                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 3, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40089
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MICHAEL L. HEROD,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:03-CR-200-1
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Michael L. Herod appeals his conviction and sentence for 13

counts of health care fraud and six counts of mail fraud.        He

argues that the evidence was insufficient to establish that he

knowingly intended to defraud; that the district court erred in

finding that he abused a position of trust pursuant to U.S.S.G.

§ 3B1.2; that the amount of loss was improperly calculated under

the sentencing guidelines; that his sentence is unconstitutional

pursuant to United States v. Booker, 125 S. Ct. 738 (2005); and


     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-40089
                                 -2-

that the district court abused its discretion in ordering the

restitution award.

     Herod contends that the evidence did not establish his

criminal intent beyond a reasonable doubt because he testified

that he was distanced from the billing practices of his office

and that he had no knowledge of the office procedures regarding

Medicaid.    However, Herod’s own testimony reflects a knowledge of

the Medicaid procedures and the office billing practices.      Herod

stated that he was often not paid for the total amount billed to

Medicaid.    He also stated that Medicaid accounted for 15 to 20

percent of his income.

     Additionally, Herod’s dental license expired in April 1999.

Testimony from Diana Costello Stark and from Loren Barnes

established that Herod was aware of the expiration of his

license.    As an enrollee in the Texas Medicaid Program, he had

been provided with a copy of the policies and procedures manual.

To participate in the program, a health care provider must be

licensed.    Herod was required to inform the program if his

license expired and would no longer be entitled to participate.

Herod never informed the program of the expiration of his dental

license, and his license was not renewed.    The evidence is

sufficient for a reasonable trier of fact to conclude beyond a

reasonable doubt that Herod possessed the requisite criminal

intent.    United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.

2000).
                            No. 05-40089
                                 -3-

     Herod also argues that the district court clearly erred in

applying an upward adjustment to his base offense level for

abusing a position of trust.    It is established in this court

that an abuse of trust enhancement is appropriate where a

physician abuses the trust of his patients.     See United States v.

Iloani, 143 F.3d 921, 923 (5th Cir. 1998).    The argument that the

Medicaid program does not qualify as a victim is without merit.

Such programs rely on the honesty and integrity of doctors and

their “representations that the treatments for which the

companies are billed were in fact performed.”    Iloani, 143 F.3d

at 923.   The enhancement for abuse of trust is not clearly

erroneous.    United States v. Angeles-Mendoza, 407 F.3d 742, 750

(5th Cir. 2005).

     Herod contends that the amount of loss as used in the PSR

calculation for his total offense level is erroneous.    There is

no evidence to establish that the amount of loss is below

$200,000.    The district court’s finding is not clearly erroneous.

Angeles-Mendoza, 407 F.3d at 750.

     With regard to the enhancements for abuse of trust and the

amount of loss, Herod asserts that they violate his Sixth

Amendment rights pursuant to Booker.    He states that these facts

were not found by a jury and that he did not admit to them.

Herod articulated objections in the district court on these

grounds and cited to the decision of Blakely v. Washington, 542

U.S. 296 (2004).   Therefore, this court will ordinarily vacate
                           No. 05-40089
                                -4-

and remand for resentencing unless the Government can establish

harmless error beyond a reasonable doubt.     United States v.

Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).

     The finding that the amount of loss was greater than

$200,000 was a fact found by the jury.     The amount of loss was

alleged in the indictment, and the jury found the defendant

guilty as charged of all counts.   Thus, the amount of loss is not

a Booker error.   See Booker, 125 S. Ct. at 756.    Nevertheless,

the finding by the district court that Herod abused a position of

trust does qualify as a Booker error, and the Government concedes

that it cannot establish harmless error beyond a reasonable

doubt.   As such, the sentence must be vacated, and the case must

be remanded.

     Herod asserts that the district court abused its discretion

in the amount of restitution awarded.     He claims that he lacks

the ability to pay the award.   Herod was ordered to pay

restitution pursuant to 18 U.S.C. § 3663A, which mandates

restitution.   The district court must order the full amount of

restitution due the victim, without regard for the defendant’s

economic circumstances or ability to pay.     United States v.

Myers, 198 F.3d 160, 168-69 (5th Cir. 1999).     The district court

did not abuse its discretion in awarding restitution.      See United

States v. Hughley, 147 F.3d 423, 436 (5th Cir. 1998).

     Accordingly, Herod’s conviction is AFFIRMED.     His sentence

is VACATED, and the matter is REMANDED for resentencing.
