* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 1, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10691

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH R. KIRKHAM, JAMES MARK MURPHY,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CR-11-1

--------------------

Before SMITH, CLEMENT and PRADO, Circuit Judges.

PER CURIAM:*

A jury convicted Joseph Kirkham and James Murphy of health

care fraud in violation of 18 U.S.C. §§ 1347 and 2. In a prior

appeal, we remanded for resentencing in accordance with United

States v. Booker, 543 U.S. 220 (2005). The district court

imposed the same sentences under the now-advisory Guidelines as

it had imposed under the pre-Booker mandatory Guidelines.

The defendants jointly appeal their sentences and contend

that the loss calculation recounted in the presentence report
No. 05-10691

-2-

(PSR) as the basis for their sentences was improperly based on

the claims paid by insurers, without proof that every claim was

fraudulent. They point to no evidence showing that any

particular calculated claim was not in some way fraudulent. 

We review their contention clear error. United States v.

Messervey, 317 F.3d 457, 464 (5th Cir. 2002). Intended loss is a

proper measure of loss in this fraud case. See id. The

sentencing court was not required to determine the loss with

precision, as long as its estimate was reasonable in light of

available information. United States v. Humphrey, 104 F.3d 65,

71 (5th Cir. 1997). 

The district court calculated the intended loss based on a

“Victim List” for each defendant setting forth the amount of

funds the victimized insurance companies disbursed based on the

claims submitted by the defendant. Based on the broad extent of

the scheme as demonstrated by the trial evidence, it was not

clearly erroneous for the district court to conclude “that all of

the similar claims under consideration were part and parcel of

the same fraudulent scheme.” See United States v. Austin, 432

F.3d 598, 600 n.2 (5th Cir. 2005). The PSR was sufficiently

reliable to establish the amount of loss intended by the

defendants’ fraud scheme. See Humphrey, 104 F.3d at 71; § 2F1.1,

comment (n.8) (Nov. 2000). Because the defendants submitted no

evidence to show that the information in the PSR was materially

untrue, the district court was free to adopt the PSR without
No. 05-10691

-3-

further explanation. Id.; see United States v. Caldwell, 

F.3d , No. 05-30263, 2006 WL 1075594, *1 (5th Cir. Apr. 25,

2006) (post-Booker sentence).

The defendants also contend that the district court’s

assessment of the reasonableness of their sentences in light of

18 U.S.C. § 3553(a) was perfunctory and inadequate. The

defendants were sentenced within properly calculated guideline

ranges, and they have failed to rebut the presumption that their

sentences were reasonable. See United States v. Alonzo, 435 F.3d

551, 554 (5th Cir. 2006). 

The judgment of the district court is

AFFIRMED.