HLD, v. 33, n. 8 (August 2005)
Sixth Circuit Finds Lower Court
Erred In Applying Sentence Enhancement
The Sixth Circuit found June 15
that a federal district court erred in applying a two-level sentence
enhancement to a defendant's sentence when the defendant neither admitted nor a
jury found that she met the requirement for the enhancement. Thus, the appeals
court vacated the sentence and remanded for re-sentencing.
Bush pled guilty in federal district court to wire fraud, mail fraud, and
healthcare fraud. Bush was employed as a billing manager for a company that
provides home health visits to patients. Bush defrauded the company and federal
healthcare programs by creating false computer entries representing home health
visits that never took place. When Bush received the paychecks--totaling about
$145,000--for the nurses that supposedly made the visits, she deposited them in
her personal bank account. The company then generated bills to the patients'
insurance companies of approximately $78,000.
At Bush's sentencing hearing, the
Probation Office recommended a four-level sentence enhancement because of the
number of victims and a two-level enhancement because Bush abused a position of
trust. Bush objected to both enhancements. The district court added the
two-level enhancement for abuse of trust. Bush appealed.
The Sixth Circuit vacated Bush's
sentence and remanded to the district court. Bush argued that the trial court
erred in applying the two-level enhancement because she never admitted to
holding a position of trust in her plea agreement. Bush contended, and the
appeals court agreed, that United States
v. Booker, 125 S.Ct. 738 (2005), requires that
any fact used to support a sentence exceeding the maximum authorized by a
guilty plea or jury verdict must either be admitted by the defendant or proven
to a jury beyond a reasonable doubt.
Accordingly, the appeals court
found a violation of Bush's Sixth Amendment rights because Bush neither
admitted nor did a jury find that she had abused a position of trust.
United States v. Bush, No. 04-3613 (6th Cir. June
15, 2005). To read the case, go to http://www.ca6.uscourts.gov/opinions.pdf/05a0507n-06.pdf