United States v. Jimmy A. Soto , 399 F. App'x 498 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11306 ELEVENTH CIRCUIT
OCTOBER 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-20420-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY A. SOTO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 7, 2010)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Jimmy A. Soto appeals his convictions and total sentence of 140 months’
imprisonment imposed after a jury found him guilty of one count of conspiracy to
commit health care fraud and seven counts of health care fraud, in violation of 18
U.S.C. §§ 1347 and 1349 (Counts 1-8), and one count of conspiracy to commit
money laundering and four counts of money laundering, in violation of 18 U.S.C.
§ 1915(a)(1)(B)(i) and (h) (Counts 9-12 and 14). In general, the Government
initiated charges against Soto, Eliades Diaz, Leonardo Lozada, and Jose Claro for
their involvement in operating Med-Pro Miami (“Med-Pro”), a company
established to provide health care products and services but defrauded Medicare by
accepting payments without providing such products and services. Soto
challenges his convictions on three grounds, and his sentences as unreasonable.
I.
A.
First, Soto argues that the district court erred by denying his motions for
judgment of acquittal. He contends that the Government failed to present
sufficient evidence to support his convictions because it did not introduce evidence
that he came to an agreement with at least one other individual to commit an illegal
act. In this respect, he asserts that his mere presence and participation in various
meetings and telephone conversations was insufficient, even if he knew of the
criminal conduct. Instead, he claims that the evidence only established an
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agreement between Diaz and the individual who allegedly submitted the fraudulent
claims to Medicare.
We review the denial of a motion for a judgment of acquittal de novo.
United States v. Evans, 473 F.3d 1115, 1118 (11th Cir. 2006). “When the motion
raises a challenge to the sufficiency of the evidence, we review the sufficiency of
the evidence de novo, drawing all reasonable inferences in the government’s
favor.” Id. (quotation omitted). “To affirm the denial, we need determine only that
a reasonable factfinder could conclude that the evidence established the
defendant’s guilt beyond a reasonable doubt.” Id. (quotation and ellipsis omitted).
Finally, in the context of a motion for acquittal, all “credibility choices are made in
favor of the jury verdict,” and the government’s “evidence need not exclude every
reasonable hypothesis of innocence.” United States v. Ramsdale, 61 F.3d 825,
828-29 (11th Cir. 1995).
In general, “[a] conspiracy is an agreement between two or more persons to
accomplish an unlawful plan.” United States v. Chandler, 388 F.3d 796, 805 (11th
Cir. 2004). “What distinguishes the offense of conspiracy from a substantive
offense, is that agreement is the essential evil at which the crime of conspiracy is
directed.” Id. at 806 (quotation omitted). “Thus the government must prove the
existence of an agreement to achieve an unlawful objective and the defendant’s
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knowing participation in that agreement.” Id.“Because the essential nature of conspiracy is secrecy, a conspiracy
conviction may be proved by circumstantial evidence.” Id. Nevertheless, “[s]ince
no one can be said to have agreed to a conspiracy that they do not know exists,
proof of knowledge of the overall scheme is critical to a finding of conspiratorial
intent.” “The government, therefore, must prove beyond a reasonable doubt that
the conspiracy existed, that the defendant knew about it and that he voluntarily
agreed to join it.” Id. But, “[a] defendant may be found guilty of conspiracy if the
evidence demonstrates that he knew the ‘essential objective’ of the conspiracy,
even if he did not know all its details or played only a minor role in the overall
scheme.” United States v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002). Finally,
where a defendant is a member of a conspiracy, the defendant is criminally liable
for his co-conspirator’s reasonably foreseeable crimes committed during the course
of and in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640,
645-48, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946); United States v. Broadwell,
870 F.2d 594, 602 n.18 (11th Cir. 1989).
A. Counts 1-8
Section 1347 of Title 18 of the U.S. Code provides:
(a) Whoever knowingly and willfully executes, or attempts to execute,
a scheme or artifice- -
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(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property
owned by, or under the custody or control of, any health care
benefit program,
in connection with the delivery of or payment for health care benefits,
items, or services, shall be fined under this title or imprisoned . . . .
18 U.S.C. § 1347. Furthermore, 18 U.S.C. § 1349 punishes any person who
attempts or conspires to commit a violation of § 1347, and it subjects any
violations “to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.”
Drawing all inferences in the Government’s favor and making all credibility
determinations in favor of the jury’s verdict, a reasonable factfinder could conclude
that Soto both conspired to commit health care fraud and committed health care
fraud as a result of his participation in the conspiracy. The testimony of Lozado,
Diaz, and Claro, who appeared as prosecution witness, was particularly damaging.
Claro was the nominal owner and president of Med-Pro; the real owners of the
company were Diaz, and Soto (and an unindicted co-conspirator). Med-Pro never
provided any patients with medical equipment and no physician ever ordered any;
yet, between the Fall of 2005 and the Spring of 2006, it submitted $5.4 million of
false claims to Medicare. In response, Medicare paid Med-Pro approximately
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$1.35 million. The evidence that Soto was aware of the fraudulent claims and a
co-conspirator with the others was overwhelming. We therefore hold that the
district court did not err in denying Soto’s motions for judgment of acquittal on
Counts 1-8.
B. Counts 9-12, 14
In order to convict a defendant for money laundering in violation of
§ 1956(a)(1)(B)(i), the government must show that:
(1) the defendant conducted or attempted to conduct a financial
transaction; (2) the transaction involved the proceeds of a statutorily
specified unlawful activity; (3) the defendant knew the proceeds were
from some form of illegal activity; and (4) the defendant knew a
purpose of the transaction was to conceal or disguise the nature,
location, source, ownership, or control of the proceeds.
United States v. Miles, 290 F.3d 1341, 1354-55 (11th Cir. 2002). Under 18 U.S.C.
§ 1956(h), “[a]ny person who conspires to commit any offense defined in [section
1956] . . . shall be subject to the same penalties as those prescribed for the offense
the commission of which was the object of the conspiracy.” Where a conspiracy is
charged, the government also “has the burden of showing that . . . [the defendant]
conspired to launder or engage in a monetary transaction involving the ‘proceeds
of specified unlawful activity . . . .’” United States v. Khanani, 502 F.3d 1281,
1295 (11th Cir. 2007).
Drawing all inferences in the Government’s favor and making all credibility
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determinations in favor of the jury’s verdict, a reasonable factfinder could conclude
that Soto both conspired to commit money laundering and committed money
laundering as charged in the indictment. At trial, the Government presented
evidence that, after Soto and Diaz agreed that they needed to conceal their
involvement in Med-Pro and the fraud, they recruited several individuals to cash
Med-Pro checks. The checks allowed the conspirators to obtain the money paid by
Medicare to Med-Pro and they were written by Soto and Diaz to appear as though
they were for legitimate business purposes. We find no basis for holding that the
district court erred in denying Soto’s motions for judgment of acquittal on Counts
9-12 and 14.
B.
Soto challenges several evidentiary rulings as contrary to the Federal Rules
of Evidence. He contends, among other things, that the district court admitted
hearsay evidence and rejected his requests for curative instructions. In particular,
the court permitted the prosecutor to elicit irrelevant, prejudicial testimony. The
courts erroneous rulings, he says, considered both individually and cumulatively,
denied him a fair trial.
“We review a district court’s evidentiary rulings for abuse of discretion.”
United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). In addition, “[w]e
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review preserved evidentiary objections for harmless error.” Id. Non-
constitutional errors are considered harmless:
if, viewing the proceedings in their entirety, a court determines that
the error did not affect the verdict, or had but very slight effect. If one
can say with fair assurance that the judgment was not substantially
swayed by the error, judgment is due to be affirmed even though there
was error.
United States v. Jones, 601 F.3d 1247, 1264 (11th Cir. 2010) (quotation omitted).
Where a defendant alleges cumulative error, “[t]he harmlessness of cumulative
error is determined by conducting the same inquiry as for individual error—courts
look to see whether the defendant’s substantial rights were affected.” Baker, 432
F.3d at 1223 (quotation omitted).
In general, Rule 602 provides that, subject to the rules governing opinion
testimony and expert witnesses, “[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” Moreover, Rule 701 provides that, for opinion
witnesses not testifying as experts,
the witness’ testimony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Finally, under Rule 704(a), testimony in the form of an opinion or inference, that is
8
otherwise admissible, is not objectionable merely “because it embraces an ultimate
issue to be decided by the trier of fact.”
In terms of hearsay, Rule 802 states that “[h]earsay is not admissible except
as provided by these rules or by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.” Hearsay is defined as “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.” Fed. R.
Evid. 801(c). A statement is not hearsay if the statement is offered against a party,
and the statement is the party’s own statement or the statement is made by the
party’s co-conspirator during the course and in furtherance of the conspiracy. Fed.
R. Evid. 801(d)(2)(A) and (E).
“[T]he cumulative effect of several errors that are harmless by themselves
could so prejudice the defendant’s right to a fair trial that a new trial might be
necessary.” United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th
Cir.1993). “In addressing a claim of cumulative error, we must examine the trial
as a whole to determine whether the appellant was afforded a fundamentally fair
trial.” United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
Nevertheless, when a defendant cannot demonstrate any individual errors, “no
cumulative errors can exist.” United States v. Waldon, 363 F.3d 1103, 1110 (11th
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Cir. 2004).
We have examined each of the evidentiary rulings Soto challenges in his
brief and conclude that none of the rulings constituted an abuse of discretion. We
therefore find no cause for setting aside his convictions and granting him a new
trial.
C.
Soto argues that the prosecutor improperly shifted the burden of proof to
him during its closing argument to the jury; hence, the court should have declared a
mistrial.
We review a district court’s decision not to grant a mistrial for abuse of
discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). A
defendant must show substantial prejudice in order to be granted a mistrial. United
States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). Substantial prejudice
“occurs when there is a reasonable probability that, but for the remarks, the
outcome of the trial would have been different.” Newsome, 475 F.3d at 1227.
In general, it is prosecutorial misconduct for a prosecutor to make comments
that prejudicially shift the burden of proof to the defendant. United States v.
Simon, 964 F.2d 1082, 1086 (11th Cir. 1992). “Such prosecutorial misconduct, if
so pronounced and persistent that it permeates the entire atmosphere of the trial,
10
requires reversal.” Id. (quotation omitted). Consequently, “prosecutors must
refrain from making burden-shifting arguments which suggest that the defendant
has an obligation to produce any evidence or to prove innocence.” Id. Finally,
even if a prosecutor makes statements that could have resulted in shifting the
burden of proof to the defendant, the errors can be cured by a court’s instructions
regarding the burden of proof since the jury is presumed to follow jury
instructions. Id. at 1087.
Soto cites two of the prosecutor’s statements in support of his argument that
the prosecutor shifted the burden of proof to him. He refers first to the
prosecutor’s characterization of his defense as an effort to “distract” the jury from
properly considering the Government’s evidence. We fail to understand how this
statement somehow shifted the burden of proof. Next, he refers to the prosecutor’s
response to his attack on the credibility of Diaz, Claro, and Lozada. All the
prosecutor did was to say that Soto’s attorney failed to show where any of these
witnesses told the jury a “lie.” Again, we fail to find any impropriety in the
comment. Nevertheless, even if we were to assume that the prosecutor did attempt
to shift the burden, the court instructed the jury that the Government had the
burden to prove Soto guilty beyond a reasonable doubt, that Soto was presumed
innocent, and that Soto was not required to prove his innocence or produce any
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evidence at all. In sum, we find no merit in Soto’s burden-shifting argument.
II.
Soto argues that his total sentence is procedurally and substantively
unreasonable. First, he contends that his sentence is procedurally unreasonable
because the court erred in calculating his applicable Guidelines sentencing range in
several respects. Second, he asserts that his sentence is substantively unreasonable
because he was entitled to a total sentence below the sentencing range.
Although the Sentencing Guidelines are now advisory after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005), the district courts are still required to calculate the advisory
guidelines range correctly. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.
2008). At sentencing, the government has the burden to both prove the
applicability of guidelines that enhance a defendant’s sentence and to establish
disputed facts by a preponderance of the evidence. United States v. Polar, 369
F.3d 1248, 1255 (11th Cir. 2004). “The district court’s factual findings for
purposes of sentencing may be based on, among other things, evidence heard
during trial, undisputed statements in the PSI, or evidence presented during the
sentencing hearing.” Id.We review the reasonableness of a sentence under an abuse of discretion
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standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594, 169 L.Ed.2d
445 (2007). A defendant challenging his sentence bears the burden of establishing
that it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
On appeal, the analysis of the reasonableness of a sentence is a two-step process.
Pugh, 515 F.3d at 1190. First, we examine whether the district court committed
any significant procedural error. Second, after it has been determined that a
sentence is procedurally sound, we review the sentence’s substantive
reasonableness. Id.When reviewing for procedural reasonableness, we ensure that the district
court committed no significant procedural error, such as: (1) improperly
calculating the defendant’s sentencing range; (2) treating the Guidelines as
mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4) selecting the
sentence based on clearly erroneous facts; or (5) failing to adequately explain the
chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.
On the other hand, a sentence is substantively unreasonable “if it does not
achieve the purposes of sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191(quotation omitted). The § 3553(a) factors are:
(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, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
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protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The weight the district court
accords to “any given § 3553(a) factor is a matter committed to the sound
discretion of the district court . . . .” United States v. Amedeo, 487 F.3d 823, 832
(11th Cir. 2007) (quotation omitted). Moreover, there is an expectation of
reasonableness when a district court imposes a sentence within the applicable
guidelines range. Talley, 431 F.3d at 788.
A. Whether Soto’s total sentence is procedurally unreasonable
1. Loss amount under U.S.S.G. § 2B1.1(b)(1)
Soto argues that the court incorrectly calculated his loss amount under
§ 2B1.1(b)(1). In this respect, he contends that the court made insufficient findings
as to loss; he says that the proper loss amount was the actual loss of approximately
$1.3 million Medicare suffered because nothing in the record indicates that he
intended losses of around $4.5 million.
“A district court’s determination regarding the amount of loss for sentencing
purposes is reviewed for clear error.” United States v. Medina, 485 F.3d 1291,
1303 (11th Cir. 2007) (quotation omitted). Overall, the court needs only to “make
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a reasonable estimate of the loss amount.” U.S.S.G. § 2B1.1, comment. (n.3(C)).
Moreover, the court’s loss determination is entitled to deference because “[t]he
sentencing judge is in a unique position to assess the evidence and estimate the loss
based upon the evidence.” Id. Nevertheless, a court cannot speculate concerning
the existence of a fact that permits a more severe sentence under the Guidelines.
United States v. Patterson, 595 F.3d 1324, 1327 (11th Cir. 2010).
“When the district court determines the loss calculation under the
Guidelines, ‘the loss is the greater of actual loss or intended loss.’” United States
v. Hoffman-Vaile, 568 F.3d 1335, 1343 (11th Cir. 2009) (quoting U.S.S.G.
§ 2B1.1, comment. (n.3(A))). “‘Actual loss’ means the reasonably foreseeable
pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1, comment.
(n.3(A)(i)). On the other hand, “intended loss” is the monetary harm “that was
intended to result from the offense.” Id., comment. (n.3(A)(ii)).
Furthermore, U.S.S.G. § 1B1.3(a)(1) provides that for “jointly undertaken
criminal activity,” a defendant’s base offense level shall be determined based on
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity,” that occurred during the preparation for,
commission of, or in the course of attempting to avoid detection or responsibility
for the offense of conviction. U.S.S.G. § 1B1.3(a)(1). Thus, where losses result
15
from a conspiracy, “the district court may hold all participants in a conspiracy
responsible for the losses resulting from the reasonably foreseeable acts of co-
conspirators in furtherance of the conspiracy.” United States v. Dabbs, 134 F.3d
1071, 1082 (11th Cir. 1998).
Soto has not demonstrated that the district court clearly erred by finding that
the loss amount for his fraud was $4.3 million. Soto has failed to establish that it
was not reasonably foreseeable that Med-Pro would submit $4.3 million in
collectible claims to Medicare, which is greater than the amount of the actual loss.
Thus, as a member of the conspiracy, he was responsible for Med-Pro’s reasonably
foreseeable actions taken in furtherance of the conspiracy and the larger intended
loss amount of $4.3 million.
2. Sophisticated means enhancement under U.S.S.G.
§ 2B1.1(b)(9)(C)
Soto argues that the court improperly applied a two-level enhancement for
use of sophisticated means, pursuant to § 2B1.1(b)(9)(C). Specifically, he
contends that there was nothing especially complex or intricate about the
conspirators’ fraud and that it is “difficult to imagine” a less complex scheme to
commit health care fraud. In addition, he claims that nothing in regard to the
money-laundering scheme was sophisticated because the conspirators merely used
individuals to cash checks and they did not even take precautions to avoid bank
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security cameras.
We review a district court’s finding that a defendant utilized sophisticated
means for clear error. United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.
2010). The Guidelines provide for an enhancement of two levels if the offense in
question “involved sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C). Application
note 8(B) to that Guideline states that:
“sophisticated means” means especially complex or especially
intricate offense conduct pertaining to the execution or concealment of
an offense. For example, in a telemarketing scheme, locating the
main office of the scheme in one jurisdiction but locating soliciting
operations in another jurisdiction ordinarily indicates sophisticated
means. Conduct such as hiding assets or transactions, or both,
through the use of fictitious entities, corporate shells, or offshore
financial accounts also ordinarily indicates sophisticated means.
U.S.S.G. § 2B1.1, comment. (n.8(B)). “There is no requirement that each of a
defendant’s individual actions be sophisticated in order to impose the
enhancement. Rather, it is sufficient if the totality of the scheme was
sophisticated.” Ghertler, 605 F.3d at 1267.
Soto has not demonstrated that the district court clearly erred by finding that
his offenses involved the use of sophisticated means. At trial, the Government
presented evidence that, after Soto invested in Med-Pro, he worked to appoint
Claro as Med-Pro’s nominee owner in order to conceal his involvement in the
fraud. In addition, Soto recruited several individuals to cash Med-Pro checks so
17
that they could further conceal his involvement. Based on this evidence, the
district court did not clearly err in finding that the conspiracy employed
sophisticated means.
3. Soto’s role in the offenses under U.S.S.G. §§ 3B1.1 and 3B1.2
Soto contends that the court clearly erred by applying a three-level increase
under § 3B1.1(b) for being a manager or a supervisor, because the evidence merely
indicated that he utilized a few acquaintances to cash checks and nothing suggested
that he gave orders or recruited any individuals into the overall conspiracy. Soto
asserts that the evidence indicated that others were the managers or organizers, and
thus, the court should have granted him a two-level minor-role reduction instead.
A district court’s determination of a defendant’s role in an offense is a
finding of fact that we review for clear error. United States v. De Varon, 175 F.3d
930, 937 (11th Cir. 1999) (en banc). Under U.S.S.G. § 3B1.1(b), a defendant
receives a three-level increase in his offense level “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise extensive . . . .” A
“‘participant’ is a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).
Factors that a court should consider in determining whether an aggravating-role
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increase applies include:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
Id., comment. (n.4).
Conversely, a mitigating-role reduction under U.S.S.G. § 3B1.2 is available “for a
defendant who plays a part in committing the offense that makes him substantially
less culpable than the average participant.” U.S.S.G. § 3B1.2, comment. (n.3(A)).
Under § 3B1.2(b), a two-level reduction for playing a minor role is appropriate if
the defendant is “less culpable than most other participants, but whose role could
not be described as minimal.” Id. § 3B1.2, comment. (n.5).
Soto fails to demonstrate that the court’s finding as to his role in the offense
was clear error. At trial, the Government presented evidence that, after Soto
invested in Med-Pro, he and Diaz appointed Claro as a nominee owner, directed
Claro’s actions, recruited several individuals to cash Med-Pro checks, and directed
those individuals in cashing checks. Thus, not only was the three-level increase for
being a manager or supervisor appropriate, Soto has failed to demonstrate that the
court clearly erred by denying him a two-level minor-role reduction.
4. Obstruction of justice under U.S.S.G. § 3C1.1
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Soto argues that he should not have received a two-level increase for
obstruction of justice under § 3C1.1. Soto asserts that his statement during an
interview with the FBI misidentifying Claro in a picture as someone else, did not
amount to obstruction of justice because the evidence indicated that Soto actually
believed his identification was true.
When a district court imposes an obstruction-of-justice enhancement, we
review the district court’s findings of fact for clear error and the application of
those facts to the Sentencing Guidelines de novo. United States v. Massey, 443
F.3d 814, 818 (11th Cir. 2006). The Sentencing Guidelines provide that:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. One example of conduct covered by § 3C1.1 includes
“providing a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation or prosecution of the
instant offense.” Id. § 3C1.1, comment. (n.4(g)). An example of conduct not
ordinarily covered by § 3C1.1 includes “making false statements, not under oath,
to law enforcement officers, unless Application Note 4(g) . . . applies.” Id.
§ 3C1.1, comment. (n.5(b)).
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Soto fails to show that the district court erred by finding that a two-level
obstruction-of-justice enhancement applied. The Government presented evidence
that he intentionally misidentified a picture of Claro as depicting someone else.
After Soto’s misidentification, the FBI investigated and interviewed the person
Soto identified to determine whether he had any involvement in the fraud. Because
Soto’s misidentification impeded the investigation of the fraud, the two-level
enhancement was proper.
5. Evidentiary errors
Soto argues that the court erred by allowing, over his objections, irrelevant
evidence, hearsay, and testimony that violated the Sixth Amendment’s
Confrontation Clause. Furthermore, in a footnote, he submits that his sentence
violates the Fifth Amendment because the facts supporting his enhancements were
not charged in his indictment, and he cites law suggesting that his sentence
enhancements violate the Sixth Amendment because they were not found by a jury.
In general, at sentencing, a court:
may consider any information, (including hearsay), regardless of its
admissibility at trial, in determining whether factors exist that would
enhance a defendant’s sentence, provided that the evidence has
sufficient indicia of reliability, the court makes explicit findings of
fact as to credibility, and the defendant has an opportunity to rebut the
evidence.
Baker, 432 F.3d at 1253. Furthermore, we have stated that the Supreme Court’s
21
decision in Crawford1 did not address a sentencing court’s use of hearsay and our
decision “that a sentencing court may base sentencing determinations on reliable
hearsay is still good law.” Id. at 1254 n.68; see also United States v. Cantellano,
430 F.3d 1142, 1146 (11th Cir. 2005) (“The right to confrontation is not a
sentencing right.”). Finally, there is no violation of the Fifth and Sixth
Amendments where a district court “find[s] facts at sentencing so long as the
judicial factfinding does not increase the defendant’s sentence beyond the statutory
maximum triggered by the facts conceded or found by a jury beyond a reasonable
doubt.” Ghertler, 605 F.3d at 1268 (quotation omitted).
Soto has failed to demonstrate that the court committed any evidentiary
errors at sentencing. First, because a court can rely on any information at
sentencing, provided that the evidence has sufficient indicia of reliability, the court
makes sufficient findings as to credibility, and the defendant has the opportunity to
rebut the evidence, Soto’s mere assertion that court erred by allowing irrelevant
evidence and hearsay does not establish error. Furthermore, because the right to
confrontation does not apply at sentencing, and Soto was not sentenced beyond the
statutory maximum, he has not establish a violation of the Fifth and Sixth
Amendments. Accordingly, we affirm as to this issue.
1
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).
22
B. Whether Soto’s total sentence is substantively unreasonable
Soto argues that his total sentence is substantively unreasonable because a
downward variance from his applicable sentencing range was appropriate. First,
he claims that his “extraordinary family responsibilities” merit a total sentence
below the sentencing range. Second, he emphasizes that defendants in other
Medicare fraud cases have received lesser sentences, and he notes that Diaz
received a 60-month sentence, Lozada received a 46-month sentence, and Claro
received a 31-month sentence. Consequently, Soto asserts that a total sentence
below the sentencing range was necessary to avoid an unwarranted sentencing
disparity. Finally, he contends that his loss amount overstates the seriousness of
his culpability.
Soto has not shown that the district court abused its discretion by imposing a
total sentence of 140 months’ imprisonment. Because he is not similarly situated
to the other conspirators or defendants in other health care fraud cases, he cannot
establish any unwarranted sentencing disparity. Furthermore, the court determined
that the need to punish him and deter others from criminal activity outweighed
other § 3553(a) factors. Thus, his mere disagreement with this analysis does not
show that the court abused its discretion. Finally, Soto’s sentence falls within the
Guidelines sentencing range, a sentence that we normally expect to be reasonable.
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In sum, he fails to establish that his total sentence is substantively unreasonable.
Conclusion
For the reasons we have stated, Soto’s convictions and sentences are
AFFIRMED.
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