[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 4, 2009
No. 09-11212 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20424-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 4, 2009)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Alberto Hernandez pled guilty to all six counts of an indictment: Count 1,
conspiracy to commit health care fraud, in violation of 18 U.S.C. §1349; Count 2
through 6, health care fraud, in violation of 18 U.S.C. §§ 1347 and 2, and the
district court sentenced him to concurrent prison terms of 60 months. He now
appeals his sentences.
I.
First, Hernandez argues that the district court should not have enhanced his
offense level by two levels pursuant to U.S.S.G. § 2B1.1(b)(9)(C) for use of
“sophisticated means.” Specifically, he claims that his actions were not
complicated at all, but rather simple, thereby making application of the two-level
enhancement inappropriate.
We review a district court’s finding that a defendant utilized sophisticated
means for clear error. See United States v. Robertson, 493 F.3d 1322, 1329-30
(11th Cir. 2007) (applying a sophisticated-means enhancement under U.S.S.G.
§ 2F1.1(b)(5)(C) (1998)). A finding is clearly erroneous “when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Id. at 1330
(quotation omitted).
The Sentencing Guidelines provides for an enhancement of two levels if the
offense in question “involved sophisticated means.” § 2B1.1(b)(9)(C). Application
2
note 8(B) to that Guideline states:
. . . “sophisticated means” means 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)). In interpreting a prior version of
§ 2B1.1(b)(9)(C) in Robertson, we upheld a sophisticated means enhancement for
a defendant who utilized fictitious names and addresses to insulate himself from
detection. 493 F.3d at 1332. In addition, the defendant created fictitious entities
that were switched every 30 days to take advantage of the victim company’s
policies. Consequently, relying on these facts and a prior, but nearly identical
version of § 2B1.1 application note 8(B), we explicitly rejected the defendant’s
argument that his scheme was “simple.” Id.
Here, the district court did not commit clear error in applying the two-level
sophisticated means enhancement to Hernandez’s Guidelines calculation. The
court correctly noted that Hernandez’s conduct fell squarely within the plain
language of § 2B1.1 application note 8(B). Moreover, the court’s application of
§ 2B1.1(b)(9)(C) is in accord with our holding in Robertson. Consequently, we
affirm the district court’s imposition of a two-level sophisticated means
3
enhancement.
II.
Second, Hernandez argues that his sentence was both procedurally and
substantively unreasonable. In sum, he claims that the district court improperly
relied on one of the 18 U.S.C. § 3553(a) sentencing factors, the protection of the
public, and consequently failed to consider other § 3553(a) factors.
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), we
established a two-part process for district courts to use in calculating sentences.
United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). First, the district
court must consult and correctly calculate the sentence range prescribed by the
Sentencing Guidelines. Second, the district court must fashion a reasonable
sentence by considering the factors enumerated in § 3553(a). Id.
We review the reasonableness of a sentence under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, __, 128 S.Ct. 586, 594 (2007). A
defendant challenging his sentence bears the burden of establishing that it is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Overall, the analysis is a two-step process. United Stats v, Pugh, 515 F.3d 1179,
1190 (2008). First, we examine whether the district court committed any
significant procedural error. Second, after it has been determined that a sentence is
4
procedurally sound, we review the substantive reasonableness of a sentence. Id.
When reviewing for procedural unreasonableness, we should ensure that the
district court: (1) properly calculated the Guidelines sentence range; (2) treated the
Guidelines as advisory; (3) considered the § 3553(a) factors; (4) did not select a
sentence based on clearly erroneous facts; and (5) adequately explained the chosen
sentence. Gall, 552 U.S. at __, 128 S.Ct. at 597. When the district court considers
the § 3553(a) factors, the court need not discuss each factor. Talley, 431 F.3d at
786. All that is required is that the court acknowledge that it has considered the
defendant’s arguments and the § 3553(a) factors. United States v. Scott, 426 F.3d
1324, 1330 (11th Cir. 2005).
A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quotation omitted).
The analysis includes “examining the totality of the circumstances, including an
inquiry into whether the statutory factors in § 3553(a) support the sentence in
question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert.
denied, 129 S.Ct. 2848 (2009). The factors in § 3553(a) that the court must
consider are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
5
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
The weight the district court accords to “any given § 3553(a) factor is a
matter committed to the sound discretion of the district court . . . .” United States
v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation omitted). In terms of
the sentence range, we have held that “when the district court imposes a sentence
within the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Talley, 431 F.3d at 788. Also, where the sentence imposed is
only a fraction of the statutory maximum, this supports a finding of
reasonableness. See Gonzalez, 550 F.3d at 1324 (noting the importance of the
defendant’s 50-month sentence being “well below the maximum ten-year sentence
available . . . .”).
The district court did not abuse its discretion in imposing concurrent prison
sentences of 60 months each. Procedurally, the district court properly considered
the § 3553(a) factors, the parties’ arguments, and the record. Furthermore, the
sentence imposed was within the Guidelines sentence range and well below the
statutory maximum, creating strong support for a finding of reasonableness.
6
AFFIRMED.
7