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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15588
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20275-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE L. VALDES GONZALEZ,
a.k.a. Roberto Gonzalez,
Defendant-Appellant.
________________________
No. 12-15590
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20275-KMM-2
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO SOTOLONGO,
a.k.a. Ruben,
Defendant-Appellant.
________________________
No. 12-15591
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20275-KMM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCA GEMA VALDES,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 7, 2014)
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Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Jose Valdes Gonzalez, Alberto Sotolongo, and Francisca Gema Valdes each
pleaded guilty to one count of conspiracy to commit healthcare fraud, in violation
of 18 U.S.C. § 1349. In their plea agreements, the government agreed to pursue
sentences at the low end of each defendant’s advisory range under the United
States Sentencing Guidelines. The sentencing court, however, did not agree that
low-end sentences were warranted. It sentenced Gonzalez and Sotolongo to 84 and
72 months imprisonment respectively. Those sentences were above the advisory
ranges calculated under the guidelines. Valdes received a 46-month sentence,
which fell at the top of her guidelines range. Dissatisfied with that outcome, the
defendants now appeal their sentences on several grounds.
I.
The defendants conspired to commit healthcare fraud while working at Ilva
Pharmacy in Hialeah, Florida. As part of their conspiracy, Gonzalez had a
standing agreement to provide cash payments to a physician in exchange for
fraudulent prescriptions. The physician would give Gonzalez prescriptions for
patients the physician had not treated, and Gonzalez would pay him approximately
$250 for each patient for whom he wrote fraudulent prescriptions. Gonzalez would
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then seek reimbursement from Medicare for the prescribed medications, even
though he never dispensed them.
Sotolongo and Valdes worked with Gonzalez to carry out the conspiracy.
Sotolongo falsified patient forms while Valdes provided information to the
physician so he could write the false prescriptions. According to the stipulated
facts in the plea agreements, the defendants and Ilva Pharmacy fraudulently billed
Medicare for approximately $1,352,936 in benefits from 2007 to 2011.
When the probation office calculated the defendants’ advisory sentences
under the sentencing guidelines, it included several enhancements to their base
offense levels. Those adjustments included a 16-level enhancement under
U.S.S.G. § 2B1.1(b)(1)(I) because the loss amount fell between $1 million and
$2.5 million and a 2-level enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because
their offense involved sophisticated means. When each defendant’s criminal
history was taken into account, the sentencing guidelines provided the following
advisory sentence ranges: 37–46 months for Valdes, and 46–57 months for
Gonzalez and Sotolongo.
At sentencing, the defendants challenged the guidelines calculations and
sought sentences below their advisory ranges. They first objected to the
sophisticated means enhancement. They contended that there was nothing
sophisticated about their conspiracy; it was just run-of-the-mill fraud. Gonzalez
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and Valdes also sought both downward variances and downward departures under
U.S.S.G. § 5K2.0 for providing substantial assistance to the government.
Sotolongo requested only a downward variance for providing assistance. They all
claimed that the government had indicted Angel Calderin, an individual involved
in fraud at another pharmacy, based upon information they had provided.
The government opposed the departure and variance requests. With regard
to the defendants’ substantial assistance argument, the government explained that it
had not relied on any information they provided to indict Calderin. The
government stated that the defendants’ conspiracy had actually involved two other
pharmacies and a loss amount closer to $3 million. Calderin was involved with
one of those other two pharmacies, a fact that the government had learned from
bank cards found in Gonzalez’s wallet when he was arrested. The government did
not file a motion for a downward departure under § 5K1.1 of the guidelines
because it believed, contrary to the defendants’ claim, that they had hindered parts
of its investigation.
The court applied the sophisticated means enhancement and denied the
defendants’ requests for downward departures and variances. Instead, it gave
upward variances to Gonzalez and Sotolongo, leading to sentences of 84 and 72
months, respectively. Valdes was sentenced to 46 months imprisonment, at the top
of her guidelines range.
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II.
A.
The defendants’ first argument on appeal concerns the government’s
mention at sentencing of the approximately $3 million loss amount from the
conspiracy. All three defendants argue that (1) by mentioning that amount the
government breached their plea agreements, which stipulated to a loss amount of
about $1.3 million, and (2) the district court violated U.S.S.G. § 1B1.8 by
considering that $3 million loss amount in imposing an above-guidelines sentence.
The defendants ask this Court to vacate their sentences and remand for another
district court judge to resentence them or, in the alternative, allow them to
withdraw their guilty pleas.
None of the defendants raised these two issues at sentencing.1 Therefore, we
review their contentions only for plain error. See United States v. Romano, 314
F.3d 1279, 1281 (11th Cir. 2002). To prevail, the defendants must establish that
(1) an error occurred; (2) that error was plain; (3) it affected their substantial rights;
and (4) it seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. Id. An error is plain only if it is “clear or obvious, rather
than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135,
1
Although the defendants assert that they adequately preserved their objections at
sentencing, the record does not support that claim.
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129 S.Ct. 1423, 1429 (2009). Under that standard, the defendants’ argument that
the government breached the plea agreements fails because, even if we assume
there was error and that it was plain, they have not established that it affected their
substantial rights.
Regarding the substantial rights requirement, the defendants have not carried
their “heavy burden” of showing a reasonable probability of a different sentence
had the government not made the comments that the defendants belatedly
challenge. See United States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010).
They cannot do so because the district court calculated all of the advisory
sentences using the $1.3 million loss amount, and it specifically mentioned the
$1.3 million loss amount when it explained its reasoning for imposing the
sentences that it did. In light of those facts, it is not clear that the district court
would have imposed different sentences if the government had not mentioned the
$3 million loss. That uncertainty means that the defendants have failed to satisfy
the third prong of the plain error standard. See id. (“[W]here the effect of an error
on the result in the district court is uncertain or indeterminate –– where we would
have to speculate –– the appellant has not met his burden of showing a reasonable
probability of a different result.”) (quotation marks omitted).
The defendants’ next contention is that the district court violated U.S.S.G.
§ 1B1.8. When the government receives information from a cooperating defendant
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in exchange for a promise that the information will not be used against that
defendant, § 1B1.8 and the relevant guidelines commentary prohibit a sentencing
court from using that information to determine the defendant’s advisory guidelines
range or as a basis for departing upward from that advisory range. U.S.S.G.
§ 1B1.8; id. cmt. n.1. In contrast, a district court may consider that information in
determining whether to grant a downward departure pursuant to a government
motion under U.S.S.G. § 5K1.1. Id. § 1B1.8(b)(5). Here, the district court
mentioned the $3 million loss only in the context of discussing whether the
defendants should receive a downward departure. None of the defendants received
an upward departure, and the district court calculated all of the advisory sentences
using the loss amount agreed to in the plea agreements. Accordingly, there was no
violation of U.S.S.G. § 1B1.8.
B.
All three defendants contend that the district court erred in applying a 2-
level sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C)2 when
calculating their guidelines sentences. They claim that their scheme did not
include sophisticated means, such as the use of offshore accounts or the
falsification of physician documents. They also argue that the district court erred
2
The sophisticated means enhancement that the district court applied was in
§ 2B1.1(b)(9)(C) of the 2010 sentencing guidelines. This provision was moved to
§ 2B1.1(b)(10)(C) in the 2012 guidelines. The language of the two provisions is the same.
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in considering the length of their ongoing fraud in determining that it involved
sophisticated means.
We review factfindings related to the district court’s imposition of
sentencing enhancements under a deferential clear-error standard, while we review
de novo the district court’s interpretation and application of the sentencing
guidelines. United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir. 2007). A
district court’s finding that a defendant used sophisticated means to commit an
offense is a factfinding reviewed only for clear error. United States v. Bane, 720
F.3d 818, 826 (11th Cir. 2013). We will not disturb that finding “unless we are left
with a definite and firm conviction that a mistake has been committed.” United
States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009) (quotation marks omitted).
Section 2B1.1(b)(10)(C) of the sentencing guidelines provides for a 2-level
enhancement for an offense that involved “sophisticated means.” U.S.S.G.
§ 2B1.1(b)(10)(C). The guidelines commentary defines “sophisticated means” as
“especially complex or especially intricate offense conduct pertaining to the
execution or concealment of an offense.” Id. cmt. n.8(B). The commentary also
provides a list of conduct that falls within the definition, such as “hiding assets or
transactions, or both, through the use of fictitious entities, corporate shells, or
offshore financial accounts.” Id. That list is not exclusive. Campbell, 491 F.3d at
1316. To decide whether this enhancement is applicable, we look to the
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sophistication of the overall scheme rather than to that of each individual act
committed by a defendant. United States v. Ghertler, 605 F.3d 1256, 1267 (11th
Cir. 2010).
We have previously upheld application of the sophisticated means
enhancement in a Medicare fraud case where the defendant engaged in “repetitive
coordinated conduct” that involved falsifying medical documents and getting
medical facilities to assist in creating the appearance that certain treatments were
legitimate. Bane, 720 F.3d at 822–23, 826–27. The facts in this case are similar.
Over the course of two years, the defendants participated in a conspiracy in which
they paid a physician to provide them with fraudulent prescriptions for patients
whom the doctor had not treated. The defendants specifically provided the
physician with patient information that could be used to write the false
prescriptions. This “repetitive coordinated conduct” continued for two years and
resulted in the defendants fraudulently billing approximately $1.3 million worth of
prescriptions that were never dispensed. The defendants also perpetrated their
fraud by using a pharmacy that had been incorporated by a nominee owner, thus
shielding the identity of the corporation’s true owner, and they used Medicare’s
intricate lien and reimbursement process to pull off the fraud. In light of those
considerations and our deferential standard of review, the district court did not
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clearly err in applying the sophisticated means enhancement under the guidelines.
See id. at 826.
C.
Finally, all three defendants argue that the district court’s rejection of their
requests for a downward variance was an abuse of discretion because the district
court categorically refused to even consider a factor –– their cooperation with the
government –– that was relevant to sentencing. 3 That contention is unambiguously
contradicted by the record. All three defendants discussed their alleged
cooperation with the government at length during their sentence hearing. The
district court explicitly noted that it would consider those arguments for purposes
of the variance requests, and the court stated that it viewed the alleged cooperation
as relevant to the § 3553 factor concerning “the history and characteristics” of the
defendants. Accordingly, the district court, in determining the defendants’
sentences, did not fail to consider the defendants’ alleged cooperation. 4
3
At sentencing, Gonzalez and Valdes argued that their cooperation warranted a
sentencing reduction either as a downward departure under U.S.S.G. § 5K2.0 or as a downward
variance under 18 U.S.C § 3553. Sotolongo argued only that his cooperation warranted a
downward variance under § 3553. Neither Gonzalez nor Valdes argues on appeal that the district
court erred in denying their requests for a downward departure. Therefore, that argument is
abandoned. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1297 (11th Cir. 2010).
4
Valdes’ plea agreement included an appeal waiver that applied unless she received a
sentence that exceeded the statutory maximum or was the result of an upward departure or
variance. Valdes received a within-guidelines sentence, but she argued that we should not
enforce her appeal waiver because of due process and equal protection considerations. The
government responded in its brief, rather than through a separate motion, that we should dismiss
Valdes’ appeal because her waiver was valid. We need not decide whether the waiver was valid,
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III.
Gonzalez raises one last challenge on appeal concerning remarks the district
court made when discussing his criminal history at sentencing. Those remarks
related to Gonzalez’s arrival in the United States in 1980 as part of the Mariel
boatlift.5 First, as the district court began discussing Gonzalez’s criminal history in
its § 3553 analysis, the court stated that “it appears that [Gonzalez] came to the
United States in 1980 during the Mariel boatlift, so I assume he came to the United
States illegally.” The district court’s second comment came as it finished
reviewing Gonzalez’s criminal history and closed with the remark that his criminal
history characterized “his time in the United States since he came here illegally.”
At no point during his sentence hearing did Gonzalez object to those comments.
Gonzalez now contends that the district court’s remarks reveal that it
erroneously relied on a prejudicial view of Cuban immigrants who came to
America during the Mariel boatlift in giving him an above-guidelines sentence. He
claims that the district court’s view was erroneous because we have previously
however, because we reject the defendants’ arguments on appeal and affirm their sentences,
mooting the appeal waiver issue.
5
The Mariel boatlift refers to the exodus of approximately 114,000 Cuban refugees, in
nearly 1,800 boats, from Cuba to the United States in 1980. See United States v. Frade, 709 F.2d
1387, 1389 (11th Cir. 1983). Although the Carter Administration was initially receptive to
granting some of those refugees political asylum, see id., it eventually changed its position and
instituted a blockade to prevent boats from leaving the United States to pick up Cuban refugees
and bring them here. See Pollgreen v. Morris, 496 F. Supp. 1042, 1047 (S.D. Fla. 1980).
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held that the Mariel boatlift was not illegal. 6 Based on that contention, Gonzalez
asks us to vacate his sentence and remand to a different district court judge for
resentencing.
Because Gonzalez did not object at sentencing, we review the district court’s
actions only for plain error. Rodriguez, 627 F.3d at 1380. Accordingly, Gonzalez
must show that “(1) an error occurred; (2) the error was plain; (3) it affected [his]
substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” Id. (quotation marks omitted).
Assuming the district court’s comments were erroneous, Gonzalez “must
establish a reasonable probability of a different result but for the error” in order to
show that the district court’s actions affected his substantial rights. Id. at 1382
(quotation marks omitted). He cannot meet that burden. The court’s belief that
Gonzalez arrived in the United States illegally was only one of many
considerations it took into account when evaluating his criminal history. The court
also considered Gonzalez’s convictions for armed burglary, armed robbery, and
armed kidnapping, as well as an arrest for another armed robbery. It was those
6
The decisions Gonzalez cites for this proposition dealt with the criminal convictions of
Americans who helped to bring Cuban immigrants from Havana to the United States as part of
the boatlift. See United States v. Frade, 709 F.2d 1387 (11th Cir. 1983); United States v. Zayas-
Morales, 685 F.2d 1272 (11th Cir. 1982). Those decisions do not give us any indication of
Gonzalez’s immigration status when he arrived in the United States. Because it does not affect
the outcome of this appeal, however, we will assume that Gonzalez came to the United States
legally.
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violent offenses, not Gonzalez’s alleged illegal arrival in the United States, that the
district court referred to when it stated that Gonzalez had demonstrated “disrespect
for [the] law.”7 In addition, the court’s decision to impose an upward variance was
based not only on his prior criminal history but also on the characteristics of the
present offense. In light of these considerations, Gonzalez cannot show a
reasonable probability that he would have received a different sentence “but for the
sentencing judge’s comments about how [Gonzalez] came to be in this country or
but for the thoughts underlying those comments.” Rodriguez, 627 F.3d at 1382.
AFFIRMED.
7
What the district court actually said was: “He has demonstrated a disrespect for law
including a violent conviction for armed robbery, bank robberies, and kidnapping.”
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