USA v. Dorothy Hawkins

Filing 511109476

Case: 09-40427

Document: 00511109476

Page: 1

Date Filed: 05/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
May 12, 2010 N o . 09-40427 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff ­ Appellee v. D O R O T H Y ANN HAWKINS, D e f e n d a n t ­ Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 6:07-CR-82

B e fo r e GARWOOD, SMITH, and CLEMENT, Circuit Judges. P E R CURIAM:* D o r o th y Ann Hawkins pled guilty to conspiracy to commit healthcare fr a u d and was sentenced to forty-six months' imprisonment. See 18 U.S.C. § § 1347, 1349. She challenges the district court's enhancement of her sentence fo r abuse of a position of trust under U.S.S.G. § 3B1.3. For the following reasons a n d for essentially the reasons stated in our opinion filed today in United States v . Miller, No. 09-40438, we affirm Hawkins's sentence.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-40427

Document: 00511109476

Page: 2

Date Filed: 05/12/2010

No. 09-40427 L ik e her sister Brenda Davis Miller, Hawkins was the owner of a c o m p a n y , Genesis Medical Supply, that was licensed to provide durable medical e q u ip m e n t (DME) to beneficiaries of Medicaid and Medicare. Hawkins was e n m e s h e d in a scheme with Miller to defraud the government by submitting fa ls e and fraudulent claims for power wheelchairs, power scooters, and child p s y c h o th e r a p y services. The presentence report, adopted by the district court, stated that Hawkins t o o k an active role in managing both her company and her sister's company, AA B e tt e r Medical Supply. She provided one of her employees with patient

in f o r m a t io n to be recorded on pre-authorized certificates of medical necessity (C M N s ) , which were subsequently submitted to the government. In addition, s h e ordered and received medical equipment, tracked patients and referrals, and p a id invoices. Like Miller, Hawkins held a position which "provide[d] the

f r e e d o m to commit a difficult-to-detect wrong." United States v. Brown, 7 F.3d 1 1 5 5 , 1161 (5th Cir. 1993) (quotation omitted). Accordingly, the enhancement fo r abuse of trust was properly applied based on the "managerial discretion" e x e r c is e d by Hawkins in the context of a government program that relies on a D M E provider's honesty in claim submissions. See U.S.S.G. § 3B1.3 cmt. n.1. T h e enhancement was also appropriate in light of Hawkins's participation in the f a ls ific a t io n of CMNs, which essentially amounted to her assuming the role of a certifying physician vis-à-vis Medicaid and Medicare. See United States v. G ie g e r , 190 F.3d 661, 665 (5th Cir. 1999). Accordingly, there was no error in the application of the § 3B1.3 e n h a n c e m e n t . Hawkins's sentence is AFFIRMED.

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Case: 09-40427

Document: 00511109476

Page: 3

Date Filed: 05/12/2010

No. 09-40427 G A R W O O D , Circuit Judge, specially concurring.

I concur in the result for the same reasons as stated in my special c o n c u r r e n c e in No. 09-40438, USA v. Miller.

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