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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14583
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20301-FAM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANNILET DOMINGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 17, 2015)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Annilet Dominguez appeals her sixty-eight-month total sentence imposed
after she pleaded guilty to conspiracy to commit, and the commission of, health
care fraud. She avers that, although she held the title of administrator at her job at
Professional Medical Home Health, LLC (PMHH), there was no evidence that she
exercised control or leadership within the conspiracy. She asserts that the
uncontested facts demonstrate that she was not a decision maker and that the
district court disregarded the relevant evidence to this effect. We find that the facts
in the record are insufficient to support by a preponderance of the evidence that
Dominguez played a leadership role in the conspiracy; thus, the district court erred
in applying a leadership role enhancement. Accordingly, we vacate her sentence
and remand the case for resentencing.
I.
A grand jury indicted Dominguez for conspiracy to commit health care fraud
(Count One), in violation of 18 U.S.C. § 1349, and health care fraud (Counts
Three, Four, and Five), in violation of 18 U.S.C. § 1035(a)(1) and (2). The
indictment alleged that Dominguez, along with codefendant Annarella Garcia and
other coconspirators, filed fraudulent Medicare claims seeking payment for the
costs of health services that were not medically necessary or were not provided.
Dominguez initially entered a plea of not guilty, but she changed her plea to guilty
without the benefit of a plea agreement.
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The district court conducted a change-of-plea colloquy before accepting
Dominguez’s guilty plea. At this hearing, the government laid out the factual basis
for the plea. Dominguez held the title of administrator at PMHH, a Miami-based
home health agency that served Medicare beneficiaries. Dominguez worked at
PMHH, but she did not have an equity interest in the company. She and her
coconspirators fraudulently billed Medicare.
Dominguez’s role in the fraud scheme “involved managing and supervising
personnel at [PMHH], paying kickbacks and bribes to patient recruiters, interacting
with patient recruiters, and coordinating and overseeing the submission of
fraudulent claims that were submitted to the Medicare program.” Between
December 2008 and February 2014, Medicare paid PMHH approximately $6.25
million in fraudulent reimbursements. The money Dominguez received came in
the form of a salary and ten percent of any check she cashed on behalf of her
codefendant. Dominguez agreed with the factual basis that the government set
forth. Particularly relevant to this appeal was the following language:
The actions taken by Dominguez were directed by, and at the
instruction of, [codefendant] Garcia and other unindicted co-
conspirators. Garcia and other unindicted co-conspirators were
generally the ones to decide or negotiate: which patients/recruiters
would be used by [PMHH], the amount of kickbacks/percentages to
be paid out to patients or recruiters, the hiring or firing of employees,
or what services would be billed.
....
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A portion of the funds received from Medicare were cashed by the
defendants, used to pay the patient recruiters, or used to perpetrate the
fraud. . . . Furthermore, at the instruction of [codefendant] Garcia,
Quick Employee Management was established by Dominguez. The
company was used, in part, as a means to distribute money from the
illegal activities at [PMHH] to various individuals, including several
unindicted co-conspirators. For a portion of the time that the Quick
Employee Management account was utilized, Dominguez was not
directly involved because she was at the hospital caring for her ill son,
who received a bone marrow transplant. During this time, Dominguez
was instructed by Garcia to pre-sign blank checks from this account,
and [Dominguez] complied with that instruction.
A presentence investigation report (PSI) was prepared that assigned a base
offense level of six pursuant to U.S.S.G. § 2B1.1(a)(2). As relevant here, it applied
a three-level increase on the basis that Dominguez was a manager or supervisor in
the scheme pursuant to U.S.S.G. § 3B1.1(b). 1 Dominguez had no prior
convictions, so her criminal history category was I. Based on a total offense level
of twenty-six and a criminal history category of I, the guideline range was sixty-
eight to seventy-eight months’ imprisonment.
In a supplemental sentencing memorandum and at sentencing, Dominguez
argued that the three-level leadership enhancement was inappropriate. Dominguez
criticized the government’s failure to have identified any individuals whom she
allegedly had supervised or managed and the lack of evidence establishing that she
1
The PSI also applied an eighteen-level increase for the amount of loss, pursuant to
§ 2B1.1(b)(1)(J); a two-level increase because the offense involved a government health care
program, pursuant to § 2B1.1(b)(7); and a three-level reduction for acceptance of responsibility,
pursuant to § 3E1.1(a) and (b). This resulted in a total offense level of twenty-six.
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had any control or decision-making authority. In response to the district court’s
questions, defense counsel stated that Dominguez had the title of administrator and
processed the papers that allowed the payment of kickbacks, but did not exercise
decision-making authority, recruit any accomplices, or claim a larger share of the
money. The district court stated that Dominguez’s admissions at the plea colloquy
were enough to apply the enhancement and overruled the objection. Accordingly,
the court sentenced her to a total of sixty-eight months of imprisonment, followed
by three years of supervised release. Following entry of judgment, Dominguez
appealed.
II.
The district court’s determination of a convicted defendant’s role in the
offense is a question of fact that we review for clear error, while “the application of
the [Sentencing] Guidelines to the facts is a question of law that we review de
novo.” United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir. 2001).
When a defendant challenges one of the factual bases of her sentence set
forth in the PSI, the government has the burden of establishing the disputed fact by
a preponderance of the evidence. United States v. Martinez, 584 F.3d 1022, 1027
(11th Cir. 2009). “It is the district court’s duty to ensure that the [g]overnment
carries this burden by presenting reliable and specific evidence.” Id. (internal
quotation marks omitted).
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The sentencing court may base its findings on “evidence heard during trial,
facts admitted by a defendant’s plea of guilty, undisputed statements in the
presentence report, or evidence presented at the sentencing hearing.” United States
v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). Because the district court is
required to calculate and consider the Sentencing Guidelines, “if the district court
erred in calculating the guideline range while imposing a sentence, we may vacate
the defendant’s sentence and remand the case for re-sentencing.” Martinez, 584
F.3d at 1025.
The Guidelines provide for a three-level increase “[i]f the defendant was a
manager or supervisor.” § 3B1.1(b). “To qualify for an adjustment under this
section, the defendant must have been the organizer, leader, manager, or supervisor
of one or more other participants.” Id. § 3B1.1 cmt. n.2. Courts consider several
factors in determining whether to apply the aggravating role enhancement
including:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
Id. § 3B1.1 cmt. n.4; see also Martinez, 584 F.3d at 1026. “There is no
requirement that all of the considerations have to be present in any one case . . .
[because] these factors are merely considerations for the sentencing judge.”
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Martinez, 584 F.3d at 1026 (internal quotation marks omitted). Instead, imposition
of this role enhancement “requires the exercise of some authority in the
organization, the exertion of some degree of control, influence, or leadership.” Id.
(internal quotation marks omitted).
III.
Here, Dominguez objected to the imposition of a leadership role
enhancement, and the government did not present any additional evidence at the
sentencing hearing. While Dominguez and the government presented a statement
of stipulated facts, the court did not discuss those agreed upon facts before
overruling the objection. Instead, the district court relied on Dominguez’s
admissions in the plea colloquy—that Dominguez was an administrator at PMHH
and that she supervised and oversaw PMHH personnel—in order to impose the
leadership role enhancement.
On their own, however, these admissions do not support the leadership
enhancement because it is unclear from the record whether any of the personnel
she supervised were members of the conspiracy. See id. at 1026 (holding that
imposition of the leadership enhancement under § 3B1.1 requires “evidence that
the defendant exerted some control, influence[,] or decision-making authority over
another participant in the criminal activity” (emphasis added)).
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The determination as to whether the leadership role enhancement applies
should be based on Dominguez’s actual conduct rather than her job title as
administrator. However, even considering her other actions, such as forming the
Quick Employee Management corporation at her codefendant’s request, interacting
with recruiters, processing paperwork to facilitate the filing of false claims, and
writing checks to distribute the fraudulently obtained money (paying the patient
recruiters), the record does not show control over another member of the
conspiracy. See id. at 1026–29 (determining that leadership enhancement was
inappropriate even where the evidence showed that the defendant orchestrated drug
shipments, was directly involved in a wire transfer, and utilized others to mail and
receive drug shipments, because control over resources is not the same as control
over other participants). Nor can her management of the assets of the conspiracy
justify the leadership enhancement. See id. at 1026 (“[A] defendant’s management
of assets, standing alone, is insufficient to support an enhancement under Section
3B1.1.”).
Further, there was no undisputed evidence that Dominguez exercised
independent decision making authority, recruited accomplices, or claimed a right
to a larger share of the fruits of the crime. See id. The agreed upon facts actually
indicated that it was the other coconspirators that decided and negotiated which
patients and recruiters would be utilized, what amount of kickbacks and
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percentages would be paid, which employees would be hired and fired, and what
services would be billed. Without more evidence regarding Dominguez’s role,
these facts suggest that factors such as the nature of her participation in the
commission of the offense and her degree of participation in planning or
organizing the offense weigh against a finding that Dominguez had a leadership
role in the conspiracy. See id.
Thus, we find that the government failed to present sufficient evidence that
Dominguez was a manager or supervisor in the criminal activity. Accordingly, in
light of the “slender record presented,” the district court erred in concluding that
Dominguez was a manager or supervisor under § 3B1.1(b) and imposing the three-
level leadership role enhancement. See id. at 1023. Upon review of the record and
consideration of the parties’ briefs, we vacate Dominguez’s sentence and remand
the case for resentencing.
SENTENCE VACATED AND CASE REMANDED.
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