United States v. Bapack, Pauline Ngo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 1997 Decided December 5, 1997

No. 96-3172

United States of America,

Appellee

v.

Pauline Ngo Bapack,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00092-01)

Evelina J. Norwinski, Assistant Federal Public Defender,

argued the cause for the appellant. A.J. Kramer, Federal

Public Defender, was on brief.

Darryl Blane Brooks, Assistant United States Attorney,

argued the cause for the appellee. Mary Lou Leary, United

States Attorney, and John R. Fisher, Thomas J. Tourish, Jr.,

and Virginia Cheatham, Assistant United States Attorneys,

were on brief.

Before: Wald, Ginsburg and Henderson, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: A jury convict-

ed appellant Pauline Ngo Bapack of conspiring to defraud the

Government (18 U.S.C. s 286), submitting false Medicare and

Medicaid claims for payment (18 U.S.C. s 287), mail fraud (18

U.S.C. s 1341) and/or aiding and abetting (18 U.S.C. s 2)

these offenses. She was sentenced to twenty-seven months'

imprisonment and three years' supervised release and was

ordered to pay $100,506.00 in restitution, reduced by approxi-

mately $38,000 based on the amount recovered in civil forfei-

ture proceedings. She now appeals her sentence, claiming

that it was improperly enhanced under sections 2F1.1(b)(2)(A)

(more than minimal planning) and 3B1.1(c) (aggravating role)

of the United States Sentencing Guidelines (Guidelines) and

that she was erroneously ordered to pay restitution without

regard to her ability to pay.1 We affirm.

I. BACKGROUND

Bapack was the co-owner of Urgent Home Health Care

Services, Inc. (Corporation), which provided nursing care to

Medicaid and Medicare patients in their homes. She was

responsible for billing Medicaid for the services the Corpora-

tion provided. Because Medicaid and Medicare pay only for

services actually rendered, a home health care agency like the

Corporation simply cannot bill for the services prescribed in

the patient's Plan of Care (Plan). Instead the provider can

__________

1 Section 2F1.1(b)(2) of the Guidelines provides that "[i]f the

offense involved (A) more than minimal planning, ... increase [the

sentence] by 2 levels," and section 3B1.1(c) of the Guidelines states

that "[i]f the defendant was an organizer, leader, manager, or

supervisor in any criminal activity ... increase [the sentence] by 2

levels." United States Sentencing Commission, Guidelines Manu-

al, s 2F1.1(b)(2)(A) & s 3B1.1(c) (Nov. 1995).

bill Medicaid and Medicare only for the number and kinds of

treatment visits in fact made, which, for a variety of reasons,

may differ from those prescribed in the patient's Plan. Thus,

the provider typically generates billing invoices by reference

to attending nurses' time sheets, treatment notes and other

records.

The Corporation, however, did not do this. Instead, at

Bapack's (and co-defendant Pierre Yopa's) direction, it billed

Medicaid and Medicare for the number and type of visits

prescribed in the patient's Plan. As a result, it remitted

numerous invoices for services it did not perform; the evi-

dence presented at trial established that the Corporation,

under the superintendence of Bapack and Yopa, billed Medic-

aid and Medicare for more than 1,400 nurse visits that could

not be substantiated, the value of which totaled approximately

$100,506.00.

On a tip from a former Corporation employee, the Inspec-

tor General's Office of the United States Department of

Health and Human Services learned of the billing practices

and raided the Corporation's offices in November 1995. Af-

ter reviewing the records seized, and after subpoenaing sev-

eral Corporation nurses to testify, the grand jury returned an

eighteen-count indictment against Bapack and her co-

defendant, Pierre Yopa. Yopa was the other co-owner of the

Corporation and he was responsible for Medicare billing.

The Government's evidence included the testimony of Di-

ane Bouchaud, a nurse who had been a case manager for the

Corporation. Bouchaud testified that Bapack directed her

and other nurses to falsify records of nursing visits that were

not made. See 9/10/96 Trial Tr. 325, 333-36, 338. Zuliatu

Sillah, another nurse who served as the Corporation's Acting

Director of Nursing, testified that Bapack had instructed her

and others to fabricate records of nursing visits to assist in

meeting a survey administered by the District of Columbia

Department of Consumer and Regulatory Affairs (DCRA).

Id. at 412-13, 418-19, 436-38. The Corporation was required

to meet DCRA requirements, including complying with the

surveys, to be a certified Medicare provider.

On September 16, 1996, the jury returned a general ver-

dict, finding both Bapack and Yopa guilty on all counts. The

district court sentenced Bapack on December 9, 1996. Con-

cluding that her offenses involved "more than minimal plan-

ning," it enhanced her sentence by two levels pursuant to

section 2F1.1(b)(2)(A) of the Guidelines. 12/9/96 Sentencing

Tr. 20. The court also found that, under section 3B1.1(c) of

the Guidelines, an additional two-level enhancement was ap-

propriate for Bapack's role as an "organizer, leader, manager,

or supervisor":

Well, [appellant] clearly was, at the very least, a manager

or supervisor. There was at least more than one partici-

pant other than Ms. Bapack herself. The testimony is

that she was, in fact, a manager of the enterprise that

was found guilty of defrauding Medicare.

Id. at 18. The presentence investigation report (Report),

which the district court adopted in the Judgment in a Crimi-

nal Case (Judgment), also recited that "[f]ormer employees

testified that Ms. Ngo Bapack, [sic] asked some of the staff

members to create nursing records so that the patient's file

would falsely reflect that nurses had followed the doctors'

orders and reflect that the nurse visits had been consistent

with the 'Plans of Care.' " 11/20/96 Report p 11.

Finally, the district court ordered Bapack to pay restitu-

tion:

You shall pay a total restitution in the amount of

$100,506.... The Court finds you do not possess the

ability to pay a fine, the cost of imprisonment, or supervi-

sion unless otherwise determined by the Bureau of Pris-

ons. In view of your financial status and your need to

secure employment upon release to begin paying your

restitution payments, an alternative sanction is not rec-

ommended.... Finally, I want to note for the record

that there is a companion civil case that's running along-

side this case. It's a forfeiture case.... And the effect

of that forfeiture entered on the sentencing in this case is

as follows: It doesn't affect the level of loss for purposes

of the sentence. But I believe it will operate to reduce

the amount of restitution that [co-defendant] and Ms.

Bapack will have to make. And so the final orders will

reflect a restitution amount which is the approximately

hundred thousand dollars that I recited minus the ap-

proximately $38,000 that has been seized and forfeited.

And also, for the record, that restitution amount will

necessarily be joint and several for whatever effect that

has if Mr. Yopa is ever apprehended and returned and

sentenced.

12/9/96 Sentencing Tr. 22, 24 (reporter's indenting and para-

graph structure omitted). The Report noted "[b]ased on her

current financial status, it does not appear that [appellant]

has the ability to pay a fine, the costs of incarceration and/or

supervision, in addition to her restitution obligation, if or-

dered by the court." 11/20/96 Report p 57. It also noted that

"the Government reported that when the seizure warrant was

executed on March 4, 1996, the defendant had a [bank]

balance of $102,645.17." 2 Id. The district court then or-

dered Bapack to pay restitution in the amount of

$62,294.50.3 Bapack contested neither the restitution order

__________

2 The Government's sentencing memorandum indicated that this

amount was held in two Crestar Bank accounts. (Appellee App.

Tab H at 10 n.4.) Neither the sentencing memorandum nor the

Report indicates, however, whether and to what extent Bapack (as

distinguished from her co-defendant) had access to the accounts.

Moreover, there is no record indication that the district court relied

on this information in ordering restitution.

3 Bapack's Judgment orders restitution in the amount of

$72,294.50, which is $10,000.00 more than the district court's oral

sentence. The Government attributes the difference to a simple

arithmetic error: the amount of loss, $100,506.00, less the amount

recovered in forfeiture proceedings, $38,211.50, should have resulted

in a restitution order in the amount of $62,294.50, not $72,294.50. It

suggests that we let the district court resolve the matter without

remand (pursuant to Fed. R. Crim. P. 36) and without delaying

consideration of the merits. See Appellee Br. at 25 n.14. We think

the preferable procedure is to conform the written sentence to the

oral one. See Bartone v. United States, 375 U.S. 52, 53 (1963)

("This error, in enlarging the sentence in the absence of petitioner,

nor the enhancement for more than minimal planning. She

did argue, however, that there was insufficient evidence to

support the aggravating role enhancement. 12/9/96 Sentenc-

ing Tr. 12-13. Bapack timely appealed and we now affirm.

II. DISCUSSION

A. Aggravating Role Enhancement

Bapack first contends that because there was no evidence

to establish her role as a supervisor or manager of another

participant in the crimes with which she was charged, the

district court erred in enhancing her sentence pursuant to

section 3B1.1(c) of the Guidelines. We review the sentencing

court's finding for clear error.4 See United States v. Baylor,

97 F.3d 542, 548 (D.C. Cir. 1996); United States v. Kelley, 36

F.3d 1118, 1128 (D.C. Cir. 1994) ("[W]e give due deference to

the district court's application of the sentencing guidelines to

the facts, and we accept the district court's findings of fact

unless they are clearly erroneous.").

At sentencing, it is the Government's burden to demon-

strate by a fair preponderance of the evidence that an en-

hancement is warranted. See United States v. Cruz, 120 F.3d

1, 2 (1st Cir. 1997) (en banc). Thus, to support an aggrava-

ting role enhancement, the Government must show that more

likely than not the defendant organized, led, managed or

supervised the crime. See United States Sentencing Com-

__________

was so plain in light of the requirements of Rule 43 that it should

have been dealt with by the Court of Appeals, even though it had

not been alleged as error."). Accordingly, we hereby conform the

written and oral restitution orders, revising the Judgment to re-

quire restitution of $62,294.50, the amount the district court plainly

intended to order.

4 While she also asserts the district court applied the wrong legal

standard (Appellant Br. 8), we find nothing in the sentencing

transcript to support her assertion.

mission, Guidelines Manual, s 3B1.1 application note 2

[hereinafter Guidelines Manual].5 The Guidelines direct the

sentencing judge to consider several factors, including

the exercise of decision making authority, the nature of

participation in the commission of the offense, the re-

cruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of partic-

ipation in planning and organizing the offense, the nature

and scope of the illegal activity, and the degree of control

and authority exercised over others.

Id. application note 4; accord United States v. Thomas, 114

F.3d 228, 261 (D.C. Cir. 1997) ("The Sentencing Guidelines

instruct the sentencing court to consider the numerous fac-

tors listed above, no one of which is determinative.") (empha-

sis added), petition for cert. filed, No. 97-6660 (U.S. Nov. 6,

1997).

Mere "control over a scheme rather than over a participant

in a scheme," however, does not warrant a sentencing adjust-

ment pursuant to section 3B1.1(c).6 United States v. Gort-

__________

5 The Commentary to the Guidelines binds the sentencing court

to the same extent as the Guidelines themselves. See Stinson v.

United States, 508 U.S. 36, 45 (1993).

6 The Commentary recites that "[a]n upward departure may be

warranted, however, in the case of a defendant who did not orga-

nize, lead, manage, or supervise another participant, but who never-

theless exercised management responsibility over the property,

assets, or activities of a criminal organization." Guidelines Manu-

al, s 3B1.1 application note 2. Because the district court indicated

that it was adjusting Bapack's sentence, rather than upwardly

departing, however, we cannot affirm the sentence on the basis of

her evident role in exercising "management responsibility over the

property, assets, or activities of" the Corporation. See United

States v. Jobe, 101 F.3d 1046, 1048 (5th Cir. 1996) ("As the district

court did not order an upward departure, this ground of enhance-

ment is unavailable to sustain the enhancement on appeal."), cert.

denied 118 S. Ct. 81 (1997); but cf. United States v. Giraldo, 111

F.3d 21, 24 (5th Cir. 1997) (although sentencing judge improperly

relied on asset management theory to adjust sentence instead of

upwardly departing, court declined to vacate sentence because

evidence also supported adjustment making Guidelines application

error harmless).

DiDonato, 109 F.3d 318, 322 (6th Cir. 1997) (emphasis added).

Instead "the defendant must have been the organizer, leader,

manager, or supervisor of one or more participants." Guide-

lines Manual, s 3B1.1 application note 2 (emphasis added).

A "participant" is a "person who is criminally responsible for

the commission of the offense, but need not have been

convicted." Id. application note 1. In turn, a person is

"criminally responsible" if he "commit[s] all of the elements of

a statutory crime with the requisite mens rea." United

States v. Badaracco, 954 F.2d 928, 934-35 (3d Cir. 1992).

This does not mean, however, that to qualify as a "partici-

pant" a person must be found criminally responsible as a

principal or culpable in the same crime of which the supervis-

ing defendant was convicted: "[J]ust as a party who knowing-

ly assists a criminal enterprise is criminally responsible under

principles of accessory liability, a party who gives knowing

aid in some part of the criminal enterprise is a 'criminally

responsible party' under the Guidelines." United States v.

Hall, 101 F.3d 1174, 1178 (7th Cir. 1996). Thus, "the facts

that none of [the participants] benefitted from the commission

of the offense or were convicted of any offenses arising from

the criminal activity do not necessarily determine the ultimate

issue." United States v. Braun, 60 F.3d 451, 453 (8th Cir.

1995).

Bapack argues that none of the nurses who falsified treat-

ment records and time sheets at her instruction can be

considered criminally responsible for the crimes of which she

was convicted because (1) none of the nurses was involved in

the billing and (2) the falsified records were not used to bill

Medicaid or Medicare but instead were used only to meet the

DCRA certification survey. In her view, therefore, none of

the supervised nurses had "the specific intent to facilitate

Medicare/Medicaid fraud." (Appellant Reply Br. 3.) In

short, Bapack asserts that, to the extent the nurses she

supervised contributed to the offenses of which she was

ultimately convicted, they did so unwittingly.7

__________

7 She also argues that the only other "participant" in the charged

crimes, her business partner and co-defendant Yopa, was not shown

Her contentions are beside the point as they are mistakenly

predicated on the assumption that only supervision of "partic-

ipants" in the crimes with which she was charged, or of which

she was convicted, warrants a section 3B1.1(c) enhancement.

To the contrary, as provided by the Guidelines as well as

circuit precedent, "[t]he determination of a defendant's role in

the offense is to be made on the basis of all conduct within

the scope of s 1B1.3 ... and not solely on the basis of

elements and acts cited in the count of conviction." 8 Guide-

lines Manual, s 3B1.1 introductory commentary (emphasis

added); accord United States v. Caballero, 936 F.2d 1292,

1298 (D.C. Cir. 1991) ("[W]e conclude that section 3B1 allows

the sentencing judge to look to the contours of the underlying

__________

or even alleged to have been supervised, managed or led by her.

Because we find sufficient evidence that Bapack supervised nurses

in the commission of certain crimes with which both she and the

involved nurses could have been charged, we do not reach the issue

of Bapack's role vis--vis her co-defendant.

8 Section 1B1.3 defines "relevant conduct" as:

(1)(A) all acts and omissions committed, aided, abetted, coun-

seled, commanded, induced, procured, or willfully caused by the

defendant; and (B) in the case of a jointly undertaken criminal

activity (a criminal plan, scheme, endeavor, or enterprise un-

dertaken by the defendant in concert with others, whether or

not charged as a conspiracy), all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertak-

en criminal activity, that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for

that offense; (2) solely with respect to offenses of a character

for which s 3D1.2(d) would require grouping of multiple

counts, all acts and omissions described in subdivisions (1)(A)

and (1)(B) above that were part of the same course of conduct

or common scheme or plan as the offense of conviction; (3) all

harm that resulted from the acts and omissions specified in

subsections (a)(1) and (a)(2) above, and all harm that was the

object of such acts and omissions; and (4) any other informa-

tion specified in the applicable guideline.

Guidelines Manual, s 1B1.3(a)(1)-(4) (emphasis added).

scheme itself rather than the mere elements of the offense

charged.") (internal quotations omitted; emphasis added),

cert. denied, 502 U.S. 1061 (1992). Accordingly, the district

court was free to consider Bapack's role with respect to all

crimes, charged or otherwise, "that were part of the same

course of conduct or common scheme or plan as the offense of

conviction." Guidelines Manual, s 1B1.3(a)(2).9 In other

words, application of the section 3B1.1(c) enhancement does

not require a finding that Bapack supervised "participants"

who were unindicted co-conspirators or accessories in the

crimes of which she was convicted. Rather, it is enough that

the "participants" she supervised were culpably involved in

uncharged crimes "that were part of the same course of

conduct or common scheme or plan as the offense of convic-

tion." Id.

We therefore have no trouble concluding that Bapack su-

pervised or managed at least one other "participant." Specif-

ically, the testimony of at least two Corporation nurses

(Bouchaud and Sillah), as well as the representations made in

the Report, establish by well more than a fair preponderance

of the evidence that Bapack supervised the knowing creation

of a materially false document.10 Although the Government

elected not to pursue it, the knowing falsification of records is

a violation of 18 U.S.C. s 1001, for which both Bapack and

the involved nurses could have been prosecuted.11 The nurs-

__________

9 Section 1B1.3(a)(2) of the Guidelines applies because section

3D1.2(d) requires that Bapack's fraud and conspiracy convictions be

grouped.

10 Indeed, Bouchaud's testimony was so suggestive of her criminal

culpability it prompted defense counsel to inquire whether she had

been granted immunity. See 9/10/96 Trial Tr. 336:11-338:16.

11 Section 1001, in relevant part, provides:

[W]hoever, in any matter within the jurisdiction of the execu-

tive, legislative, or judicial branch of the Government of the

United States, knowingly and willingly--... (2) makes any

materially false, fictitious, or fraudulent statement or represen-

tation; or (3) makes or uses any false writing or document

knowing the same to contain any material false, fictitious, or

es' actions were indisputably "part of the same course of

conduct or common scheme or plan as the offense[s]" of which

Bapack was convicted. Although they admitted only that

they falsified records for the DCRA certification require-

ments, a jury might reasonably disbelieve their knowledge

was so limited and conclude from the totality of the circum-

stances that the nurses were well aware that the falsified

records would ultimately be submitted to the Medicaid pro-

gram.12 Accordingly, the district court did not clearly err in

finding Bapack played an aggravating role in the offenses.

B. Cumulative Application of Sections

3B1.1(c) and 2F1.1(b)(2)(A)

Bapack next argues that by cumulatively enhancing her

sentence for her managerial role and for more than minimal

planning, the sentencing court punished her twice for the

same conduct. Since Bapack did not raise the double-

counting argument below, we review the district court's deci-

sion for plain error. See United States v. Plunkett, 125 F.3d

873, 874-75 (D.C. Cir. 1995). The Guidelines provide:

Absent an instruction to the contrary, the adjustments

from different guideline sections are applied cumulatively

__________

fraudulent statement or entry; shall be fined under this title or

imprisoned not more than 5 years, or both.

18 U.S.C.A. s 1001(a) (West Supp. 1997) (paragraph structure

omitted). Bouchaud's testimony (see supra note 10,) also suggested

that she might have been prosecuted for submitting false claims in

violation of 18 U.S.C. s 287, providing yet another basis for enhanc-

ing Bapack's sentence pursuant to section 3B1.1(c).

12 In any event, because DCRA acts as an agent for the United

States Department of Health and Human Services (HHS) regarding

D.C. Medicare certifications, 9/9/96 Trial Tr. 200-205, the DCRA

survey itself may qualify as a "matter within the jurisdiction of the

executive ... branch of the Government of the United States." Cf.

United States v. Murphy, 935 F.2d 899, 900 n.1 (7th Cir. 1991) ("As

we have previously held, HHS' regulatory oversight and provision

of funding for Illinois' AFDC program establishes the applicability

of s 1001 to that program.").

(added together). For example, the adjustments from

s 2F1.1(b)(2) (more than minimal planning) and

s 3B1.1 (Aggravating Role) are applied cumulatively.

Guidelines Manual, s 1B1.1 application note 4(p 2) (emphasis

added). Nevertheless Bapack encourages us to set aside the

enhancement for more than minimal planning, asserting that

the holding in United States v. Gottfried, 58 F.3d 648, 653

(D.C. Cir. 1995), supports her. We disagree. In Gottfried,

we had to decide whether enhancements for more than mini-

mal planning and for abuse of a position of trust were

duplicative. See 58 F.3d at 652-53. We held that, because

the two enhancements were based on separate elements of

the defendant's offense, their cumulative application did not

punish him twice for the same conduct. Id. at 653. In

Gottfried we noted in dicta two Sixth Circuit cases "to the

same effect." Id. Although those cases--United States v.

Chichy, 1 F.3d 1501, 1507 (6th Cir. 1993), and United States

v. Romano, 970 F.2d 164, 167 (6th Cir. 1992)--held that

enhancements for an organizing role and for more than

minimal planning could be impermissibly duplicative, they did

not involve a situation in which a different element supported

each enhancement. Bapack's case is plainly distinguishable

from those cases because her sentence was enhanced for her

managerial/supervisory role and for more than minimal plan-

ning. Moreover, as the Sixth Circuit has since acknowledged,

both Chichy and Romano were overruled in 1993 when the

Sentencing Commission amended the Commentary to section

1B1.1 to include the unequivocal language quoted above. See

United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996)

("The Sentencing Commission's regulations have thus abro-

gated the holdings of Romano and Chichy."). [B]ecause "the

force of the [Guidelines] commentary is near complete," Unit-

ed States v. Smaw, 22 F.3d 330, 333 (D.C. Cir. 1994), we, like

the Sixth Circuit, think that Application Note 4 to section

1B1.1 of the Guidelines is dispositive.

The enhancements Bapack received were based on differ-

ent elements of the offenses of which she was convicted. The

aggravating role enhancement (as Bapack herself argues) was

based on her directing nurses to falsify records of treatment

visits that were not made whereas the more than minimal

planning enhancement was based on the overarching fraudu-

lent billing scheme Bapack and her co-defendant engineered.

Thus, contrary to her contention, Bapack was not found to

have engaged in more than minimal planning because she

supervised or managed a "participant," nor was she found to

have supervised or managed a "participant" because she

engaged in more than minimal planning. Accordingly, the

district court did not err, much less plainly err, in cumulative-

ly applying sections 3B1.1(c) and 2F1.1(b)(2)(A) of the Guide-

lines to enhance Bapack's sentence.

C. The Restitution Order

Finally Bapack contends that the district court erred in

ordering restitution both because it apparently failed to con-

sider her ability to pay and because the available evidence

demonstrated that she could not make restitution.13 Bapack

specifically asserts that, as the Report indicates, she has four

minor children living in Cameroon, her debts exceed her

assets and she is subject to deportation proceedings upon

release from federal custody. For these reasons, she asserts,

the court erred in ordering restitution in any amount. Be-

cause Bapack did not contest the restitution order below, we

review it for plain error. See Plunkett, 125 F.3d at 874-75;

United States v. Davis, 117 F.3d 459, 462 (11th Cir.), cert.

denied, 118 S. Ct. 355; United States v. Zink, 107 F.3d 716,

718 (9th Cir. 1997); United States v. Castner, 50 F.3d 1267,

1277 (4th Cir. 1995).

The Guidelines direct that "[i]n determining whether to

impose an order of restitution, and the amount of restitution,

the court shall consider the amount of loss the victim suffered

__________

13 Although the restitution provisions of Title 18, 18 U.S.C.A.

ss 3663 et seq. (West Supp. 1997), have recently been amended to

make restitution mandatory in cases like this one, we apply the

provisions in effect at the time Bapack was sentenced. See United

States v. Thompson, 113 F.3d 13, 15 n.1 (2d Cir. 1997) (concluding

that retroactive application of mandatory restitution provisions rais-

es ex post facto concerns).

as a result of the offense, the financial resources of the

defendant, the financial needs of the defendant and his depen-

dents, and other factors the court deems appropriate."

Guidelines Manual, s 5E1.1 background p 3 (paraphrasing

18 U.S.C. s 3664(a)). The Guidelines do not, however, re-

quire a sentencing judge to make specific factual findings

regarding the factors. On the contrary, they instruct that

"[i]f the court does not order restitution or orders only

partial restitution, it must state its reasons for doing so." Id.

background p 2.

As we have observed in the analogous context of assessing

a defendant's ability to pay a fine, because

[t]he guidelines set forth no requirement ... that the

sentencing court make express findings on this ques-

tion[,] ... we decline to create one. So long as the

sentencing judge in fact considers ability to pay, he is in

compliance with the guidelines' mandates. Thus, where

the record demonstrates that the judge considered that

factor before imposing the fine, the appellate court will

not reverse the fine merely because no express finding

was made but will review the finding of ability to pay

necessarily implied by such consideration.

United States v. Mastropierro, 931 F.2d 905, 906 (D.C. Cir.

1991). In applying this rule, we join the clear majority of our

sister circuits. See, e.g., Davis, 117 F.3d at 463 (11th Cir.

1997) (noting that specific factual findings not required);

United States v. Sanders, 95 F.3d 449, 456 (6th Cir. 1996)

(similar); United States v. Giwah, 84 F.3d 109, 114 (2d Cir.

1996) (similar); United States v. Newman, 49 F.3d 1, 10 (1st

Cir. 1995) (similar); United States v. Gio, 7 F.3d 1279, 1291

(7th Cir. 1993) (similar); United States v. Ramilo, 986 F.2d

333, 335 (9th Cir. 1993) (similar); United States v. Rogat, 924

F.2d 983, 986 (10th Cir.) (similar), cert. denied, 499 U.S. 982

(1991); United States v. Ryan, 874 F.2d 1052, 1053 (5th Cir.)

(concluding that legislative predecessor to 18 U.S.C.

s 3664(a)

did not require specific findings), cert. denied, 489 U.S. 1019

(1989).14

We conclude that the record adequately evinces the district

court's consideration of Bapack's ability to pay, the only one

of the required factors she challenges. In particular, we note

that the court adopted the unchallenged ability-to-pay find-

ings of the Report, which discussed Bapack's financial worth,

past work history and future ability to pay. The judge also

stated "[t]he Court finds you do not possess the ability to pay

a fine, the cost of imprisonment, or supervision[;] ... [i]n

view of your financial status and your need to secure employ-

ment upon release to begin paying your restitution payments,

an alternative sanction [fines, etc.] is not recommended."

12/9/96 Sentencing Tr. 22. These indicia of the court's consid-

eration of Bapack's ability to pay restitution satisfy us that it

considered the required factors in ordering her to pay restitu-

tion. See Davis, 117 F.3d at 464 (record reflected consider-

ation of defendant's ability to pay where sentencing judge

adopted presentence report regarding defendant's financial

circumstances and where defendant was given opportunity to

object but did not); Castner, 50 F.3d at 1278 (sentencing

judge's failure to make specific factual findings regarding

defendant's ability to pay restitution was not plain error

where judge adopted presentence report that considered 18

U.S.C. s 3664(a) factors); United States v. Mizrachi, 48 F.3d

651, 657 (2d Cir. 1995) (upholding restitution order where

presentence report contained detailed discussion of 18 U.S.C.

s 3664(a) factors and where court mentioned restitution in

connection with its decision not to assess fine or incarceration

costs); Nelson, 5 F.3d at 258 (record reflected consideration

of defendant's ability to pay restitution where sentencing

judge determined "[d]efendant does not have a financial

ability to pay a fine, costs of incarceration, community con-

finement, or supervision, and, therefore, [the court] waives

__________

14 We therefore reject the approach of the Third Circuit and the

Fourth Circuit, which seem to require specific findings as to each of

the factors listed in 18 U.S.C. s 3664(a). See United States v.

Copple, 74 F.3d 479, 482 (3d Cir. 1996); United States v. Piche, 981

F.2d 706, 718 (4th Cir. 1992), cert. denied, 568 U.S. 916 (1993).

the interests on the fine, costs of incarceration, community

confinement and supervision in this case").

The cases Bapack relies on are easily distinguished from

hers. In Thompson, 113 F.3d at 16, the Second Circuit was

not satisfied that the sentencing judge had considered the

required factors because, unlike here, the judge refrained

from fining the defendant without comment on the defen-

dant's ability to pay either a fine or restitution. In Sanders,

95 F.3d at 456, the sentencing judge stated that he was

"required" to order restitution whereas his restitution order

was instead held to be discretionary and the Sixth Circuit was

uncertain, in view of a silent record, that the required factors

had been considered. There is nothing in the record here

that leads us to conclude that the district court believed it had

to order restitution and thus Sanders is inapposite. Finally,

in United States v. Remillong, 55 F.3d 572 (11th Cir. 1995),

the Eleventh Circuit remanded the defendant's sentence to

the district court for the third time because the only evidence

of consideration of the required factors consisted of the

sentencing judge's handwritten note on the Judgment, which

indicated only that restitution was appropriate because the

defendant had at one time had physical custody of the stolen

money. See 55 F.3d at 574.

Nor do we find plain error in the sentencing court's conclu-

sion that Bapack should be ordered to pay restitution in the

amount of $62,294.50. Bapack bore the burden at sentencing

of demonstrating by a fair preponderance of the evidence her

financial condition. See 18 U.S.C. s 3664(d) ("The burden of

demonstrating the financial resources of the defendant and

the financial needs of the defendant and such defendant's

dependents shall be on the defendant."). To prevail on

appeal she must "show that the record is devoid of any

evidence that [she] is able to satisfy the restitution order."

Davis, 117 F.3d at 459 (internal quotation marks omitted;

emphasis added). The "burden is particularly acute under

the plain error standard of review." Id. Bapack has not

satisfied her appellate burden, as the Report's unchallenged

ability to pay findings suffice to sustain the restitution or-

der.15 See United States v. Twitty, 107 F.3d 1482, 1494 n.14

(11th Cir.) (sentencing court entitled to rely on uncontrovert-

ed findings of presentence report in deeming defendant able

to pay restitution), cert. denied, 118 S. Ct. 253 (1997). Ac-

cordingly, we conclude that the district court did not plainly

err in ordering Bapack to pay restitution in the amount of

$62,294.50. Cf. Castner, 50 F.3d at 1278 ("Although Appel-

lants at time of sentencing had a negative net monthly cash

flow, this does not necessarily indicate an inability to pay,

particularly when their [presentence reports] reflect past

success in business and above average earning capacities.");

Nelson, 5 F.3d at 259 (holding that although defendant had

negative net worth at time of sentencing, record indicated he

"demonstrated considerable talent in perpetrating his

crime[,]" and thus "[t]he restitution order gives [him] an

incentive to apply these talents in a lawful manner upon

release to make his victim whole").

III. CONCLUSION

For the foregoing reasons, we conclude that the district

court correctly (1) enhanced Bapack's sentence pursuant to

section 3B1.1(c) of the Guidelines, (2) cumulatively enhanced

her sentence pursuant to sections 3B1.1(c) and 2F1.1(b)(2)(A)

of the Guidelines and (3) ordered her to pay restitution in the

amount of $62,294.50. Accordingly, Pauline Ngo Bapack's

sentence is

Affirmed.

__________

15 The Report noted as to Bapack's ability to satisfy a future (and

joint) restitution obligation: (1) she has made a good living since

seeking asylum in this country in 1984; (2) she is trained as a

nurse; (3) she has a long and stable history of successful employ-

ment as a nurse; and (4) she possesses entrepreneurial talent as

evidenced by her ability to obtain the necessary certifications for,

and launch, her own home health care agency. See Report pp 44-

57.