                                              Filed:   July 10, 2002

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            Nos. 01-4949(L)
                               (CR-01-60)



United States of America,

                                                  Plaintiff - Appellee,

          versus


Michael J. Concessi, et al.,

                                               Defendants - Appellants.



                               O R D E R



     The court amends its opinion filed June 3, 2002, as follows:

     On page 2, second full paragraph, line 1; page 3, first

paragraph, lines 3, 5, and 8; and page 3, first full paragraph,

line 1 -- the references to “Appellees” are corrected to read

“Appellants.”

                                           For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
            UNPUBLISHED

   UNITED STATES COURT OF APPEALS

           FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                                        No. 01-4949


MICHAEL J. CONCESSI,
     Defendant-Appellant.


UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

      v.                                        No. 01-4951


HEALTHWISE MEDICAL REHABILITATION
CENTERS, P.L.L.C., a/k/a Healthwise,
P.L.L.C.,
      Defendant-Appellant.


Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

           (CR-01-60)

  Submitted: May 3, 2002

   Decided: June 3, 2002

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.


____________________________________________________________

Affirmed by unpublished per curiam opinion.

____________________________________________________________
                  COUNSEL

Gilbert K. Davis, William M. Stanley, Jr., Diane D. Stanley, DAVIS
& STANLEY, L.L.C., Fairfax, Virginia, for Appellants. Paul J.
McNulty, United States Attorney, Alan M. Salsbury, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

____________________________________________________________

                  OPINION

PER CURIAM:

   Michael J. Concessi and Healthwise Medical Rehabilitation Cen-
ters were convicted following a jury trial of one count of health care
fraud in violation of 18 U.S.C.A. § 1347 (West 2000) and twenty-
three counts of making false statements relating to health care matters
in violation of 18 U.S.C.A. § 1035 (West 2000) based on a scheme
to defraud the managed health care program established by the
Department of Defense known as TRICARE and Civilian Health
and Medical Program of the Uniformed Services
("TRICARE/CHAMPUS") and the Federal Employees Health Bene-
fits Program administered by Trigon Blue Cross and Blue Shield
("FEBHP/BCBS"). Concessi was sentenced to thirty months in
prison, three years of supervised release, fined a total of $25,000, and
ordered to pay $87,379.22 in restitution. Healthwise was placed on a
three-year term of probation and fined a total of $158,000.

   On appeal, the Appellants argue the district court erred when it
denied their motion for judgment of acquittal. We review the denial
of a motion for judgment of acquittal de novo. United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998). We review the verdict to
determine whether there is substantial evidence, taken in the light
most favorable to the Government, to support the conviction. Glasser
v. United States, 315 U.S. 60, 80 (1942). When considering the suffi-

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ciency of the evidence, we do not review the credibility of a witness's
testimony. United States v. Hobbs, 136 F.3d 384, 391 n.11 (4th Cir.
1998). First, Appellants argue the Government did not produce evi-
dence that Concessi prepared or sent the claim forms to TRI-
CARE/CHAMPUS and FEHBP/BCBS. Second, Appellants argue the
Government did not produce sufficient evidence of intent to defraud.
We have reviewed the evidence and, when viewed in the light most
favorable to the Government, it is sufficient to support Appellants'
convictions.

    Appellants argue the district court erred when it refused to allow
expert testimony from several defense witnesses because the notice
was untimely under the court's reciprocal discovery order and Fed. R.
Crim. P. 16 and failed to provide sufficient summaries of the prof-
fered testimony. We review the district court's decision regarding the
admission of expert testimony for abuse of discretion. United States
v. Barsanti, 943 F.2d 428, 432 (4th Cir. 1991). The expert designa-
tions were made the Friday afternoon before a trial that commenced
the following Monday and included only the general topics concern-
ing which each proposed expert would testify. The designations, how-
ever, failed to describe the witnesses opinions or provide the bases
and reasons for the witnesses' opinions. We conclude the district
court did not abuse its discretion based on the failure to comply with
Rule 16 and the court's discovery order. See United States v. Dorsey,
45 F.3d 809, 816 (4th Cir. 1995).

   Concessi argues his sentence was improperly calculated. First,
Concessi argues the district court erred when it failed to depart from
the sentencing guidelines range based on extraordinary restitution and
acceptance of responsibility under U.S. Sentencing Guidelines
§§ 3E1.1, 5K2.0 (2000). Based on Concessi's failure to accept
responsibility and pay restitution until after trial and conviction, the
district court did not err by failing to downwardly depart or apply a
two-level reduction. Second, Concessi argues the district court
improperly calculated the amount of loss. The district court's factual
finding is reviewed for clear error. United States v. Godwin, 272 F.3d
659, 671 (4th Cir. 2001), petition for cert. filed, No. 01-9474 (U.S.
Mar. 26, 2002). We have reviewed the district court's finding and find
no error in its loss calculation.

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   Third, Concessi argues he should not have been subject to a two-
level enhancement for obstruction of justice based on perjury. To
establish an obstruction of justice enhancement based on perjury, the
sentencing court must find by a preponderance of the evidence that
the testimony was false, that it concerned a material matter, and that
it was given with willful intent to deceive. United States v. Smith, 62
F.3d 641, 646 (4th Cir. 1995). We find no error in the district court's
factual findings or application of the sentencing enhancement.

   Fourth, Concessi argues the district erred when it applied a two-
level enhancement for abuse of a position of trust under USSG
§ 3B1.3. We review the application of the enhancement for clear
error. Godwin, 272 F.3d at 671. The determination of whether a
defendant held a position of trust is examined from the victim's per-
spective. Id. The district court properly concluded Concessi held a
position of trust with respect to TRICARE/CHAMPUS and
FEHBP/BCBS.

   Finally, Concessi argues the application of the sentencing enhance-
ments were in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000). Apprendi, however, is not implicated because Concessi's sen-
tence was not above the statutory maximum. See United States v. Kin-
ter, 235 F.3d 192, 201 (4th Cir. 2000), cert. denied, 532 U.S. 937
(2001).

   Accordingly, we affirm Concessi's and Healthwise's convictions
and sentences. 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

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