                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 19, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-20199
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

BEVERLY SCOTT,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-00-CR-686-1
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Beverly Scott appeals from a jury-trial conviction for

conspiracy (count one), theft (count two), and health care fraud

(count three).    Scott argues that the evidence was insufficient

to support her conviction for health care fraud, that the trial

court erred with respect to its jury instructions, that the trial

court erred in assigning her a leadership role enhancement, and

that she received ineffective assistance of counsel at trial.




     *
       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this opinion should not be published and is not precedent except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.
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                                -2-

     Sufficiency of the evidence

     Scott argues that the evidence was insufficient to support

her conviction for health care fraud because under the section of

the indictment entitled “execution of the scheme to defraud,” the

only detailed acts alleged occurred on July 10, 2000, and that

there was no evidence presented at trial regarding the July 10,

2000, transaction between Scott and a co-conspirator, William

Carrillo.   Alternatively, Scott argues that on July 10, 2000, she

was acting as a Government agent during the transaction with

Carrillo and did not possess the requisite criminal intent.

     In deciding the sufficiency of the evidence, this court

determines 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.    United States v. Charroux,

3 F.3d 827, 830-31 (5th Cir. 1993).

     The court’s jury instruction did not track the indictment

with respect to count three.   The “execution to defraud” sections

were redacted from the indictment as read to the jury.

Specifically, the court instructed the jury that “[b]eginning on

an unknown date in 1995 and continuing on or until on or about

July 10, 2000,” Scott had devised a scheme to defraud a health

care program by removing drugs from the Veterans Affairs Medical

Center (VAMC) pharmacy for transfer and sale to a private

pharmacy in exchange for cash.   Testimony at trial revealed that
                             No. 03-20199
                                  -3-

Scott had engaged in health care fraud at some time between 1995

and July 10, 2000.     See United States v. Hernandez, 962 F.2d

1152, 1157 (5th Cir. 1992); United States v. Grapp, 653 F.2d 189,

195 (5th Cir. 1981).     Accordingly, the evidence was sufficient to

sustain Scott’s conviction for health care fraud.

     Jury instructions

     Scott argues that the trial court constructively amended the

indictment with respect to the health care fraud count by

instructing the jury that a scheme to defraud included “a scheme

to deprive another of the intangible right to honest services.”

Scott concedes that she did not object to the court’s jury

instruction.   Therefore, review is for plain error.    See United

States v. Daniels, 252 F.3d 411, 414 & n.8 (5th Cir. 2001).

     Scott is correct that count three (health care fraud) of the

indictment did not include the definition of “scheme to defraud”

defined as depriving another of the intangible right of honest

services under 18 U.S.C. § 1346.    Nevertheless, Scott was on

notice via the charge for health care fraud that her offense was

in connection with the “delivery of health care benefits, items

and services” in violation of 18 U.S.C. § 1347.    Accordingly,

Scott cannot establish plain error with respect to this issue.

     Scott also argues that the trial court erred in refusing her

submission of a supplemental jury instruction on abandonment.
                           No. 03-20199
                                -4-

This Court reviews the district court’s refusal to give a

requested jury instruction for an abuse of discretion.     U.S. v.

Sellers, 926 F.2d 410, 414 (5th Cir. 1991).

     The record reflects that Scott proceeded on the theory that

she had removed drugs from the VAMC that were of no value because

they were either expired or had been discarded.    The jury

rejected Scott’s theory and found that the drugs were worth a

value of $1000 and that she had committed theft.    The jury thus

determined that Scott possessed the requisite criminal intent for

theft.   Accordingly, no abuse of discretion occurred in the

district court’s rejection of Scott’s abandonment instruction.

See Sellers, 926 F.2d at 414.

     Leadership role enhancement

     Scott argues that the trial court erred in assigning a four-

level enhancement for her leadership role in the offense.     Scott

has also filed a supplemental letter with the court arguing that

her leadership role enhancement as well as an 11-point adjustment

for the value of the drugs and a two-point adjustment for more

than minimal planning violated Blakely v. Washington, 124 S. Ct.

2531 (2004).   Scott correctly concedes that this argument is

foreclosed by this court’s holding in United States v. Pineiro,

377 F.3d 464 (5th Cir. 2004), petition for cert. filed, (July 14,

2004), but seeks to preserve the issue.

     A district court’s finding that a defendant had an

aggravating role is reviewed for clear error.     See United States
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                                 -5-

v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).    “A factual

finding is not clearly erroneous if it is plausible in light of

the record read as a whole.”    Id.

     At sentencing, the Government reiterated that, although

there was not sufficient evidence to prosecute the individuals,

Scott had orchestrated the delivery of the drugs by the named

participants.   See U.S.S.G. § 3B1.1(a), comment. (n.1).    Scott

presented no specific evidence to rebut this argument at

sentencing or the findings contained in the presentence report.

See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.

1994); United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).

Accordingly, the trial court’s leadership enhancement was not

clearly erroneous.    See Valencia, 44 F.3d at 272.

     Ineffective assistance of trial counsel

     Scott argues that trial counsel was ineffective for failing

to request supplemental voir dire after a break in the trial that

lasted more than six weeks.    Scott’s arguments are entirely

speculative as is evident by her hypothetical scenarios given in

her reply brief.   Accordingly, because the record is not

developed as to this issue, we decline to review the issue in

this appeal.    See United States v. Bounds, 943 F.2d 541, 544

(5th Cir. 1991).   Scott’s conviction and sentence are AFFIRMED.
