Case: 19-20157   Document: 00515580734     Page: 1   Date Filed: 09/28/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                     No. 19-20157                 September 28, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


              Plaintiff - Appellee

v.

DANIELA GOZES-WAGNER, also known as Daniela Wagner, also known as
Daniela Mayer Gozes, also known as Daniela Gozes,

              Defendant - Appellant




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
CARL E. STEWART, Circuit Judge:
        A jury convicted Daniela Gozes-Wagner of conspiracy to commit health
care fraud and conspiracy to commit money laundering. The district court
sentenced her to 120 months (10 years) imprisonment on each count, with the
sentences running consecutively, for a total of 240 months (20 years). The court
also ordered her to pay more than $15 million in restitution.
        On appeal, Gozes-Wagner argues that her sentence should be vacated
because it was the result of an unconstitutional “trial penalty”—a punishment
for choosing to exercise her right to stand trial instead of pleading guilty. She
also argues that her sentence should be vacated because it was both
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procedurally and substantively unreasonable. Finally, she seeks vacatur of the
restitution award on several grounds. Finding no reversible error, we affirm.


                               I. Background
A. The Conspiracy
      Daniela Gozes-Wagner worked as a mid-level manager for a Russian-led
conglomerate that stole millions from Medicare and Medicaid. Her role in the
conspiracy included, among other things: recruiting doctors to approve
unnecessary medical tests, hiring “seat warmers” to sit in empty offices
designated as fronts for shell companies that she helped manage to cover up
the scheme, and overseeing payroll operations for “testing facilities” in the
Houston area. Other members of the conspiracy relevant to this appeal include:
Aliksander Beketav, Mikhail Shiforenko, Alexsandr Voronov, and Boris Robert
Brodsky.
      In 2014, a grand jury returned a two-count indictment against Beketav,
Shiforenko, Voronov, and Gozes-Wagner. All four were charged with one count
of conspiracy to commit health care fraud. The Russians—but not Gozes-
Wagner—also were charged with one count of conspiracy to commit money
laundering. Later on, Brodsky was charged in a single-count superseding
information with conspiracy to commit health care fraud. Initially, then,
Gozes-Wagner and Brodsky each faced only a conspiracy to commit health care
fraud charge, while Beketav, Shiforenko, and Voronov each faced both a
conspiracy to commit health care fraud charge and a conspiracy to commit
money laundering charge.
      Slowly but surely, circumstances changed. Soon after being arrested in
2015, Beketav attempted to hang himself and became incapacitated. In July
2016, Voronov pleaded guilty without a plea agreement to a superseding
information charging him with a single count of conspiracy to commit health
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                                No. 19-20157
care fraud. The conviction carried a maximum sentence of 60 months in prison.
Meanwhile, Shiforenko had been cooperating with the Government. In
December 2016, he agreed to plead guilty to the conspiracy to commit health
care fraud charge in exchange for the Government agreeing to dismiss the
conspiracy to commit money laundering charge. This meant that he now faced
a statutory maximum sentence of 120 months. At this point, of the originally
indicted conspirators, Gozes-Wagner was the only one who might go to trial.
      In March 2017, a grand jury returned a superseding two-count
indictment against Gozes-Wagner. This time, she was charged with two
counts: conspiracy to commit health care fraud charge and conspiracy to
commit money laundering. Shortly thereafter, the district court granted the
Government’s request to dismiss the charges against Beketav because of his
incapacitation. And in August 2017, Brodsky pleaded guilty to the single count
of conspiracy to commit health care fraud that he faced. Brodsky’s conviction
carried a statutory maximum sentence of 60 months.
      It was then the case that none of Gozes-Wagner’s co-conspirators would
be sentenced to more than 120 months in prison. Gozes-Wagner, meanwhile,
faced a combined statutory maximum of 360 months imprisonment: 120
months for a conviction of conspiracy to commit health fraud under 18 U.S.C.
§ 1347, and 240 months for a conviction of conspiracy to commit money
laundering under 18 U.S.C. § 1956(a)(1). This 360-month maximum sentence
was three times Shiforenko’s 120-month maximum sentence and six times
Voronov and Brodsky’s 60-month maximum sentences.
      It bears mentioning here that Judge Melissa Harmon had presided over
the conspirators’ cases until this point and had taken the guilty pleas of
Brodsky, Voronov, and Shiforenko. But just days before Gozes-Wagner’s trial
was set to begin, her case was transferred to Judge David Hittner. Trial began


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                                       No. 19-20157
before Judge Hittner on September 25, 2017. It ended several days later when
the jury convicted Gozes-Wagner on both counts she faced.
       In July 2018, before anyone in the conspiracy had been sentenced, the
conspirators’ cases were reassigned to Judge Andrew Hanen. A few months
later, in October 2018, Gozes-Wagner’s case was transferred back to Judge
Hittner for sentencing. Shiforenko’s, Voronov’s, and Brodsky’s cases remained
before Judge Hanen. Our references to “the district court” throughout this
opinion are to Judge Hittner.
       Gozes-Wagner was the first conspirator to be sentenced. Her sentencing
hearing was held on March 6, 2019. The table below illustrates the relative
positions of the co-conspirators at the time Gozes-Wagner was sentenced.
                                                       Disposition of           Max
  Conspirator            Role           Counts
                                                           charges           Sentence
     Beketav            Leader       HCF 1 & ML 2         Dismissed              N/A
                         Chief
    Shiforenko                           HCF 3             Plea agmt           10 yrs
                       assistant
     Voronov           Manager           HCF            Plea (no agmt)          5 yrs



       1  “HCF” is short for conspiracy to commit health care fraud. Even though Voronov
initially was charged under 18 U.S.C. § 1347, which carries a 10-year statutory maximum
sentence, the charge he pleaded to in the superseding information was under 18 U.S.C. § 371,
which carries a 5-year statutory maximum sentence. Brodsky was initially charged under
§ 371, and he pleaded guilty under that statute. Shiforenko, meanwhile, pleaded to the more
serious charge in the initial indictment under § 1347, and Gozes-Wagner was convicted under
§ 1347, too. This explains why Voronov and Brodsky faced 5-year statutory maximum
sentences for conspiracy to commit health care fraud while Shiforenko and Gozes-Wagner
faced 10-year statutory maximum sentences for similar, but distinct, convictions.

       2   “ML” is short for conspiracy to commit money laundering.

       3 Although Shiforenko was initially charged with conspiracy to commit health care
fraud and conspiracy to commit money laundering, the table only includes the conspiracy to
commit health care fraud charge because that’s the only one upon which he was convicted.

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     Brodsky         Manager           HCF              Plea agmt            5 yrs
  Gozes-Wagner       Manager       HCF & ML         Convicted by jury        30 yrs
      The PSR calculated Gozes-Wagner’s Guidelines range as 324 to 360
months (27 to 30 years). 4 Probation recommended a sentence of 324 months,
the low end of the Guidelines. Gozes-Wagner sought a significant downward
variance. The Government’s position was unclear. The prosecutor first
requested that she be sentenced at “the low end of the guidelines.” When
reminded by Judge Hittner that such a sentence would amount to at least 27
years, the prosecutor said, apparently in error, that such a sentence “would be
above the sentencing max.” As such, he asked “for 240 months [20 years],”
which he said amounted to “the sentencing max . . . under the guidelines.”
      Gozes-Wagner emphasized that she faced a much lengthier sentence
than her pleading co-conspirators. She argued that because Shiforenko faced
only a 120-month maximum sentence and Voronov and Brodsky faced only 60-
month maximum sentences, it would be unfair and illegal to sentence her, as
she is arguably not as culpable as them, to anything close to the Guidelines
range of 324 to 360 months.
      The district court listened to Gozes-Wagner’s arguments and then
pronounced its sentence. Consistent with the Government’s final request, it
sentenced her to 240 total months imprisonment: 120 months on each count of
conviction, to run consecutively. The 20-year sentence amounted to a 7-year
downward variance from the low end of her Guidelines range. Gozes-Wagner
also was ordered to pay $15,283,985 in restitution.
      But it is how the court reached its sentence that is primarily at issue in
this appeal. To more fully appreciate the context in which the sentencing



      4   Although Gozes-Wagner challenged the calculation of the Guidelines range in the
district court, she does not do so on appeal.
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                                  No. 19-20157
occurred, we will begin by examining what transpired during trial. We will
then closely inspect the sentencing hearing itself.
B. The Trial
      The Government presented its case-in-chief through the testimony of
fourteen witnesses over three days. Its first witness was Agent William
Marlowe, a task force officer with the FBI in Houston. Agent Marlowe testified
that the investigation into the Beketav Group began in 2009 with “notice that
patients were receiving monies in return for medical services.” Suspicious
findings appeared almost immediately. Although billing records described
patients as being seen at specific offices, follow-up interviews with those same
patients confirmed that they had in fact been seen at their houses. Then there
was the “cyclical billing,” where a patient would receive “a battery of diagnostic
tests” one month followed by the same tests several months later. The
investigative trail led agents to the Beketav Group, Agent Marlowe testified.
      Agent Marlowe explained that Gozes-Wagner’s initial role in the
conspiracy was as “a marketer or recruiter,” but her duties grew. On more than
one occasion, when he visited locations believed to be operated by the group,
she was the person who appeared to be in charge.
      The Government then called Sandra Garcia as its second witness. She
told the jury that Gozes-Wagner hired her as a medical assistant in 2014.
Garcia testified that Gozes-Wagner instructed her to review medical files and
find patients who complained of neuropathy, or numbness, and then contact
them after 30 or 60 days to see if they needed more tests. The practice made
Garcia uncomfortable because it seemed to be designed to evade Medicare
scrutiny, she testified. Garcia soon discovered what appeared to her to be
outright fraud: reimbursements for MRI tests that could not have possibly been
done because her employer did not have an MRI machine. When she confronted
Gozes-Wagner about the issue, Gozes-Wagner told her it must have been an
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accident. When Garcia raised the issue a second time, she was told she was
being fired.
      Then, to her surprise, she wasn’t fired. Instead, Gozes-Wagner told her
that for $10 an hour all she had to do was sit in an empty office and, in Garcia’s
words, “watch Netflix all day long.” Garcia’s primary duty was to wait for the
phone to ring. If it was Medicare calling, she was instructed by Gozes-Wagner
to say that “the doctor is not in the office at the moment” and that she’d call
them back. In sum, Garcia testified that she took direction from Gozes-Wagner
to help perpetuate what she believed to be a Medicare fraud scheme. A handful
of other witnesses told stories similar to Garcia’s.
      Three FBI special agents testified. Special Agent Kevin Lammons
testified, among other things, that he found medical forms in some of the offices
operated by the Beketav Group that had been signed by a doctor and had
requested a specific test for a patient even though there were blank spaces on
the forms where the patient’s name and information were supposed to appear.
In other words, the forms were “pre-signed” before a patient had ever been
seen. Special Agent Paul Nixon, who oversaw the execution of the search
warrant in February 2015 at the office where Gozes-Wagner worked, also
described finding pre-signed forms by at least half a dozen doctors. One
particular document suggested it was Gozes-Wagner’s idea to defraud
Medicare by over-billing for allergy tests, Nixon testified. Finally, Special
Agent Tiffany Smith testified that she found keys to various offices while
searching Gozes-Wagner’s desk, suggesting she had an important role in the
Beketav Group.
      Also testifying for the Government were Monica Roberts and Kathleen
Anderson. Roberts, a Special Agent with the Department of Health and Human
Service’s Office of Inspector General, described documents seized from Gozes-
Wagner’s desk that implicated her in the fraud. Anderson, a forensic
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accountant with the FBI, traced the illicit profits from the conspiracy to the
bank accounts of the conspiracy’s main players, including Gozes-Wagner. In
particular, Anderson’s testimony showed that Gozes-Wagner’s haul increased
every year from 2010 through 2014, suggesting her value to the conspiracy
grew with it.
      The Government’s final two witnesses were Dr. Jack McCoy and Donna
Large. Dr. McCoy, a certified fraud examiner, served as an FBI source in the
agency’s investigation into the Beketav Group. Dr. McCoy testified that based
on his experience at one clinic, it was evident that fraud was occurring. Large,
a registered nurse who investigated the fraud for Medicare, agreed. She
highlighted all of the red flags apparent from the billing practices employed by
the Beketav Group. There were many.
      When the Government rested, Gozes-Wagner moved for acquittal. The
district court denied her request. Gozes-Wagner then put on six witnesses of
her own: her mother, her roommate, her rabbi, and several other friends of
hers. Their testimony was materially indistinguishable: Gozes-Wagner had a
reputation in the community for being honest, trustworthy, and a law-abiding
citizen. When she rested her case, she again moved for acquittal, and the court
again denied her request.
      The jury deliberated for about three hours. It found her guilty of both
conspiracy to commit healthcare fraud and conspiracy to commit money
laundering.
C. The Sentencing Hearing
      About a year-and-a-half passed between Gozes-Wagner’s conviction and
her sentencing hearing. On March 6, 2019, the court began the hearing by
stating, “All right. We’re here for sentencing in this case. The defendant, she
was the only defendant to plead not guilty, I believe; is that correct, Counsel?”
This was the first of several instances in which the district court noted Gozes-
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Wagner’s decision to go to trial during the hearing. These references lie at the
core of the constitutional, procedural, and substantive challenges to Gozes-
Wagner’s sentence.
      The district court then began to discuss Gozes-Wagner’s numerous
objections to the PSR. After addressing the first three, the following exchange
occurred between the court and the prosecutor:
             [THE COURT:] Now, my understanding is the other
             defendants pled guilty; is that correct, Counsel?
             MR. CHU [the prosecutor]: Yes, Your Honor.
             THE COURT: They are before another judge, correct?
             MR. CHU: Yes, Your Honor.
             THE COURT: And the cap on that is ten years, right?
             MR. CHU: Yes, Your Honor.[5]
             THE COURT: Even the guidelines might be extremely
             high, even higher than this defendant, correct?
             MR. CHU: Yes, Your Honor.
             THE COURT: They are capped the max because they
             pled to one count. And here there are two counts. By
             the way, I want the record to reflect any defendant has
             an absolute right to plead not guilty in federal or state
             court. It’s an absolute right. It’s not meant as any kind
             of a criticism either to the government or to the
             system.
This marked the second time that the district court noted Gozes-Wagner’s
decision to go to trial during the sentencing hearing.
      The court then discussed the many remaining objections, granting some
and overruling others. Shortly thereafter, the court noted during a discussion
about Gozes-Wagner’s attempt to cooperate with the Government: “I mean, the



      5 The prosecutor’s response was incorrect. Although Shiforenko’s maximum sentence
was ten years (120 months), Voronov’s and Brodsky’s maximum sentences were five years
(60 months).
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government didn’t file a downward departure because she — you know, your
client pled not guilty, which was her absolute right.” This was the third time
the court referenced Gozes-Wagner’s decision to go to trial.
       Just before the court allowed Gozes-Wagner’s counsel to begin arguing
for a below-Guidelines sentence, the court commented on the dozens of
character letters it received on behalf of the defendant. The court stated:
              THE COURT: I have read all of this. I will say, as far
              as the letters go, they were correctly drafted, every
              single one. I read 81 of them.[6] All of them just went
              to your client’s background, not that she was actually
              not guilty or didn’t mean to do it or whatever. And
              that’s unusual. I mean, they were carefully crafted. I
              don’t mean that as a negative. I mean that as a
              positive. I read them all.
       Finally, the hearing proceeded to arguments. Gozes-Wagner’s counsel
began by recognizing that Gozes-Wagner faced a possible sentence that was
“humbling, if not outright frightening.” The court responded by accurately
describing the Guidelines range and commenting that it was “a high-end case.”
A little while later, Gozes-Wagner’s counsel argued that his client was “not a
bad human being” and that he “really believe[d]” that she was “not somebody
we should be afraid of.” To this, the court responded: “What about the havoc,
the havoc that is wreaked by operations like this on our healthcare system, on
Medicare, and Medicaid . . . .”
       After discussing a few more issues, Gozes-Wagner’s counsel moved on to
his “sentencing disparity” argument. This led to the following exchange:
              MR. DUPONT [Gozes-Wagner’s trial counsel]: I
              supplied the Court with [the co-conspirators’]
              sentencing situations. Mr. Shiforenko is facing a ten-



       6  Gozes-Wagner’s counsel later noted that eighty-seven, not eighty-one, letters were
filed on her behalf. The court responded: “Well, I’m just saying I read them all.”
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                                  No. 19-20157
            year cap, and the Court acknowledged that. But Mr.
            Brodsky and Mr. Voronov are facing five-year caps.
            THE COURT: That’s what they pled to, right? They
            pled guilty, correct?
            MR. DUPONT: Well, with help from the government.
            THE COURT: I’m just saying they pled guilty. That
            was their option. Once again, all I want to do is try
            cases. So I’m not saying anyone has waxed the right to
            a jury trial because I’ll give them a jury trial. But that
            was their option. They pled guilty, and they accepted
            because their guidelines may be higher than this,
            which the guidelines in this case is up to 30 years with
            no parole. So, yeah. So they must have pled, what, to
            two five-year counts and another one to a ten-year
            count.
            MR. DUPONT: One pled to a new complaint, and the
            other pled to a plea agreement.
            THE COURT: Well, we are not — I’m not the charging
            authority.
            MR. DUPONT: I understand. I say that to say, Your
            Honor, sentencing disparity is going to be one of the
            main themes I’m coming to Your Honor with today.
            THE COURT: Well, with sentencing disparities —
            because I hear this a lot. Sentencing disparities, that
            basically means everybody on the same footing,
            correct, and it doesn’t take into account, I don’t believe,
            guilty pleas with a plea agreement with the
            government.
This was the fourth time the district court referenced Gozes-Wagner’s decision
to go to trial compared to her co-conspirators’ decisions to plead guilty. But it
was the first time the court made such a reference when directly responding to
the sentencing disparity argument raised by Gozes-Wagner’s counsel.
      Shortly thereafter, when Gozes-Wagner’s counsel referred to her as a
“marginal participant[]” in the conspiracy, the court interrupted and stated:



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“But she didn’t get a marginal role.” After a short back-and-forth, Gozes-
Wagner’s counsel continued:
            MR. DUPONT: Okay, Your Honor. I say that to say if
            we’re going to put it up on a chalkboard to understand
            it, Shiforenko, who gained $1.19 million, is looking at
            ten years. Voronov, who got $973,000, is looking at five
            years. Brodsky, $1.4 million, he is looking at five years.
            And it’s undisputed the evidence that was introduced
            before you in trial, Your Honor, she made $385,000
            over five years. If we break that down to averages,
            Your Honor, that means about $5,000 a month, $1,300
            a week, and maybe $32 an hour.
            THE COURT: But again, bottom line, Counsel, she
            exercised the constitutional rights that she has in the
            United States to plead not guilty.
This marked the fifth and final time the district court referenced Gozes-
Wagner’s decision to go to trial during the sentencing hearing.
      After a discussion about the proper amount of restitution, Gozes-
Wagner’s counsel argued that there were “legitimate personal reasons and
reasons about this young lady’s life” that warranted a downward variance. The
court identified the “reasons” as “children’s concerns and health concerns.”
      The “children’s concerns” were a reference to the fact that Gozes-Wagner
was, prior to her arrest, the primary caretaker of her two minor children, a son
and a daughter. At the time of her sentencing, her son was a teenager, and her
daughter was eleven years old. The “health concerns” were, among other
things: vitiligo, described in the record as “a long-term skin condition
characterized by patches of skin losing its pigment;” a lymph node cyst; the
fact that she only had one kidney “due to a genetic condition that
simultaneously affects her heart and joints (similar to Marfan’s syndrome);”
hypothyroidism; a Vitamin D deficiency; and poor eyesight.
      After Gozes-Wagner’s counsel read aloud to the court a letter written by
her daughter, he asked that she be sentenced to time served. In the alternative,
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                                 No. 19-20157
he asked for a sentence between thirty-one and forty-four months. Finally, if
those two options were rejected, he requested that she be sentenced to sixty
months, in line with the statutory maximums faced by Voronov and Brodsky.
      When it came time for the prosecutor to speak, he described how health
care fraud is “sucking away money from the people that need it.” He also noted
that it was misleading to compare Gozes-Wagner to Brodsky because his
participation in the conspiracy ended in 2012, whereas hers continued until
her arrest in 2015. The prosecutor did not mention Shiforenko or Voronov. He
concluded by asking for the 240-month sentence that was erroneously
described as the “sentencing maximum.”
      Having heard arguments from counsel, the court proceeded to pronounce
its sentence.
            THE COURT: I do want to state that I have read this
            entire file and that right now the defendant could be
            facing up to 360 months. There is no parole in federal
            court. Parole was done away with at the — in 1987.
            We don’t even have a parole commission. So nobody
            gets out on parole. The most they can get is 54 days a
            year good time after the first year.
                   I will say this, whether I agree with the
            defendant or not, I’m going to read from my own notes.
            I don’t lean off what the government says. I don’t lean
            off what the government says or the defense says. But
            if I read, I’m reading from the notes I have, and it
            sounds — if it sounds somewhat familiar to either one,
            I can assure everybody here I’m not leaning, taking the
            government’s word for it or the defendant’s word for it.
            It is what I thought on my own.
                   Under the guidelines — and a judge needs to
            stay within the guidelines, unless under a Supreme
            Court decision, which came out about eight years ago
            called the Booker case, the Judge has some flexibility
            to either issue an upward or downward departure or,
            what is it, an upward or downward variance on the
            judge’s his or her own volition, giving some reasons.
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                                   No. 19-20157
            But the guidelines is generally where it’s holding right
            now at 324 to 360 months under the guidelines.
                  I do want to state some notes that I have here. I
            think most of them I have covered. Again, I have read
            the full study from Rabbi Bryski. I have read letters
            from Rabbi Blacher, the Executive Director of the
            Chabad at The Woodlands; and Rabbi Fygenson the —
            no. One is — hold it a second. I want to get this
            straight because I appreciate all this coming in. And I
            know right where to go to the letters. Right. Rabbi
            Fygenson is a director of Chabad at Sugar Land. So I
            appreciate everybody taking the time to be here.
                  And you can remain — everybody can remain
            seated at this point.
                  After considering the factors under 18 United
            States Code Section 3553(a), I will issue a variance in
            this case, which I believe serves the underlying
            requirements of the factors of this particular statute.
                  It is the order of the Court that the defendant is
            hereby committed to the custody of the Bureau of the
            Prisons — and this is how I had it broken down in my
            notes — for a term of 120 months as to Count 1S [the
            conspiracy to commit health fraud count]. And instead
            of 204 months, 120 months as to Count 2S [the
            conspiracy to commit money laundering count] to run
            consecutively, one after the other, for a total of 240
            months.
      After pronouncing the restitution order, the court asked Gozes-Wagner’s
counsel if he had anything else to add. He stated: “We object to the sentence
just to preserve the objection.”
      Gozes-Wagner’s sentence is by far the lengthiest among her co-
conspirators. Shiforenko was sentenced to 72 months (six years). Voronov was
sentenced to the statutory maximum 60 months (five years). And Brodsky has
not been sentenced yet. But given that he faces a 60-month statutory cap, his
sentence will be significantly shorter than Gozes-Wagner’s.


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                                       No. 19-20157


                                      II. Discussion
       Gozes-Wagner’s primary argument on appeal is that the district court
violated her constitutional rights by improperly sentencing her more severely
than her “more culpable” co-conspirators simply because she exercised her
right to go to trial and they did not. She contends that this amounted to an
unconstitutional “trial penalty.” Gozes-Wagner also argues that her sentence
is infected with procedural and substantive error. For these reasons, she asks
us to vacate her sentence and remand her case for re-sentencing before a
different judge. Gozes-Wagner also challenges several aspects of the order of
restitution. We address each argument in turn.
A. Trial Penalty
       The Sixth Amendment gives criminal defendants “the right to a speedy
and public trial.” U.S. CONST. amend. VI. And the Supreme Court has stated
that “[t]o punish a person because he has done what the law plainly allows him
to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes,

, 363 (1978). Thus, “a defendant cannot be punished by a more
severe sentence because he unsuccessfully exercises his constitutional right to
stand trial.” United States v. Devine, 

, 1338 (5th Cir. 1991). 7




       7  We pause here to note that the Government asks us to review this claim for plain
error, while Gozes-Wagner insists that de novo review should apply. A panel of this court in
an unpublished opinion applied plain error review to a claim similar to Gozes-Wagner’s that
was not raised before the district court. United States v. Guy, 633 F. App’x 851, 855 (5th Cir.
2015) (per curiam). Here, even though Gozes-Wagner’s counsel did not use the “trial penalty”
phrase at the sentencing hearing, nor did he expressly frame his argument in constitutional
terms, he did zealously argue that it was unfair to sentence Gozes-Wagner more harshly than
her pleading co-conspirators even though they pled guilty and she went to trial. Arguably,
defense counsel’s complaint about Gozes-Wagner’s sentence was sufficient to trigger the more
lenient review standard applicable to preserved errors. In any event, we need not decide this
issue, because Gozes-Wagner’s claim fails even under de novo review.

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                                  No. 19-20157
      These broad principles guide our inquiry. And yet, in this particular case,
we have little guidance from either the Supreme Court or prior panels of this
court. The Supreme Court has never addressed a “trial penalty” claim like
Gozes-Wagner’s. But cf. Alabama v. Smith, 

, 795 (1989)
(considering whether a “presumption of vindictiveness” applies when a
defendant receives one sentence after pleading guilty and then a harsher
sentence following a trial that arose after the guilty plea was vacated on
appeal); 

(“The question . . . is whether the Due
Process Clause . . . is violated when a state prosecutor carries out a threat made
during plea negotiations to reindict the accused on more serious charges if he
does not plead guilty to the offense with which he was originally charged.”);
North Carolina v. Pearce, 

, 713 (1969) (“When at the behest of the
defendant a criminal conviction has been set aside and a new trial ordered, to
what extent does the Constitution limit the imposition of a harsher sentence
after conviction upon retrial?”), overruled in part by 

.
      In fact, the phrase “trial penalty” has never been used by either the
Supreme Court or this court to describe a claim like Gozes-Wagner’s. It is
unsurprising, then, that most of the in-circuit caselaw cited by her for support
is not directly on point. E.g., Thomas v. United States, 

, 942 (5th
Cir. 1966) (vacating sentence where district court sentenced the defendant to
“the maximum term permitted by law” after the defendant chose to go to trial
after being advised by the court that it had “no doubt whatsoever as to his
guilt” and “if he persisted in his denial that he participated in the crime, the
court would . . . take that into account” at sentencing); United States v. Rogers,

, 1085 (5th Cir. 1974) (vacating sentence where the district court
told the defendant, who had been convicted as part of a marijuana conspiracy,
that it “would not consider a lesser sentence” until he cooperated with the
Government to bring “others involved in the conspiracy to justice.”).
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                                      No. 19-20157
       The Government, meanwhile, points us to in-circuit precedents directing
us not to compare Gozes-Wagner with her cooperating co-conspirators when
assessing her trial penalty claim. United States v. Johnson, 

(5th
Cir. 1982) (“The government is permitted to encourage guilty pleas by offering
substantial benefits to a defendant, and Johnson, having rejected the offer of a
plea bargain, cannot complain that his codefendants received the benefit of a
lighter sentence.”); United States v. Devine, 

(5th Cir. 1991)
(refusing to compare the defendants’ sentences to their co-conspirators who
pleaded guilty and cooperated with the Government because the cooperators’
“sentences [were] obviously the result of leniency and are not relevant to the
present constitutional inquiry.”); United States v. Guy, 633 F. App’x 851, 855
(5th Cir. 2015) (per curiam) (unpublished) (rejecting a due process challenge to
a sentence imposed that was harsher than those imposed on the defendant’s
co-conspirators because they “received leniency from the government based on
their agreement to cooperate”).
       Thus, to the extent Gozes-Wagner’s claim depends on a comparison with
her co-conspirators, only Voronov is relevant, because he did not cooperate, he
pled guilty, and he received a sentence substantially lower than Gozes-Wagner
even though his participation in the conspiracy was similar to hers. 8
       Given the scarcity of Fifth Circuit cases germane to Gozes-Wagner’s
claim, she understandably seeks support from our sister circuits. See United
States v. Mazzaferro, 

(1st Cir. 1989); Government of the Virgin
Islands v. Walker, 

(3d Cir. 2001); United States v. Hernandez, 

(9th Cir. 2018). But these decisions are readily distinguishable.


       8 Like Gozes-Wagner, Voronov helped oversee the fraudulent scheme by assisting with
the operation of testing facilities. He recruited doctors and other medical professionals to
further the conspiracy. He supervised “seat warmers.” He helped hide the fraudulent nature
of the scheme through the use of numerous bank accounts. The record shows that Gozes-
Wagner “took over” for Voronov when he left the conspiracy in 2014.
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                                        No. 19-20157
Walker involved a district court that improperly inserted itself into the plea
negotiation process by refusing to accept guilty pleas from both Walker and his
co-defendant, sentencing Walker to the statutory maximum after he was
convicted at 

–76. And in Hernandez, unlike here, the
Ninth Circuit emphasized that the district court’s comments about the
defendant’s decision to go to trial “comprised virtually the entirety of the
explanation for the 

. “Indeed, the court did not
reference any particular ‘facts of this case’ or ‘particular record’ beyond
Hernandez’s exercise of his constitutional rights.”

Mazzaferro involved three defendants all charged with the same
offense. Here, however, Gozes-Wagner and Voronov were ultimately charged
with different crimes that carried different statutory maximum sentences.
Although they may have participated similarly in the conspiracy, our job is not
to look at their two sentences and decide whether we think Voronov and Gozes-
Wagner should have been punished more equally based on their conduct. 9
Instead, our duty is to determine whether the district court sentenced Gozes-
Wagner more harshly than it otherwise would have because she went to trial
instead of pleading guilty. And on this record, we cannot say that it did. 10




       9  In fact, we question whether it is appropriate on appellate review to weigh, as Gozes-
Wagner requests, the ultimate sentences of each defendant when, at the time of sentencing,
the district court only had the guilty pleas—not the ultimate sentences received by the
others—to consider. Because our decision does not turn on the ultimate sentences received
by each defendant but instead on the facts presented before the district court at the time of
sentencing, we need not decide whether, in comparing co-defendants in a trial penalty claim,
it is improper to consider sentencing outcomes that the district court did not have the benefit
of considering.
        10 To the extent the scope of co-defendants participation in criminal activity is relevant

to determining whether the district court improperly punished a defendant for going to trial,
Mazzaferro is further distinguishable on the ground that the defendant there received a
“sentence twice as long as that of” his co-defendant even though the defendant “had a much
more limited role in the drug operation.” 

, 457–58. Yet, as discussed, the record
indicates Gozes-Wagner and Voronov’s participation in the fraudulent scheme was similar.
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                                 No. 19-20157
      We cannot compare apples to oranges when deciding whether a sentence
is “more severe” for trial penalty purposes. Nevertheless, a comparison of any
kind is not strictly necessary to make out a trial penalty claim. For example, if
the district court plainly stated that it was punishing the defendant more
severely than it otherwise would because she went to trial, that would clearly
amount to a constitutional violation even absent a comparison to others
similarly situated to the defendant. See 

. But that did
not happen here.
      We recognize that most—if not all—cases will not be so cut-and-dried,
and that a defendant’s constitutional rights may be violated even absent such
an explicit statement. In those cases, it is the comparison to others that
necessarily sheds light on whether a constitutional violation occurred. If the
only meaningful difference between defendants was that one went to trial and
the others did not, and the trial-standing defendant received a much more
severe sentence than the pleading defendants, it could very well be the case
that vacatur of the sentence will be required on trial penalty grounds. But a
defendant who cooperates with the Government is not similarly situated to one
who refuses to do so. 

–39. Nor are defendants similarly
situated when they are convicted under different statutes that carry different
maximum sentences. If the case were otherwise, we would be holding that the
Constitution mandates that defendants convicted of committing different
crimes be sentenced similarly if the conduct underling those convictions is
similar. We see no such mandate in the Constitution or in the Due Process
caselaw addressing claims like Gozes-Wagner’s.
      We are aware that the district court judge in this case presided over a
four-day jury trial before sentencing the defendant. This gave the court a full
appreciation of Gozes-Wagner and the conduct that led to her conviction. See

(“[I]n the course of the proof at trial the judge may
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                                      No. 19-20157
gather a fuller appreciation of the nature and extent of the crimes charged. The
defendant’s conduct during trial may give the judge insights into his moral
character and suitability for rehabilitation.”). We recognize that this very
fact—that the district court presided over the defendant’s trial—also serves as
the primary ammunition for Gozes-Wagner’s claim. But we cannot help but
observe the tension created by the fact that the court here was much more
informed than most sentencing courts, which usually lack the benefit of a full-
fledged trial before sentencing. See Lafler v. Cooper, 

, 170 (2012)
(“[C]riminal justice today is for the most part a system of pleas, not a system
of trials.”). We do not mean to suggest that a trial penalty claim is never
tenable because the district court was highly informed at sentencing. Instead,
we simply note the challenge both for defendants presenting such claims and
for reviewing courts analyzing them. In the end, on this record, Gozes-Wagner
has failed to show that the district court imposed an unconstitutional trial
penalty on her at sentencing. 11
B. Procedural Unreasonableness
       “In assessing reasonableness [of a sentence] on appeal, the court first
must find no significant procedural error by the district court.” United States
v. Lavalais, No. 19-30161, 

, at *5 (5th Cir. May 22, 2020). “If
there is no procedural error, the court may then review the substantive
reasonableness of the sentence.”

Gozes-Wagner’s
procedural arguments before turning to her substantive argument.




       11This conclusion is reinforced by the context in which the district court juxtaposed
Gozes-Wagner’s decision to go to trial with her co-conspirators’ decisions to plead guilty.
Although the district court referenced that decision several times during the sentencing
hearing, the court did so prior to imposing its sentence. We infer that the district court’s
remarks regarding Gozes-Wagner’s decision not to accept a plea were designed to explain
why someone in her position could receive a heavier sentence, not that she should receive a
lengthier sentence for exercising her right to a trial.
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                                  No. 19-20157
      Gozes-Wagner’s position is that the district court made three procedural
errors when sentencing her: first, it misunderstood the discretionary nature of
the Guidelines and improperly treated them as presumptively reasonable;
second, it improperly failed to respond to her sentencing disparity argument
with anything other than comments about her decision to go to trial compared
to her co-conspirators’ decisions to plead guilty; and third, it erred when it did
not explain its decision to run her sentences consecutively. We address each
argument separately.
      1. Discretionary Nature of the Guidelines
      Just before the district court pronounced Gozes-Wagner’s sentence, it
made the following comment:
            Under the guidelines — and a judge needs to stay
            within the guidelines, unless under a Supreme Court
            decision, which came out about eight years ago called
            the Booker case, the Judge has some flexibility to
            either issue an upward or downward departure or,
            what is it, an upward or downward variance on the
            judge’s his or her own volition, giving some reasons.
            But the guidelines is generally where it’s holding right
            now at 324 to 360 months under the guidelines.
Focusing on the “a judge needs to stay within the guidelines” language, Gozes-
Wagner contends that the district court procedurally erred by failing to fully
appreciate the discretionary nature of the Guidelines. Even though the court
ultimately granted her a downward variance, Gozes-Wagner argues that her
sentence was so affected by a presumption that her Guidelines range was
reasonable that her sentence must be vacated.
      The parties dispute the standard of review. Gozes-Wagner argues that
she preserved the error, so abuse of discretion review should apply. See Gall v.
United States, 

, 51 (2007) (explaining that preserved procedural
errors, e.g., “treating the Guidelines as mandatory,” should be reviewed “under
an abuse-of-discretion standard”). The Government responds that plain error
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                                  No. 19-20157
review should apply because Gozes-Wagner failed to raise this precise objection
after the district court made the comment about “need[ing]“ to stay within the
Guidelines.
      Federal Rule of Criminal Procedure 51(b) provides: “A party may
preserve a claim of error by informing the court—when the court ruling or
order is made or sought—of the action the party wishes the court to take, or
the party’s objection to the court’s action and the grounds for that objection.”
FED R. CRIM. P. 51(b) (emphasis added). In arguing for a downward variance
in her pre-sentencing memorandum, Gozes-Wagner noted:
              In United States v. Booker, 

(2005), the
              Supreme Court declared that the federal guidelines
              should be advisory, and excised the limitations
              contained in 18 U.S.C. § 

, 259–
              60. The sentencing court’s discretion is now
              significantly broadened and the court must make an
              individualized assessment of the facts of each case.
              Gall v. United States, 

, 46 (2007).
At the sentencing hearing, and before the court pronounced its sentence,
Gozes-Wagner’s counsel reminded the court that there were “legal mechanisms
via departures or variances” that the court could use to sentence Gozes-Wagner
well below her Guidelines range. In our view, these actions were sufficient to
preserve this error for appeal. Accordingly, we review for abuse of discretion.
      A district court commits procedural error when it fails to recognize its
discretion to vary from the Guidelines. United States v. Clay, 

, 332
(5th Cir. 2015). As the Supreme Court has explained, “[t]he Guidelines are not
only not mandatory on sentencing courts; they are also not to be presumed
reasonable.” Nelson v. United States, 

, 352 (2009) (per curiam).
      The district court’s comments during the sentencing hearing reflect that
it has a healthy respect for the Guidelines. As it should. Under
18 U.S.C. § 3553(a)(4), district courts are bound to consider a defendant’s

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                                  No. 19-20157
applicable Guidelines range when determining a defendant’s sentence. See
Pepper v. United States, 

, 490 (2011) (“[A] sentencing court must
‘give respectful consideration to the Guidelines[.]’”) (quoting Kimbrough v.
United States, 

, 101 (2007)). Failure to do so may constitute both
procedural and substantive error.
      There is obvious tension between statutory law requiring district courts
to consider applicable Guidelines ranges and caselaw prohibiting the same
judges from presuming such ranges to be reasonable. But caselaw helps
illuminate the window of acceptable conduct that involves considering the
applicable Guidelines range but refusing to presume that it is reasonable for a
particular defendant.
      For example, in Nelson, the district court expressly stated that “the
Guidelines are considered presumptively reasonable,” so “unless there’s a good
reason in the [statutory sentencing] factors . . . , the Guideline sentence is the
reasonable 

–51 (internal quotation marks omitted).
The Court held that this was procedural error.

It thus vacated the
district court’s “bottom of the range” sentence.

Similarly, the
Seventh Circuit vacated a within-Guidelines sentence even where the district
court “obviously knew that the Guidelines [were] advisory” because the court
noted that the defendant’s attorney “had to deal with the statutory scheme that
is presumptively reasonable. . . . So, that is where we start; and, in this case,
that is where we end.” United States v. Panice, 

, 441 (7th Cir.
2010). The district court in Panice also expressed discomfort in sentencing the
defendant within the Guidelines, saying “I guess I just keep talking because I
do not want to get to where I have to go here, but I have to go there. I have to.”

Seventh Circuit held that these comments, among
others, left “too much doubt about whether the judge impermissibly” presumed
the Guidelines range to be reasonable.

Other circuits have reached
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                                      No. 19-20157
the same result when considering equally problematic comments by district
courts at sentencing. United States v. Marrero, 313 F. App’x 557, 558–59 (3d
Cir. 2009) (unpublished) (vacating within-Guidelines sentence when court
stated, among other things, “I take no pleasure, but I am going to follow the
guideline range here”); United States v. Raby, 

, 378 (4th Cir. 2009)
(vacating a within-Guidelines sentence when the district court stated, among
other things, that it understood a precedential opinion to hold that “the
guidelines [were] presumptively correct” and that it seemed to think it was
required to “completely ignore . . . the advisory nature of the guidelines”).
       The district court’s statement here that “a judge needs to stay within the
guidelines” comes close to creating ambiguity about whether the district court
presumed the Guidelines range to be reasonable. But in context, the record
shows that the district court neither failed to appreciate the discretionary
nature of the Guidelines nor improperly presumed them to be reasonable. 12
       For starters, the court ultimately varied downward seven years from the
bottom of Gozes-Wagner’s Guidelines range. It also cited Booker immediately
after making the comment-in-question. As stated by the Seventh Circuit in
Panice, the district court “obviously knew that the Guidelines are advisory.”

. Unlike in Panice, however, the record here shows that the
court did not improperly presume the Guidelines range to be reasonable.
       Two points during the sentencing hearing warrant emphasis. First,
when Gozes-Wagner’s counsel described her Guidelines range as “humbling, if
not outright frightening,” the court responded:
              Well, we know there are federal sentencing guidelines.
              The guidelines itself, the guidelines in this case start


       12 We emphasize that although a district court’s comments at sentencing are an
important factor of our review, we must consider them in the context of the entire hearing.
One stray comment does not create error when it can be understood in the context of a lengthy
sentencing hearing.
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                                       No. 19-20157
              — start at 324 months. All right. 324 months. That’s
              27 years in the federal penitentiary with no parole, up
              to a maximum of 360 months, which is 30 years in the
              penitentiary with no parole. That’s the guidelines
              themselves. So, yeah, it’s a high-end case.
We think these comments reflect the district court’s opinion that Gozes-
Wagner’s applicable Guidelines range was not reasonable but instead was
unreasonably long. Second, even more reflective of the court’s belief about the
Guidelines range was its response to the Government’s request that Gozes-
Wagner be sentenced at the low end of the range. It was then that the court
responded: “Low end of the guidelines? What? 324 months? That’s 27 years.”
       Of course, perhaps nothing is more probative of the district court’s
thoughts on the Guidelines range than its decision to impose a significant
downward variance. Considering the ultimate sentence imposed and the
aforementioned comments by the court, we are convinced that the court did not
improperly presume the Guidelines range to be reasonable. Thus, the district
court did not abuse its discretion. 13
       2. Responsiveness to Sentencing Disparity Argument
       Gozes-Wagner next argues that the district court procedurally erred by
responding to her sentencing disparity arguments with nothing more than
references to the fact that she went to trial and her co-conspirators pled guilty.
Because she preserved this error, we review for abuse of discretion. 14


       13   We note that even if the district court’s “needs to stay within the guidelines”
comment was sufficient to constitute procedural error, we believe the comment was harmless
in light of the significant downward variance it ultimately imposed. There is no indication
that the court’s comment affected the below-Guidelines sentence it ultimately rendered. See

(noting that “the court may affirm the sentence in spite of a procedural
error if that error is harmless” and that “[t]he proponent of the sentence has the burden of
establishing that the error was harmless.”) (quoting United States v. Robinson, 

,
601 (5th Cir. 2014)).

       14 Again, the Government argues that Gozes-Wagner failed to preserve this error. We
disagree. Her counsel focused on this issue to the exclusion of most others at the sentencing
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                                       No. 19-20157
       At sentencing, the district court must “state in open court the reasons for
its imposition of the particular sentence.” 18 U.S.C. § 3553(c). When the
sentence imposed falls outside of the applicable Guidelines range, the court
must go further, stating “the specific reason” for imposition of a non-Guidelines
sentence.

when fashioning a defendant’s sentence, the
court must consider certain enumerated factors.

them is
“the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”

United States v. Mondragon-Santiago, this court held that the district
court procedurally erred when it “did not give any reasons for its sentence
beyond a bare recitation of the Guideline’s calculation. This despite the fact
that Mondragon-Santiago raised arguments before the district court
concerning his family, his work history, and his prior convictions, all of which
are relevant considerations under § 3553(a).” 

, 363 (5th Cir. 2009).
Of particular concern was the district court’s failure to even “mention” the
defendant’s § 3553(a) arguments.

the district court here erred in the same
respect as the district court in Mondragon-Santiago. We disagree. The record
shows that the court entertained and responded to Gozes-Wagner’s sentencing
disparity arguments at the sentencing hearing. In particular, when told by
Gozes-Wagner’s counsel that “sentencing disparity is going to be one of the
main themes I’m coming to Your Honor with today,” the court responded:
“Well, with sentencing disparities — because I hear this a lot. Sentencing
disparities, that basically means everybody on the same footing, correct, and it



hearing. Gozes-Wagner did not need to request an explanation for the sentencing disparity
after her sentence had been pronounced to preserve this error. It was enough that she
informed the court of the action she wished it to take and it rejected her invitation. See FED.
R. CRIM. P. 51(b).
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                                 No. 19-20157
doesn’t take into account, I don’t believe, guilty pleas with a plea agreement
with the government.” This was after the court had already determined that
Gozes-Wagner was not on the same footing as her co-conspirators. Earlier in
the hearing, the court emphasized that Gozes-Wagner was convicted on two
counts carrying a maximum combined sentence of thirty years, while none of
her co-conspirators were convicted of more than one count, and none faced a
maximum sentence higher than ten years. The court also highlighted the fact
that some of the co-conspirators—namely, Shiforenko and Brodsky—
cooperated with the Government, while Gozes-Wagner did not. This was yet
another reason that she was not on the same footing as them for sentencing
disparity purposes. United States v. Cisneros-Gutierrez, 

, 767 (5th
Cir. 2008) (holding that a district court did not abuse its discretion in
considering a sentencing disparity argument even though the appellant’s co-
defendant was “more deeply involved in the conspiracy” and “received a
sentence ten years less than his” because the co-defendant “pled guilty,
provided information to law enforcement authorities, and did not flee before
trial,” making the two not “similarly situated”); United States v. Ivory, 783 F.
App’x 325, 330 (5th Cir. 2019) (per curiam) (unpublished) (holding that “the
court did not abuse its discretion by failing to consider disparities in the
sentences of similarly-situated offenders” because the defendant did not
demonstrate that “he and his co-conspirator were similarly situated”).
      For these reasons, this case also is distinguishable from the out-of-circuit
authority relied on by Gozes-Wagner. See United States v. Robles-Alvarez, 

, 52 (1st Cir. 2017) (“The court ultimately sentenced the appellant to
life imprisonment without so much as mentioning the disparity issue.”); United
States v. Wallace, 

, 802 (6th Cir. 2010) (“Nowhere in the
sentencing hearing did the district judge discuss why sentencing Wallace to
twice as long as White-Baber was appropriate.”); United States v. Smith, 541
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                                  No. 19-20157
F. App’x 306, 308 (4th Cir. 2013) (per curiam) (unpublished) (holding that
district court’s explanation for its sentence resulted in procedural error where
the court “provided only a brief response to Smith’s argument that his limited
criminal history warranted a downward variance sentence, and it did not
specifically address Smith’s assertion that his criminal history score was
exaggerated”).
      As the Supreme Court has said, “it is perfectly clear that the District
Judge considered the need to avoid unwarranted disparities, but also
considered the need to avoid unwarranted similarities among other co-
conspirators who were not similarly situated.” 

. The district
court therefore did not abuse its discretion.
      3. Lack of Explanation for Consecutively Run Sentences
      When the district court pronounced Gozes-Wagner’s sentence, it did not
explain its decision to run the two 120-month (10-year) sentences, one for each
count of conviction, consecutively, for a total of 240 months (20 years) in prison.
In fact, it did not provide any reason for the sentence after it was pronounced.
Gozes-Wagner argues that this was procedural error. Because she did not raise
this argument below, we review for plain error. FED. R. CRIM. P. 52 (b) (“A plain
error that affects substantial rights may be considered even though it was not
brought to the court's attention.”); Molina-Martinez v. United States, 

, 1344, 1346–47 (2016) (applying plain error review to an unpreserved
procedural sentencing argument). To succeed on plain error review, Gozes-
Wagner must show: (1) error occurred; (2) it was plain, i.e., clear or obvious; (3)
the error affected her substantial rights, i.e., she must show a reasonable
probability that but for the error her sentence would have been different; and
(4) that this court should exercise its discretion to correct the forfeited error
because it seriously affected the fairness, integrity, or public reputation of the
proceedings. United States v. Randall, 

, 795–96 (5th Cir. 2019).
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                                        No. 19-20157
       The Supreme Court has held that district courts should “adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” 

. This helps
ensure compliance with 18 U.S.C. § 3553(c), which requires district courts to
state in open court the reasons for imposing particular sentences. But neither
the Supreme Court nor this court has ever held that a district court’s failure to
explain its rationale for imposing consecutive sentences constitutes procedural
error. 15 Assuming, without deciding, that the district court did plainly err in
failing to explain why it chose to sentence Gozes-Wagner to two consecutive
sentences, such an error would not warrant vacatur of Gozes-Wagner’s
sentence. This is because she has failed to show “a reasonable probability that
but for the error her sentence would have been different.” See 

. The district court sentenced Gozes-Wagner to a total of 240
months in prison. It got there by sentencing her to 120 months on both the
conspiracy to commit health care fraud and the conspiracy to commit money
laundering counts. The conspiracy to commit money laundering conviction
carried the higher statutory maximum—240 months (20 years)—as opposed to
120 months (10 years) for the conspiracy to commit health care fraud
conviction.
       Under U.S.S.G. § 5G1.2(d), “[i]f the sentence imposed on the count
carrying the highest statutory maximum is less than the total punishment,
then the sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a combined sentence



       15Several of our sister circuits have, however. See, e.g., United States v. Cochrane, 

, 346 (6th Cir. 2012) (“When deciding to impose consecutive sentences, . . . a district
court must indicate on the record its rationale, either expressly or by reference to a discussion
of relevant considerations contained elsewhere. Otherwise, meaningful appellate review
becomes impossible.”); United States v. Conkins, 

, 1385 (9th Cir. 1993) (same);
United States v. Rose, 

, 1112 (10th Cir. 1999) (same).
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                                  No. 19-20157
equal to the total punishment.” The PSR, which was adopted by the court at
the sentencing hearing except to the extent it explicitly granted Gozes-
Wagner’s objections to it, noted this instruction. Thus, when the court chose to
sentence Gozes-Wagner to 240 months total, but only 120 months on the count
carrying the highest statutory maximum, the Guidelines directed it to impose
the two sentences consecutively. Gozes-Wagner therefore has failed to show a
reasonable probability that an explanation by the district court for running the
sentences consecutively would have changed her total punishment. For that
reason, she cannot overcome plain error review on this claim of error.
C. Substantive Unreasonableness
      Finding no reversible procedural error, we turn now to Gozes-Wagner’s
argument that her 240-month sentence is substantively unreasonable. “We
review the substantive reasonableness of the sentence under an abuse-of-
discretion standard.” United States v. Simpson, 

, 557 (5th Cir.
2015). Our review is “highly deferential” to the sentencing judge.

v. Campos–Maldonado, 

, 339 (5th Cir. 2008) (per
curiam)). “The fact that we might reasonably conclude ‘that a different
sentence was appropriate is insufficient to justify reversal of the district
court.’” Id. (quoting 

).
      We presume that below-Guidelines sentences are substantively
reasonable.

can rebut this presumption by
showing that her sentence: “(1) does not account for a [18 U.S.C. § 3553(a)]
factor that should have received significant weight, (2) gives significant weight
to an irrelevant or improper factor, or (3) represents a clear error of judgment
in balancing the sentencing factors.”

(quoting United States v.
Warren, 

, 332 (5th Cir. 2013)).
      Gozes-Wagner argues that her sentence is substantively unreasonable
because the district court did not account for a factor that should have received
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                                 No. 19-20157
significant weight. More specifically, she argues that the court did not
sufficiently account for “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct” under 18 U.S.C. § 3553(a)(6). But we have already held that, for
§ 3553(a)(6) purposes, none of her co-conspirators were similarly situated to
her. In any event, this court has held that when a defendant is sentenced below
her applicable Guidelines range, the unwarranted disparity factor “is not
afforded significant weight.” United States v. Waguespack, 

, 337
(5th Cir. 2019).
      As this court has made clear, “an argument premised primarily on
sentencing disparity is insufficient to render a sentence substantively
unreasonable.” United States v. Hernandez, 

, 379 (5th Cir. 2011)
(citing United States v. Key, 

, 475–76 (5th Cir. 2010)). Gozes-
Wagner’s reliance on distinguishable in-circuit and out-of-circuit health care
fraud cases in which defendants received shorter sentences than hers is
unpersuasive in this context. She has thus failed to show that her sentence
was substantively unreasonable. See United States v. Emordi, No. 19-10400,

, at *7 (5th Cir. May 14, 2020) (holding that the defendant
failed to rebut the presumption that her below-Guidelines sentence was
substantively unreasonable even though an allegedly “more culpable”
defendant received a sentence just twelve months longer than her 85-month
sentence).
      Amici curiae, the Aleph Institute and other legal scholars, raise
additional arguments not specifically espoused by Gozes-Wagner to support
the claim that her sentence is substantively unreasonable. They first argue
that the district court failed to properly consider “the nature and circumstances
of the offense and the history and characteristics of the defendant” under
§ 3553(a)(1). But the record shows that the district court had a firm grasp of
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                                      No. 19-20157
both the nature and circumstances of Gozes-Wagner’s offense and her history
and characteristics. The court noted that Gozes-Wagner did not play merely “a
marginal role” in the conspiracy, expressing particular distaste for health care
fraud operations “like this one” that wreak “havoc” on Medicare and Medicaid.
And having presided over the trial, read and adopted the PSR that described
in detail the nature of the offense and her personal history, and read more than
80 character letters submitted on Gozes-Wagner’s behalf, discussing several at
length during the sentencing hearing, the district judge no doubt understood
and considered her history and characteristics when imposing her sentence. 16
       Amici also argue that the court failed to consider “the kinds of sentences
available” under § 3553(a)(3), explaining that neither of the statutes under
which Gozes-Wagner was convicted mandate prison time. But we think the
record shows that the district court spent considerable time fashioning Gozes-
Wagner’s sentence and considering alternatives. In addition to expressly
stating—albeit summarily—that it had considered all the § 3553(a) factors, it
also noted that at the outset of its pronouncement that “I do want to state that
I have read this entire file and that right now the defendant could be facing up
to 360 months.” When explaining how it reached its sentencing decision, the
court noted that the product was a result of “what I thought on my own.” The
court’s failure to explicitly state that it had considered a sentence of no prison
time at all does not constitute substantive unreasonableness under these
circumstances.
       Finally, amici argue that Gozes-Wagner’s sentence is substantively
unreasonable because the district court improperly focused on her decision to
go to trial—an “improper factor” to consider—and, overall, the combination of



       16 The district court did note before pronouncing its sentence that it had considered
the § 3553(a) factors.
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                                  No. 19-20157
these errors reflects “a clear error of judgment in balancing the sentencing
factors.” See 

. We do not find these arguments
persuasive. Nothing in the record suggests that the court went out of its way
to punish Gozes-Wagner for going to trial. To the contrary, when presented
with arguments that she was similarly situated to her co-defendants, the
district court correctly pointed out that for various reasons, including the fact
that her co-conspirators pleaded guilty to charges carrying lower maximum
sentences, she was not similarly situated to them at sentencing. The record
does not reflect a clear error of judgment in the district court’s balancing of the
§ 3553(a) factors. Accordingly, amici’s additional arguments, which we
consider in our broad discretion, do not persuade us that Gozes-Wagner’s
sentence is substantively unreasonable.
D. Restitution: Procedural Claims
      The PSR calculated the restitution Gozes-Wagner should owe based on
“the bills Medicare paid within the limits in her count of conviction,” i.e.,
between January 2010 and February 2015, the time period for which Gozes-
Wagner was charged in the superseding indictment with participating in the
conspiracy. Because “the Medicaid losses [were] undetermined,” the Medicare
losses constituted the full amount for restitution calculation purposes at the
sentencing hearing. For Gozes-Wagner, according to the PSR, that amounted
to $19,808,841.87. The PSR recommended that she be held accountable “jointly
and severally” with her convicted co-conspirators in varying amounts.
      At the sentencing hearing, the district court noted Gozes-Wagner’s
objections to both the “responsibility” of restitution and the amount. At one
point, the prosecutor explained that there was “one thing [he] wanted to raise.”
He asked the court to consider awarding restitution in the amount of
$15,283,985 instead of $19,808,841.87. The court carefully noted the request,
and Gozes-Wagner’s counsel objected “to the calculations as modified.”
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                                  No. 19-20157
      After pronouncing her sentence, the district court turned to the matter
of restitution. It stated:
                   The defendant is being held responsible for
             restitution to the United States Medicare system in
             the total amount of $15,283,985 jointly and severally
             with Mikhail Shiforenko, S-h-i-f-o-r-e-n-k-o, up to an
             amount of $21,800,000; Alexandr Voronov, V-o-r-o-n-
             o-v, up to $18 million; and Boris Brodsky up to the
             amount of $6 million.
                   It’s further ordered the defendant pay to the
             United States a special assessment set up by the U.S.
             Congress for $100 per count of conviction. So that’s
             $200. I find she does not have the ability to pay a fine,
             and I’ll waive a fine in this case.
                    And that — now, it sounds completely
             unrealistic, but I need to set a budget of some sort for
             repayment. It sounds completely unrealistic because
             it’s subject to probation altering it later on. With that
             as a background, having assessed her ability to pay,
             pay in lump sum the amount of $200 due immediately.
             The balance due in 50 percent of any wages earned
             while in prison in accordance with the Bureau of the
             Prisons inmate financial responsibility program. Any
             balance remaining after release from imprisonment
             shall be due in monthly installments of $400 to
             commence 60 days after release from imprisonment to
             a term of supervision. Payment is to be made through
             the United States District Clerk, Southern District of
             Texas.
No further reference was made to restitution at the sentencing hearing.
      On appeal, Gozes-Wagner raises three “procedural” challenges to the
order of restitution. We address each before turning to her constitutional
argument on the matter.
      The first procedural claim is that the district court was under the false
impression that it was obligated by law to hold Gozes-Wagner jointly and
severally liable with her co-conspirators for various portions of the restitution

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                                 No. 19-20157
award. The second is that the court imposed an improper payment schedule by
conceding that it was “completely unrealistic.” And third, the court illegally
included within the order loss attributable to conduct that occurred in 2010
and 2011 even though a prosecutor during closing argument conceded that
Gozes-Wagner may not have been fully aware of the scope of the conspiracy
during those years.
      1. Joint and Several Liability with Co-Conspirators
      Gozes-Wagner argues that the district court erred by relying on language
in the PSR suggesting that she had to be held jointly and severally liable for
the full amount of the loss to Medicaid during her participation in the
conspiracy. Because Gozes-Wagner did not raise this error below, we review
for plain error. See United States v. Sheets, 

, 259 (5th Cir. 2016)
(recognizing that plain error review applies to alleged restitution order errors
that were not raised below and thus “den[ied] the court the opportunity to
identify and correct any errors”).
      There is no dispute that Gozes-Wagner owes some amount of restitution.
Because her conviction involved “fraud or deceit,” the Mandatory Victims
Restitution Act applies. 18 U.S.C. § 3663A(c)(1)(A)(ii). Further, under 18
U.S.C. § 3664(h),
            If the court finds that more than 1 defendant has
            contributed to the loss of a victim, the court may make
            each defendant liable for payment of the full amount
            of restitution or may apportion liability among the
            defendants to reflect the level of contribution to the
            victim’s loss and economic circumstances of each
            defendant.
Thus, not only was the court bound to render a restitution award against
Gozes-Wagner, there is no doubt that it had the authority to hold her jointly
and severally liable for the full loss to Medicaid that occurred during her
participation in the conspiracy. Nevertheless, Gozes-Wagner asks us to
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                                  No. 19-20157
interpret the PSR’s statement that she “is accountable for restitution to
Medicare . . . jointly and severally with” her convicted co-conspirators and the
district court’s subsequent adoption of the PSR as an illegal determination by
the district court that the law required it to hold her jointly and severally liable
with her co-conspirators. We decline to do so. Thus, Gozes-Wagner has failed
to show plain error.
      2. “Completely Unrealistic” Payment Schedule
      Next, Gozes-Wagner contends that it was error for the district court to
impose a “completely unrealistic” payment schedule upon her. This is
especially true in light of the fact that, at the time of sentencing, she possessed
only $45,000 in assets and had low post-prison income-earning prospects.
Because Gozes-Wagner failed to raise this argument below, we review for plain
error. United States v. Arledge, 

, 900 (5th Cir. 2008) (“Because
Arledge failed to object to the district court’s setting of the payment schedule,
we review for plain error.”).
      Under 18 U.S.C. § 3664(f)(2), the district court was obligated to set a
payment schedule for Gozes-Wagner’s restitution award, despite the long odds
that she will repay the full amount in her lifetime. It did the best it could. The
PSR assessed Gozes-Wagner’s ability to pay, and the court adopted its findings.
Then it ordered her to pay $200 immediately, 50 percent of her prison wages
during her incarceration, and $400 a month shortly after her release. Under
the circumstances, this payment schedule did not constitute plain error.
      3. Losses Attributed from 2010 and 2011
      In the final minutes of his closing argument, a prosecutor made the
following remark:
            And so let’s give Ms. Wagner the benefit of the doubt.
            She is not a doctor. When she walks in, it may have
            taken her a bit longer, maybe all of 2010, maybe all of
            2011. But come on, even somebody without medical
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                                 No. 19-20157
             training, by 2012, 2013, 2014 and part of 2015 is now
             receiving hundreds of thousands of dollars from
             Russians can’t find any patients [sic], doesn’t know
             what the clinics are doing, that’s taking your leave a
             little slow. At that point in time she knew what was
             going on, she had knowledge or she intentionally
             ignored it.
Gozes-Wagner calls this a concession from the Government that Gozes-Wagner
may not have known about the fraud involved in the conspiracy in 2010 and
2011. The Government responds that this off-handed “benefit of the doubt”
comment did not amount to a concession; instead, loss from those years was
properly included within her restitution award because she was convicted of
defrauding Medicaid during those years. Gozes-Wagner did not raise this claim
below, so we review for plain error. See 

–60.
      We cannot say that the district court plainly erred by attributing loss
amounts in the restitution order for losses that indisputably occurred during
the time period for which Gozes-Wagner was convicted. To say the Government
made an evidentiary concession during the final moments of its closing
argument is, at best, a stretch. We find no plain error.
E. Restitution: Eighth Amendment’s Excessive Fines Clause
      Gozes-Wagner argues for the first time on appeal that the district court’s
restitution order violates the Excessive Fines Clause of the Eighth
Amendment. We therefore review for plain error. See United States v.
$78,882.00 In U.S. Currency, 464 F. App’x 382, 383 (5th Cir. 2012) (per curiam)
(unpublished) (“Because the Salgados raise their Excessive Fines Clause
theory for the first time on appeal, we review the district court’s order of
forfeiture for plain error.”)
      The Eighth Amendment prohibits the Government from saddling
defendants with “excessive fines.” U.S. CONST. amend. VIII (“Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
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                                       No. 19-20157
punishments inflicted.”). But the Supreme Court has never held that the
Excessive Fines Clause applies to restitution awards. See Paroline v. United
States, 

, 455–56 (2014) (“To be sure, this Court has said that ‘the
Excessive Fines Clause was intended to limit only those fines directly imposed
by, and payable to, the government.’”) (quoting Browning–Ferris Industries of
Vt., Inc. v. Kelco Disposal, Inc., 

, 268 (1989)). “As we ordinarily do
not find plain error where there is an absence of authority on point, we decline
to conclude that any error by the district court . . . was clear or obvious.” See
United States v. Rubio-Sorto, 760 F. App’x 258, 260 (5th Cir. 2019) (per curiam)
(unpublished). 17 Hence, we once again find no plain error.


                                    III. Conclusion
       For the foregoing reasons, we hold that Gozes-Wagner has failed to show
that the district court reversibly erred. We therefore AFFIRM.




       17 We note that the only other circuit court to consider whether a restitution award
could violate the Excessive Fines Clause squarely rejected it. See United States v. Green, 

, 1125 (8th Cir. 2020) (“As the Supreme Court pointed out in Paroline, mandatory
restitution under § 2259 — when properly interpreted — does not violate the Eighth
Amendment’s excessive-fines clause.”) (citing 

–56). We leave for
another day, however, the discussion of whether a restitution order could ever violate the
Excessive Fines Clause.
                                             38