held      a

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position       of    trust      under    § 3B1.3,         and    reviews        the    factual

findings that support the adjustment for clear error.                                   United

States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005); United

States    v.    Caplinger,       339     F.3d      226,     235-36     (4th     Cir.    2003).

Loving argues on appeal that she did not occupy a position of

trust    with       respect    to     Medicaid       because     she    did     not    receive

“prospective         payments”      from      Medicaid,         as   the     defendants     in

Bolden did in connection with their operation of a nursing home.

However,       the    timing     of     payments       fraudulently          obtained     from

Medicare   or        Medicaid    is     not   significant.             See   United     States

v. Hoogenboom, 209 F.3d 665, 671 (7th Cir. 2000) (psychologist

who billed Medicare for services not provided abused position of

trust); United States v. Gieger, 190 F.3d 661, 665 (5th Cir.

1999) (owners of ambulance service who falsely billed Medicare

for non-ambulatory patients abused position of trust).

               Loving     also      contends         that     her      relationship       with

Medicaid was merely contractual, not fiduciary, because Medicaid

required her to provide certain services without giving her any

discretion about what services to render, such as a physician

dealing    with       Medicaid      might     have.         Loving     relies     on   United

States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998) (following

United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)),

and United States v. Williams, 527 F.3d 1235 (11th Cir. 2008).

In Williams,          which   involved        wire    fraud      and    theft    of    federal

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funds in a federal program for community service, the Eleventh

Circuit reiterated its view, set out in Mills and Garrison, that

“lying   to    Medicare      did   not    constitute     any   breach   of   public

trust,” and stated that, “for the abuse-of-trust adjustment to

apply in the fraud context, there must be a showing that the

victim placed a special trust in the defendant beyond ordinary

reliance on the defendant’s integrity and honesty that underlies

every fraud scenario.”         Williams, 527 F.3d at 1250-51.

              Loving’s argument is unavailing because, in Bolden, we

rejected the Eleventh Circuit’s approach and agreed with the

Second   Circuit      that     “[b]ecause      of   the    discretion     Medicaid

confers upon care providers . . . such providers owe a fiduciary

duty to Medicaid.”        Bolden, 325 F.3d at 471 n.1 (“[W]e see it as

paramount      that    Medicaid      be    able     to    ‘trust’   its      service

providers”) (citing United States v. Wright, 160 F.3d 905, 910-

11 (2d Cir. 1998)).           Therefore,       we conclude that the district

court did not err in deciding that Loving had a position of

trust.

              On appeal, Loving argues for the first time that the

abuse of trust adjustment should not apply because the conduct

on which it is based is the same as the offense for which she

was convicted.        Because Loving did not raise the issue of double

counting in the district court, our review is for plain error.

United States v. Olano, 507 U.S. 725, 732-37 (1993).

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           Guideline         section       3B1.3     expressly             provides        that,

“[t]his adjustment may not be used if an abuse of trust or skill

is   included    in    the    base       offense    level        or    specific           offense

characteristic.”        Loving contends that both her base offense

level under § 2B1.1 and the adjustment for abuse of a position

of trust under § 3B1.3 were based on the submission of false

information      to    Medicaid.           Her     reliance           on     United       States

v. Cruz-Laureano,       440       F.3d    44,      48-49    (1st           Cir.    2006),     is

misplaced because her abuse of trust was not addressed either in

the base offense level under § 2B1.1 or in a specific offense

characteristic.

           In addition, Loving relies on the alternative holding

in Garrison that it was impermissible double counting to give an

adjustment for abuse of trust when the conduct underlying the

adjustment    and     the    “base       fraud    crime”     (submission             of    false

statements      for   Medicare       reimbursement)          was       the        same.      See

Garrison, 133 F.3d at 842-43.                    Last, she cites United States

v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995), which held that

“[t]he   conduct      that   is    the     basis    of     the    conviction          must    be

independently criminal . . . and not itself the abuse of trust.”

However, we have not adopted the Eleventh Circuit’s restrictive

holding on double counting in fraud offenses.                              We are satisfied

that the district court did not plainly err in giving Loving an

adjustment for abuse of a position of trust.

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             Finally,      Loving    contends           that       the     district       court

erroneously       believed    it     lacked          the    authority          to     impose     a

sentence below the guideline range based solely on its view that

the guideline was too high for her offense, in effect treating

the guideline as mandatory.            In imposing Loving’s sentence, the

court stated the following:

      [W]hile I think that the guideline range is probably
      too harsh for what you did, I don’t think it’s too
      harsh for what you did in the sense of the billing
      problems.   I don’t think it’s too harsh in terms of
      what followed next and all of the creation of
      documents and the falsifications and then the lying on
      the stand.

             A sentence is reviewed for abuse of discretion, Gall

v. United States, 128 S. Ct. 586, 597 (2007), with the review

encompassing        both      procedural             soundness           and         substantive

reasonableness.      Id.     In Gall and in Kimbrough v. United States,

128   S.    Ct.    558     (2007),    the        Supreme         Court     clarified           the

sentencing judge’s authority to impose a sentence outside the

guideline    range    “based       solely       on    the    judge’s       view        that    the

Guidelines        range      fails     properly             to      reflect           § 3553(a)

considerations.”           Kimbrough,       128        S.    Ct.     at        575     (internal

quotation and citation omitted).                      Loving was sentenced before

Gall and Kimbrough were decided, so the district court did not

have the benefit of those decisions.

             Either treating the Guidelines as mandatory or failing

to consider the § 3553(a) factors adequately would constitute a

                                            7
“significant       procedural      error.”            Gall,   128    S.    Ct.    at    597.

However,      in   this    case,    after       stating       its   belief       that   the

guideline range was too severe for the crime Loving committed,

the court went on to say that the guideline range was not too

harsh in light of her attempt to cover up the crime, which led

her to create false documents of various kinds and ultimately to

commit perjury at her trial.             Thus, the court concluded that the

guideline range was not too high in light of Loving’s overall

conduct,    and    that    none    of   the     § 3553(a)      factors      warranted     a

sentence outside the guideline range.

              Applying      a   presumption           of   reasonableness         to    the

guideline sentence, see United States v. Go, 517 F.3d 216, 218

(4th Cir. 2008); see also Rita v. United States, 127 S. Ct.

2456,   2462-69     (2007)      (upholding       presumption        of    reasonableness

for within-guideline sentence), we conclude that Loving has not

rebutted the presumption and that her sentence is reasonable.

              We   therefore       affirm       the     sentence     imposed      by    the

district    court.        We    dispense      with     oral   argument      because     the

facts   and    legal      contentions      are    adequately        presented      in   the

materials     before      the   court    and      argument      would      not    aid   the

decisional process.

                                                                                  AFFIRMED




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