US v. Veronica Cunningham, No. 12-4756 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4756 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VERONICA SHARON CUNNINGHAM, a/k/a Veronica Sharon Louis, a/k/a Sharon Veronica 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 twentysix 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. Smith, 451 challenging burden. F.3d the 209, 216 sufficiency (4th of Cir. the United States v. 2006). evidence A faces defendant a heavy 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. 2 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. F.3d at evidence 216 (citations that a omitted). reasonable Smith, 451 Substantial finder of fact evidence could is accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. and citation reviewing omitted). court, Id. (internal quotation marks Furthermore, weighs the [t]he credibility of jury, the not 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 [Cunningham] to prove knowingly materially false . connection with the . beyond and . or delivery a reasonable willfully fraudulent of benefits, items, or services. 3 or . . . ma[de] statements payment doubt for . . . health that . . . in care United States v. McLean, 715 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 other makes document, and which subscribes contains any or return, statement, is verified by a or 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. (4th Cir. 2011). relevant legal United States v. Cole, 631 F.3d 146, 151 We have thoroughly reviewed the record and the 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 erred in next granting the questions whether government s the motion district for an court 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. 4 See U.S. Sentencing 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 upwardly U.S.S.G. depart information category from indicates the that substantially defendant s § 4A1.3(a), criminal a Guidelines the range defendant s underrepresents history district or the the defendant will commit other crimes. court may [i]f reliable criminal history seriousness likelihood of that the the Examples of information that may form the basis for an upward departure include [p]rior similar adult conviction. criminal conduct not resulting U.S.S.G. § 4A1.3(a)(2)(E). In in a criminal determining the extent of the departure, the Guidelines instruct a court to use as a reference defendants resembles the whose that of criminal criminal the history history defendant. or category applicable likelihood U.S.S.G. to to reoffend § 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. court. writing, Accordingly, we affirm the judgment of the district This court requires that counsel inform Cunningham, in of the right to petition United States for further review. the Supreme Court of the 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 6
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