[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 18, 2008
No. 07-15466
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-20282-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AIDA LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 18, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Aida Lopez appeals her 57-month sentence imposed for conspiring to
defraud the government under 18 U.S.C. § 371 and conspiring to commit health
care fraud under 18 U.S.C. § 1349. Lopez raises a single claim on appeal–that the
district court erred in imposing a four-level enhancement under U.S.S.G.
§ 3B1.1(a) for being a leader or organizer in a criminal activity that involved five
or more people or was otherwise extensive. She attacks the enhancement in three
ways, claiming the district court erred by: (1) treating the patients as participants
under U.S.S.G. § 3B1.1(a); (2) admitting certain hearsay statements into evidence
in her sentencing hearing; and (3) failing to raise the Government’s burden of
proof in the sentencing hearing. We affirm Lopez’s sentence.
The enhancement for a defendant’s role “as a leader or organizer under
U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.” United States
v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). A four-level increase is applied
if the defendant “was an organizer or leader” in an offense with more than five
participants. U.S.S.G. § 3B1.1(a). In determining the defendant’s role in the
offense, the district court should consider:
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
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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.
U.S.S.G. § 3B1.1, comment. (n.4).
Additionally, the commentary notes clarify: “There can, of course, be more
than one person who qualifies as a leader or organizer of a criminal association or
conspiracy.” Id. However, each person who qualifies as a leader under this
enhancement must supervise at least one participant. U.S.S.G. § 3B1.1, comment.
(n.2). Only people who are criminally responsible may be classified as
participants. See United States v. Eidson, 108 F.3d 1336, 1345 (11th Cir. 1997),
abrogated on other grounds by Rapanos v. United States, 126 S. Ct. 2208 (2006).
All individuals who were criminally responsible, even if not convicted, may be
counted to determine the number of participants in criminal activity. See id. The
defendant can be counted as one of the five participants. See United States v.
Rodriguez, 981 F.2d 1199, 1200 (11th Cir. 1993). Further, enhancement under
U.S.S.G. § 3B1.1(a) is appropriate without five participants when the criminal
activity is “otherwise extensive.” Id. (quoting U.S.S.G. § 3B1.1(a)).
Lopez’s claim the district court erred in imposing a four-level role
adjustment is without merit because there is sufficient evidence in the record to
support a finding the criminal activity included five or more participants or was
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otherwise extensive. Lopez’s first assertion, that the district court erred in
determining there were five or more participants, is without merit. In this case,
participants included Henry Gonzalez, Karla Gonzalez, Domingo Santana, Hilda
Prado, the doctor to which Prado was taken, and Lopez herself. As this exceeds
five participants, the requirement of five or more participants is satisfied.
Moreover, the 70 patients organized by Lopez are sufficiently numerous to classify
the criminal activity as otherwise extensive. See Rodriguez, 981 F.2d at 1200
(holding, in the alternative, there were five or more participants and the criminal
activity was otherwise extensive).
Lopez’s second assertion, that the district court erred in admitting the
hearsay testimony of Hilda Prado at the sentencing hearing, is also without merit.
Hearsay may be admitted at sentencing if there are “sufficient indicia of reliability,
the [district] court makes explicit findings of fact as to credibility, and the
defendant has an opportunity to rebut the evidence.” United States v. Zlatogur,
271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). In this case, the
statements of Hilda Prado were consistent with the overall allegations describing
the conspiracy to commit health care fraud. Lopez admitted she utilized patients to
acquire fraudulent prescriptions from doctors, while Prado provided a detailed
description of a particular patient being used to get a fraudulent prescription.
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Therefore, Prado’s statements have a sufficient indicia of reliability. Notably,
Lopez’s brief does not argue the district court made insufficient findings of fact or
denied Lopez an opportunity to rebut the hearsay statements. Although the district
court did not explicitly state it found the evidence credible, the district court did
explicitly rely on Prado’s hearsay statements. Finally, Lopez was offered an
opportunity to rebut the hearsay statements made by Hilda Prado.
Lopez’s third assertion, that the district court erred by refusing to raise the
burden of proof, is also without merit. As a preliminary matter, Lopez did not
request the district court raise the burden of proof during the sentencing hearing.
When an issue was not raised before the district court, this Court reviews for plain
error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005).
Here, there is no plain error because there is no error. Lopez asserts the
substantive holding of United States v. Booker, 125 S. Ct. 738 (2005), requires a
re-evaluation of the burden of proof to be applied in sentencing hearings. To guide
that re-evaluation, Lopez asserts this Court should follow Addington v. Texas, 99
S. Ct. 1804 (1979), in determining the appropriate burden of proof. In Addington,
the Supreme Court explained the burden of proof “serves to allocate the risk of
error between the litigants and to indicate the relative importance attached to the
ultimate decision.” Id. at 1808. Lopez asserts following this analysis would
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require a higher burden of proof than preponderance of the evidence. However,
nothing in Booker requires a re-evaluation of the burden of proof. See United
States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005) (holding district courts are
permitted to make findings of fact by a preponderance of the evidence in applying
the advisory Guidelines).
We conclude the district court did not err in imposing a four-level
enhancement under U.S.S.G. § 3B1.1(a) for being a leader or organizer in a
criminal activity that involved five or more people or was otherwise extensive.
Thus, we affirm Lopez’s sentence.
AFFIRMED.
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