                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4756


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VERONICA SHARON CUNNINGHAM,      a/k/a   Sharon   Veronica   Louis,
a/k/a Veronica Sharon Louis,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:11-cr-00248-REP-1)


Submitted:   December 10, 2013             Decided:    January 8, 2014


Before KING, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Paul Gregorio, MORRISSEY & GOLDMAN, LLC, Highland Springs,
Virginia, for Appellant. Michael Calvin Moore, Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             A jury convicted Veronica Sharon Cunningham of twenty-

six counts of health care fraud, in violation of 18 U.S.C. §

1347 (2012); eight counts of making false statements relating to

health care matters, in violation of 18 U.S.C. § 1035 (2012);

and filing a false tax return, in violation of 26 U.S.C. §

7206(1) (2006).          The district court sentenced Cunningham to 135

months of imprisonment and she now appeals.                    Appellate counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),     questioning     whether      there   was    sufficient     evidence       to

support the convictions and whether the district court erred in

applying an upward departure under the Sentencing Guidelines.

Cunningham filed a supplemental pro se brief raising additional

issues. *    Finding no error, we affirm.

             Counsel first questions whether there was sufficient

evidence     to   support    the    convictions.         We   review       a    district

court’s decision to deny a Federal Rule of Criminal Procedure 29

motion for a judgment of acquittal de novo.                       United States v.

Smith,      451   F.3d    209,     216   (4th    Cir.    2006).        A       defendant

challenging       the    sufficiency     of     the    evidence    faces       a   heavy

burden.      United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

     *
       We have thoroughly considered the arguments raised in
Cunningham’s pro se supplemental brief and conclude that they
lack merit.



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1997).       The verdict of a jury must be sustained “if, viewing the

evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’”                                        Smith, 451

F.3d    at    216     (citations          omitted).          Substantial               evidence       is

“evidence      that    a    reasonable         finder       of       fact       could    accept       as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                    Id. (internal quotation marks

and    citation       omitted).            Furthermore,          “[t]he          jury,      not       the

reviewing      court,       weighs       the   credibility            of    the       evidence        and

resolves any conflicts in the evidence presented.”                                     Beidler, 110

F.3d at 1067 (internal quotation marks and citation omitted).

“Reversal for insufficient evidence is reserved for the rare

case where the prosecution’s failure is clear.”                                       Id. (internal

quotation marks and citation omitted).

              To    prove       health     care     fraud,       the       government        had       to

prove that Cunningham “knowingly and willfully executed a scheme

to defraud any health care benefit program.”                                    United States v.

Girod, 646 F.3d 304, 313 (5th Cir. 2011); see 18 U.S.C. § 1347.

“To sustain a conviction under 18 U.S.C. § 1035, the government

was    required        to        prove     beyond       a    reasonable                doubt      that

[Cunningham]        ‘knowingly           and   willfully         .    .     .    ma[de]      .    .     .

materially      false       .    .   .    or   fraudulent            statements         .   .     .   in

connection      with       the    delivery      of   or     payment             for    health     care

benefits, items, or services.’”                      United States v. McLean, 715

                                                3
F.3d    129,    140    (4th    Cir.     2013)    (quoting      18     U.S.C.    §   1035).

However, “[t]he specific intent to defraud may be inferred from

the totality of the circumstances and need not be proven by

direct evidence.”          Id. at 138 (quoting United States v. Harvey,

532 F.3d 326, 334 (4th Cir. 2008)).                    Moreover, “a statement is

material . . . if it has a natural tendency to influence, or is

capable of influencing, the decision-making body to which it was

addressed.”       United States v. Hamilton, 699 F.3d 356, 362 (4th

Cir. 2012) (internal quotation marks and citation omitted).

               Finally, “26 U.S.C. § 7206(1) . . . reaches one who

‘[w]illfully       makes      and    subscribes       any    return,    statement,      or

other   document,        which      contains     or   is    verified     by    a    written

declaration that it is made under the penalties of perjury, and

which he does not believe to be true and correct as to every

material matter.’”            United States v. Cole, 631 F.3d 146, 151

(4th Cir. 2011).         We have thoroughly reviewed the record and the

relevant       legal   authorities       and     conclude      that    the     government

provided substantial evidence from which the jury could conclude

that Cunningham was guilty of the offenses of conviction.

               Counsel     next      questions    whether      the     district      court

erred    in     granting       the     government’s         motion     for     an   upward

departure under the Sentencing Guidelines based on the failure

of Cunningham’s criminal history category to adequately reflect

the seriousness of her criminal history.                       See U.S. Sentencing

                                            4
Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2012).                           In reviewing the

district court’s calculations under the Guidelines, “we review

the district court’s legal conclusions de novo and its factual

findings for clear error.”               United States v. Manigan, 592 F.3d

621, 626 (4th Cir. 2010) (internal quotation marks and citation

omitted).      We will “find clear error only if, on the entire

evidence, we are left with the definite and firm conviction that

a mistake has been committed.”                  Id. at 631 (internal quotation

marks and citation omitted).

             Under    U.S.S.G.        § 4A1.3(a),            a     district      court      may

upwardly     depart        from   the     Guidelines             range    “[i]f       reliable

information     indicates         that    the    defendant’s             criminal      history

category    substantially         underrepresents            the    seriousness        of   the

defendant’s     criminal          history       or     the       likelihood          that   the

defendant will commit other crimes.”                         Examples of information

that may form the basis for an upward departure include “[p]rior

similar    adult     criminal      conduct       not    resulting          in   a     criminal

conviction.”         U.S.S.G.      § 4A1.3(a)(2)(E).                In    determining       the

extent of the departure, the Guidelines instruct a court to use

as   a   reference     the    criminal      history          category       applicable       to

defendants    whose        criminal      history     or      likelihood         to    reoffend

resembles    that     of    the    defendant.          U.S.S.G.          § 4A1.3(a)(4)(A).

Our review of the record leads us to conclude that the court did

not err in applying an upward departure based on prior uncharged

                                            5
fraudulent and criminal conduct for which Cunningham did not

sustain convictions.

            We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal.      Accordingly, we affirm the judgment of the district

court.     This court requires that counsel inform Cunningham, in

writing,   of    the   right     to   petition   the    Supreme   Court    of   the

United States for further review.            If Cunningham requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                  Counsel’s motion must

state that a copy thereof was served on Cunningham.                    We dispense

with oral argument because the facts and legal contentions are

adequately      presented   in    the   materials      before   this    court   and

argument would not aid in the decisional process.

                                                                          AFFIRMED




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