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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10163
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HERNAN ENRIQUE BURGOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
March 19, 1998
Before DAVIS, WIENER and PARKER, Circuit Judges.
PER CURIAM:
Defendant-Appellant Hernan Enrique Burgos ("Burgos") appeals
his conviction and sentence for mail fraud. We affirm.
I. FACTS AND PROCEEDINGS
A fourteen count indictment alleged that Burgos, a
psychiatrist, knowingly billed certain insurance companies for
services that he did not provide to his patients who were insured
by the companies. The insurance industry standardizes its billing
procedures through the use of five-digit codes. The codes are a
shorthand language used by the insurance industry and the medical
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profession to describe a condition, treatment or procedure. By
placing a code on a claim form, a doctor tells the insurance
company what type of service was rendered by the doctor.
The indictment identified fourteen claims in which patients
were hospitalized in the Psychiatric Institute of Fort Worth during
1991 for periods ranging from ten days to six months. The patients
were billed daily, including weekends and vacations, by Burgos,
using the code for individual psychotherapy, with the additional
descriptive phrase "daily hospital care." However, the patients
saw Burgos only a few times in the weeks or months during their
hospitalization.
The jury convicted Burgos on all fourteen counts. At
sentencing, the district court determined that the amount of loss
was more than $800,000 but not more than $1.5 million, which
resulted in an eleven-level increase to his base offense level.
The court found that Burgos abused a position of trust, resulting
in a two level increase. The court then found that, in addition to
the insurance companies, Burgos's patients were victims of his
crime and that they were vulnerable victims, resulting in a two
level increase. Based on an offense level of 23 and a criminal
history category of I, the district court sentenced Burgos at the
bottom of the guideline range to 46 months imprisonment, three
years supervised release and a $425,000 fine.
II. VULNERABLE VICTIM UPWARD SENTENCE ADJUSTMENT
Burgos challenges the upward adjustment to his total offense
level because his victims were vulnerable. Review of sentences
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imposed under the guidelines is limited to a determination of
whether the sentence was imposed in violation of law, as a result
of an incorrect application of the guidelines, or was outside the
applicable guideline range and was unreasonable. United States v.
Matovsky, 935 F.2d 719, 721 (5th Cir. 1991). Legal conclusions are
reviewed de novo, and findings of fact are reviewed for clear
error. United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.
1993).
The guidelines provide:
If the defendant knew or should have known that a victim
of the offense was unusually vulnerable due to age,
physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal
conduct, increase by 2 levels.
U.S.S.G. � 3A1.1(b). The determination that a victim is vulnerable
is a factual finding which the district court is best suited to
make. United States v. Rocha, 916 F.2d 219, 244-45 (5th Cir.
1990).
a. Ex Post Facto
Burgos first argues that the district court violated the Ex
Post Facto Clause by applying the 1995 version of the Sentencing
Guidelines rather than the 1991 version which was in effect when
the last offense was completed. He contends that the earlier
version of the guidelines required the defendant to target his
victim specifically based on the victim's vulnerability.
Pursuant to � 1B1.11(a) and 1B1.11(b)(1), p.s., and 18 U.S.C.
� 3553(a)(4)(A), a district court should apply the Guidelines in
effect on the date the defendant is sentenced, unless the
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application of such Guidelines would violate the Ex Post Facto
Clause of the Constitution, in which event, the Guidelines in
effect on the date of the offense should be used.
Here, sentencing occurred after the effective date of the 1995
Edition. Amendment 521, effective November 1, 1995, redesignated
the vulnerable victim provision of the Guidelines, but it did not
change the text of the provision. See U.S.S.G. App. C, amend. 521,
at 428-30. The application notes to � 3A1.1, however, were amended
to clarify the operation of � 3A1.1, specifically whether the
victim must have been targeted by the defendant. Id. at 429.
The Comment in the 1991 edition provided, "This adjustment
applies to offenses where an unusually vulnerable victim is made a
target of criminal activity by the defendant." � 3A1.1, comment.
(n.1)(Nov. 1991). Amendment 521, inter alia, deleted that sentence
and replaced it with "Subsection (b) applies to offenses involving
an unusually vulnerable victim in which the defendant knows or
should have known of the victim's unusual vulnerability." � 3A1.1,
comment. (n.2). In amending the commentary, the Sentencing
Commission explained that there had been some inconsistency in the
application of � 3A1.1 regarding whether the adjustment required
proof that the defendant had targeted the victim on account of the
victim's vulnerability. U.S.S.G. App. C, amend. 521, at 430. The
Commission stated that the amendment thus served to clarify the
application of � 3A1.1 as to that issue. Id.
Relying on United States v. Stover, 93 F.3d 1379, 1386 (8th
Cir. 1996), Burgos argues that the amendment effectuated
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substantive changes which, if applied to Burgos, would violate the
Ex Post Facto Clause. Stover recognized that in the Eighth
Circuit, prior to the amendment, the Government had to prove that
the defendant had targeted an unusually vulnerable victim. Id. at
1384. Amendment 521 was a substantive change in that circuit
because the Government no longer had to prove targeting. Id.
Consequently, the amendment implicated the Ex Post Facto Clause.
Id. at 1385-86.
Although this circuit has used the "target" language in
upholding the adjustment, see, e.g., United States v. Leonard, 61
F.3d 1181, 1188 (5th Cir. 1995); United States v. Scurlock, 52 F.3d
531, 541-42 (5th Cir. 1995), unlike the Eighth Circuit, we have not
required a specific "targeting" of a vulnerable victim beyond the
requirement that the defendant knew or should have known of the
vulnerability.
The Third Circuit, which had not addressed whether specific
targeting was required, followed the First, Second, and Ninth
Circuits in holding that � 3A1.1 contained no targeting
requirement. United States v. Cruz, 106 F.3d 1134, 1138-39 (3rd
Cir. 1997); see also United States v. Hershkowitz, 968 F.2d 1503,
1506 (2d Cir. 1992)(declining to impose a specific targeting
requirement); United States v. O'Brien, 50 F.3d 751, 755 (9th Cir.
1995)(same); United States v. Gill, 99 F.3d 484, 488 (1st Cir.
1996)(holding in a post-amendment case that the pre-amendment
guideline did not contain a targeting requirement).
We hold that the amendment does not implicate the Ex Post
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Facto Clause because there is no authority requiring targeting in
this circuit, see Cruz, 106 F.3d at 1139, and because Amendment 521
clarified that the guideline language itself does not contain such
a requirement.
b. Who was Burgos's vulnerable victim?
Burgos argues that the district court clearly erred when it
determined that the insurers were vulnerable victims. Burgos
misconstrues the district court's ruling. The insurers are not,
and could not have been found to be, vulnerable victims. In making
its findings, the district court stated, "I find that . . . the
patients were victims along with the insurance companies and they
were vulnerable victims." We understand the court to have found,
first, that the victims of the offense included not only the
insurers but also the patients, and second, that the patients were
unusually vulnerable. The district court thus adopted the findings
of the Presentence Report ("PSR") that Burgos's patients were
unusually vulnerable because of their mental conditions.
Burgos does not contest the finding that his patients were
especially vulnerable or that he knew that they were vulnerable.
Rather, his argument presumes that they were not the victims of his
crimes. However, a reasonable fact finder could conclude that the
patients were the victims of Burgos's fraudulent scheme. They were
often admitted to the hospital needlessly or their stays in the
hospital were extended beyond what was necessary and their
insurance companies were billed for treatment not given. Further,
the patients' treatment benefits were often exhausted by the time
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of their discharge. In some cases, patient benefits were exhausted
for a life-time; therefore, any future treatment needs would not be
covered under their current policy. We therefore conclude that the
district court did not clearly err in applying the vulnerable
victim adjustment in calculating Burgos's guideline range.
CONCLUSION
Having reviewed the record, relevant authority, the briefs and
argument of counsel, we find no other error assigned by Burgos
merits reversal.
We therefore affirm Burgos's conviction and sentence.
AFFIRM.

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