Filed: May 25, 2011
Latest Update: Apr. 11, 2017
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 25, 2011 No. 08-13820 JOHN LEY _ CLERK D. C. Docket No. 07-20291-CR-CMA UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MAIVI RODRIGUEZ, MARIA HERNANDEZ, a.k.a. Mayte Hernandez, MARTA JIMENEZ, ANA CAOS, Defendants-Appellants, _ Appeals from the United States District Court for the Southern District of Florida _ (May 25, 2011) Before EDMONDSON and PRYOR, Circuit
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 25, 2011 No. 08-13820 JOHN LEY _ CLERK D. C. Docket No. 07-20291-CR-CMA UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MAIVI RODRIGUEZ, MARIA HERNANDEZ, a.k.a. Mayte Hernandez, MARTA JIMENEZ, ANA CAOS, Defendants-Appellants, _ Appeals from the United States District Court for the Southern District of Florida _ (May 25, 2011) Before EDMONDSON and PRYOR, Circuit ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 25, 2011
No. 08-13820
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-20291-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAIVI RODRIGUEZ,
MARIA HERNANDEZ,
a.k.a. Mayte Hernandez,
MARTA JIMENEZ,
ANA CAOS,
Defendants-Appellants,
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 25, 2011)
Before EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.
PER CURIAM:
Maivi Rodriguez, Maria Hernandez, Marta Jimenez, and Ana Caos appeal
their convictions and sentences related to their participation in a scheme to defraud
the United States. These defendants raise a host of arguments on appeal, all of
which lack merit. We affirm.
I. BACKGROUND
The defendants’ convictions stem from a kickback scheme to defraud the
federal Medicare program. Owners of durable medical equipment companies paid
doctors to write prescriptions for drugs and medical equipment that yielded high
reimbursements from Medicare. They also paid others to pose as patients in need
of drugs and equipment. The owners of the durable medical equipment companies
then delivered prescriptions to pharmacies, which filled the prescriptions, sought
reimbursements from Medicare, and gave 50 percent of the reimbursements to the
owners of the durable medical equipment companies as a kickback. Many of the
patients were not ill and did not need the prescribed medications or equipment.
Maria Hernandez, Marta Jimenez, and Maivi Rodriguez were principals of durable
medical equipment companies called Esmar Medical Equipment and Action Best
*
Honorable Orinda D. Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
2
Medical Supplies, and they were prosecuted for their participation in the scheme.
Ana Caos is a doctor who was also prosecuted for her involvement.
A federal grand jury in the Southern District of Florida returned a
superseding indictment that charged Maivi Rodriguez, Maria Hernandez, Marta
Jimenez, and Ana Caos with conspiracy to defraud the United States, to cause the
submission of false claims, and to receive health care kickbacks, 18 U.S.C. §§ 287,
371; 42 U.S.C. § 1320a-7b(b)(1); and conspiracy to commit health care fraud, 18
U.S.C. §§ 1347, 1349. The indictment also charged Rodriguez, Hernandez, and
Jimenez with two counts each of soliciting and receiving kickbacks involving a
federal health care program, 18 U.S.C. § 2; 42 U.S.C. § 1320a-7b(b)(1). A jury
convicted Rodriguez, Hernandez, Jimenez, and Caos of all counts. The district
court declared a mistrial as to Caos because she had testified in her own defense
and had been prohibited from consulting with her counsel overnight about her
ongoing testimony. Caos proceeded to another trial and a jury again convicted her
of both counts of conspiracy. The district court sentenced Rodriguez to concurrent
periods of 51 months of imprisonment followed by concurrent 3-year periods of
supervised release; Jimenez to concurrent periods of 31 months of imprisonment
followed by concurrent 3-year periods of supervised release; Hernandez to
concurrent periods of 51 months of imprisonment followed by concurrent 3-year
3
periods of supervised release; and Caos to concurrent periods of 41 months of
imprisonment followed by concurrent 3-year periods of supervised release.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. We review the denial of a
guilty plea for abuse of discretion. United States v. Crosby, 739 F.2d 1542, 1544
(11th Cir. 1984). “We will not generally consider claims of ineffective assistance
of counsel raised on direct appeal where the district court did not entertain the
claim nor develop a factual record.” United States v. Bender,
290 F.3d 1279, 1284
(11th Cir. 2002). “We review a district court’s evidentiary rulings for abuse of
discretion.” United States v. Baker,
432 F.3d 1189, 1202 (11th Cir. 2005).
“Evidentiary errors that are not specifically objected to at trial are reviewed for
plain error.” United States v. Williford,
764 F.2d 1493, 1502 (11th Cir. 1985).
“We review cases dealing with discovery violations under [Federal Rule of
Criminal Procedure] 16 using an abuse of discretion standard.” United States v.
Hastamorir,
881 F.2d 1551, 1559 (11th Cir. 1989). “This court applies a two-part
test to claims of prosecutorial misconduct: the challenged statements must be
improper, and must have prejudicially affected the defendant’s substantial rights.
A defendant’s substantial rights are prejudicially affected when a reasonable
probability arises that, but for the remarks, the outcome would be different.”
4
United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) (citation omitted). This
Court reviews a claim challenging the sufficiency of the evidence “de novo, but in
the light most favorable to the government, and accepting all reasonable inferences
which support the verdict[s] in order to determine if there was substantial evidence
from which a reasonable trier of fact could have concluded that the defendants
were guilty beyond a reasonable doubt.” United States v. Adkinson,
158 F.3d
1147, 1150 (11th Cir. 1998). “A motion for new trial based on newly discovered
evidence is committed to the sound discretion of the trial court and will not be
overturned absent abuse of discretion.” United States v. Garcia,
13 F.3d 1464,
1472 (11th Cir. 1994). “We review a district court’s findings of fact for clear error
and its application of the Sentencing Guidelines de novo.” United States v.
Rendon,
354 F.3d 1320, 1329 (11th Cir. 2003). The decision of the district court
to enhance a sentence for a defendant’s role “as a leader or organizer under
Guideline 3B1.1 is a finding of fact reviewed only for clear error.” United States
v. Phillips,
287 F.3d 1053, 1055 (11th Cir. 2002). “The district court’s
determination of whether a defendant is entitled to a reduction for acceptance of
responsibility is a finding of fact which is entitled to great deference on appeal and
will be affirmed unless clearly erroneous.” United States v. Rodriguez,
959 F.2d
193, 195 (11th Cir. 1992). “We review for clear error the district court’s
5
determination regarding the amount of loss under the [Sentencing] Guidelines.”
United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005).
III. DISCUSSION
We divide our discussion of this appeal in seven parts. First, we discuss
whether the district court abused its discretion when it refused to accept
Hernandez’s guilty plea. Second, we discuss whether Hernandez’s trial counsel
rendered ineffective assistance when he conceded in opening statements that
Hernandez had accepted kickbacks. Third, we discuss whether the district court
abused its discretion when it admitted certain evidence against Rodriguez, Jimenez,
and Caos. Fourth, we discuss whether Jimenez merits a reversal of her convictions
because of a discovery violation. Fifth, we discuss whether there was sufficient
evidence to support the conspiracy convictions of Rodriguez and Caos. Sixth, we
discuss whether the district court abused its discretion when it denied Caos’s
motion for a new trial based on newly discovered evidence. Seventh, we discuss
whether the district court clearly erred when it sentenced Hernandez and
Rodriguez.
A. The District Court Did Not Abuse Its Discretion When It Refused to
Accept Hernandez’s Untimely Guilty Plea.
Hernandez argues that the district court abused its discretion when it refused
to accept her guilty plea, but we disagree. Hernandez’s guilty plea was untimely
6
because she proffered it more than two weeks after the court-imposed deadline,
and we have held that “courts may reject guilty pleas that are tendered after a
deadline set by the court.” United States v. Gamboa, 166 F.3d 1327, 1331 (11th
Cir. 1999).
B. Hernandez Failed to Develop a Record for Her Argument of
Ineffective Assistance of Counsel.
Hernandez argues that she received ineffective assistance of counsel because
during opening statements her lawyer conceded that she received kickbacks. “We
will not generally consider claims of ineffective assistance of counsel raised on
direct appeal where the district court did not entertain the claim nor develop a
factual record.” Bender, 290 F.3d at 1284. This issue should be raised on
collateral review.
C. The District Court Did Not Abuse Its Discretion In Admitting Evidence.
Rodriguez, Jimenez, and Caos contend that the district court abused its
discretion on three occasions when it admitted certain evidence. First, Rodriguez
argues that the district court abused its discretion when it allowed one of the
pharmacy owners, Henry Gonzalez, to testify as a government witness about a
purported phone conversation between his wife, Karla, and Rodriguez. Second,
Rodriguez and Jimenez contend that the district court abused its discretion when it
admitted evidence about Rodriguez and Jimenez’s involvement with companies
7
that were not included in the indictment. Third, Caos argues that the district court
abused its discretion when it admitted testimony from Dr. Cuni about his and
Caos’s involvement in the scheme. These arguments fail.
1. The District Court Did Not Abuse Its Discretion When It Admitted Gonzalez’s
Testimony About His Wife’s Conversation with Rodriguez.
Rodriguez argues that the district court abused its discretion when it allowed
Gonzalez to testify about an alleged phone conversation between his wife and
Rodriguez. Gonzalez testified that his wife told him she received a call from
someone who identified herself as “Maivi,” which is Rodriguez’s first name, and
who complained in a “caustic” and “abrasive” manner about a drop in the amount
of kickbacks she was receiving. Rodriguez argues that the government failed to
lay a foundation to admit this evidence under Federal Rule of Evidence
801(d)(2)(E), that the evidence should have been barred by Federal Rule of
Evidence 805 as hearsay within hearsay, and that the government did not properly
authenticate this testimony under Federal Rule of Evidence 901. We disagree.
The government laid a proper foundation to admit Gonzalez’s testimony
about the telephone conversation, which included both the admission of a party
opponent under Rule 801(d)(2)(A) and the nonhearsay statement of a coconspirator
under Rule 801(d)(2)(E). “To lay a foundation for the admission of a
coconspirator’s statement, ‘the government must establish by a preponderance of
8
the evidence: (1) that a conspiracy existed, (2) that the defendant and the declarant
were members of the conspiracy, and (3) that the statement was made during the
course and in furtherance of the conspiracy.’” United States v. Schlei, 122 F.3d
944, 980 (11th Cir. 1997) (quoting United States v. Van Hemelryck,
945 F.2d
1493, 1497–98 (11th Cir. 1991)). The government satisfied these requirements
when it presented evidence that a conspiracy existed; that Rodriguez, Gonzalez,
and Gonzalez’s wife were members of that conspiracy; and that Rodriguez made
the statement during the course and in furtherance of the conspiracy.
[R:16:387:177–87]. Rodriguez’s statement to Karla is an admission by a party
opponent, Fed. R. Evid. 801(d)(2)(A), and Karla’s statement to Gonzalez is a
statement by a coconspirator of a party made during the course and in furtherance
of the conspiracy, Fed. R. Evid. 801(d)(2)(E).
The district court also acted within its discretion when it concluded that
circumstantial evidence, coupled with Rodriguez’s self identification, authenticated
the telephone conversation sufficiently to satisfy Federal Rule of Evidence 901,
which provides that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” Fed. R. Evid.
901(a). Persuasive circumstantial evidence, including testimony that the caller
9
identified herself as “Maivi” and disclosed Rodriguez’s group numbers, patient
names, and pay periods, supports the determination that the call was authentic. See
United States v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B Nov. 1981).
2. The District Court Did Not Abuse Its Discretion When It Admitted Evidence
Regarding A&A Home Health Care and M&M Assisted Living Facility.
Rodriguez and Jimenez argue that the district court abused its discretion
when it admitted evidence about two home healthcare agencies that they managed,
A&A Home Health Care and M&M Assisted Living Facility. This evidence
included several billing records that established that these agencies, the durable
medical equipment companies, and the pharmacies all billed Medicare for several
of the same patients, and testimony from a witness involved with the agencies who
has since admitted to Medicare fraud. The district court instructed the jury that
there were no allegations that these agencies submitted fraudulent claims to
Medicare. Rodriguez and Jimenez argue that the district court abused its discretion
when it admitted evidence about these companies because the admission violated
of Federal Rules of Evidence 402, 403, and 404(b).
The district court did not abuse its discretion. When considering a challenge
under Rule 403, we “look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue prejudicial impact.”
United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989). This evidence was
10
relevant and had probative value under Rules 401 and 403 because it related to
how the scheme worked and tended to prove Rodriguez and Jimenez had a degree
of control over patient beneficiaries. The district court also did not abuse its
discretion when it allowed the jury to consider the evidence for “other purposes”
under Rule 404(b).
3. The District Court Did Not Abuse Its Discretion When It Admitted Testimony
Against Caos by Others Involved in the Scheme.
Caos argues that she deserves a new trial because the district court abused its
discretion when it admitted testimony from Dr. Cuni and Mrs. Palacios about their
involvement in the scheme. It does not appear from the record that Caos objected
to this testimony, and when a party fails to object to testimony at trial, “‘[w]e
correct only for errors that are particularly egregious and that “seriously affect the
fairness, integrity or public reputation of judicial proceedings,” and then only when
a miscarriage of justice would result.’” United States v. Jernigan, 341 F.3d 1273,
1280 (11th Cir. 2003) (alteration in original) (quoting Williford, 764 F.2d at 1502).
Caos cannot satisfy this demanding standard. Cuni’s testimony had
significant probative value in establishing that Caos knowingly participated in the
scheme. According to Cuni, Hernandez stated that Caos would take Cuni’s place
and write prescriptions for the scheme when Cuni left for a medical procedure.
Cuni also testified that he had patients in common with Caos and that Caos
11
eventually assisted some of his patients in the scheme. Palacios’s testimony also
had probative value because it related to how the scheme worked. There was no
miscarriage of justice.
D. The Discovery Violation Did Not Cause Jimenez Substantial Prejudice.
Jimenez argues that the government caused her undue prejudice and
committed prosecutorial misconduct when it violated a discovery obligation, but
we disagree. The government violated a discovery order that required it to “state
whether defendant(s) was/were identified in any lineup, showup, photospread or
similar identification proceeding, and produce any pictures utilized or resulting
therefrom.” Henry Gonzalez testified, as a government witness, that he had
positively identified Jimenez during a photograph examination in April 2007 and
had identified Jimenez again in a photograph examination weeks before the trial.
The government did not disclose these identifications to Jimenez before trial. The
district court instructed the jury to disregard those portions of Gonzalez’s
testimony. “A discovery violation under . . . a standing discovery order is
reversible error only when it violates a defendant’s substantial rights.” United
States v. Camargo-Vergara, 57 F.3d 993, 998 (11th Cir. 1995). This discovery
violation did not violate Jimenez’s substantial rights because the district court
struck the contested portions of Gonzalez’s testimony and instructed the jury to
12
disregard them. “When a curative instruction has been given to address some
improper and prejudicial evidence, we will reverse only if the evidence ‘is so
highly prejudicial as to be incurable by the trial court’s admonition.’” United
States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994) (quoting United States v.
Funt,
896 F.2d 1288, 1295 (11th Cir. 1990)). Jimenez also cannot establish that
she warrants a new trial based on prosecutorial misconduct, which “‘is an extreme
sanction which should be infrequently utilized.’” United States v. Accetturo,
858
F.2d 679, 681 (11th Cir. 1988) (quoting United States v. Pabian,
704 F.2d 1533,
1536 (11th Cir. 1983)).
E. The Government Presented Sufficient Evidence to Convict Rodriguez and Caos.
Rodriguez contends that the government failed to present sufficient evidence
to convict her of conspiracy to engage in health care fraud and conspiracy to
defraud the United States to receive kickbacks, but we disagree. The government
offered sufficient evidence to allow a rational trier of fact to find Rodriguez guilty
of these conspiracies. The government presented myriad documents from Henry
Gonzalez that were replete with references to Rodriguez, including prescription
logs with Rodriguez’s group numbers; account logs that contained Rodriguez’s
name, cellular phone number, and group number; and a document that listed
Rodriguez as one of a group of “[c]lients that still [have] not pick[ed] up the
13
envelopes.” Government witnesses also testified that Rodriguez picked up
payment envelopes three or four times from a pharmacy involved in the scheme,
pharmacy managers called Rodriguez to discuss kickback payments, and
Rodriguez and Hernandez sometimes picked up payment envelopes together. This
evidence, viewed in the light most favorable to the government, supports
Rodriguez’s convictions.
Caos also contends that the government failed to present sufficient evidence
to support her conspiracy convictions, and that she did not “knowingly and
willfully participate[] in the larger, unified single conspiracy charged in the
indictment,” see United States v. Chandler, 388 F.3d 796, 811–13 (11th Cir. 2004).
She argues that there is a variance between the conspiracies charged in the
indictment and the evidence introduced at trial and that, at most, she may have
participated in narrow kickback arrangements with owners of durable medical
equipment companies, known as “hub and spoke” or “rimless wheel” conspiracies.
“[T]o prove a single, unified conspiracy as opposed to a series of smaller,
uncoordinated conspiracies, the government must show an interdependence among
the alleged co-conspirators.” Chandler, 388 F.3d at 811. “While each defendant
must have joined the conspiracy intentionally, each need not be privy to all the
details of the conspiracy or be aware of all the other conspirators.” United States
14
v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987).
The government presented sufficient evidence for a rational trier of fact to
find that there was an interdependence among Caos and the other coconspirators.
Caos prescribed medications that were later brought to the pharmacies by owners
of durable medical equipment companies. Henry Gonzalez testified that five
owners of durable medical equipment companies—Pascual, Valdes, Hernandez,
Jimenez, and Smith—all obtained prescriptions from Ana Caos for their patients,
and Pascual testified that he personally took patients to Caos’s office, gave Caos a
list of medications that he wanted her to prescribe, and paid Caos $100 for each
prescription she wrote. Caos prescribed the same medications used in the scheme
to seven different patients on the same day, and sought reimbursements from
Medicare for patient visits. Caos need not have been “privy to all the details of the
conspiracy or be[en] aware of all the other conspirators” to sustain her convictions.
Id. Instead, “[i]f there is one overall agreement among the various parties to
perform different functions in order to carry out the objectives of the conspiracy,
then those performing the functions are engaged in one conspiracy.” Chandler,
388 F.3d at 811. The jury reasonably found that Caos was guilty of being a
member of these conspiracies.
15
F. The District Court Did Not Abuse Its Discretion When It Denied
Caos’s Motion for a New Trial.
Caos argues that the district court abused its discretion when it denied her
motion for a new trial and refused to conduct an evidentiary hearing after newly
discovered evidence established that Orlando Pascual, a witness for the
government, was suspected of wrongdoing in another Medicare fraud
investigation. Pascual testified that he was serving a prison term of 46 months for
Medicare fraud, that he had entered into an agreement to cooperate truthfully with
the government, but the government had made no promises in exchange for his
cooperation, and that he had “always cooperated fully and honestly with” the
government and that “every time [he had] been questioned by them, [he] told them
the whole truth.” Caos argues that the newly discovered evidence of Pascual’s
involvement in another Medicare fraud establishes that Pascual perjured himself at
trial. Caos moved for a new trial under Rule 33 of the Federal Rules of Criminal
Procedure. The district court concluded that Caos failed to satisfy two
requirements for a new trial under Rule 33 because the newly discovered evidence
was merely cumulative and impeaching and because a new trial would not produce
a different result, and denied the motion.
The district court did not abuse its discretion when it determined that
Pascual’s involvement in another Medicare fraud was cumulative and impeaching.
16
The government presented Pascual to the jury as a convict who serving a sentence
of 46 months for Medicare fraud, and the district court instructed the jury to
consider Pascual’s testimony with more caution because he had entered an
agreement with the government and “may have a reason to make a false
statement.” Caos contends that the newly discovered evidence was more than
cumulative or impeaching because Pascual committed “undisputable perjury,” but
the district court was entitled to find otherwise. Caos fails to establish that Pascual
was asked directly whether he was engaging in other criminal activities, and, as the
district court found, “Pascual did not affirmatively state he had committed no other
crimes . . . , nor did he or the government paint Pascual to be a reformed criminal.”
The district court acted within its discretion when it determined that Caos
failed to establish that a new trial would probably produce a different result
because “there was ample other evidence, both testimonial and documentary, to
support [Caos’s] convictions.” Apart from Pascual’s testimony, the government
introduced evidence that Caos wrote prescriptions for the drugs involved in the
scheme that yielded high reimbursements, and that owners of durable medical
equipment companies delivered prescriptions that Caos wrote to the pharmacies
involved. Dr. Cuni, a government witness who admitted to his involvement in the
scheme, testified that Hernandez had mentioned that Caos would replace Cuni in
17
the scheme when Cuni left for a medical procedure. The government also
introduced evidence that Caos sought reimbursements from Medicare for patient
visits and that the pharmacies, the owners of durable medical equipment
companies, and Caos all billed Medicare for the same beneficiaries. This evidence
supports as reasonable the determination of the district court that, even if the jury
had known about Pascual’s other criminal activities, it would not have reached a
different result.
G. The District Court Did Not Abuse Its Discretion
When It Sentenced Hernandez and Rodriguez.
Rodriguez and Hernandez argue that the district court clearly erred when it
determined their respective sentences. We address Rodriguez’s and Hernandez’s
sentencing arguments in three parts. First, we address Rodriguez and Hernandez’s
argument that the district court erred when it imposed a four-level increase to their
sentences for their roles as organizers or leaders of a criminal activity that involved
five or more participants, U.S. Sentencing Guidelines Manual § 3B1.1(a) (2007).
Second, we address Hernandez’s contention that she merits a two-level reduction
for acceptance of responsibility, id. § 3E1.1. Third, we address Hernandez’s
argument that the district court erred when it calculated the amount of loss
attributable to her.
18
1. The District Court Did Not Err When It Enhanced Their Sentences for Their
Roles as Organizers or Leaders.
Rodriguez and Hernandez contend that the district court erred when it
imposed a four-level increase to their sentences for their roles as organizers or
leader of criminal activity, but we disagree. A sentence may be enhanced by four
levels under section 3B1.1(a) “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). The government introduced evidence that
Hernandez recruited and supervised 35 Medicare beneficiaries to participate in the
scheme and paid Juan Molina for his fraudulent prescriptions. The government
also introduced evidence that Rodriguez exercised control over patients at an
assisted living facility who received medications involved in the scheme, and that
one of Rodriguez’s employees, Adela Pique, delivered cash payments to a patient
under Rodriguez’s supervision. The evidence also established that Rodriguez and
Hernandez “claimed right to a larger share of the fruits of the crime,” U.S.S.G. §
3B1.1(a) cmt. n.4, because they received 50 percent of the Medicare
reimbursements for the prescriptions they sent to the pharmacies and kept 100
percent of the Medicare reimbursements for durable medical equipment.
Rodriguez and Hernandez contend that the district court erred because it merely
provided “one paragraph with no particulars” to support its decision to enhance
19
their sentences, but “[i]n making the ultimate determination of the defendant’s role
in the offense, the sentencing judge has no duty to make any specific subsidiary
factual findings,” United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999)
(en banc).
2. The District Court Did Not Err When It Denied Hernandez a Reduction for
Acceptance of Responsibility.
Hernandez fails to establish that the district court clearly erred when it
denied her a two-level reduction for acceptance of responsibility. “The defendant
bears the burden of clearly demonstrating acceptance of responsibility and must
present more than just a guilty plea.” United States v. Sawyer, 180 F.3d 1319,
1323 (11th Cir. 1999). The district court concluded that Hernandez did not carry
her burden because she merely “attempt[ed] to plead at the 11th hour and even then
was not admitting responsibility in full for all of her conduct, and the position she
has taken since has been one in which she has not acknowledged full responsibility
for her actions in this case.” We agree.
3. The District Court Did Not Err When It Calculated the Amount of Loss
Attributable to Hernandez and Rodriguez.
Hernandez and Rodriguez challenge the calculation by the district court of
the amount of loss attributable to them for sentencing purposes, but their challenge
is without merit. “[A]lthough the district court must not speculate concerning the
20
existence of a fact which would permit a more severe sentence under the
guidelines, its reasonable estimate of the intended loss will be upheld on appeal.”
United States v. Dominguez, 109 F.3d 675, 676 (11th Cir. 1997) (citation and
internal quotation marks omitted). The district court based its calculation of loss
on 80 percent of the amount allowed by Medicare for reimbursements attributable
to Hernandez and Rodriguez, and concluded that Hernandez and Rodriguez were
each responsible for a loss in the range of $200,000 to $400,000. Evidence
presented at the hearing supports this calculation as reasonable, including the
testimony of Hernandez and Rodriguez’s own expert witness, who testified that
Hernandez and Rodriguez had received “approximately 80 percent of the [amount]
allowable” under the Medicare fee schedules. The calculation of loss by the
district court also excluded charges outside of the conspiracy period, charges for
equipment not related to the kinds of medications prescribed in the scheme, and
charges associated with A&A Home Healthcare and M&M Assisted Living
Facility. We conclude that the calculation of loss by the district court was
reasonable.
IV. CONCLUSION
We AFFIRM the judgments of convictions and sentences.
21
