United States v. Carlos Alfredo Verdeza

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 21-10461
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALFREDO VERDEZA,

Defendant- Appellant.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20470-JEM-1
____________________
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2 Opinion of the Court 21-10461

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and MARCUS,
Circuit Judges.
ROSENBAUM, Circuit Judge:
For almost over a year, physician assistant Carlos Verdeza
evaluated patients and prescribed them physical therapy. The clin-
ics where Verdeza worked then billed the patients’ health insur-
ance both for the evaluations and for the subsequent physical ther-
apy. The problem—for Verdeza and for the health-insurance com-
pany—was that the “patients” didn’t really need the physical ther-
apy and didn’t actually receive any treatment. When the health-
insurance company grew suspicious of the abnormally high rate of
physical-therapy prescriptions from the clinics, it cooperated with
an FBI investigation into the clinics.
That investigation led a grand jury to indict Verdeza on
eight healthcare-fraud-related charges. After a trial, a jury con-
victed Verdeza on three counts. Now on appeal, Verdeza raises
several challenges to his conviction—sufficiency, evidentiary, and
instructional—and to his sentence. After a thorough review of the
record and with the benefit of oral argument, we affirm.

I. BACKGROUND
A. Factual History
In November 2016, Carlos Verdeza, a physician assistant, be-
gan working at two clinics in the South Florida area: Guerra
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Medical Center and Double R Therapy Center. 1 Neither clinic was
a real healthcare facility. Rather, both were fronts for fraud. The
clinics—run by the same ownership group—used recruiters to find
and entice people with Blue Cross Blue Shield (“BCBS”) health in-
surance to come to the clinics. To persuade people to be “patients,”
the clinics paid them kickbacks.
When the “patients” arrive[d] for their “treatment,” Verdeza
would briefly see them, perform no (or very little) examination,
and prescribe physical therapy. For instance, in one instance,
Verdeza asked the “patient” only two questions before prescribing
physical therapy. The “patients” didn’t return to the clinic and gen-
erally didn’t receive physical therapy. Yet at the clinic, “patients”
signed dozens of forms attesting that they had received treatment.
Because one evaluation justified only a limited number of treat-
ments, Verdeza often signed two or three forms falsely stating that
he had “reevaluated” the “patients” and that they needed more
physical therapy—even though he never saw the “patients” again.
Between November 2016 and January 2018, Guerra and
Double R billed BCBS for $3.4 million and received around $1.2
million in reimbursement. But eventually, BCBS grew suspicious.
It noticed that Guerra and Double R billed for a lot more physical

1 We take these facts from the evidence presented at trial, viewed in the light
most favorable to the verdict. See United States v. Takhalov, 838 F.3d 1168, 1169
(11th Cir. 2016).
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4 Opinion of the Court 21-10461

therapy (and more expensive physical therapy) than did peer clin-
ics.
So BCBS asked for supporting documentation. The clinics
submitted “cookie cutter” forms—that is, they “used the same in-
formation over and over again.” So BCBS denied the claims.
Separately and coincidentally, the FBI learned of the clinics’
existence through its biller, Rafael Izquierdo. As it turned out,
Izquierdo had been arrested and agreed to cooperate in a different
healthcare fraud investigation.
B. Procedural History
The United States indicted Verdeza on eight counts of
healthcare fraud. Count I charged conspiracy to commit
healthcare fraud and wire fraud, in violation of 18 U.S.C. § 1349,
and Counts II through VIII alleged substantive healthcare fraud
linked to particular claims for reimbursement, in violation of
§ 1347. Counts II, V, and VII were for fraudulent claims for reim-
bursement submitted for treating “patients” E.G., N.T., and S.B, re-
spectively.
1. Trial
Verdeza’s case proceeded to a six-day jury trial. In its case in
chief, the government—without objection—used the FBI case
agent to summarize the scheme. The agent explained that recruit-
ers found and paid “patients” with BCBS insurance to go to the
clinics and sign undated forms indicating that they had received
physical therapy. A co-conspirator then ensured the forms matched
the bills that the clinics eventually submitted. The FBI case agent
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also mentioned other members of the conspiracy who hadn’t yet
testified (and some who never testified), like the clinic’s owners and
the physician who nominally “supervised” Verdeza. Besides this,
the government introduced patient files from five of the six “pa-
tients” mentioned in the indictment.
During the FBI case agent’s testimony, the government
sought to introduce Exhibit 22, which had four subparts. Verdeza
didn’t contest the admission of Exhibit 22A or Exhibit 22B. Exhibit
22A was a Final Order from the Florida Board of Medicine accept-
ing a settlement agreement with Verdeza in 2006. Exhibit 22B was
a settlement agreement in which Verdeza both admitted to the
facts alleged in an administrative complaint filed against his medical
license and agreed to pay restitution and perform community ser-
vice.
But Verdeza objected to the admission of Exhibit 22C and
Exhibit 22D as unnoticed Rule 404(b) evidence. Exhibit 22C was
the administrative complaint that resulted in the 2006 Final Order.
That administrative complaint alleged that Verdeza had signed
evaluation forms for patients he didn’t actually see or treat. Exhibit
22D was the corresponding investigative report. In Verdeza’s view,
the evidence was unnoticed Rule 404(b) evidence because, even
though the government had previously provided him with the
complaint and report, it hadn’t told him it planned to introduce the
documents at trial. The district court overruled the objection and
admitted the administrative complaint and investigative report into
evidence.
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The government also introduced testimony from Verdeza’s
alleged co-conspirators. For instance, Hernandez testified that she
helped ensure that the “patients” treatment records matched the
billing (as the billing records were created first). Hernandez first
met Verdeza at a separate clinic named Culumbia. She vouched for
Verdeza with the owners of Guerra and Double R because she
knew that Verdeza would engage in fraud and “could do the paper-
work in a much better fashion.” While at the clinics, Hernandez
met with Verdeza several times a week to fill in information on pa-
tient charts to match what the clinic’s biller had decided to charge.
Hernandez later opened her own medical clinic—named Es-
meralda—to commit fraud. She hired Verdeza to do the same
thing for her—“examine” “patients” and prescribe them physical
therapy.
Along the same lines, Jesus Kenny Rosario, one of the clin-
ics’ owners, testified that he’d hired Verdeza—on Hernandez’s rec-
ommendation—because Verdeza would “be willing to kind of
work with” the fraudsters. For example, at one point, a physical
therapist demanded to see the “patients” every visit, and Verdeza
complained to Rosario that “the [physical therapist] should kind of
know what this business entails and he should be okay with it as
well, and . . . . play ball like that.” Rosario explained that, if Verdeza
had similarly refused to “play ball”—i.e., refused to sign reevalua-
tion forms for “patients” he hadn’t seen—he would have fired
Verdeza. Rosario said that anyone at the clinic would have been
suspicious of the fact that there were a lot of patient charts and
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very few patients. Even though not everyone in the clinic knew
about the fraud, he said, Verdeza did.
Next, Rafael Izquierdo, the clinic’s billing person, testified
that he did the clinic’s paperwork and filled in diagnoses and treat-
ment codes, rather than a doctor. He said that, at a real clinic, the
physician would make that determination. Finally, five “patients”
testified that they had gone to the clinic, met with Verdeza, signed
thirty or more forms attesting to “treatment” they received, and
never went back.
When it came time for the district court to charge the jury,
the court gave an instruction on deliberate indifference over
Verdeza’s objection. The district court also instructed the jury that
leading questions weren’t evidence.
Ultimately, the jury convicted Verdeza on three substantive
counts and acquitted him on the conspiracy charge as well as four
substantive counts.
2. Sentencing
The Presentencing Investigative Report (“PSI”) initially at-
tributed to Verdeza a loss amount of $5.2 million and concluded
that Verdeza owed restitution in the amount of $1.75 million.
Verdeza objected. He asserted that his loss amount should reflect
only the amount billed for the three “patients” for which he was
convicted—or $165,310. He also objected to the lack of a minor-
role reduction. The government conceded that, given that Verdeza
joined the conspiracy after it began, the proper loss amount should
be $3.4 million, and his total restitution owed was $1.195 million.
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Although the district court overruled the objections, it ac-
cepted the concessions. In explaining its reasons for overruling the
loss-related objections, the district court first recognized that the
jury had acquitted Verdeza on some of the counts because it didn’t
believe that evidence beyond a reasonable doubt established the al-
leged violations. Even so, the district court found that a prepon-
derance of the evidence supported the (acquitted) counts and held
Verdeza responsible for $3.4 million in loss. Given those determi-
nations, the district court calculated Verdeza’s final offense level as
24 and his criminal history category as I, which gave Verdeza a
Guidelines range of 51 to 63 months. The district court departed
downward and sentenced Verdeza to 48 months’ incarceration and
ordered $1.195 million in restitution. Verdeza timely appealed.

II. STANDARD OF REVIEW
In evaluating whether sufficient evidence supports a convic-
tion, we view the evidence in the light most favorable to the pros-
ecution and draw all reasonable inferences and credibility choices
in favor of the jury verdict. United States v. Takhalov, 838 F.3d 1168,
1169 (11th Cir. 2016). And unless no reasonable construction of
the evidence supports the jury’s guilty verdict beyond a reasonable
doubt, we must affirm a conviction. Id. We review for an abuse of
discretion preserved evidentiary rulings. United States v. Hill, 643
F.3d 807, 840 (11th Cir. 2011). We review unpreserved objections
for plain error. Greer v. United States, 141 S. Ct. 2090, 2096 (2021).
When we review a trial court’s jury instructions, “[w]e apply
a deferential standard of review.” United States v. Puche, 350 F.3d
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1137, 1148 (11th Cir. 2003) (internal citations omitted). We reverse
only if our review leaves us “with a substantial and eradicable
doubt as to whether the jury was properly guided in its delibera-
tions.” Id. In making this evaluation, we consider the jury charge
as a whole. Id.
We review for clear error a district court’s decision as to
whether a defendant qualifies for an adjustment under the Guide-
lines. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002). We
also review for clear error an amount-of-loss determination. United
States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007). As to the le-
gality of a restitution order, we review that de novo, but we review
for clear error the factual findings underlying it. United States v.
Brown, 665 F.3d 1239, 1252 (11th Cir. 2011). Finally, we review the
substantive reasonableness of a sentence for an abuse of discretion.
United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en
banc).

III. DISCUSSION
Verdeza makes four arguments on appeal. First, Verdeza as-
serts that the evidence was insufficient to support his convictions.
Second, he argues that the district court made erroneous eviden-
tiary rulings that prejudiced his right to a fair trial. Third, he con-
tends that the district court erred in giving a deliberate-indifference
jury instruction. And fourth, Verdeza says that the district court
erred in sentencing him in denying him a minor-role reduction, cal-
culating his loss amount, determining his restitution, and imposing
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10 Opinion of the Court 21-10461

a substantively unreasonable sentence. We consider each argu-
ment in turn.
A. Sufficiency of the Evidence
Verdeza makes a three-pronged attack on the sufficiency of
the evidence. First, he argues that what he did didn’t advance the
fraud. Second, in Verdeza’s view, even if his actions did further the
fraud, his help did so only after the fraud had been committed. So,
Verdeza says, he cannot be liable as a principal, only as an (un-
charged) accessory after the fact. And third, Verdeza asserts that
sufficient evidence fails to support the jury’s finding of his intent to
commit fraud.
1. Aider and Abettor Liability and Accessory-After-the-Fact Lia-
bility
Verdeza contends that the fraud—which he concedes oc-
curred—consisted of filling out and submitting fraudulent bills,
but he insists that he had no part in either of those activities. Ac-
cording to Verdeza, falsifying evaluations didn’t aid the creation of
the fake bills. And importantly, in Verdeza’s view, the patient files
were never submitted to BCBS for review. In the alternative,
Verdeza says that, if backdating patient charts after the bill was sub-
mitted did advance the fraud, then he was only an accessory after
the fact, not an aider and abettor—which was a theory under which
he wasn’t charged. We are not persuaded.
Verdeza was convicted of three counts of healthcare fraud.
The healthcare fraud statute criminalizes “knowing[] and willful[]
execut[ion], or attempt[ed] . . . execut[ion], [of ] a scheme or
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artifice” to either (1) “defraud any healthcare benefit program” or
(2) “to obtain, by means of false or fraudulent pretenses, represen-
tations, or promises, an of the money” of a healthcare program.
18 U.S.C. § 1347. Because of the “knowing[] and willful[]” mental
state required, “in a health care fraud case, the defendant must be
shown to have known that the claims submitted were, in fact,
false.” United States v. Medina, 485 F.3d 1291, 1297 (11th Cir. 2007).
A person makes a false claim if the treatments that were billed were
“not medically necessary[ ] or were not delivered to the patients.”
Id. at 1304.
Verdeza was charged as an aider or abettor, which describes
one who “aids, abets, counsels, commands, induces or procures [a
crime’s] commission” or who “willfully causes an act to be done,”
and directs that he is guilty as a principal. 18 U.S.C. § 2. Aider-and-
abettor liability is distinct from accessory-after-the-fact liability,
which occurs when someone, “knowing that an offense against the
United States has been committed, receives, relieves, comforts or
assists the offender in order to hinder or prevent his apprehension,
trial or punishment[.].” Id. § 3. So an aider and abettor assists the
commission of a crime, but an accessory after the fact participates
in only the crime’s cover-up.
Here, sufficient evidence supported the jury’s verdict be-
cause Verdeza aided and abetted the scheme in three ways. First,
he performed (cursory) examinations and recommended unneces-
sary physical therapy for the “patients.” The “examinations” were
critical to the fraud because they enabled the clinic’s owners to bill
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for physical therapy. In other words, the “examinations” them-
selves were helpful. Indeed, Izquierdo and the FBI case agent both
testified that the “examinations” allowed the clinic to perform the
fraud in a more credible way. And the false notes aided the fraud
because, if BCBS questioned the clinics, the documentation would
(in theory) support payment. Put differently, the “examinations”
and the false notes gave the fraud ring the ability and confidence to
submit a stream of false claims over the more-than-yearlong period
of the fraud.
Second, Verdeza gave BCBS fake reports that Verdeza had
reevaluated the “patients” and they needed more physical therapy.
But in reality, Verdeza never saw any of the “patients” again. In-
deed, Rosario testified that Verdeza signed the reevaluation reports
even though he hadn’t seen the “patient” again. The reevaluations
were important because they allowed the clinics to bill for twelve
more sessions per “patient” per reevaluation.
And, third, Hernandez testified that she met with Verdeza
every few weeks to go over the paperwork and ensure that the med-
ical charts matched the bills before the bills were submitted. So
Verdeza was directly involved in falsifying the claims forms.
Verdeza’s assertion that his evaluations assisted the fraud
only after the fact is similarly unpersuasive for the same reasons. In
particular, Verdeza signed forms attesting falsely that he had reeval-
uated “patients,” and those forms were then used to bill for more
physical therapy. That is, those falsified reevaluation forms were
necessarily created and submitted before the bills for extra physical-
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therapy sessions were submitted. In other words, Verdeza’s con-
duct advanced the fraud before it was consummated, not merely af-
terward.
2. Intent
Verdeza also argues that insufficient evidence proves that he
acted knowingly and willfully as the statute requires. We disagree.
First, clinic owner Rosario testified that he hired Verdeza be-
cause Hernandez said that Verdeza would “be willing to kind of
work with [them].” And indeed he was: Verdeza did perfunctory
physical examinations (if any). Verdeza told Rosario that—in ref-
erence to another physical therapist who insisted on seeing “pa-
tients” every time they came in—that the physical therapist “should
kind of know what this business entails and he should be okay with
it as well [and] play ball like that.” Rosario said he knew that
Verdeza knew the whole practice was fraudulent because
“[Verdeza] would still sign the exam form,” even if he hadn’t reex-
amined the “patient.”
There’s more still. Hernandez testified that she recom-
mended Verdeza because she had committed healthcare fraud with
him in a prior clinic and knew that he would commit fraud without
asking any questions. And Verdeza settled a case with the Florida
Board of Medicine for signing exam forms for “patients” he hadn’t
treated—this exact same fact pattern. While that fact isn’t proba-
tive of whether he did that this time, a scheme with the same mo-
dus operandi can show intent, knowledge, plan, and lack of mis-
take. See FED. R. EVID. 404(b); United States v. Williams, 527 F.3d
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1235, 1247 (11th Cir. 2008) (history of non-compliance with federal
grant regulations was admissible to prove intent to defraud).
In short, sufficient evidence allowed the jury to find beyond
a reasonable doubt that Verdeza knew the bills were fraudulent.
B. Evidentiary Rulings
Verdeza also challenges some of the district court’s eviden-
tiary rulings. First, he says the district court erred in allowing the
FBI agent to introduce summary testimony. Second, he contends
that the district court improperly admitted extrinsic evidence of
prior bad acts under Rule 404(b). And, third, he argues that the dis-
trict court erred in allowing the government to rely heavily on lead-
ing questions.
1. Summary Testimony
Verdeza argues that the district court should not have al-
lowed the FBI case agent to testify as a “summary” witness about
things she didn’t personally know and about things that had not yet
been presented to the jury. The government responds that Verdeza
never objected to this testimony, so we should review for (at most)
plain error.
We agree with the government that Verdeza did not pre-
serve this objection. The FBI case agent testified for an hour and
forty minutes on direct examination. Verdeza objected for the first
time, over an hour into her testimony, to argue that he wasn’t asso-
ciated with Guerra and Double R clinics in September 2017. He
objected again two minutes later for hearsay. Neither objection
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alerted the district court that Verdeza thought the summary nature
of the FBI case agent’s testimony was improper.
Given Verdeza’s failure to preserve this argument, we review
it for plain error only. United States v. Presendieu, 880 F.3d 1228,
1237–38 (11th Cir. 2018). Under the plain-error standard, a defend-
ant must establish (1) an error; (2) that is plain; (3) that affects the
defendant’s substantial rights; and (4) that seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings. Id. Be-
cause we’ve never held that summary testimony, in and of itself, is
improper, see United States v. Khan, 794 F.3d 1288, 1300 (11th Cir.
2015); United States v. Ransfer, 749 F.3d 914, 927 & n.14 (11th Cir.
2014), any error cannot be plain. United States v. Chau, 426 F.3d
1318, 1322 (11th Cir. 2005) (“[W]here the explicit language of a stat-
ute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court
or this Court directly resolving it.”) (citation omitted). For that rea-
son, Verdeza’s argument necessarily fails.
2. Prior Bad Acts
Verdeza makes three distinct arguments related to the Rule
404(b) evidence the government introduced. First, he says that the
government failed to provide him with notice of how it intended
to use the evidence. Second and third, he contends that the evidence
of his prior bad acts with Hernandez at the Culumbia clinic and the
Esmerelda clinic were improper propensity evidence. None of
Verdeza’s arguments have merit.
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16 Opinion of the Court 21-10461

As to his first argument, Verdeza relies on the wrong version
of the Federal Rules of Evidence. Under the 2011 version—in ef-
fect at his trial—the government was not required to provide notice
of the purpose for which it intended to use Rule 404(b) evidence.
FED. R. EVID. 404(b)(2) (2011). It was only in 2020 that Rule
404(b)(3) was added, requiring the government to articulate the
permitted purpose for which it intended to use the evidence. FED
R. EVID. 404 (committee notes on 2020 amendment) (explaining
that “Rule 404(b) has been amended principally to impose addi-
tional notice requirements on the prosecution in a criminal case.”).
As to Verdeza’s second and third arguments—relating to his
time working with Hernandez committing healthcare fraud at
other clinics—we conclude that the evidence that Verdeza worked
with Hernandez at a separate clinic had a proper Rule 404(b) pur-
pose—knowledge, lack of mistake, and plan. See Rule 404(b). As
we’ve mentioned, Verdeza’s defense was that he just happened to
be at a clinic with Ibelis Hernandez at which massive amounts of
healthcare fraud happened, outside his knowledge. So the fact that
Verdeza worked with Hernandez at other clinics where healthcare
fraud occurred was probative of whether Verdeza knew healthcare
fraud was occurring at this clinic. Cf. United States v. Pepe, 747 F.2d
632, 670 (11th Cir. 1984) (explaining that the evidence “showed that
Facchiano committed prior acts sufficiently similar to one or more
crimes charged in the indictment to permit the inference that he
intended to commit such crime.”).
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3. Leading Questions
Finally, Verdeza complains that the government asked too
many leading questions. We are unpersuaded that the leading
questions made a difference in the outcome of the trial.
Rule 611 of the Federal Rules of Evidence provides that
“[l]eading questions should not be used on direct examination ex-
cept as necessary to develop the witness’s testimony.” FED. R. EVID.
611(c).
While the government asked at least eighteen leading ques-
tions over the course of the trial, the district court sustained sixteen
of the eighteen objections for leading questions. Here are the re-
maining objected-to-as-leading questions that the district court al-
lowed into evidence. Of the BCBS Investigator, the government
asked,
Q: And does Medicare or does Blue Cross Blue Shield
reimburse for services that were never actually
provided or rendered?
A: Absolutely not.
[Objection overruled and not re-asked because it had
already been answered]
And of co-conspirator Hernandez, the government inquired,
Q: Prior to coming to court today, how many times have
you met me?
A: I believe it was two times.
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18 Opinion of the Court 21-10461

Q: And the first was on Thursday August 1, 2019?
[Objection]
Q: Do you recall having testified before a federal grand
jury on August 1, 2019?
A: Yes.
Even assuming the questions were leading (not necessarily a cor-
rect assumption as to the first question), neither question was sub-
stantive nor changed the result in any way. On top of that, the dis-
trict court instructed the jury that the lawyer’s questions weren’t
evidence. We presume jurors follow a judge’s instructions.
Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985) (“Jurors
are presumed to follow the law as they are instructed.”). And
Verdeza emphasized the number of leading questions in his clos-
ing. In his words, “[The prosecutor] had to get up and he had to
say to him, oh you meant the physical therapy notes didn’t you?
And he had to keep leading his witnesses. He had to keep spoon-
feeding him the testimony that he wanted them to spit back at
you.” So besides the fact that Verdeza objects on appeal to only
two purported leading questions that didn’t add to the govern-
ment’s case, his discussion of the leading questions in his closing
played right into the district court’s instructions to the jury that the
lawyers’ questions weren’t evidence.
In short, the minimal leading questions Verdeza points to
here do not allow Verdeza to overcome the overwhelming evidence
of his guilt at trial.
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C. Jury Instruction
Next, Verdeza argues that the district court erred in giving a
deliberate-ignorance instruction because no evidence suggested
that Verdeza had deliberately avoided learning of the scheme.
Given the split verdict—Verdeza was acquitted of the conspiracy
charge and some of the substantive counts—–he asserts, the error
wasn’t harmless.
We’ve explained that “deliberate ignorance of criminal ac-
tivity [is] the equivalent of knowledge.” United States v. Maitre, 898
F.3d 1151, 1157 (11th Cir. 2018). But “[a] deliberate ignorance in-
struction is appropriate only when there is evidence in the record
showing the defendant purposely contrived to avoid learning the
truth.” United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993) (cita-
tion omitted). We have explained that a court errs in giving the
instruction “when the evidence only points to either actual
knowledge or no knowledge on the part of the defendant.” Id. But
“when the evidence could support both actual knowledge or delib-
erate ignorance and the jury was instructed on both,” giving a de-
liberate instruction is not error. Maitre, 898 F.3d at 1157.
Verdeza’s argument lacks persuasive force for two reasons.
For one, the record contains evidence that would have allowed the
jury to conclude that Verdeza deliberately put his head in the sand.
For instance, the “patients” testified that Verdeza did minimal (or
no) examinations on them. One construction of this fact is that
Verdeza did this to avoid learning that his “patients” weren’t actu-
ally injured. In addition, the clinic owner Rosario testified that
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20 Opinion of the Court 21-10461

there were “many charts but very few patients walking through the
door.” In other words, the circumstances were quite suspicious.
And the jury could have chosen not to credit the evidence support-
ing the notion that Verdeza had actual knowledge. So we cannot
say that the district court erred in giving the deliberate-ignorance
instruction.
And second, because the evidence sufficiently supported a
finding of actual knowledge, any error in giving the deliberate-ig-
norance instruction was harmless. Indeed, clinic owner Rosario
testified that Verdeza knew about the scheme:
Q: Now, you had other conversations with [Verdeza]
about signing forms when patients weren’t present,
did you not?
A: Yes.
Q: That’s fraud, isn’t it?
A: Yes, sir.
…
Q: Now, you mentioned the [principals] were the ones
who knew fraud was being committed. And who
were the people who knew fraud was being commit-
ted?
A: [Listing people]
Q: Carlos Verdeza?
A: Yeah. Yes, he did know.
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Given our ruling in Maitre that there is no error to give a deliberate
ignorance instruction when the evidence “could support both ac-
tual knowledge or deliberate ignorance,” we find no error here.
Maitre, 898 F.3d at 1157.
D. Sentencing Issues
We next turn to Verdeza’s challenges to his sentence. First,
Verdeza asserts that the district court erred in calculating his loss
amount because it held him accountable for conduct for which he
was acquitted. Second, Verdeza takes issue with the district court’s
decision not to award a minor-role reduction. Third, Verdeza com-
plains that the district court clearly erred when it ordered him to
pay $1.195 million in restitution. And fourth, Verdeza contends that
his sentence was substantively unreasonable.
1. Loss Amount
Verdeza first complains about the loss amount of $3.4 mil-
lion. He argues that his acquittal on several substantive counts and
the conspiracy charge deprived the district court of the ability to
include losses ascribed to the conduct charged in those counts. Ra-
ther, Verdeza posits, the district court should have used one of sev-
eral different numbers. The lowest number Verdeza urges is
$1,040, or the amount the clinics received for the three visits listed
in the indictments. His next lowest alternative is the amount for all
the “patients” he saw at Guerra and Double R —$118,918 in billing
or the $21,793 that was actually paid. Finally, he proffers that he
should be held liable for the total amounts billed or received for the
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22 Opinion of the Court 21-10461

three “patients” identified in the counts on which he was con-
victed—$165,310 billed or $64,801 received.
When we heard this case, the answer to Verdeza’s challenge
was straightforward under our precedent. Guidelines § 2B1.1 en-
hanced his offense level for the “loss” caused. We then turned to
the commentary to the Guidelines for the meaning of “loss” as
§ 2B1.1 employs the term. United States v. Orton, 73 F.3d 331, 333
(11th Cir. 1996). The commentary, in turn, explains that the “loss”
is the greater of the actual or intended loss. U.S.S.G. cmt 3(A)(ii);
United States v. Moran, 778 F.3d 942, 973 (11th Cir. 2015). And given
that defendants in a jointly undertaken criminal activity—whether
or not charged as a conspiracy—can be held liable for all acts and
omissions of the others, Verdeza’s challenges lacked merit.
U.S.S.G. §1B1.3(a)(1)(B). Verdeza could be held liable for his cocon-
spirator’s acts, even though he was acquitted of the conspiracy
charge, and he could be held liable for the amount that the schemes
intended to steal.
But after we heard oral argument on this case, our decision
became a little bit trickier. That’s because in United States v. Dupree,
we overruled our precedent on how the Guidelines and the com-
mentary interact. 57 F.4th 1269 (11th Cir. 2023) (en banc). Before
Dupree, the commentary was binding on federal courts unless the
commentary was “plainly erroneous or inconsistent with the
guideline itself, a federal statute[,] or the Constitution.” United
States v. Wilson, 993 F.2d 214, 216 (11th Cir. 1993) (citing Stinson v.
United States, 508 U.S. 36, 45 (1993)). But in Dupree, we held that
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21-10461 Opinion of the Court 23

after Kisor v. Wilkie, 139 S. Ct. 2400, 2408–09 (2019), courts could
defer to the commentary only when the regulation is “genuinely
ambiguous,” Dupree, 57 F.4th at 1275–78, after “exhaust[ing] all the
‘traditional tools’ of construction,” id. at 1275 (quoting Kisor, 139
S. Ct. at 2415).
Still, though, Verdeza did not preserve the question of
whether § 2B1.1’s definition of “loss” is ambiguous and thus re-
quires resort to the Guidelines commentary. So we must consider
that question under plain-error review. See United States v. Sanchez,
940 F.3d 526, 537 (11th Cir. 2019). And that’s where the answer
becomes clear.
As we have explained, “[a]n error cannot be plain unless the
issue has been specifically and directly resolved by . . . on point prec-
edent from the Supreme Court or this Court.” Id. But whatever
else Dupree did, it did not “specifically and directly resolve[]” the
question of whether § 2B1.1’s definition of “loss” is ambiguous. So
it did not “specifically and directly resolve[]” that Orton’s holding
that “loss” means the greater of intended or actual loss is wrong.
Because Dupree didn’t “specifically and directly resolve[]”
that Orton’s holding is wrong, we must follow Orton in our plain-
error review. Del Castillo, 26 F.4th at 1223. And Orton requires dis-
trict courts to consider the intended loss amount when calculating
the loss attributable to the defendant for the purposes of determin-
ing his Guidelines range. See Orton, 73 F.3d at 333. So the district
court did not err in attributing a loss amount of $3.4 million based
on what it found to be the loss amount Verdeza intended.
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24 Opinion of the Court 21-10461

2. Minor-Role Reduction
Next, Verdeza argues that the district court clearly erred in
denying his request for a minor-role reduction. Verdeza contends
that he didn’t have a proprietary role in the scheme; he didn’t own
or manage the clinics; he didn’t submit fraudulent bills; he didn’t
pay kickbacks; he didn’t help organize the scheme; and he didn’t
recruit any “patients.” Not only that, Verdeza urges, but he adds
that a medical doctor supervised him, and almost all the gains came
from fraudulent billing for physical therapy, not his evaluations.
Finally, he notes that he made $130,000 over two years—a mere
fraction of the $1.2 million paid out to the scheme and even less
compared to the $3.4 million for which he is being held responsible.
The Guidelines provide a two-level reduction for “minor”
participants and a four-level reduction for “minimal” participants.
U.S.S.G. § 3B1.2. But that’s all § 3B1.2 says. The commentary
fleshes out what those terms mean. See United States v. De Varon,
175 F.3d 930, 939 (11th Cir. 1999) (describing commentary). So this
issue may seem like it presents another Dupree problem. But as it
turns out, we needn’t decide whether Dupree’s admonition that
commentary can be used only when the Guideline is ambiguous
abrogates our precedent on § 3B1.2 because, whether we rely on
the Guideline text or the commentary, the district court did not
clearly err in denying the reduction.
On the one hand, if Dupree abrogated our precedent and the
term “minor” is unambiguous (meaning we cannot consider the
commentary), then the district court did not clearly err in denying
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21-10461 Opinion of the Court 25

the reduction. “Minor” means “inferior in importance, size, or de-
gree: comparatively unimportant.” Minor, MERRIAM-WEBSTER’S
DICTIONARY ONLINE, https://www.merriam-webster.com/dic-
tionary/minor (last accessed May 8, 2023). That does not describe
Verdeza’s role in the scheme. For over a year, Verdeza held himself
out as a physician, interacted with “patients,” doctored notes, pre-
scribed physical therapy, and wrote fake reevaluations—crucial for
another cycle of billing. We cannot say the district court clearly
erred in finding that those facts meant that Verdeza’s role wasn’t
“comparatively unimportant.”
On the other hand, if Dupree abrogated our precedent and
the term “minor” is ambiguous (or if Dupree didn’t abrogate our
precedent), then we can continue to rely on our precedent (which
relies on the commentary). 2 In determining whether a defendant
is entitled to a role reduction, the district court must consider (1)
the defendant’s role measured against the relevant conduct for
which he has been held accountable at sentencing, and (2) his role
as compared to other participants in that relevant conduct. See
United States v. Rodriguez, 751 F.3d 1244, 1258 (11th Cir. 2014).
Here, the scheme involved many uncharged, less culpable
participants—the “patients” who came in for kickbacks as well as
the recruiters and the physician who supervised Verdeza. See, e.g.,
United States v. Zaccardi, 924 F.2d 201, 203 (11th Cir. 1991) (“It is

2It’s also possible that we’ve readopted our precedent. See United States v.
Gruezo, --- F.4th ---, 2023 WL 3263506, at *7 (Mar. 30, 2023) (relying on Section
3B1.2’s commentary).
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26 Opinion of the Court 21-10461

entirely possible for conspiracies to exist in which there are no mi-
nor participants or for which the least culpable participants, for
whatever reason, were not indicted. In either case, the fact that a
particular defendant may be least culpable among those who are
actually named as defendants does not establish that he performed
a minor role in the conspiracy.”). And as we’ve mentioned, Verdeza
(1) met with patients, (2) doctored treatment notes, (3) falsified
evaluations, (4) made up reevaluations, and (5) ensured that bills
matched treatment notes. We cannot say that the district court
clearly erred in finding that Verdeza’s role was more than “minor.”
Given that Verdeza doesn’t argue that the district court fo-
cused exclusively on one factor or the wrong facts, and evidence
supports the district court’s choice, the district court didn’t clearly
err. See United States v. Valois, 915 F.3d 717, 732 (11th Cir. 2019) (af-
firming denial of minor role reduction for drug transporters who
(1) only transported drugs and (2) weren’t even the master of the
ship and (3) had no propriety ownership in the scheme or decision-
making capacity).
3. Restitution
Third, Verdeza argues that the district court clearly erred in
requiring him to pay $1.195 million in restitution—jointly and sev-
erally with his codefendants—to BCBS. Instead, he says, he can be
held responsible for repaying only the amount caused by his con-
duct.
The Mandatory Victim Restitution Act provides that district
courts must order restitution in crimes against property cases equal
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21-10461 Opinion of the Court 27

to the value of the lost property. 18 U.S.C. § 3663A(b). Unlike with
the Guidelines adjustment for loss amount, we consider only the
amount that the victim actually lost. United States v. Martin, 803
F.3d 581, 595 (11th Cir. 2015). Indeed, restitution is based on “a
victim’s actual loss directly and proximately caused by the defend-
ant’s offense of conviction.” United States v. Collins, 854 F.3d 1324,
1336 (11th Cir. 2017) (citations omitted). However, if more than
one defendant contributes to the loss of a victim, the court may
make each defendant liable for the payment of the full amount of
restitution. 18 U.S.C. § 3664(i). A district court can consider un-
charged conduct for purposes of restitution—even conduct that is
outside the statute of limitations—as long as the losses were “from
the defendant’s conduct in the course of the scheme.” United States
v. Dickerson, 370 F.3d 1330, 1342 (11th Cir. 2004).
This argument doesn’t warrant much discussion. The dis-
trict court didn’t err in ordering Verdeza to pay restitution (jointly
and severally) with the others in his scheme because § 3664(i) al-
lows district courts to order members of a scheme to jointly repay
victims. 18 U.S.C. § 3664(i). Verdeza doesn’t challenge on appeal
the evidence supporting the claimed amount. And under our prec-
edent, it was not error to consider uncharged conduct that was part
of the scheme. See id.
4. Substantive Reasonableness
Finally, Verdeza contends that his sentence was substantively
unreasonable.
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28 Opinion of the Court 21-10461

When we review the reasonableness of a sentence, we must
“consider the totality of the facts and circumstances.” Irey, 612 F.3d
at 1189. Here, the district court sentenced Verdeza to 48 months—
below his Guidelines range of 51–63 months. Given that Verdeza
had previously participated in very similar schemes, been investi-
gated by the Florida regulatory board for similar conduct, and had
attempted to defraud the victim of millions of dollars, we can’t say
that the 48-month sentence the district court imposed—slightly be-
low the Guidelines range—was an abuse of discretion.

IV. CONCLUSION
For the reasons we have explained, we affirm Verdeza’s con-
victions and sentence.
AFFIRMED.