Not for publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1711
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR CANCEL-ZAPATA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Stahl and Thompson, Circuit Judges.
Juan M. Masini-Soler for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Francisco A. Besosa-Martínez, Assistant
United States Attorney, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, was on brief, for appellee.
May 13, 2016
STAHL, Circuit Judge. Dr. Edgar Cancel-Zapata played a
central role in a conspiracy which, through the submission of false
Medicare claims, succeeded in defrauding the government of some
$750,000. After Cancel-Zapata pled guilty to a single count of
aggravated identity theft, the district court sentenced him to a
prison term of one year and one day. Cancel-Zapata now appeals,
challenging his sentence as substantively unreasonable.
This case raises intriguing questions about the scope of
our jurisdiction and about the enforceability of waivers of the
right to seek appellate relief. But, as we explain, we need not
answer either of these questions. Rather, after careful
consideration, we find the sentence imposed to be reasonable and,
thus, we AFFIRM.
I. Facts & Background1
Located in Puerto Rico, Olympic Medical Equipment was
in the business of procuring durable medical equipment for Medicare
beneficiaries. Olympic's owner and president, Jaime Sepúlveda-
Concepción, devised a basic but apparently successful scheme. With
the help of his sales coordinator, Mario Reyes-Cruz, Sepúlveda-
Concepción created false equipment orders, which he submitted to
1 In light of Cancel-Zapata's guilty plea, we recount the
facts as established by the plea agreement, the change-of-plea
colloquy, the presentence report, and the sentencing transcript.
United States v. King, 741 F.3d 305, 306 (1st Cir. 2014).
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Medicare for reimbursement. To effectuate the scheme, Sepúlveda-
Concepción and Reyes-Cruz enlisted the help of two doctors, Cancel-
Zapata and Sonia Guzmán-Silvagnoli, who were responsible for
completing false patient progress notes, prescriptions, and other
paperwork intended to make the equipment orders appear legitimate.
Between 2007 and 2010, the conspirators submitted a total of some
1,150 false claims, resulting in the government's disbursement of
$747,461.31, a portion of which was paid to Cancel-Zapata in the
form of kickbacks.
These four individuals were named in an indictment
charging, inter alia, conspiracy to commit health care fraud
(18 U.S.C. §§ 1347 and 1349) and aggravated identity theft
(18 U.S.C. § 1028A(a)(1)). In June 2014, Cancel-Zapata pled guilty
to a single count of aggravated identity theft pursuant to a plea
agreement. In exchange, the government agreed to drop the
remaining charges against him, and the parties also agreed to
jointly recommend a sentence of twenty-four months, representing
the applicable mandatory minimum. See 18 U.S.C. § 1028A(a)(1).
Later, in December 2014, the government filed a motion
seeking a downward departure. See U.S.S.G. § 5K1.1. Citing
Cancel-Zapata's "substantial" assistance in furtherance of its
investigation, the government urged the district court to impose
a sentence of one year and one day. Then, in April 2015, the
government sought yet another downward departure. This time,
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citing Cancel-Zapata's ongoing assistance, his role as a doctor in
the community, and his poor health, the government urged the
district court to impose a sentence of just six months.
At a sentencing hearing conducted in May 2015, the
district court accepted the government's initial request to
sentence Cancel-Zapata to a prison term of one year and one day.
However, citing the "nature of the offense," Cancel-Zapata's "key
role," and the significant monetary losses involved, the district
court declined to grant a further reduction.
II. Discussion
A. Jurisdiction and Appellate Waiver
Before we reach the merits of Cancel-Zapata's claim that
his sentence is substantively unreasonable, we first contend with
two antecedent issues raised by the government. First, the
government claims that we lack jurisdiction to hear this appeal
because Cancel-Zapata's sentence is not subject to review under
the narrow grant of jurisdiction contemplated in 18 U.S.C.
§ 3742(a).2 Indeed, because Cancel-Zapata's sentence fell below
the applicable mandatory minimum, there is some basis for the
government's jurisdictional skepticism. See United States v.
2Section 3742(a) allows a defendant to appeal a sentence
under a limited set of circumstances, such as where the sentence
was "imposed in violation of law" or "as a result of an incorrect
application of the sentencing guidelines."
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Anonymous Defendant, 629 F.3d 68, 74 & n.1 (1st Cir. 2010) (noting
that reasonableness review applies to "virtually the entire gamut
of sentences imposed under the advisory guidelines," except
"sentences imposed pursuant to a statute that contains a mandatory
minimum term of imprisonment"). But, because we are faced with a
thorny question of statutory jurisdiction and because Cancel-
Zapata's claim may be easily decided on its merits in favor of the
government, we may presume, without deciding, that we have
jurisdiction. See Bullard v. Hyde Park Sav. Bank (In re Bullard),
752 F.3d 483, 485 n.1 (1st Cir. 2014), aff'd sub nom. Bullard v.
Blue Hills Bank, 135 S. Ct. 1686 (2015).
The government next argues that Cancel-Zapata is barred
from challenging his sentence by virtue of an appellate waiver
provision contained in his plea agreement. Therein, Cancel-Zapata
waived the right to appeal his sentence, provided that it was
imposed "in accordance with the terms and conditions" of the
parties' joint recommendation for a twenty-four-month sentence.
The parties dispute whether Cancel-Zapata's sentence of one year
and one day is subject to the waiver. On the one hand, as the
government fairly argues, Cancel-Zapata in fact received a
sentence more favorable than the one contemplated in the plea
agreement. See United States v. González-Colón, 582 F.3d 124, 129
(1st Cir. 2009) ("A district court that imposes a sentence lower
than that recommended by the plea agreement . . . cannot in any
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sense be said to have exceeded the 'terms and conditions' of the
agreement."). But, on the other hand, a sentence of one year and
one day is no doubt materially different than a sentence of twenty-
four months. See United States v. Santiago-Burgos, 750 F.3d 19,
23 (1st Cir. 2014) (noting that appellate waivers must be construed
in light of "basic contract interpretation principles"). Yet here
too, we need not decide the issue because the case is easily
resolved on its merits. See United States v. Salas-Fernández, 620
F.3d 45, 47 (1st Cir. 2010) ("We see no need to plunge into these
murky waters . . . . Because this appeal is easily resolved on the
merits, we have the luxury of being able to bypass the [appellate
waiver] issue today."). We thus presume, again without deciding,
that the waiver does not foreclose Cancel-Zapata's appeal.
B. Substantive Reasonableness
Although Cancel-Zapata did not preserve his substantive
reasonableness claim, we assume, favorably to him, that it is
subject to abuse of discretion review. United States v. Ruiz-
Huertas, 792 F.3d 223, 228 (1st Cir. 2015). "A sentence is
substantively reasonable so long as it rests on a 'plausible
sentencing rationale' and embodies a 'defensible result.'" Id.
(quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).
Proving substantive unreasonableness is a "heavy lift,"
particularly where, as here, the sentence imposed is below both
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the guideline range and the applicable mandatory minimum. Id. at
228-29.
Cancel-Zapata claims that his sentence is substantively
unreasonable because the district court failed to give adequate
consideration to a host of mitigating factors, namely, his
cooperation with the authorities, his acceptance of
responsibility, his lack of any criminal history, his poor health,
and his role in the community as a physician. Cancel-Zapata also
assigns error to the district court's failure to consider the fact
that his codefendant, Dr. Guzmán-Silvagnoli, benefitted from a
pretrial diversion program, while he did not.3
Cancel-Zapata's claims are belied by the sentencing
transcript, which reveals that the district court expressly
considered each and every one of the mitigating factors that he
identifies. In imposing the sentence, the district court twice
described Cancel-Zapata as a first-time offender, and expressly
referenced his "volunteer medical work in the community" and the
"various medical conditions for which he is receiving treatment."
The district court next discussed Cancel-Zapata's "acceptance of
criminal responsibility" and the "substantial assistance" he
provided. Finally, the district court considered, but rejected,
3 Cancel-Zapata's brief also refers to recent executive and
congressional efforts to reduce the sentences of non-violent drug
offenders. We find this reference both undeveloped and inapposite.
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Cancel-Zapata's comparison to Dr. Guzmán-Silvagnoli, noting that
there was "no equivalence" because Guzmán-Silvagnoli had been
named in just one of the indictment's fourteen counts. Ultimately,
weighing these factors, as well as "the nature of the offense,"
Cancel-Zapata's "key role," and the extensive monetary losses
involved, the district court settled on a sentence of one year and
one day.
In light of the district court's express consideration
of the mitigating factors Cancel-Zapata has identified, his claim
of substantive unreasonableness amounts to little more than an
effort to "substitute his judgment for that of the sentencing
court." United States v. Clogston, 662 F.3d 588, 593 (1st Cir.
2011). Such second guessing is well beyond the pale of our
reasonableness review. See Ruiz-Huertas, 792 F.3d at 228. While
Cancel-Zapata may wish the district court had accorded more weight
to the mitigating factors and reduced his sentence even further
below the mandatory minimum, he has failed to demonstrate that his
sentence is anything but reasonable. See Clogston, 662 F.3d at
593 ("That the sentencing court chose not to attach to certain of
the mitigating factors the significance that the appellant thinks
they deserved does not make the sentence unreasonable.").
III. Conclusion
Having indulged the assumptions (but not having decided)
that we have jurisdiction to hear the case and that the appellate
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waiver does not apply, we find that Cancel-Zapata's sentence is
substantively reasonable. We thus AFFIRM.
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