1 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 a lleged 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

procedu res through the use of five-digit codes. The codes are a

shorthand language used by the insurance industry and the medical2

pro fession to describe a condition, treatment or procedure. By

placing a cod e 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 whi ch 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 weekend s 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 four teen 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 el even-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 patie nts 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 sentences3

imposed under the guide lines 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. U nited 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. U

nited States v. Fitzhugh

, 984 F.2d 143, 146 (5 th 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 cou rt is best suited to

make. U

nited States v. Rocha , 916 F.2d 219, 244-45 (5th Cir.

1990).

a. Ex Post Facto

Burgos first argues that the dis trict 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 distri ct court should apply the Guidelines in

effect on the date the defendant is sentenced, unless the4

application of such Guidelines would violate the Ex Post Facto

C lause 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. S ee 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 Comme nt in the 1991 edition provided, “This adjustment

applies to offenses where an unusually vulnerable victim is made a

target of criminal activity by the defend ant.” § 3A1.1, comment.

(n.1)(Nov. 1991). Amendment 521, i nter 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 whet her 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 effectuated5

substantive changes which, if applied to Burgos, would violate the

Ex Post Facto Clause. S tover recognized that in the Eighth

Circuit, prior to the amendment, the Government had to prove that

the defendant had targeted an unusually vulnerable victim. I d

. at

1384. Amendment 521 was a substantive change in that circuit

because the Government no longer had to prove targeting. I d.

Consequently, the amendment implicated the Ex Post Facto Clause.

Id. at 1385-86.

Alt hough 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 tha t § 3A1.1 contained no targeting

requirement. U

nited 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 ta rgeting

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 Post6

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 argue s 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 n ot contest the finding that his patients were

e specially 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 wha t was necessary and their

insurance companies were billed for treatment not given. Further,

the patients’ treatment benefits were often exhausted by the time7

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.