[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10021 MAY 4, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-20271-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO AENLLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Rodolfo Aenlle appeals his 84-month sentence imposed after a jury found
him guilty of (1) conspiring to defraud the United States, in violation of 18 U.S.C.
§ 371; (2) conspiring to commit health care fraud, in violation of 18 U.S.C. § 1349;
and (3) soliciting and receiving health care kickbacks, in violation of 42 U.S.C.
§ 1320a-7b(b)(1). Specifically, Aenlle challenges the loss amount that the district
court attributed to him.
According to the indictment, Aenlle conspired with the owners of Unimed
Equipment & Supplies (“Unimed”) to submit false claims to Medicare for
medically unnecessary medications. In doing so, Aenlle obtained prescriptions for
Medicare beneficiaries, Unimed submitted claims to Medicare on behalf of those
beneficiaries, and Aenlle received kickbacks from the Medicare payments that
Unimed received. The district court sentenced Aenlle to 84 months’
imprisonment. In calculating his offense level, the district court increased his base
offense level by 16 based on the loss amount. See U.S. S ENTENCING G UIDELINES
M ANUAL § 2B1.1(b)(1)(I).1 While Aenlle’s conviction stemmed from his
submission of false prescriptions to Unimed through his own company, Direct
Nursing Associates, Inc. (“Direct Nursing”), in exchange for kickbacks, the district
1
If the greater of the value of a bribe or improper benefit to be conferred exceeds $5,000,
Guidelines § 2B4.1 requires the district court to increase the offense level as indicated by the
table in Guidelines § 2B1.1. U.S. SENTENCING GUIDELINES MANUAL § 2B4.1(b)(1). Section
2B1.1, in turn, provides for an increase of 16 levels when the loss amount is more than
$1,000,000.
2
court found that Direct Nursing was involved in similar activity with Prestige
Pharmacy (“Prestige”) and that Direct Nursing directly submitted to Medicare false
claims for durable medical equipment. As such, the total loss amount associated
with Aenlle’s scheme amounted to $1,048,487, including: (1) $164,243, based on
prescriptions Aenlle and his co-conspirator Carlos Carrion delivered to Unimed
through Direct Nursing;2 (2) $58,010, based on prescriptions Aenlle and Carrion
delivered to Prestige through Direct Nursing; and (3) $826,234, based on claims
submitted by Direct Nursing directly to Medicare for medically unnecessary
equipment.3 Aenlle challenges only the attribution of the latter two amounts to
him, specifically the loss amounts relating to (1) Prestige and (2) Direct Nursing
claims for durable medical equipment from June 2003 to June 2006.
On appeal, Aenlle argues that the district court erred in imposing his
sentence because its determination of the appropriate Guidelines offense level
involved speculation and went far beyond the facts that had been proven. He
maintains that the attribution to him of loss related to Prestige was based on
speculation, as no witness testified that Aenlle or Carrion gave any false
prescription to Prestige in return for a payment. According to Aenlle, the only
2
The parties agree that the intended loss amount as to Unimed of $164,243 should have
been $164,423. They also agree that this error is not relevant to Aenlle’s appeal.
3
Each of the three individual loss amounts reflect 80% of the actual amount billed to
Medicare in order to account for Medicare’s 20% co-pay requirement.
3
“evidence” of his involvement with Prestige showed that some of the documents
seized from Prestige had the names Carlos and Rodolfo on them. Aenlle argues
that, even if there was sufficient evidence to support a finding that he was giving
false prescriptions to Prestige, there was no evidence that Prestige’s records were
accurate or that certain references to “Prestige Group 9” in those records referred
to him. Aenlle next contends that the attribution of loss relating to claims
submitted to Medicare by Direct Nursing for medical equipment also was based on
speculation as there was no evidence that every claim submitted by Direct Nursing
for equipment during Aenlle’s tenure with the company was false. In fact, Carrion
testified that he only saw that about 20 of Direct Nursing’s patients had equipment
that they did not seem to be using. As noted above, Aenlle contends that the only
loss that should have been attributed to him in determining the appropriate increase
in his offense level was the $164,243 (80% of $205,529) in loss from claims
submitted to Medicare by Unimed and another Pharmacy.
We review a district court’s interpretation of the Guidelines de novo and its
factual findings for clear error. United States v. Masferrer, 514 F.3d 1158, 1164
(11th Cir. 2008) (citation omitted), cert. denied, 129 S. Ct. 996 (2009). In
particular, “[t]his court reviews for clear error a district court’s determination of
loss from fraud for sentencing purposes.” United States v. Liss, 265 F.3d 1220,
4
1230 (11th Cir. 2001). “We cannot find clear error unless we are left with a
definite and firm conviction that a mistake has been committed.” United States v.
Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quotation marks and citation
omitted).
Proper calculation of the Guidelines, and in particular a defendant’s offense
level, requires consideration of “all relevant conduct,” not merely charged conduct.
United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). The government
must prove relevant conduct, such as the calculation of loss amount in a fraud case,
with “reliable and specific evidence.” United States v. Cabrera, 172 F.3d 1287,
1292 (11th Cir. 1999). A district court’s determination of relevant conduct is
governed by the preponderance of the evidence standard rather than the more
demanding standard of proof beyond a reasonable doubt. United States v. Hristov,
466 F.3d 949, 954 n.6 (11th Cir. 2006). Offense conduct is determined based on
relevant conduct, as provided in Guidelines § 1B1.3. Where, as here, Guidelines
§ 2B4.1 applies, relevant conduct includes “all acts and omissions . . . that were
part of the same course of conduct or common scheme or plan as the offense of
conviction.” U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.3(a)(2) (cross-
referencing U.S. S ENTENCING G UIDELINES M ANUAL § 3D1.2(d)). According to the
commentary, offenses constitute a common scheme or plan for purposes of
5
relevant conduct if they are “substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common purpose,
or similar modus operandi.” U.S. S ENTENCING G UIDELINES M ANUAL § 1B1.3, cmt.
n.9(A) (emphasis added). “The court need only make a reasonable estimate of the
loss” based on the available information. U.S. S ENTENCING G UIDELINES M ANUAL
§ 2B1.1 cmt. n.3(C).
As an initial matter, the Government asserts that all of Aenlle’s arguments
on appeal should be reviewed for plain error, apparently based on the fact that
Aenlle did not raise any objections after his sentence was imposed. However, “so
as long as a party states its objection to the sentence at some point during the
sentencing hearing, its failure to repeat the objection at the conclusion of the
imposition of sentence will not result in a waiver of that objection.” United States
v. Hoffer, 129 F.3d 1196, 1202 (11th Cir. 1997) (discussing United States v. Weir,
51 F.3d 1031, 1033 (11th Cir. 1995)). Aenlle adequately raised his objections that
there was insufficient evidence to hold him accountable for the losses relating to
Direct Nursing billing from June 2003 to June 2006 and the Prestige Pharmacy
kickbacks, even though he did not reiterate them after sentencing. See id. at 1203
(holding “that the government did not waive its objections to the district court's
departure decision and the resulting sentence by failing to reiterate these objections
6
after the sentence was imposed”). Therefore, the more stringent plain error
standard of review does not apply.
The Government also argues that Aenlle invited error for failing to object to
losses relating to Direct Nursing durable medical equipment claims that took place
between 2001 and 2003. Aenlle did not invite error because, at most, he failed to
object to that portion of the loss amount. Cf. United States v. Love, 449 F.3d 1154,
1157 (11th Cir. 2006) (per curiam) (noting that the “doctrine of invited error is
implicated when a party induces or invites the district court into making an error”)
(citation omitted). Aenlle objected that the Presentence Investigation Report
improperly included the billing of medical equipment by Direct Nursing between
June 2003 and June 2006 in its loss amount even though no trial evidence showed
that medical equipment billed during that time was medically unnecessary.
Because Aenlle did not object to the inclusion of fraudulent Direct Nursing durable
medical equipment claims from 2001 to 2003, he admitted the loss amounts for
that time period. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.
2005) (holding that factual findings set forth in the PSI not objected to by a
defendant are deemed admitted). In any event, Aenlle does not argue on appeal
that the DME claims from 2001 to 2003 were not fraudulent.
Applying the clear error standard of review, we conclude that the district
7
court did not clearly err by attributing the loss amounts related to durable medical
equipment claims from Direct Nursing and prescriptions claims from Prestige to
Aenlle. In United States v. Valladares, we addressed a defendant’s participation in
a scheme to defraud Medicare, where the defendant paid Medicare beneficiaries to
go to doctors, bribed doctors to obtain prescriptions for medically unnecessary
aerosol medication, and gave the prescriptions to pharmacies that would use them
to submit fraudulent Medicare claims. 544 F.3d 1257, 1261(11th Cir. 2008) (per
curiam). Although not included in the indictment, the government presented
evidence at trial that the defendant was independently submitting fraudulent
Medicare claims on behalf of her own company, which provided aerosol-related
medical equipment to Medicare beneficiaries. Id. We held that the district court
did not clearly err in finding that evidence of the defendant’s submission of
Medicare claims on behalf of her own company was relevant conduct as part of a
common plan or scheme because (1) the victim and purpose (i.e., to defraud
Medicare) of the pharmacy and equipment schemes were the same; (2) the two
schemes involved the same modus operandi of submitting fraudulent Medicare
claims; (3) both schemes used many of the same patients to bill Medicare; and
(4) the aerosol medication billed by the pharmacies was typically ingested through
the aerosol durable medical equipment billed by the defendant’s company, and
8
Medicare only would reimburse aerosol medication taken through such equipment.
Id. at 1268. Likewise here, both the Direct Nursing evidence and the Prestige
evidence constituted “relevant conduct” to the claims for which Aenlle was
convicted insofar as (1) they involved the same victim (Medicare); (2) they shared
the same purpose of defrauding Medicare; (3) they involved the same modus
operandi of submitting fraudulent Medicare claims; and (4) they involved common
patients. See id. at 1258. In addition, as to the durable medical equipment claims
from Direct Nursing, Carrion testified that, when another person was in charge of
the company, they paid all of the patients and that none of the patients were
legitimate, which supports an inference that the prescription fraud kickback
scheme continued when Aenlle and Carrion assumed control in 2001.
Because the district court did not clearly err in attributing loss amounts
relating to durable medical equipment claims from Direct Nursing and
prescriptions claims from Prestige to Aenlle, we affirm.
AFFIRMED.
9