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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10612

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TERRY DEAN WEST,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:08-CR-77-1

Before DeMOSS, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Terry Dean West appeals the sentence imposed upon his conviction for

making false statements related to healthcare matters and aiding and abetting.

See 18 U.S.C. §§ 1035, 2. West presents four arguments: (1) that the district

court erred at sentencing by enhancing his offense level by two pursuant to

United States Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) §

3B1.3 for abuse of a position of trust, (2) that the district court erred at

sentencing by enhancing his offense level by two pursuant to U.S.S.G. §

United States Court of Appeals

Fifth Circuit

F I L E D

March 18, 2010

Charles R. Fulbruge III

Clerk

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No. 09-10612

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2B1.1(b)(9)(C) for the use of sophisticated means in committing the offense, (3)

that the district court erred by declining to award West a nonguideline sentence

or a downward departure, and (4) that an alleged violation of the victim’s

statutory rights at sentencing violated his due process rights.

Section 3B1.3 of the Guidelines provides in pertinent part that “[i]f the

defendant abused a position of public or private trust . . . in a manner that

significantly facilitated the commission or concealment of the offense, increase

by 2 levels.” Sava Care Corporation (Sava), West’s employer, placed West in a

position of trust that significantly facilitated the commission of the offense.

West’s employment gave him access to Sava’s accounting and billing information

and gave him a unique opportunity to alter those records without any immediate

supervision under which the alterations were likely to be discovered before West

received any money from them. See United States v. Brown, 7 F.3d 1155, 1161

(5th Cir. 1993). The district court did not err in overruling West’s objection to

the § 3B1.3 enhancement.

Section 2B1.1(b)(9) of the Guidelines provides for a sentencing level

increase if the offense involved “sophisticated means.” “Conduct such as hiding

assets or transactions, or both, through the use of fictitious entities, corporate

shells, or offshore financial accounts . . . ordinarily indicates sophisticated

means.” U.S.S.G. § 2B1.1 cmt. n.8. West’s offense conduct involved

(1) manipulation of a facility’s computer system by altering patient records,

financial information, and names and addresses, (2) directing others to send

refund checks to alias identities, and (3) obtaining post office boxes in multiple

locations, some of which were rented under aliases. The district court’s

determination that West used sophisticated means was not clearly erroneous.

See, e.g., United States v. Wright, 496 F.3d 371, 379 (5th Cir. 2007); United

States v. Clements, 73 F.3d 1330, 1340 (5th Cir. 1996). 

There is no merit in West’s argument that the district court abused its

discretion in denying his motion for a nonguideline sentence or a downward

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departure. The claim is conclusory. West has not shown that the sentence

imposed is procedurally unsound or that the calculation of the advisory

guidelines range is incorrect. See Gall v. United States, 552 U.S. 38, 49-51

(2007). Moreover, a court of appeals is generally without jurisdiction to review

a district court’s refusal to grant a downward departure when its decision is

based upon a determination that a departure was not warranted. United States

v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Regarding the district court’s

refusal to impose a lesser, nonguideline sentence, the sentence is within the

applicable guideline range of imprisonment and is therefore presumptively

reasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th

Cir.), cert. denied, 129 S. Ct. 328 (2008). The district court did not abuse its

discretion in imposing a sentence within the applicable guideline range. See

Gall, 552 U.S. at 51. 

West argues that because Sava was not identified as the victim until the

morning of sentencing, it was not provided the rights afforded victims under

18 U.S.C. § 3771(b). West argues that his due process rights were violated in

that he would have benefitted from knowing the identity of the alleged victim

before he was sentenced.

This argument is patently frivolous. Section § 3771 specifically provides

that “[a] person accused of the crime may not obtain any form of relief under this

chapter.” § 3771(d)(1).

AFFIRMED.

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