[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13124
JANUARY 27, 2010
Non-Argument Calendar
JOHN LEY
________________________ ACTING CLERK
D. C. Docket No. 09-20138-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS CARRAZANA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 27, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Alexis Carrazana appeals his 72-month sentence for conspiracy to commit
health care fraud. He argues that the district court erred in (1) calculating the loss
amount for which he was responsible, (2) applying a two-level enhancement based
on its finding that the offense involved the use of “sophisticated means,” (3) failing
to grant a minor role reduction, (4) imposing a procedurally and substantively
unreasonable sentence, and (5) enhancing his sentence based on facts that were not
admitted or found by a jury beyond a reasonable doubt. For the reasons set forth
below, we affirm.
I.
Carrazana, a former medical assistant for Midway Medical, Inc.
(“Midway”), was charged with conspiracy to commit health care fraud, in violation
of 18 U.S.C. §§ 1347 and 1349. The indictment alleged that owners, doctors, and
employees of Midway, a medical clinic that provided injection and infusion
treatments to patients with human immunodeficiency virus (“HIV”), conspired to
submit fraudulent Medicare claims. It charged that Carrazana administered
medically unnecessary injection and infusion treatments and fabricated and signed
medical records to reflect that Midway patients had received injections or infusions
when, in fact, they had not. The indictment also alleged that chemists artificially
manipulated patient blood samples so that subsequent lab testing would make it
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appear that injections and infusion treatments billed by Midway were medically
necessary.
Carrazana pled guilty. At the change-of-plea hearing, Carrazana admitted
that he altered medical records, knew that his co-conspirators billed Medicare for
medically unnecessary procedures and procedures that were never provided, and
knew that chemists manipulated blood samples taken from Midway patients.
The presentence investigation report (“PSI”) stated that Carrazana worked at
Midway from September 2002 until March 2004 and was responsible for an
intended loss of $8,469,920. The PSI set Carrazana’s base offense level at 6,
pursuant to U.S.S.G. § 2B1.1(a)(2). Carrazana’s offense level was increased by 20
levels, pursuant to § 2B1.1(b)(1)(K), because the offense involved a loss of more
than $7,000,000, but not more than $20,000,000. Carrazana also received a
two-level enhancement under § 2B1.1(b)(9)(C), because the offense involved
sophisticated means; a two-level enhancement under § 2B1.1(b)(13)(A), because
the offense “involved the conscious reckless risk of death or bodily injury;” and a
two-level enhancement under § 3B1.3, for use of a special skill in connection with
the offense. Carrazana received a three-level reduction, pursuant to §§ 3E1.1(a),
(b), for acceptance of responsibility, resulting in a total offense level of 29.
Carrazana’s offense level of 29 combined with criminal history category I to yield
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a guideline imprisonment range of 87 to 108 months.
Carrazana filed objections to the PSI, arguing that (1) his intended loss
should be calculated as less than $7,000,000, because he effectively withdrew from
the conspiracy by terminating his employment with Midway in March 2004; (2) he
should have received a minor role reduction; (3) the conspiracy did not involve
sophisticated means; (4) and the offense did not involve the conscious or reckless
risk of death or serious bodily injury. Carrazana also pointed to several factors that
he argued supported a sentence below the guideline range.
At the sentencing hearing, the court sustained Carrazana’s objection to the
§ 2B1.1(b)(13)(A) enhancement for conscious or reckless disregard of the risk of
death or serious injury. It noted, however, that it would consider that the
conspiracy involved administering unnecessary medication, when considering the
factors under 18 U.S.C. § 3553(a). The court then determined that Carrazana was
subject to a total offense level of 27, criminal history category I, and a guideline
imprisonment range of 70 to 87 months. The court overruled Carrazana’s
objection to the fraud-loss amount, determining that Carrazana did not effectively
withdraw from the conspiracy by merely quitting his job in March 2004, because
withdrawal from a conspiracy requires “more than just terminating one’s act of
participation in the conspiracy.” The court also declined to grant Carrazana a
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minor role reduction, finding that, although Carrazana was less culpable than some
of his co-conspirators, he still played “an integral role” in the offense. The court
denied Carrazana’s objection to the two-level sophisticated means enhancement,
stating that “certainly the conspiracy clearly qualifies.” It also denied Carrazana’s
request for a below-range sentence, noting that Carrazana’s actions “show[ed] a
total disregard for everyone else other than [himself].” The court pointed out that
Carrazana made a conscious decision every day that he went to work to inject
patients with unnecessary medication and noted that Carrazana “obviously wanted
to harm society because of his activities over a year and a half where he stole
money from a very important Medicare program.” The court sentenced Carrazana
to 72 months’ imprisonment, followed by 3 years of supervised release. It also
ordered Carrazana to pay $3,687,893 in restitution.
II.
Loss Amount
We review “the district court’s loss determination for clear error.” United
States v. Woodard, 459 F.3d 1078, 1087 (11th Cir. 2006). The applicable
guideline provision provides for an 18-level increase in a defendant’s base offense
level if the offense involved a loss of more than $2,500,000 and an increase of 20
levels if the offense resulted in a loss of more than $7,000,000. U.S.S.G.
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§ 2B1.1(b)(1). The commentary provides that the proper loss amount for purposes
of calculating the enhancement is “the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1, comment. (n.3(A)).
“[T]he district court may hold all participants in a conspiracy responsible for
the losses resulting from the reasonably foreseeable acts of co-conspirators in
furtherance of the conspiracy.” United States v. Dabbs, 134 F.3d 1071, 1082 (11th
Cir. 1998). If a defendant withdraws from a conspiracy, he is not responsible at
sentencing for actions taken by co-conspirators after his withdrawal. Id. at 1083.
In order to prove withdrawal from a conspiracy, the defendant must show “(1) that
he has taken affirmative steps, inconsistent with the objectives of the conspiracy, to
disavow or to defeat the objectives of the conspiracy; and (2) that he made a
reasonable effort to communicate those acts to his co-conspirators or that he
disclosed the scheme to law enforcement authorities.” United States v. Starrett, 55
F.3d 1525, 1550 (11th Cir. 1995). “A mere cessation of participation in the
conspiracy is insufficient to prove withdrawal.” Dabbs, 134 F.3d at 1083; see
United States v. Young, 39 F.3d 1561, 1571 (11th Cir. 1994) (providing that
withdrawal from a conspiracy requires evidence of “an effort to thwart the
objectives of the conspiracy”). We have held that a defendant did not take
affirmative acts inconsistent with a conspiracy to burn a church where she “did not
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put the original fire out; she did not convince the [other coconspirators] to leave
[the church]; and she did not announce to the others that she had changed her mind
about the original plan.” United States v. Odom, 252 F.3d 1289, 1299 (11th Cir.
2001); see also Dabbs, 134 F.3d at 1083 (holding that a defendant’s mere
“physical distance from, rather than his repudiation of, the action of his
co-conspirators” did not constitute withdrawal).
Carrazana’s argument regarding the fraud loss amount is based solely on his
contention that he withdrew from the conspiracy by leaving his employment at
Midway in March 2004. However, there is no evidence that Carrazana took any
action to thwart or disrupt the objectives of the conspiracy. See Young, 39 F.3d at
1571; Odom, 252 F.3d at 1299. Instead, he merely removed himself from the
situation and ceased participation. Furthermore, Carrazana presented no evidence
that he communicated to his co-conspirators that he was leaving his employment
because he wished to terminate his involvement in the conspiracy. Starrett, 55
F.3d 1525, 1550; Odom, 252 F.3d at 1299 (noting that the defendant did not
inform her co-conspirators that she had “changed her mind about the original
plan”). Accordingly, the district court did not clearly err in finding that Carrazana
was responsible for losses that accrued after March 2004 because he did not
withdraw from the conspiracy by terminating his employment with Midway.
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U.S.S.G. § 2B1.1(b)(9)(C) – Sophisticated Means Enhancement
“For sentencing issues, [we] review[] a district court’s factual findings for
clear error and its application of the guidelines de novo.” See United States v.
Auguste, 392 F.3d 1266, 1267 (11th Cir. 2004).
The Sentencing Guidelines provide for an enhancement of two levels if “the
offense otherwise involved sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C).
Application note 8(B) to that Guideline defines “sophisticated means” as:
especially complex or especially intricate offense conduct
pertaining to the execution or concealment of an offense.
For example, in a telemarketing scheme, locating the
main office of the scheme in one jurisdiction but locating
soliciting operations in another jurisdiction ordinarily
indicates sophisticated means. Conduct such as hiding
assets or transactions, or both, through the use of
fictitious entities, corporate shells, or offshore financial
accounts also ordinarily indicates sophisticated means.
U.S.S.G. § 2B1.1, comment. (n.8(B)).
The plain language of § 2B1.1(b)(9)(C) provides that the enhancement
applies if “the offense involved sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C)
(emphasis added). Because the relevant offense is the conspiracy, the district court
was permitted to consider the reasonably foreseeable actions of Carrazana’s
co-conspirators when determining whether the enhancement applies. See U.S.S.G.
§ 1B1.13(a)(1)(B) (providing that, in the case of a criminal conspiracy, guideline
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calculations shall be based on “all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity”). Carrazana
acknowledged at the plea hearing that he knew that chemists manipulated patients’
blood samples before sending to samples to the lab. The PSI also stated that
Carrazana was aware of the manipulation of patients’ blood samples, and
Carrazana failed to object to this factual finding. See United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (holding that factual findings set forth in a PSI
not objected to by a defendant are deemed admitted). Because the manipulation of
patients’ blood samples constitutes “especially complex . . . conduct pertaining to
the . . . concealment of the offense,” and because Carrazana admitted that he was
aware that this activity was taking place, the district court did not clearly err in
applying the two-level “sophisticated means” enhancement. See U.S.S.G.
§ 2B1.1(b)(9)(C) and comment. (n.8(B)).
U.S.S.G. § 3B1.2(b) – Minor Role Reduction
A district court’s determination of a defendant’s role in an offense
constitutes a factual finding to be reviewed only for clear error. United States v.
Rodriguez DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant
bears the burden of proving beyond a preponderance of the evidence that he is
entitled to a mitigating role reduction. Id. at 939.
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The Sentencing Guidelines provide for a two-level reduction for a minor
participant, defined as an individual “who is less culpable than most other
participants, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2(b) and comment. (n.5). In determining whether a defendant was a minor
participant, the court “must assess whether the defendant is a minor or minimal
participant in relation to the relevant conduct attributed to the defendant in
calculating h[is] base offense level.” DeVaron, 175 F.3d at 941. The district court
“may also measure the defendant’s culpability in comparison to that of other
participants in the relevant conduct.” Id. at 944. “The fact that a defendant’s role
may be less than that of other participants engaged in the relevant conduct may not
be dispositive of role in the offense, since it is possible that none are minor or
minimal participants.” Id. “In making the ultimate determination of the
defendant’s role in the offense, the sentencing judge has no duty to make any
specific subsidiary factual findings.” Id. at 939.
Although Carrazana may have been less culpable than the Midway doctors
who supervised the conspiracy and were engaged in fraudulent billing, the district
court did not commit clear error in finding that Carrazana did not play a minor role
in the conspiracy. In fact, Carrazana’s relevant conduct involved actions that were
instrumental in avoiding detection of the conspiracy. Before imposing sentence,
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the district court noted that Carrazana played a “very significant role” in the
offense, because his relevant conduct involved injecting patients with unnecessary
medication every day that he went to work, over a one-and-a-half year period.
These actions were clearly instrumental in the success of the conspiracy, because,
if Carrazana had not administered these injections and falsified patients’ medical
records, Midway would not have received the fraudulent Medicare payments.
Furthermore, although the district court had no duty to make any specific
subsidiary factual findings regarding the appropriateness of a minor role reduction,
the court specifically found that Carrazana played a greater role in the conspiracy
than other participants, namely, Midway’s patients, and that Carrazana
“perform[ed] a very substantial part of this conspiracy.” Accordingly, the district
court did not clearly err in denying the minor role reduction.
Reasonableness of the Sentence
We review the final sentence imposed by the district court for
reasonableness. United States v. Booker, 543 U.S. 220, 262-64, 125 S.Ct. 738,
766-67, 160 L.Ed.2d 621 (2005). Specifically, the district court must impose a
sentence that is both procedurally and substantively reasonable. Gall v. United
States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). After
Booker, we established a two-step process for district courts to use in sentencing:
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first, the district court must consult the Sentencing Guidelines and correctly
calculate the sentencing range; second, the district court must consider the factors
listed in 18 U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005).
A sentence may be procedurally unreasonable if the district court improperly
calculates the guideline range, treats the Sentencing Guidelines as mandatory
rather than advisory, fails to consider the appropriate statutory factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen
sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. In its consideration of the
§ 3553(a) factors, the district court does not need to discuss or state on the record
each factor explicitly. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005). Instead, an acknowledgment by the district court that it has considered the
defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1329-30.
Pursuant to § 3553(a), the sentencing court “shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection,” namely, to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from future crimes of the defendant, and provide the
defendant with needed educational or vocational training or medical care. See 18
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U.S.C. § 3553(a). The sentencing court must also consider the following factors in
determining a particular sentence: the nature and circumstances of the offense and
the history and characteristics of the defendant, the kinds of sentences available,
the guideline range, the pertinent policy statements of the Sentencing Commission,
the need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. See U.S.S.G. § 3553(a)(1), (3)-(7).
After an appellate court has determined that a sentence is procedurally
sound, Gall directs the appellate court to review the substantive reasonableness of
a sentence under an abuse-of-discretion standard. Gall, 552 U.S. at 51, 128 S.Ct.
at 597. The review for substantive reasonableness involves examining the totality
of the circumstances, including an inquiry into whether the § 3553(a) factors
support the sentence in question. Id. This Court ordinarily expects a sentence
within the guideline range to be reasonable, and the appellant has the burden of
establishing that the sentence is unreasonable in light of the record and the
§ 3553(a) factors. Talley, 431 F.3d at 788.
Carrazana’s sentence was procedurally reasonable, because the district court
specifically stated that it had considered the § 3553(a) sentencing factors and the
parties’ arguments, and adequately explained its reasons for imposing a 72-month
sentence. See Scott, 426 F.3d at 1329 (noting that a district court does not need to
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explicitly state or discuss each § 3553(a) sentencing factors on the record). The
court also stated that it had considered the following factors: (1) the conspiracy
involved the administration of unneeded medication, (2) Carrazana already
benefitted from the court’s decision not to impose the two-level enhancement for
risk of death or serious bodily harm, (3) Carrazana injected patients with modified
blood, thereby showing a “total disregard” for others, (4) Carrazana played a
significant role in the offense and injected patients with unnecessary medications
on a daily basis, and (5) the harm Carrazana caused to society by stealing money
from Medicare for over a year and a half. These facts relate to the following
§ 3553(a) sentencing factors: the seriousness of the offense, the need to promote
respect for the law, the need to deter criminal conduct, and the need to protect the
public from future crimes. See 18 U.S.C. § 3553(a). Thus, Carrazana’s argument
that the district court failed to consider the § 3553(a) factors and failed to explain
its reasons for imposing the 72-month sentence are meritless.
Carrazana’s sentence was also substantively reasonable. The district court
correctly found that a sentence at the low end of the guideline range was warranted
by the seriousness of the offense and the need for deterrence. For a year and a half,
Carrazana routinely injected patients with unnecessary medications and falsified
medical records. As the court noted, Carrazana’s actions affected not only the
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patients, but also taxpayers who fund the Medicare program and citizens who
receive Medicare benefits. The 72-month sentence is also supported by the need to
deter medical professionals from committing Medicare fraud. Although Carrazana
argues that the district court failed to consider certain mitigating factors, Carrazana
listed these mitigating factors in his sentencing memorandum and the district court
stated that it had considered the parties’ arguments in deciding on a reasonable
sentence. Accordingly, Carrazana’s sentence was both procedurally and
substantively reasonable.
Enhancements Based On Court-Found Facts
Where a defendant fails to raise a constitutional sentencing argument before
the district court, we review for plain error. United States v.Candelario, 240 F.3d
1300, 1308 (11th Cir. 2001). “To establish plain error, a defendant must show
there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). We may correct a plain
error “only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (quotations omitted).
Post-Booker, “the use of extra-verdict enhancements in an advisory
guidelines system is not unconstitutional.” United States v. Chau, 426 F.3d 1318,
1323 (11th Cir. 2005). Thus, the district court may enhance a sentence based on
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judge-found facts under a preponderance standard so long as the sentence does not
exceed the statutory maximum under the United States Code. United States v.
Dean, 487 F.3d 840, 854 (11th Cir. 2007), cert. denied, 128 S.Ct. 1444 (2008).
Under 18 U.S.C. § 1347, the statutory maximum term of imprisonment for an
individual who commits health care fraud is 10 years’ imprisonment. 18 U.S.C.
§ 1347.
Carrazana has failed to show that the district court plainly erred by
enhancing his sentence based on facts found by the court by a preponderance of the
evidence. We have held that a district court may enhance a sentence based on
judge-found facts, as long as the defendant is sentenced under an advisory
guidelines system and the sentence does not exceed the statutory maximum. See
Chau, 426 F.3d at 1323; Dean, 487 F.3d at 854. Here, the statutory maximum was
10 years’ imprisonment. See 18 U.S.C. § 1347. Carrazana’s 72-month sentence
was well below this limit. Carrazana was also sentenced post-Booker, under an
advisory guideline scheme. Accordingly, we affirm Carrazana’s 72-month
sentence.
AFFIRMED.
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