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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15805
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D.C. Docket No. 1:15-cr-20411-DMM-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELINA GONZALEZ,
Defendant - Appellant.
__________________________
No. 15-15806
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D.C. Docket No. 1:15-cr-20411-DMM-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ODALYS DE CARMEN BORREGO,
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Defendant – Appellant.
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No. 15-15807
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D.C. Docket No. 1:15-cr-20411-DMM-9
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSLAY BORREGO ALARCON,
Defendant – Appellant.
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No. 15-15808
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D.C. Docket No. 1:15-cr-20411-DMM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIA E. ECHARRI,
Defendant – Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(December 21, 2017)
Before HULL and DUBINA, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
Appellants, Angelina Gonzalez (“Gonzalez”), Maria E. Echarri (“Echarri”),
Odalys De Carmen Borrego (“O. Borrego”), Oslay Borrego Alarcon (“Borrego
Alarcon”), and eight other individuals were charged by a federal grand jury in the
United States District Court for the Southern District of Florida in a 30-count
superseding indictment with conspiracy to commit health care and wire fraud, in
violation of 18 U.S.C. § 1349 (Count 1) and related substantive charges.
Subsequently, the four defendants/appellants entered guilty pleas and submitted
written factual proffers regarding their involvement in the offenses.
I. BACKGROUND
This is a huge Medicare fraud case. After uncovering that a group of
pharmacies had all purported to have repeatedly filled the same drug prescriptions
for the same exact pool of Medicare beneficiaries, the Department of Health and
*
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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Human Services (“DHHS”) began an investigation of the pharmacies. As a result
of the investigation, the DHHS learned that all of the defendants involved in this
appeal, as well as Daniel Suarez (“Suarez”), Borrego Alarcon’s 23-year-old son,
owned and managed a number of pharmacies that they used to engage in a
conspiracy whose object was to obtain payments fraudulently from Medicare and
Medicare Program Providers for prescription drugs that the pharmacies had not
purchased or dispensed. From their fraud, Suarez and the defendants received
reimbursements in the amount of $21,000,000 from Medicare and Medicare drug
plans.
As part of the conspiracy, the defendants paid patient recruiters to locate and
pay Medicare beneficiaries for the use of their beneficiary numbers. The
conspirators then used the numbers on reimbursement claims they submitted to
Medicare through all of the pharmacies. The claims falsely and fraudulently
represented that various healthcare benefits, primarily prescription drugs, were
medically necessary, prescribed by a doctor, and had been provided to Medicare
beneficiaries by the pharmacies. Law enforcement officers determined that the
proceeds of the fraud were distributed to various bank accounts for the personal
benefit and use of each of the defendants. After his arrest, Suarez informed law
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enforcement officers that he and the defendants equally managed and profited from
the pharmacies involved in Count 1 of the offense.
After the defendants entered guilty pleas, the United States Probation Office
prepared a presentence investigation report (“PSI”) for each of the defendants. All
of the PSIs contained the same calculation of the defendants’ offense levels under
the United States Sentencing Guidelines (“USSG”). Each PSI calculation set the
defendants’ base offense level at seven, pursuant to USSG §§ 2B1.1 and
2X1.1(c)(1); each PSI added twenty levels, pursuant to USSG § 2B1.1(b)(1)(K),
because the defendants were held accountable for a loss greater than $9,500,000
but less than $25,000,000; each PSI added three levels, pursuant to USSG
§2B1.1(b)(7), because the loss involved a government health care program and was
greater than $7,000,000; each PSI added two levels, pursuant to USSG
§ 2B1.1(b)(10)(C), because the offense involved sophisticated means; and each
PSI added three levels, pursuant to USSG § 3B1.1(b), based on the defendants’
roles as managers or supervisors of a criminal activity that involved five or more
participants or was otherwise extensive. The PSI also recommended a three-level
downward adjustment for each of the defendants, pursuant to USSG §§ 3E1.1(a)
and (b), for their timely acceptance of responsibility for the offenses.
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After adjustments, each defendant’s total offense level was 32. None of the
defendants had any criminal history points and, as a result, the PSI assigned each
defendant a criminal history category of I. Based upon a criminal history category
of I and a total offense level of 32, each defendant’s guideline imprisonment range
was 121 to 151 months. The PSI further reported that the statutory maximum
sentence for the offense was 20 years’ imprisonment, pursuant to 18 U.S.C. §
1343. Each of the defendants submitted a sentencing memorandum and a motion
for a downward variance.
The government filed a written response arguing that the defendants should
be held responsible for the entire loss from the fraud because bank records,
interviews of co-conspirators, and the defendants themselves confirmed that they
had worked together as a family to own and operate a well-organized fraudulent
enterprise using the eight pharmacies to effectuate the fraud. The government
asserted that the defendants’ offense levels were properly calculated, but did
concede that, based upon the district court’s ruling during Suarez’s sentencing
hearing, the two-level sophisticated means enhancement should not be applied.
After sustaining the defendants’ objections to the two-level sophisticated
means enhancement, the district court found that each of the defendant’s total
offense level was 30. Thus, an offense level of 30 and a criminal history category
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of I resulted in a recommended guideline range of imprisonment of 97 to 121
months’ imprisonment. Following the parties’ arguments, the district court
imposed a sentence of 108 months’ imprisonment for each defendant. Defendants
then perfected this appeal.
II. ISSUES
(1) Whether the district court clearly erred when it found each
defendant was a manager or supervisor of the criminal activity.
(2) Whether the district court clearly erred in determining the
amount of the loss and amount of restitution attributable to
each of the defendants.
(3) Whether the district court abused its discretion by imposing
the same 108-month sentence on each of the defendants.
III. STANDARDS OF REVIEW
We review for clear error the district court’s determination of the facts
regarding a defendant’s role in the offense. United States v. Martinez,
584 F.3d
1022, 1025 (11th Cir. 2009).
We also review the district court’s determination of the amount of the loss
attributable to a defendant for clear error. United States v. Barrington,
648 F.3d
1178, 1197 (11th Cir. 2011).
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In addition, we review for clear error the factual findings underlying a
restitution order. United States v. Brown,
665 F.3d 1239, 1252 (11th Cir. 2011).
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013).
IV. DISCUSSION
A. Managerial Roles
In our view, the district court properly enhanced the defendants’ offense
levels, pursuant to USSG § 3B1.1(b), for their managerial roles in the Medicare
fraud conspiracy. First of all, the standard of review cuts against the defendants’
arguments. It is a monumental hurdle to establish clear error. Indeed, in their
factual proffers, each defendant admitted that he/she owned and operated
pharmacies used to commit the fraud and that he/she submitted claims and
received payments for prescription drugs which he/she knew that the pharmacies
neither possessed nor dispensed.
The government presented evidence that these pharmacies had little or no
legitimate business; that the fraud involved more than 30 participants including
patient recruiters and Medicare beneficiaries, whom the defendants paid in order to
use their beneficiary numbers to file false Medicare claims; that the defendants
were signatories on the various bank accounts used to receive and conceal the
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fraud proceeds; and that their co-conspirators stated that they had acted as a
“family” to manage the fraud activities. The record demonstrates that the
defendants’ claims regarding each one’s lack of leadership responsibilities are
contrary to their own prior admissions and the evidence presented at the sentencing
hearing. Accordingly, we affirm the three-level enhancement for the defendants’
roles as managers or supervisors in the conspiracy.
B. Amount of Loss and Restitution
It is also our view that the district court was correct in attributing the amount
of loss and calculating the amount of restitution owed by each defendant. A
defendant’s specific offense characteristics, such as the amount of the loss
attributable to him under USSG § 2B1.1, are determined based upon all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity. See USSG § 1B1.3(a)(1)(B).
In the present case, in determining the defendants’ offense level at
sentencing, the district court calculated the amount of the loss caused by the
offenses with respect to each of the defendants. See USSG § 2B1.1. The district
court need only make a reasonable estimate of the loss amount based upon a
preponderance of the evidence. See 18 U.S.C. § 3664(e) (providing that the
government prove the loss amount by a preponderance of the evidence); see also
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United States v. Martin,
803 F.3d 581, 595 (11th Cir. 2015) (citing to United States
v. Futrell,
209 F.3d 1286, 1290 (11th Cir. 2000)). Here, the district court made
individualized findings that supported its determination that each of the defendants
was responsible for between $9.5 million and $25 million in losses by first
determining the scope of each defendant’s criminal activity and then calculating
the foreseeable loss. The court’s conservative and methodical analysis was
appropriate and, as a result, the 20-level enhancement of the defendants’ offense
levels under USSG § 2B1.1(b)(1)(K) was correct. We therefore affirm the district
court’s calculation of the loss amount.
The district court also made findings to support its imposition of restitution
under 18 U.S.C. § 3664, which states that “the court shall order restitution to each
victim in the full amount of each victim’s losses as determined by the court[.]” 18
U.S.C. § 3664(f)(1)(A). In allotting restitution, § 3664(h) states that “[i]f 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.” 18 U.S.C. §
3664(h). Because we discern no clear error in the district court’s restitution
determination, we affirm the district court’s order.
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C. Reasonableness of Sentences
Finally, the defendants argue that the district court’s decision to impose
identical sentences on each of them was unreasonable and that the district court
should have given more consideration to their individual circumstances and
individual roles in the conspiracy. We disagree. We review the substantive
reasonableness of the sentence for abuse of discretion, based upon the totality of
the circumstances. United States v. Livesay,
525 F.3d 1081, 1091 (11th Cir. 2008).
In announcing the defendants’ sentences, the district court stated that it had
considered the § 3553(a) factors and discussed several of those factors on the
record. The court acknowledged that the consequences of the sentences on the
defendants’ families would be severe because the fraud was perpetrated as a family
affair, involving many members of the same family. The district court stated,
however, that the fraud involved a tremendous loss in that the defendants
defrauded the Medicare program of more than $20,000,000 within a period of a
few years.
Finally, the district court acknowledged that although the 108-months’
sentence was harsh, the differences in the level of participation in the offense by
the individual members was minimal, and each of the defendants received a
significant amount of the known fraud proceeds. Much of that money is still
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unaccounted for, and the amount was substantial with respect to each of the
defendants.
In conclusion, we hold that the sentences were reasonable. For the
foregoing reasons, we affirm the defendants’ sentences.
AFFIRMED.
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