United States v. Fisk

* 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this opinion should not be published and is not precedent except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
F I L E D
May 29, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10604
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARBARA ANTONIE FISK,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-185
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges:
PER CURIAM:*
Barbara Antonie Fisk appeals her concurrent 46-month prison
sentences imposed following her guilty–plea conviction of three
counts of mail fraud, in violation of 18 U.S.C. § 1341.
Fisk’s sentence was based largely on a determination, under
U.S.S.G. § 2B1.1(b)(1)(G), that she had caused $293,084.94 in
losses to insurance companies that she had defrauded through the
use of fictitious and altered receipts and other documents, by
causing fires to be set, and by causing a hot-water heater to
malfunction. She contends that the sentencing evidence, as set

-- 1 of 5 --

No. 06-10604
-2-
forth in the Presentence Report (PSR), was inadequate to establish
the loss figure and was based on unsupported assertions by an ATF
Agent, S. Whittaker. Fisk also argues that the district court
erred by counting legitimate portions of insurance claims as loss
amounts, instead of counting only those portions of claims that
were deemed to be fraudulent.
A sentence imposed in the advent of United States v. Booker,
543 U.S. 220 (2005), will generally be affirmed if it is
“reasonable.” United States v. Mares, 402 F.3d 511, 517-20 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005). After Booker, we still
review the district court’s application of the Guidelines de novo
and factual findings for clear error. See United States v. Lewis,
476 F.3d 369, 389 (5th Cir. 2007). “The sentencing judge is
entitled to find by a preponderance of the evidence all the facts
relevant to the determination of a Guidelines sentencing range.”
Id.
“‘Actual loss’ means the reasonably foreseeable pecuniary harm
that resulted from the offense.” § 2B1.1, comment. (n.3(A)(i)).
“The court need only make a reasonable estimate of the loss. The
sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence. For this reason, the
court’s loss determination is entitled to appropriate deference.”
Id., comment. (n.3©). “In resolving any dispute concerning a
factor important to the sentencing determination, the court may
consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its

-- 2 of 5 --

No. 06-10604
-3-
probable accuracy." U.S.S.G. § 6A1.3(a), p.s. “A district court
‘may adopt the facts contained in a [PSR] without further inquiry
if those facts have an adequate evidentiary basis with sufficient
indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR
is unreliable.’” United States v. Valdez, 453 F.3d 252, 262 (5th
Cir.) (citation omitted), cert. denied, 127 S. Ct. 456 (2006).
When a district court relies on such PSR information, the defendant
has the burden to show that it is materially untrue. Id.; see §
6A1.3, p.s.
In arriving at the loss figure in Fisk’s case, the district
court reasoned that the Government discharged its burden of proof
by showing that at least some portion of each of 10 insurance
claims by Fisk was fraudulent. The court indicated that the burden
then shifted to Fisk to show that certain portions of each
insurance claim was legitimate, but Fisk submitted no evidence to
make such a showing. The court’s reasoning was sound, because an
insured party generally is not entitled to benefit from an
insurance contract when that party has inflated or exaggerated his
claims or has otherwise engaged in fraud. See, e.g., Chaachou v.
American Century Ins. Co., 241 F.2d 889, 892 (5th Cir. 1957);
Kulubis v. Texas Farm Bureau Underwriters Ins. Co., 706 S.W.2d 953,
955 (Tex. 1986); see also TEX. INS. CODE § 551.104(b)(2).
Fisk’s assertions that the loss figure was supported only by
the conclusional assertions of Agent Whittaker is contradicted by
the record. Whittaker’s report of Fisk’s history of insurance
fraud was painstakingly thorough and was based both on documents

-- 3 of 5 --

No. 06-10604
-4-
seized from Fisk’s homes and through grand-jury subpoenas and on
interviews with named and unnamed witnesses. The information was
more than sufficient to warrant the loss calculation. See Valdez,
453 F.3d at 262; United States v. Gracia, 983 F.2d 625, 629-30 (5th
Cir. 1993).
Fisk also contends that the district court erred in applying
a two-level increase through an arson “cross-reference” in the
fraud guideline. See § 2B1.1(c)(2); U.S.S.G. § 2K1.4(a)(3). This
increase was based on a determination that Fisk had committed arson
with respect to a storage shed that burned on January 28, 2001, a
fire for which Fisk had filed an insurance claim. Fisk argues that
the sentencing information was insufficient to show that she
committed arson. She is incorrect. The PSR showed that the
January 2001 storage-shed was very similar to a July 1999 fire at
another storage shed rented by Fisk; that investigations of each
could not rule out arson as a cause; that, after both fires, Fisk
allegedly discarded destroyed items before the insurance agent
arrived; that the loss claims after both fires was based at least
partially on fraudulent and altered receipts; that Fisk’s property
policy was set to expire only two weeks after the January 28, 2001
fire; that at least one named witness testified that Fisk had told
him that she started a fire in one of her houses and solicited him
to start a fire in another of her residences. The district court
did not clearly err in concluding that this circumstantial evidence
supported a determination that Fisk started the January 28, 2001
fire. See Lewis, 476 F.3d at 389.

-- 4 of 5 --

No. 06-10604
-5-
The January 28, 2001 arson fire was at least arguably part of
a “common scheme or plan” to commit insurance fraud, as set forth
in the indictment counts. See § 2B1.1(a)(1)(A) and (2), (c)(2); §
2K1.4(a)(3); U.S.S.G. § 1B1.3, comment. (n.9). The 2001 fire
reflected a “common purpose” and “similar modus operandi” to the
1999 storage-shed fire and two subsequent fires at Fisk’s homes.
See § 1B1.3, comment. (n.9(A)). Because the guidelines require
that an amount-of-loss calculation should be “grouped,”
see U.S.S.G. § 3D1.2(d), the district court did not err in
concluding that the arson cross-reference applied in these
circumstances.
The judgment of the district court is AFFIRMED.

-- 5 of 5 --