USCA11 Case: 19-12700   Date Filed: 10/29/2020   Page: 1 of 18



                                                    [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12700
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:18-cr-20393-MGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

SANDRA RUBALLO,

                                                        Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                           (October 29, 2020)



Before BRANCH, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Sandra Ruballo appeals her 120-month below-guidelines 1 sentence imposed

after Ruballo pleaded guilty to conspiracy to commit wire fraud, 18 U.S.C. § 1349;

wire fraud, 18 U.S.C. § 1343; conspiracy to commit money laundering, 18 U.S.C.

§ 1956(h); and money laundering, 18 U.S.C. § 1956(a)(1)(B)(i). Ruballo also

appeals the district court’s restitution and forfeiture orders. Reversible error has

been shown; we affirm in part and vacate in part and remand for further

proceedings.

       Briefly stated, Ruballo was charged with conspiring with others in a scheme

to defraud the government. Ruballo was the Executive Director of Highland Food

Resources, Inc. (“Highland”), an organization that contracted with Florida daycare

centers to process paperwork and claims for meal reimbursements under the Child

Care Food Program (“CCFP”). The CCFP -- a federal program funded by the

United States Department of Agriculture (“USDA”) and administered by the

Florida Department of Health (“Florida”) -- aims to provide nutritious meals to

underprivileged children in daycare centers.


1
  The district court calculated Ruballo’s advisory guidelines range as 168 to 210 months’
imprisonment.
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      As a “sponsoring organization” under the CCFP, Highland was responsible

for approving free and reduced meal applications, conducting site inspections, and

reviewing meal counts and enrollment rosters. Highland electronically submitted

monthly claims for reimbursement on behalf of its 53 associated daycare centers.

Florida issued reimbursement payments directly to Highland, which would then

distribute the payments (minus Highland’s administrative costs) to the daycare

centers. Through a bidding process, Highland also contracted with a caterer --

Montoya Holdings, Inc., owned by co-conspirator Carlos Montoya -- to deliver

meals to the daycare centers.

      Highland and Montoya Holdings came under investigation following a

foodborne illness outbreak at several of Highland’s daycare centers, which resulted

in the hospitalization of 30 children. Investigators discovered that Ruballo and her

co-conspirators had been submitting inflated monthly CCFP reimbursement

claims. Also -- in exchange for kickbacks from Montoya -- Ruballo rigged the

catering bid process to ensure that Montoya Holdings received the contract.

Ruballo also concealed from Florida complaints about Montoya’s catering, and

Ruballo instructed her employees to falsify complaints about other caterers.




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        Ruballo pleaded guilty without a plea agreement. Montoya pleaded not

guilty. Following a month-long trial, the jury found Montoya guilty of conspiracy

to commit wire fraud and federal program bribery, in violation of 18 U.S.C. § 666.

        The district court then conducted a combined sentencing hearing for both

Ruballo and for Montoya. The district court sentenced Ruballo to a total of 120

months’ imprisonment. The district court also ordered Ruballo to pay restitution in

the amount of $13,231,277 and ordered the forfeiture of over $14 million. The

district court sentenced Montoya to 97 months’ imprisonment and ordered

Montoya to pay $12,962,399 in restitution and ordered the forfeiture of over $13

million.



I.      Sentencing Hearing Evidence2



        On appeal, Ruballo first contends that her total sentence was based on




2
  In a footnote -- toward the end of the section of Ruballo’s appellate brief challenging chiefly
the district court’s consideration of evidence from Montoya’s criminal trial -- Ruballo asserts for
the first time that the district court’s forfeiture order (1) was contrary to the Supreme Court’s
decision in Honeycutt v. United States, 

(2017), and (2) violated the Eighth
Amendment’s Excessive Fines Clause. We will not address these arguments on appeal. When --
as in this case -- a party fails to “devote a discrete, substantial portion” of his appellate brief to an
issue and, instead, “buries” the issue within other arguments, the issue is deemed abandoned.
See Sapuppo v. Allstate Floridian Ins. Co., 

, 681-82 (11th Cir. 2014); United States
v. Jernigan, 

, 1283 n.8 (11th Cir. 2003).
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disputed facts that the government failed to prove by a preponderance of the

evidence. Briefly stated, Ruballo says the district court -- in enhancing Ruballo’s

sentence and in calculating the restitution and forfeiture amounts -- relied

improperly on testimony and exhibits introduced during Montoya’s criminal trial.

Ruballo also says the district court erred in considering an email sent from Florida

to the probation officer. No objection was made to the district court about the

purported improper taking into account of these things.

      Because Ruballo raises these arguments for the first time on appeal, we

review her arguments only for plain error. See United States v. Vandergrift, 

, 1307 (11th Cir. 2014). Under the plain-error standard, we will correct

an error only if the defendant demonstrates that (1) an error occurred; (2) the error

was plain; (3) the error affected the defendant’s substantial rights; and (4) the error

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Turner, 

, 1276 (11th Cir. 2007). To

be plain, an error must be obvious and clear under current law. United States v.

Lange, 

, 1296 (11th Cir. 2017). Plain-error review involves

substantial deference to the district court’s acts. See United States v. Simmons,

, 185 (11th Cir. 1992). Needless to say, the standard of review is

important in deciding appeals.

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      Montoya Trial Evidence:



      Generally speaking, “evidence presented at the trial of another may not . . .

be used to fashion a defendant’s sentence,” unless the defendant is given an

“opportunity to rebut the evidence or generally to cast doubt upon its reliability.”

United States v. Castellanos, 

, 1496 (11th Cir. 1990). Thus, when

the government seeks to rely on evidence presented at a co-conspirator’s trial or

sentencing hearing, the government must make transcripts of the pertinent

proceedings available to the defendant and to the district court. United States v.

Washington, 

, 1362 (11th Cir. 2013).

      The district court committed no plain error in considering the Montoya trial

evidence. In written objections and responses to the Pre-Sentence Investigation

Report (“PSI”), both Ruballo and the government cited to transcripts and to

exhibits from Montoya’s trial. Both parties again relied on trial evidence during

the sentencing hearing. The record thus demonstrates that Ruballo had access to at

least some of the pertinent trial transcripts and exhibits. Ruballo’s lawyer also said

expressly during the sentencing hearing that he had “read the testimony” in the trial

transcripts.

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      In addition, the government’s response to Ruballo’s PSI objections put

Ruballo on notice of the trial evidence upon which the government intended to rely

at sentencing. Ruballo was also able to present arguments during the sentencing

hearing rebutting and casting doubt upon the trial evidence introduced by the

government. Under these circumstances, we see no obvious and clear error in the

district court’s consideration of the complained-of trial evidence in imposing

Ruballo’s sentence.



      Restitution Email:



      Ruballo also challenges the district court’s giving any consideration to an

email -- titled “United States v. Sandra Rubal[l]o, et al. 18-CR-20393

(Restitution)” -- sent by Florida’s Bureau Chief to the probation officer and to the

government in preparation for sentencing (“Restitution Email”). Ruballo says she

never received a copy of the email. Nor was a copy of the email admitted into

evidence during the sentencing hearing. No objection was made in district court;

so again we must see plain error for us to interfere with the district court.

      After the sentencing hearing, the government filed a copy of the Restitution

Email with the district court but included none of the attachments referenced in the

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email. The text of the email said that Florida’s estimate of Ruballo’s restitution

amount was $13,231,277 based on “fraudulent meal reimbursement gross

overpayments and fraudulent administrative earnings for fake employees and

services.” The email indicated that “spreadsheets” used to estimate Ruballo’s

restitution amount were attached, but those documents are not in the record.

      The district court committed no plain error in considering information from

the Restitution Email (for what it was worth) at the sentencing hearing. That no

witness testified about the email does not bar the district court from considering the

information. A sentencing court has wide discretion to consider information that is

relevant to sentencing “without regard to [the] admissibility [of the information]

under the rules of evidence applicable at trial.” U.S.S.G. § 6A1.3(a); see also

Pepper v. United States, 

, 480 (2011). Moreover, although a copy of

the Restitution Email itself was not introduced during the sentencing hearing, the

substance of the email -- including Florida’s estimated restitution amount -- was

described in an addendum to the PSI and was thus already a part of the record.



II.   Sentencing Enhancements



      We review the district court’s factual findings for clear error and review de

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novo the district court’s application of those facts to the guidelines. See United

States v. Williams, 

, 1247-48 (11th Cir. 2008).

      “When the government seeks to apply an enhancement under the Sentencing

Guidelines over a defendant’s factual objection, it has the burden of introducing

‘sufficient and reliable’ evidence to prove the necessary facts by a preponderance

of the evidence.” 

.



      Abuse of Public Trust, U.S.S.G. § 3B1.3:



      A defendant is subject to a two-level enhancement if the government

establishes that the defendant (1) held a position of public or private trust; and (2)

“abused that position in a way that significantly facilitated the commission or

concealment of the offense.” United States v. Ward, 

, 911 (11th Cir.

2000); U.S.S.G. § 3B1.3. Whether the abuse-of-trust enhancement is appropriate

is “highly dependent on the specific facts in each situation.” United States v.

Morris, 

, 1296-97 (11th Cir. 2002).

      A position of public or private trust is one “characterized by professional or

managerial discretion (i.e., substantial discretionary judgment that is ordinarily

given considerable deference).” U.S.S.G. § 3B1.3, cmt. (n.1). People in these

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positions “ordinarily are subject to significantly less supervision than employees

whose responsibilities are primarily non-discretionary in nature.”

a defendant occupied a position of trust for purposes of

section 3B1.3, courts consider the defendant’s relationship to the victim and

whether “the defendant has abused discretionary authority entrusted to the

defendant by the victim.” 

(emphasis omitted). “[I]n

the fraud context, there must be a showing that the victim placed a special trust in

the defendant beyond ordinary reliance on the defendant’s integrity and honesty

that underlies every fraud scenario.”

      The district court committed no error in determining that Ruballo held a

position of public trust. Highland contracted with Florida to help administer and to

oversee the CCFP. As Highland’s Executive Director, Ruballo had considerable

discretion to administer federal funds, conduct a competitive bidding process for

catering contracts, and to conduct audits of daycare centers and catering companies

to ensure compliance with CCFP rules and regulations.

      The government showed by a preponderance of the evidence that Ruballo

abused her position of trust for her own personal profit and to conceal evidence of

her and her co-conspirators’ fraud. Among other things, Ruballo took affirmative

steps and directed others to hide and to destroy food quality complaints about

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Montoya’s catering. See United States v. Harness, 

, 1236-37 (11th

Cir. 1999) (affirming application of abuse-of-trust enhancement to an accountant

who -- as the Director of a federally-funded program -- embezzled federal funds

and falsified the organization’s books: defendant “used his position to illegally

divert [federal] funds and used his position to conceal his and his co-defendants’

fraudulent activity”).

      Ruballo’s reliance on Williams is misplaced. In Williams, we concluded the

defendant lacked the requisite discretion to justify an abuse-of-trust enhancement

because the victim federal agency awarded federal funds “only after reviewing and

pre-approving a specific line-item budget” and never entrusted the defendant with

discretion to allocate those funds. 

. Unlike the defendant in

Williams, Ruballo had significant discretion -- with little oversight from Florida or

from USDA -- to award the catering contract, to conduct site audits, to submit

claims for meal reimbursement, and to distribute federal funds. We also reject

Ruballo’s contention that the conduct underlying the abuse-of-trust enhancement is

already accounted for in her base offense level. See United States v. Bracciale,

, 1005, 1007-09 (11th Cir. 2004) (concluding that defendant’s abuse

of trust was not included in the base offense level for his fraud offense because the




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base offense level was “not dependent on any abuse of trust or breach of fiduciary

duty.”).



      Obstruction of Justice, U.S.S.G. § 3C1.1:



      The guidelines provide for a two-level enhancement if “the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Conduct

warranting an obstruction-of-justice enhancement includes “destroying or

concealing or directing . . . another person to destroy or conceal evidence that is

material to an official investigation or judicial proceeding (e.g., shredding a

document or destroying ledgers upon learning that an official investigation has

commenced or is about to commence), or attempting to do so.”

see no error in the district court’s application of a two-level

enhancement for obstruction of justice. The government presented evidence

showing that -- during the execution of a search warrant on Highland -- Ruballo

deleted incriminating information from her phone, including a kickback ledger.

Only a fraction of that information was later recovered. In addition, after learning

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about Florida’s investigation into Highland, Ruballo attempted to hinder the

investigation by shredding complaints about Montoya’s food and by ordering her

employees to falsify complaints about other caterers.

       Given the evidence that Ruballo destroyed evidence and directed others to

conceal evidence material to Florida’s investigation, the district court applied

properly a two-level enhancement for obstruction of justice.



III.   Loss Amount and Restitution Obligation



       Ruballo challenges the district court’s determination of a loss amount of $14

million: an amount that resulted in a 20-level offense increase under U.S.S.G. §

2B1.1(b)(1). Ruballo also challenges the district court’s determination that she

was obligated to pay $13,231,277 in restitution.

       We review for clear error the district court’s determination about the amount

of loss under the guidelines and about the district court’s factual findings for the

amount of restitution. See United States v. Barrington, 

, 1197 (11th

Cir. 2011) (loss amount); United States v. Huff, 

, 1247 (11th Cir.

2010) (restitution).




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      Loss Amount:



      Under the guidelines, the loss is calculated as “the greater of the actual loss

or intended loss.” U.S.S.G. § 2B1.1, cmt. (n.3(A)). “A sentencing court need only

make a reasonable estimate of the loss, given the available information.”

. Because estimating a loss amount is a highly fact-

dependent inquiry, we have said that “district judges are entitled to considerable

leeway in choosing how to go about this task.” United States v. Campbell, 

, 1301 (11th Cir. 2014). The district court however must “support its

loss calculation with reliable and specific evidence.”

The government

bears the burden of proving the loss amount by a preponderance of the evidence.

loss amount attributable to Ruballo, the district court said

-- without further explanation -- that the government’s proposed loss amount

($26.37 million) was “overstated” and that the loss amount was, instead, $14

million.

      We are unable to determine from this statement the evidence upon which the

district court relied in calculating the loss amount. Based on the district court’s

mention of the Restitution Email during an earlier exchange with Ruballo’s lawyer

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about loss amount, however, we cannot rule out that the district court relied chiefly

on the Restitution Email (and Florida’s estimated restitution of $13,231,277) in

determining the $14 million loss amount.

      The body of the Restitution Email, however, provides no indication about

how the restitution amount was calculated. Instead, the email references

spreadsheets that were purportedly attached to the email but that seem never to

have been placed in the record. Because nothing in the record evidences how the

particular dollar amount was derived, the Restitution Email by itself is no “specific

and reliable” evidence supporting the $14 million loss calculation: just not worth

much as evidence on loss/restitution.

      To allow for meaningful appellate review, the district court must provide

information sufficient to permit us to determine the factual basis upon which the

district court relied to reach its loss calculation. See United States v. Gupta, 

, 889 (11th Cir. 2009) (remanding the issue of loss amount where the

district court made no factual findings supporting its loss estimate and, instead,

merely picked a number in between the parties’ estimates). Although other

evidence in the record might support the district court’s loss calculation, we are

unable at this point to reconstruct the district court’s reasoning. Thus, a remand is

necessary.

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      Restitution Amount:



      Under the Mandatory Victim Restitution Act (“MVRA”), the district court

“shall order restitution to each victim in the full amount of each victim’s losses as

determined by the court and without consideration of the economic circumstances

of the defendant.” 18 U.S.C. § 3664(f)(1)(A); see also United States v. Robertson,

(11th Cir. 2007) (applying the MVRA to cases involving wire or

mail fraud). The “amount of restitution owed to each victim must be based on the

amount of loss actually caused by the defendant’s conduct.” United States v.

Martin, 

, 595 (11th Cir. 2015) (quotations and emphasis omitted).

      We have said that “the method for calculating actual loss, as opposed to

intended loss, under the Sentencing Guidelines is largely the same as the method

for establishing actual loss to identifiable victims under the MVRA.” See United

States v. Stein, 

, 1153 (11th Cir. 2017). The government bears the

burden of proving the restitution amount and “must deduct any value that a

defendant’s fraudulent scheme imparted to the victims.” 

.

      When a district court orders restitution, it “must explain its findings with

sufficient clarity to enable this court to adequately perform its function on

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appellate review.”

In doing so, “the district court must make specific

factual findings of whether the victim suffered a loss and the amount of those

actual losses,” including whether value had been rendered to the victim that would

be offset against the restitution amount.

(emphasis omitted) (vacating

and remanding the issue of restitution where the district court adopted a PSI

restitution calculation and made no specific findings about the victims’ actual loss

amount).

      In ordering restitution, the district court adopted expressly the restitution

amount set forth in the Restitution Email. As already discussed, however, the

record is void of information about how that restitution amount was calculated.

Moreover, the district court made no specific factual findings about the amount of

actual loss suffered by Florida, including about the potential value of services

actually rendered by Ruballo and by her co-conspirators that might be deducted

from the total loss amount. The record before us allows for no meaningful

appellate review of the restitution award; we remand for further proceedings.




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IV.    Conclusion



       We affirm the district court’s application of sentencing enhancements for

abuse of trust and for obstruction of justice. We vacate Ruballo’s sentence and

remand for the district court to reconsider and to explain more fully its calculation

of the amount of loss and the amount of restitution owed. In addition, we grant --

in part only -- the government’s request that it be permitted on remand to introduce

into evidence a complete copy of the Restitution Email: attachments in fact unseen

by the sentencing judge by the time of imposing sentence are not to be introduced

into the record. 3 For background, see United States v. Washington, 

,

1362 (11th Cir. 2013) (we have discretion to permit the government to present

evidence at resentencing).

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




3
  We expect the lawyers and the district judge will need to confer to determine what can be
introduced into the record per this opinion. We also expect that the lawyers will be allowed a
reasonable chance to object to the contents of the added documents and to debate the weight the
email documents should bear on the questions of loss and restitution.
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