* 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. 11-60061

consolidated with

No. 11-60065

UNITED STATES OF AMERICA,

Plaintiff – Appellee 

v.

JACQUALINE CRAWLEY,

Defendant – Appellant 

Appeals from the United States District Court

for the Southern District of Mississippi

(07-CR-124)

Before KING, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Appellant Jacqualine Crawley appeals from the district court’s correction

of clerical errors and subsequent entry of amended written judgments under

Federal Rule of Criminal Procedure 36. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

March 6, 2012

Lyle W. Cayce

Clerk
Nos. 11-60061 & 11-60065

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I. Facts and Procedural History

Crawley and several others engaged in healthcare fraud. Among the

entities used to carry out the scheme were Rehabilicare, Mississippi Care

Partners, Statewide Physical Medicine (“Statewide”), and Progressive Physical

Medicine (“Progressive”). For her complicity, Crawley was convicted of

conspiring to commit healthcare fraud, participating in substantive healthcare

fraud, and making false statements related to healthcare.

Crawley was sentenced together with two co-conspirators. After ruling on

Crawley’s objections to the PSR and application of the Guidelines, the district

court adopted the PSR “without change.” In sentencing another defendant, the

district court declared Medicare and Medicaid as victims—and thus restitution

payees—in cause number 1:07-CR-124, to which Crawley was a party.

Crawley was sentenced last. In line with the PSR, the district court found

“that the United States Health Care Trust Fund [(the “Trust Fund”)] ha[d]

suffered injury . . . of $32,057,589.38” and orally ordered restitution in that

amount, for which Crawley and her co-conspirators were made jointly and

severally liable. The written judgments divided the total amount owed between

the two cases involving Crawley: $17,437,239.05 in the “Mississippi Care

Partners case” (No. 11-60061), and $14,620,849.66 in the “Rehabilicare case”

(No. 11-60065). These amounts, however, totaled $32,058,088.71, or $499.33

more than the amount orally pronounced at sentencing (the “Discrepancy”).

Besides the Trust Fund, the written judgments also listed Progressive and

Statewide—vehicles used to perpetrate the fraud—as payees.

Crawley appealed on several grounds, arguing in part that the district

court erred by making Crawley responsible for losses linked to Progressive and

Statewide and by calculating her restitution in light of the losses attributable to

the conspiracy as a whole. See United States v. Crawley, 381 F. App’x 462, 466
Nos. 11-60061 & 11-60065

1 Crawley argues for de novo review of Rule 36 corrections. The Government notes that

our sister circuits use various standards and cites an unpublished Fifth Circuit case that

applied an abuse-of-discretion standard. See United States v. Harrill, 91 F. App’x 356, 357 (5th

Cir. 2004) (unpublished) (emphasizing that Rule 36 uses the word “may” (citing United States

v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999) (applying abuse-of-discretion review to reduction

of a sentence under 18 U.S.C. § 3582(c)(2)))). Because we conclude that Crawley’s claims fail

regardless of the standard of review utilized, we need not decide that issue here.

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(5th Cir. 2010) (Crawley I) (unpublished). We affirmed, modifying Crawley’s

sentence on an issue irrelevant here. See id. at 466-67.

The Government later moved under Rule 36 to correct the inclusion of

Progressive and Statewide as payees and to modify the allocation of restitution

between payees. The district court granted the motion and entered amended

judgments that inserted Mississippi Medicaid (“Medicaid”) as a payee, removed

Progressive and Statewide, and reallocated restitution between Medicaid and

the Trust Fund. The new judgments did not alter the total amount of restitution

owed in each case, perpetuating the Discrepancy. Crawley timely appealed.1

II. Waiver of Discrepancy Argument

Crawley argues that the Discrepancy violates her substantive rights,

apparently assuming that the written judgments increased her sentence. See

United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994) (“Restitution is a

criminal penalty and a component of the defendant’s sentence.”). Even assuming

thatit did so, Crawley waived arguments premised on the Discrepancy. Because

the Discrepancy existed before Crawley I, any argument that it affected her

substantive rights should have been raised in that proceeding. She failed to do

so. Amending a judgment merely to correct clerical errors does not make the

substance of the original judgment vulnerable to attack. See United States v.

Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (holding certain arguments waived

because “[n]either defendant [had] demonstrated why he was unable to appeal

his issue in the initial appeal”); cf. United States v. Lee, 358 F.3d 315, 323 (5th

Cir. 2004) (noting that issues “not raised in the appeals court, which could have
Nos. 11-60061 & 11-60065

4

been brought in the original appeal, are not proper for reconsideration by the

district court” (internal quotation marks and citations omitted)). The district

court did not alter the Discrepancy in its Rule 36 rulings, thus any argument

about the Discrepancy is not properly before us.

III. Substitution of Medicaid

Crawley contends more generally that entering the amended written

judgments to alter the identity and allocation of payees also violated her

substantive rights. She raises a number of arguments, which we group into two

broad categories: those raising evidentiary issues and those challenging Rule

36’s applicability. We address each in turn.

A. Evidentiary Arguments

Crawley broadly asserts that no evidence supports Medicaid’s eligibility

as a restitution payee. She claims that the Probation Office failed to obtain

certain statements and affidavits necessary to conduct a “complete accounting”

of Medicaid’s loss. This allegedly prevented her from “testing” Medicaid’s claims

and caused the district court to enter an unfair restitution order.

Crawley essentially attempts to relitigate the evidentiary basis of the

restitution order, an issue partially addressed in Crawley I. See 381 F. App’x at

466. We rejected the restitution challenge there, concluding that the district

court permissibly attributed to Crawley “all losses” traceable to the conspiracy.

Id. (citation omitted). We also held that the “district court was entitled to rely

on information contained in the [PSR] as to the amount of loss because Crawley

offered no evidence contesting the PSR and did not show that it was inaccurate

or unreliable.” Id. (citation omitted). The PSR described Medicaid as a victim,

as did the district court at sentencing. The district court adopted the PSR’s

factual findings as its own and ordered Crawley to pay restitution in the same

total amount attributable to her fraudulent activities as set forth in the PSR.
Nos. 11-60061 & 11-60065

2 At oral argument, Crawley contended that the district court substantively amended

her sentence by essentially finding that Medicaid was a victim in the Rehabilicare case, when

none ofthe entities involved in that case had bilked Medicaid. She also asserted that, although

the total restitution amount was the same, the amendments increased the amount due to

Medicaid by approximately $800,000 more than provided in the PSR. From this argument,

she concludes that this court should cut that amount from her restitution obligation.

Crawley failed to make these specific arguments either before the district court or in

her primary brief on appeal, and defense counsel conceded at oral argument that he

“synthesize[d]” this line of attack from arguments previously made in a “more general sense.”

With the aid of post-oral-argument hindsight, these arguments are discernable in Crawley’s

reply brief. However, any arguments first presented on appeal or in reply briefs are generally

considered waived. See, e.g., Sw. Bell. Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir.

2008) (not raised below); Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003) (not raised in

opening brief). In any case, the arguments do not prevail under plain error review. See, e.g.,

Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining elements of plain error review).

5

Accordingly, the district court determined that Medicaid was a victim at

the time of the proceedings giving rise to Crawley I, not by its later act of

entering the amended judgments. Those judgments left unaltered the total

amount of restitution provided in the original judgments. Crawley therefore

should have challenged any accounting errors in her original appeal, which was

also the appropriate place to “test” Medicaid’s claims. She failed to do so, and

she again provides no evidence contradicting the PSR’s soundness. Crawley’s

claims thus are res judicata to the extent they require reconsideration of

evidentiary matters addressed in Crawley I, and they are waived to the extent

they raise arguments that could have been made in that proceeding.2

B. Rule 36 Applies Here

Crawley also raises several arguments that question whether substituting

a restitution payee qualifies as the correction of a clerical error. Rule 36

provides: “After giving any notice it considers appropriate, the court may at any

time correct a clerical error in a judgment, order, or other part of the record, or

correct an error in the record arising from oversight or omission.” While there

may be circumstances where the line between clerical error and judicial error is

unclear, we have generally found that correction of a clerical error occurs when
Nos. 11-60061 & 11-60065

3 The district court had no obligation to hold a hearing on the Government’s motion.

Crawley had an opportunity to respond and raise the same arguments advanced here. She

thus received sufficient due process. See Portillo, 363 F.3d at 1166 (“[W]hile it may be

preferable to have the defendant present when the court corrects clerical errors in the

judgment under Rule 36, ‘the defendant’s absence [cannot] rise to a deprivation of due

process.’”(quoting Cook v. UnitedStates, 426 F.2d 1358, 1360 (5th Cir. 1970)) (latter alteration

in original)).

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the modification neither affects a party’s substantive rights nor contradicts the

court’s and the parties’ intentions as to the judgment. See, e.g., United States v.

Spencer, 513 F.3d 490, 491 (5th Cir. 2008) (“[C]ourts have deemed Rule 36 the

appropriate mechanism for amendments that do not substantively alter the

sentence announced orally but rather correct errors in written judgments.”);

United States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995) (collecting cases).

The amended judgments corrected only clerical errors. See Spencer, 513

F.3d at 492; United States v. Portillo, 363 F.3d 1161, 1165 (11th Cir. 2004) (“The

Rule 36 order did not fundamentally alter Portillo’s sentence, because it did not

increase the restitution amount initially imposed at sentencing. The order

merely changed the payees from the [uninjured party] to the six [victims] who

were directly injured by Portillo’s crime.”). Similarly, the corrected judgments

here did not increase the amount of restitution Crawley owes as a result of her

role in the conspiracy. Because Crawley’s sentence remained unchanged, her

substantive rights were not affected. Cf. Portillo, 513 F.3d at 1165 (Rule 36

corrections “did not make Portillo’s sentence more onerous”).3

The district court’s substitution of Medicaid as a payee does not compel a

different conclusion. Again, the PSR specified Medicaid as a victim, and the

district court adopted the PSR as its factual findings, pronounced Medicare and

Medicaid as victims of the conspiracy, and made Crawley liable for losses

attributable to the entire scheme. The record does not suggest that anyone

intended the written judgments to reflect otherwise, let alone to transpose the

underlying victims of Crawley’s fraud with the corporate vehicles she used to
Nos. 11-60061 & 11-60065

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harm them. The modifications thus effectuated the parties’ restitution-related

intent without affecting Crawley’s substantive rights. Accordingly, Rule 36

provided the proper avenue for correcting the original judgments.

AFFIRMED.