                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4472



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


WILLIAM C. FILCHECK, JR.,

                                            Defendant - Appellant.


                            No. 04-4482



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RONALD L. HALSTEAD,

                                            Defendant - Appellant.


                            No. 04-4485



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
SCOTT G. TAYLOR,

                                            Defendant - Appellant.


Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-01-45)


Submitted:   January 11, 2006           Decided:    February 8, 2006


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Joseph J. Harris, Morgantown, West Virginia; Richard A. Jaffe,
Houston, Texas; James B. Zimarowski, Morgantown, West Virginia, for
Appellants. Thomas E. Johnston, United States Attorney, Wheeling,
West Virginia; Patrick M. Donley, Robert F. Adams, Daniel S.
Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

          William C. Filcheck, Jr., Ronald L. Halstead, and Scott

G. Taylor appeal their convictions and sentences for conspiracy to

commit health care fraud in violation of 18 U.S.C. § 371 (2000),

and health care fraud in violation of 18 U.S.C. § 1347     (2000).

Halstead also appeals his conviction and sentence for conspiracy to

launder money in violation of 18 U.S.C. § 1956(h) (2000).       We

affirm Filcheck, Halstead, and Taylor’s convictions, but we vacate

their sentences and remand for resentencing in light of United

States v. Booker, 543 U.S. 220 (2005).

          The Appellants challenge the sufficiency of the evidence

against them. In reviewing a sufficiency challenge, “[t]he verdict

of a jury must be sustained if there is substantial evidence,

taking the view most favorable to the Government, to support it.”

Glasser v. United States, 315 U.S. 60, 80 (1942).   This court has

defined “substantial evidence,” in the context of a criminal

action, as that evidence which “a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”     United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996).

          The Government presented sufficient evidence to prove

that Halstead created and instructed a system at the clinic to

recruit new patients, convince them of the need for unnecessary

treatments, perform the maximum amount of reimbursable treatments


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regardless of medical need, and then bill insurance companies under

doctors’     signatures     without   their    consent.      The      Government

presented sufficient evidence that Filcheck and Taylor were fully

aware of and participated in the fraudulent practices at the

clinic.       The   Government     also   presented     sufficient      evidence

supporting    Halstead’s     money    laundering     conviction.        The   jury

reasonably     accepted     as    sufficient   the    evidence     to    support

Appellants’ convictions, and we find no basis to overturn that

determination.

           The Appellants next contend that the district court

improperly denied their requests to admit certain evidence.                   This

court   reviews     the   admissibility   of   evidence    for   an     abuse   of

discretion and will not find an abuse unless a decision was

“arbitrary and irrational.” United States v. Weaver, 282 F.3d 302,

313 (4th Cir. 2002).             The district court did not abuse its

discretion in denying Halstead’s request to admit seminar materials

because the materials were not relevant to office manager Ernest

Twigg’s testimony and were potentially confusing to the jury.                   As

the district court stated, Halstead could have introduced the

materials at a later time, but did not.                The district court’s

evidentiary ruling was neither arbitrary nor irrational.

           The district court also did not abuse its discretion in

denying Taylor’s requests to ask an investigator about potentially

exculpatory statements. Those statements were not admissible under


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Fed. R. Evid. 106 because that rule “applies only to writings or

recorded statements, not to conversations.”                   United States v.

Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).                Taylor was also not

prejudiced because he testified about those statements.                         The

district court’s evidentiary ruling was neither arbitrary nor

irrational and it did not abuse its discretion.

           The Appellants further claim the district court erred in

its jury instructions.            This court reviews a district court’s

decision   whether     to   give     a    jury   instruction     for    abuse    of

discretion.      United States v. Kennedy, 372 F.3d 686, 698 (4th Cir.

2004).     The    Appellants      claim    the   district    court     abused   its

discretion    when    it    did    not    include   an   “incident      to”     jury

instruction requested by Halstead that addressed the billing of

tests and services performed by someone other than a medical doctor

under the doctor’s name.          A physician does not need to be present

while health care personnel in their office provide a specific

treatment procedure, but such treatments must be part of a course

of treatment prescribed by a physician with the physician’s active

participation in monitoring the entire treatment plan.                     In the

instances of fraud in this case, the medical doctors did not

initially examine any of the patients, did not prescribe any course

of treatment, and did not monitor treatment. The Appellants failed

to provide sufficient evidence that they engaged in “incident to”




                                         - 5 -
billing and the district court did not abuse its discretion in

refusing to submit the requested jury instruction.

            The Appellants also claim that the district court erred

by including a jury instruction regarding deliberate ignorance,

also known as willful blindness.        “A willful blindness instruction

is proper when the defendant asserts a lack of guilty knowledge but

the evidence supports an inference of deliberate ignorance” on the

defendant’s part.       United States v. Ruhe, 191 F.3d 376, 384 (4th

Cir. 1999).    The district court properly gave such an instruction

because while each of the Appellants claimed they did not know of

the fraudulent billing, the evidence fully supported the inference

of deliberate ignorance.

            The Appellants next claim that the district court erred

in ordering restitution.        This court reviews a district court’s

order of restitution for abuse of discretion. See United States v.

Vinyard, 266 F.3d 320, 325 (4th Cir. 2001).         The government bears

the burden of establishing each victim’s amount of loss by a

preponderance of the evidence.          See United States v. Henoud, 81

F.3d 484, 490 (4th Cir. 1996).          The district court found that it

was required to order restitution under the Mandatory Victims

Restitution Act. See 18 U.S.C. § 3663A(a)(1) (2000). The district

court limited the restitution to the injuries proven at trial. The

Government calculated the amount of loss from the injured parties

in   the   indictment    and   proved   the   restitution   amounts   by   a


                                   - 6 -
preponderance of the evidence.        The district court did not abuse

its discretion in calculating restitution.

            The Appellants finally claim that the district court

improperly sentenced them when it imposed a sentence greater than

the maximum authorized by the facts found by the jury alone.

Because they failed to raise this claim below, we review it for

plain error.    United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).     The district court imposed numerous enhancements to the

sentences of each Defendant in this case. The district court erred

because the enhancements occurred under the mandatory guidelines

scheme.*    Hughes, 401 F.3d at 547.        That error was plain because

Booker abrogated the previous law of this circuit.           Id. at 547-48.

To affect their substantial rights, the sentences imposed must have

been longer than what could have been imposed based on the jury’s

finding.    Id. at 548.   As this was the result of the application of

the enhancements in these cases, the district court’s offense level

increases violated the Sixth Amendment.

            In light of Booker, we vacate Filcheck, Halstead, and

Taylor’s    respective    sentences   and     remand   for   resentencing.

Although the sentencing guidelines are no longer mandatory, Booker

makes clear that a sentencing court must still “consult [the]

Guidelines and take them into account when sentencing.” 125 S. Ct.


     *
      Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of sentencing.

                                  - 7 -
at 767.   On remand, the district court should first determine the

appropriate sentencing range under the Guidelines, making all

factual findings appropriate for that determination.             See Hughes,

401 F.3d at 546 (applying Booker on plain error review).             The court

should consider this sentencing range along with the other factors

described   in   18   U.S.C.   §   3553(a)    (2000),   and   then   impose   a

sentence.    Id.      If that sentence falls outside the Guidelines

range, the court should explain its reasons for the departure as

required by 18 U.S.C. § 3553(c)(2) (2000).          Id.   The sentence must

be “within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47.

            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 IN PART,
                                             VACATED IN PART, AND REMANDED




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