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Sixth Circuit Finds Lower Court Erred In Applying Sentence Enhancement


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.

Belita 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


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