[DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10421         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      AUGUST 13, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                             D.C. Docket No. 1:09-cr-20260-UU-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

CARLOS FERNANDEZ,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                      (August 13, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Appellant Carlos Fernandez appeals his convictions and total sentence of 97

months in prison imposed following his conviction by a jury on one count of
conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and six

counts of health care fraud, in violation of 18 U.S.C. § 1347. Fernandez first

argues that the district court’s admission into evidence at trial of an exhibit

containing electronic medicare claims data, and any summaries and extracts of that

exhibit, was error because the exhibit was not properly authenticated, it was not

admissible under the business records exception to the hearsay rule, and the

admission violated the Sixth Amendment. Next, Fernandez argues that the

district court erred by allowing a witness to testify about statements she overheard

from an unidentified speaker while she was conducting an on-site governmental

inspection of Fernandez’s business. Fernandez contends that this evidence was

inadmissible hearsay and that its admission violated his rights under the Sixth

Amendment. Fernandez further argues that even if the court determines that no

one evidentiary error requires reversal of his convictions, the cumulative effect of

the district court’s evidentiary errors deprived him of his right to a fair trial and

requires reversal. Finally, Fernandez argues that his sentence, which was at the

top of his applicable guideline range, is unreasonable because the district court

failed to consider adequately the sentencing factors of 18 U.S.C. § 3553(a).

                                           I.

       “We review a district court’s evidentiary rulings only for an abuse of

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discretion.” United States v. Kennard, 

, 854 (11th Cir. 2006). We

also “review the district court’s authentication rulings for abuse of discretion.”

United States v. Siddiqui, 

, 1322 (11th Cir. 2000). In the absence of

abuse, we do not disturb the district court’s broad discretion in determining the

admissibility of business record evidence. United States v. Garnett, 

, 1018 (11th Cir. 1997). “We review questions of constitutional law de novo.

United States v. Underwood, 

, 1345 (11th Cir. 2006). However, in

the absence of an objection at trial, we review Confrontation Clause violations for

plain error only. United States v. Brazel, 

, 1141 (11th Cir. 1997).

      To demonstrate plain error, the defendant must show that there is (1)
      error, (2) that is plain and (3) that affects substantial rights. If all
      three conditions are met, an appellate court may then exercise its
      discretion to notice a forfeited error, but only if (4) the error seriously
      affects the fairness, integrity, or public reputation of judicial
      proceedings.

United States v. Turner, 

, 1276 (11th Cir. 2007) (internal quotation

marks omitted).

      The Federal Rules of Evidence provide that, in general, evidence is properly

authenticated when there is “evidence sufficient to support a finding that the

matter in question is what its proponent claims.” Fed.R.Evid. 901(a).

Authentication under Fed.R.Evid. 901 only requires the presentation of “sufficient



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evidence to make out a prima facie case that the proffered evidence is what it

purports to be.” United States v. Caldwell, 

, 1001-02 (11th

Cir.1985). “A district court has discretion to determine authenticity, and that

determination should not be disturbed on appeal absent a showing that there is no

competent evidence in the record to support it.” 

.

      A party lays the proper foundation for the trustworthiness of computer

generated business records is laid, and the records are admissible, in the following

circumstances: “(1) The records must be kept pursuant to some routine procedure

designed to assure their accuracy, (2) they must be created for motives that would

tend to assure accuracy (preparation for litigation, for example, is not such a

motive), and (3) they must not themselves be mere accumulations of hearsay or

uninformed opinion.” United States v. Glasser, 

, 1559 (11th Cir.

1985) (quoting Rosenberg v. Collins, 

, 665 (5th Cir. 1980)). See

Fed.R.Evid. 901(b)(4) (providing that a document can be authenticated by

“[a]ppearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances”).

      “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted,” and hearsay is generally not admissible Fed.R.Evid. 801(c), 802.

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Business records, however, are admissible as an exception to the hearsay rule

under Fed.R.Evid. 803(6). Business records include data compilations of a

business “if kept in the course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make the . . . data compilation .

. . .” Fed.R.Evid. 803(6). Rule 803(6) “requires the testimony of a custodian or

other qualified witness who can explain the record-keeping procedure utilized. It

is not necessary for the person who actually prepared the documents to testify so

long as there is other circumstantial evidence and testimony to suggest the

trustworthiness of the documents.” 

. See Allen v.

Safeco Ins. Co. of Am., 

, 1519 (11th Cir. 1986) (holding that there

was sufficient foundation to admit a business record when the witness did not

prepare the report, but the witness’s testimony established that “[t]he report and

the test results in the report were issued by a state agency in the regular course of

its business, and there was no indication that they lacked trustworthiness”).

      The admission of non-testimonial hearsay evidence does not violate the

Sixth Amendment’s right to confront witnesses if it bears an “indicia of

reliability,” which can be inferred if the evidence “falls within a firmly rooted

hearsay exception.” Ohio v. Roberts, 

, 66, 

, 2539, 

(1980), abrogated on other grounds by Crawford v. Washington,

                                           5


, 

, 

(2004).

      We conclude from the record that the district court did not abuse its

discretion in admitting the electronic compilation of medicare claims data, and the

summaries and extracts of this data. The custodian’s testimony at trial showed

that the data was kept by a routine procedure supervised by a federal governmental

agency which designed safeguards for the security and accuracy of the data. The

custodian’s testimony also showed that the exhibit was a business record

generated by government-supervised procedures in the regular course of business,

and there was no evidence to question the trustworthiness of the electronic

information. Since Fernandez did not contemporaneously object to the

introduction of the exhibits on Sixth Amendment grounds, we review this issue for

plain error. Because the claims data exhibits were properly admitted as an

exception to the hearsay rule, there was no error, much less plain error, under the

Sixth Amendment in the admission of the exhibits.

                                         II.

      Under the evidentiary hearsay rules, certain out-of-court statements can be

admitted as non-hearsay evidence if they are offered, not for the truth of the

assertions therein, but to explain a witness’s state of mind and subsequent actions.

See United States v. Jiminez, 

, 1288 (11th Cir. 2009) (recognizing

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that “[s]tatements by out of court witnesses to law enforcement officials may be

admitted as non-hearsay if they are relevant to explain the course of the officials’

subsequent investigative actions, and the probative value of the evidence’s

non-hearsay purpose is not substantially outweighed by the danger of unfair

prejudice caused by the impermissible hearsay use of the statement” (internal

quotation marks omitted)); United States v. Hawkins, 

, 1495-96

(11th Cir. 1990) (holding that statements were admissible to explain why an

investigation was started). “[E]videntiary and other nonconstitutional errors do

not constitute grounds for reversal unless there is a reasonable likelihood that they

affected the defendant’s substantial rights; where an error had no substantial

influence on the outcome, and sufficient evidence uninfected by error supports the

verdict, reversal is not warranted.” 

.

      The Sixth Amendment only prohibits statements that are impermissible

hearsay. 

. If statements are testimonial hearsay, the

Sixth Amendment requires the declarant to be unavailable and the defendant to

have a previous opportunity for cross-examination of the declarant in order for the

statements to be admitted. 

. If statements are non-

testimonial, they are admissible if they fall within an established hearsay exception

or otherwise bear indicia of reliability. 

, 100 S. Ct. at 2539.

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Testimonial statements are generally “statements made under circumstances

which would lead the declarant to believe that the statement would be available for

use at a later trial.” 

. A Sixth Amendment

Confrontation Clause error is not ground for reversal if the error is “harmless

beyond a reasonable doubt.” United States v. Hunerlach, 

, 1067

(11th Cir. 1999). As this court noted in Hunerlach,

      Factors that determine whether such an error is harmless include: the
      importance of the witness’ testimony in the prosecution’s case,
      whether the testimony was cumulative, the presence or absence of
      evidence corroborating or contradicting the testimony of the witness
      on material points, the extent of cross-examination otherwise
      permitted, and, of course, the overall strength of the prosecution’s
      case.

n.9.

      We need not determine if an evidentiary or a constitutional error occurred in

the admission of the out-of-court statements of the unidentified speaker because,

even if any such error did occur, we conclude that the error does not dictate

reversal. As to any possible evidentiary error, a review of the record reveals that

such error was harmless because the statement of the unidentified speaker did not

substantially affect the outcome of the trial. Also, any possible constitutional error

in admitting the statement was “harmless beyond a reasonable doubt” when

considered in the context of the entire trial. The government presented much

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evidence to support the verdict, including witness testimony, documentary

evidence, and recorded evidence, and the statements of the unidentified speaker

were not significant in the context of all the other evidence of guilt. Thus, reversal

is not warranted on this ground.

                                           III.

      “The cumulative error doctrine provides that an aggregation of

non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 

, 1223 (11th Cir. 2005) (internal

quotation marks omitted).

      As stated above, even if there was error, it did not affect Fernandez’s

substantial rights and did not deny him a fair trial. Thus, there was no cumulative

error and Fernandez’s argument has no merit.

                                           IV.

      We review sentencing decisions on appeal for reasonableness. Gall v.

United States, 

, 46, 

, 594, 

(2007).

“[A] sentence may be reviewed for procedural or substantive unreasonableness.”

United States v. Ellisor, 

, 1273 (11th Cir. 2008) (internal quotation

marks omitted). “Once an appellate court has satisfied itself that the district court

                                            9
followed proper sentencing procedure, the court then evaluates the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”

marks omitted). The party challenging the sentence has the

burden to establish that the sentence is unreasonable. United States v. Talley, 

, 788 (11th Cir. 2005).

      We must consider several factors to determine if a sentence is procedurally

sound, such as whether the district court considered the § 3553(a) sentencing

factors and whether the court adequately explained the chosen sentence. 

, 128 S. Ct. at 597. A district court is not required “to state on the record

that it has explicitly considered each of the § 3553(a) factors or to discuss each of

the § 3553(a) factors.” United States v. Scott, 

, 1329 (11th Cir.

2005). When the parties’ arguments discuss the § 3553(a) factors, it is sufficient

for the court to acknowledge that it considered the factors and the parties’

arguments. 

Further, even if the district court fails to articulate

explicitly that it considered the § 3553(a) factors, the sentence is reasonable if the

record indicates that the court did, in fact, consider the sentencing factors. United

States v. Dorman, 

, 944 (11th Cir. 2007).

      The highly deferential review for substantive reasonableness does not

involve the consideration of each decision made during sentencing. 

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Instead, it requires a review of only the final sentence for reasonableness in light

of the § 3553(a) factors. 

first states that “[t]he court shall

impose a sentence sufficient, but not greater than necessary,” to comply with the

purposes of sentencing. 18 U.S.C. § 3553(a). The section continues with the

following list of factors that a court must consider in imposing a sentence: (1) the

nature and circumstances of the offense and the history and characteristics of the

defendant; (2) the need to reflect the seriousness of the offense, promote respect

for the law, provide just punishment, adequately deter criminal conduct, protect

the public, and provide the defendant with needed correctional treatment; (3) the

kinds of available sentences; (4) the sentencing guideline range, including policy

statements of the Guidelines in the case of probation or supervised release

violations; (5) any other pertinent policy statements of the Sentencing

Commission; (6) the need to avoid unwarranted sentence disparities; and (7) the

need for restitution to victims. 18 U.S.C. § 3353(a); 

. The

weight given to each factor is “a matter committed to the sound discretion of the

district court.” United States v. Clay, 

, 743 (11th Cir. 2007) (internal

quotation marks omitted). Ordinarily, this court expects a sentence within the

guidelines range to be reasonable. 

.

      A review of the record demonstrates that Fernandez’s sentence is

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procedurally sound. The record reveals that the court did weigh and consider the

§ 3553(a) factors. Further, Fernandez’s sentence, which is within the guidelines

range, is also substantively reasonable.

                                    Conclusion

      Based on a review of the record and the parties’ briefs, we affirm

Fernandez’s convictions and total sentence.

      AFFIRMED.




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