     Case: 11-60061     Document: 00511779469         Page: 1     Date Filed: 03/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           March 6, 2012

                                      No. 11-60061                         Lyle W. Cayce
                                    consolidated with                           Clerk
                                      No. 11-60065


UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

JACQUALINE CRAWLEY,

                                                  Defendant – Appellant



                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                                   (07-CR-124)


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Jacqualine Crawley appeals from the district court’s correction
of clerical errors and subsequent entry of amended written judgments under
Federal Rule of Criminal Procedure 36. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                            Nos. 11-60061 & 11-60065

                      I. Facts and Procedural History
      Crawley and several others engaged in healthcare fraud. Among the
entities used to carry out the scheme were Rehabilicare, Mississippi Care
Partners, Statewide Physical Medicine (“Statewide”), and Progressive Physical
Medicine (“Progressive”).     For her complicity, Crawley was convicted of
conspiring to commit healthcare fraud, participating in substantive healthcare
fraud, and making false statements related to healthcare.
      Crawley was sentenced together with two co-conspirators. After ruling on
Crawley’s objections to the PSR and application of the Guidelines, the district
court adopted the PSR “without change.” In sentencing another defendant, the
district court declared Medicare and Medicaid as victims—and thus restitution
payees—in cause number 1:07-CR-124, to which Crawley was a party.
      Crawley was sentenced last. In line with the PSR, the district court found
“that the United States Health Care Trust Fund [(the “Trust Fund”)] ha[d]
suffered injury . . . of $32,057,589.38” and orally ordered restitution in that
amount, for which Crawley and her co-conspirators were made jointly and
severally liable. The written judgments divided the total amount owed between
the two cases involving Crawley: $17,437,239.05 in the “Mississippi Care
Partners case” (No. 11-60061), and $14,620,849.66 in the “Rehabilicare case”
(No. 11-60065). These amounts, however, totaled $32,058,088.71, or $499.33
more than the amount orally pronounced at sentencing (the “Discrepancy”).
Besides the Trust Fund, the written judgments also listed Progressive and
Statewide—vehicles used to perpetrate the fraud—as payees.
      Crawley appealed on several grounds, arguing in part that the district
court erred by making Crawley responsible for losses linked to Progressive and
Statewide and by calculating her restitution in light of the losses attributable to
the conspiracy as a whole. See United States v. Crawley, 381 F. App’x 462, 466



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                               Nos. 11-60061 & 11-60065

(5th Cir. 2010) (Crawley I) (unpublished). We affirmed, modifying Crawley’s
sentence on an issue irrelevant here. See id. at 466-67.
       The Government later moved under Rule 36 to correct the inclusion of
Progressive and Statewide as payees and to modify the allocation of restitution
between payees. The district court granted the motion and entered amended
judgments that inserted Mississippi Medicaid (“Medicaid”) as a payee, removed
Progressive and Statewide, and reallocated restitution between Medicaid and
the Trust Fund. The new judgments did not alter the total amount of restitution
owed in each case, perpetuating the Discrepancy. Crawley timely appealed.1
                      II. Waiver of Discrepancy Argument
       Crawley argues that the Discrepancy violates her substantive rights,
apparently assuming that the written judgments increased her sentence. See
United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994) (“Restitution is a
criminal penalty and a component of the defendant’s sentence.”). Even assuming
that it did so, Crawley waived arguments premised on the Discrepancy. Because
the Discrepancy existed before Crawley I, any argument that it affected her
substantive rights should have been raised in that proceeding. She failed to do
so. Amending a judgment merely to correct clerical errors does not make the
substance of the original judgment vulnerable to attack. See United States v.
Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (holding certain arguments waived
because “[n]either defendant [had] demonstrated why he was unable to appeal
his issue in the initial appeal”); cf. United States v. Lee, 358 F.3d 315, 323 (5th
Cir. 2004) (noting that issues “not raised in the appeals court, which could have

       1
         Crawley argues for de novo review of Rule 36 corrections. The Government notes that
our sister circuits use various standards and cites an unpublished Fifth Circuit case that
applied an abuse-of-discretion standard. See United States v. Harrill, 91 F. App’x 356, 357
(5th Cir. 2004) (unpublished) (emphasizing that Rule 36 uses the word “may” (citing United
States v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999) (applying abuse-of-discretion review to
reduction of a sentence under 18 U.S.C. § 3582(c)(2)))). Because we conclude that Crawley’s
claims fail regardless of the standard of review utilized, we need not decide that issue here.

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                           Nos. 11-60061 & 11-60065

been brought in the original appeal, are not proper for reconsideration by the
district court” (internal quotation marks and citations omitted)). The district
court did not alter the Discrepancy in its Rule 36 rulings, thus any argument
about the Discrepancy is not properly before us.
                        III. Substitution of Medicaid
      Crawley contends more generally that entering the amended written
judgments to alter the identity and allocation of payees also violated her
substantive rights. She raises a number of arguments, which we group into two
broad categories: those raising evidentiary issues and those challenging Rule
36’s applicability. We address each in turn.
                         A. Evidentiary Arguments
      Crawley broadly asserts that no evidence supports Medicaid’s eligibility
as a restitution payee. She claims that the Probation Office failed to obtain
certain statements and affidavits necessary to conduct a “complete accounting”
of Medicaid’s loss. This allegedly prevented her from “testing” Medicaid’s claims
and caused the district court to enter an unfair restitution order.
      Crawley essentially attempts to relitigate the evidentiary basis of the
restitution order, an issue partially addressed in Crawley I. See 381 F. App’x at
466. We rejected the restitution challenge there, concluding that the district
court permissibly attributed to Crawley “all losses” traceable to the conspiracy.
Id. (citation omitted). We also held that the “district court was entitled to rely
on information contained in the [PSR] as to the amount of loss because Crawley
offered no evidence contesting the PSR and did not show that it was inaccurate
or unreliable.” Id. (citation omitted). The PSR described Medicaid as a victim,
as did the district court at sentencing. The district court adopted the PSR’s
factual findings as its own and ordered Crawley to pay restitution in the same
total amount attributable to her fraudulent activities as set forth in the PSR.



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                               Nos. 11-60061 & 11-60065

       Accordingly, the district court determined that Medicaid was a victim at
the time of the proceedings giving rise to Crawley I, not by its later act of
entering the amended judgments. Those judgments left unaltered the total
amount of restitution provided in the original judgments. Crawley therefore
should have challenged any accounting errors in her original appeal, which was
also the appropriate place to “test” Medicaid’s claims. She failed to do so, and
she again provides no evidence contradicting the PSR’s soundness. Crawley’s
claims thus are res judicata to the extent they require reconsideration of
evidentiary matters addressed in Crawley I, and they are waived to the extent
they raise arguments that could have been made in that proceeding.2
                                B. Rule 36 Applies Here
       Crawley also raises several arguments that question whether substituting
a restitution payee qualifies as the correction of a clerical error. Rule 36
provides: “After giving any notice it considers appropriate, the court may at any
time correct a clerical error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or omission.” While there
may be circumstances where the line between clerical error and judicial error is
unclear, we have generally found that correction of a clerical error occurs when

       2
         At oral argument, Crawley contended that the district court substantively amended
her sentence by essentially finding that Medicaid was a victim in the Rehabilicare case, when
none of the entities involved in that case had bilked Medicaid. She also asserted that,
although the total restitution amount was the same, the amendments increased the amount
due to Medicaid by approximately $800,000 more than provided in the PSR. From this
argument, she concludes that this court should cut that amount from her restitution
obligation.
       Crawley failed to make these specific arguments either before the district court or in
her primary brief on appeal, and defense counsel conceded at oral argument that he
“synthesize[d]” this line of attack from arguments previously made in a “more general sense.”
With the aid of post-oral-argument hindsight, these arguments are discernable in Crawley’s
reply brief. However, any arguments first presented on appeal or in reply briefs are generally
considered waived. See, e.g., Sw. Bell. Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir.
2008) (not raised below); Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003) (not raised in
opening brief). In any case, the arguments do not prevail under plain error review. See, e.g.,
Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining elements of plain error review).

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                                Nos. 11-60061 & 11-60065

the modification neither affects a party’s substantive rights nor contradicts the
court’s and the parties’ intentions as to the judgment. See, e.g., United States v.
Spencer, 513 F.3d 490, 491 (5th Cir. 2008) (“[C]ourts have deemed Rule 36 the
appropriate mechanism for amendments that do not substantively alter the
sentence announced orally but rather correct errors in written judgments.”);
United States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995) (collecting cases).
       The amended judgments corrected only clerical errors. See Spencer, 513
F.3d at 492; United States v. Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (“The
Rule 36 order did not fundamentally alter Portillo’s sentence, because it did not
increase the restitution amount initially imposed at sentencing. The order
merely changed the payees from the [uninjured party] to the six [victims] who
were directly injured by Portillo’s crime.”). Similarly, the corrected judgments
here did not increase the amount of restitution Crawley owes as a result of her
role in the conspiracy. Because Crawley’s sentence remained unchanged, her
substantive rights were not affected. Cf. Portillo, 513 F.3d at 1165 (Rule 36
corrections “did not make Portillo’s sentence more onerous”).3
       The district court’s substitution of Medicaid as a payee does not compel a
different conclusion. Again, the PSR specified Medicaid as a victim, and the
district court adopted the PSR as its factual findings, pronounced Medicare and
Medicaid as victims of the conspiracy, and made Crawley liable for losses
attributable to the entire scheme. The record does not suggest that anyone
intended the written judgments to reflect otherwise, let alone to transpose the
underlying victims of Crawley’s fraud with the corporate vehicles she used to

       3
         The district court had no obligation to hold a hearing on the Government’s motion.
Crawley had an opportunity to respond and raise the same arguments advanced here. She
thus received sufficient due process. See Portillo, 363 F.3d at 1166 (“[W]hile it may be
preferable to have the defendant present when the court corrects clerical errors in the
judgment under Rule 36, ‘the defendant’s absence [cannot] rise to a deprivation of due
process.’” (quoting Cook v. United States, 426 F.2d 1358, 1360 (5th Cir. 1970)) (latter alteration
in original)).

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                         Nos. 11-60061 & 11-60065

harm them. The modifications thus effectuated the parties’ restitution-related
intent without affecting Crawley’s substantive rights. Accordingly, Rule 36
provided the proper avenue for correcting the original judgments.
 AFFIRMED.




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