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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10095
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20453-UU-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ILEANA RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 12, 2020)
Before JORDAN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM:
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Ileana Rodriguez challenges her 121-month total sentence for one count of
conspiracy to commit health care fraud and wire fraud, in violation of 18 U.S.C.
§§ 1343, 1347, 1349, and two counts of money laundering, in violation of 18
U.S.C. §§ 2, 1957. Rodriguez asserts the district court clearly erred when it
applied a two-level enhancement to her Guidelines range because it found her
conduct to further the health care fraud constituted sophisticated means.
Rodriguez also contends the district court erred when it applied enhancements for
both sophisticated means and her role as a manager or supervisor because applying
both would constitute double counting. Finally, Rodriguez argues her within-
Guidelines 121-month total sentence was substantively unreasonable because she
received a greater sentence than her more culpable codefendant. After review, we
affirm Rodriguez’s sentence.
I. DISCUSSION
A. Sophisticated Means Enhancement
A defendant’s offense level is enhanced by two levels if the offense involved
sophisticated means and the defendant intentionally engaged in or caused the
conduct constituting sophisticated means. U.S.S.G. § 2B1.1(b)(10)(C).
“Sophisticated means” means “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.”
Id. § 2B1.1,
comment. (n.9(B)). Examples of sophisticated means listed in the commentary
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include hiding assets or transactions, or both, using fictitious entities, corporate
shells, or offshore financial accounts.
Id. However, the application notes do not
limit the ways in which a defendant could use sophisticated means to conceal her
crime. See United States v. Clarke,
562 F.3d 1158, 1165 (11th Cir. 2009).
The district court must examine the totality of the defendant’s conduct
because there is no requirement that each individual action the defendant took was
sophisticated. United States v. Ghertler,
605 F.3d 1256, 1267 (11th Cir. 2010).
Repetitive, coordinated conduct to further and conceal a fraud scheme supports a
sophisticated-means enhancement. United States v. Bane,
720 F.3d 818, 826-27
(11th Cir. 2013). Furthermore, the length of time that the conduct goes undetected
and the amount of loss inflicted can reflect on the sophistication of the scheme.
United States v. Feaster,
798 F.3d 1374, 1381 (11th Cir. 2015). Also, the use of
inside information is a factor supporting sophisticated means.
Id. at 1382. We
have upheld the imposition of a sophisticated-means enhancement where the
scheme to defraud Medicare consisted of: (1) submitting fraudulent claims to
Medicare; (2) offering, paying, or receiving kickbacks for recruiting Medicare
beneficiaries; (3) paying kickbacks to patients; (4) concealing the submission of
fraudulent claims to Medicare; and (5) diverting the fraud proceeds for personal
use. United States v. Moran,
778 F.3d 942, 951, 977 (11th Cir. 2015).
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The district court did not clearly err in finding that Rodriguez’s offense
involved sophisticated means. See United States v. Sosa,
777 F.3d 1279, 1300
(11th Cir. 2015) (stating we review for clear error a district court’s finding that an
offense involved sophisticated means). It was undisputed that Rodriguez was an
owner of Aqua Pharma, Inc. and employee of Caribbean Pharmacy, Inc., which
were both involved in a conspiracy to defraud Medicare. Rodriguez’s conduct
during the conspiracy consisted of: (1) paying patients and patient recruiters in
cash for fraudulent prescription referrals; (2) submitting claims to Medicare for
drugs that were never dispensed; and (3) selling the drugs to a reverse distributing
company to deceive insurance company audits. The district court considered the
use of a reverse distributing company as strong evidence of sophisticated means
because that company’s use was all about concealing fraud from the government.
Collectively, these actions show Rodriguez’s intricate offense conduct furthered
and concealed the fraud. See U.S.S.G. § 2B1.1, comment. (n.9(B));
Moran, 778
F.3d at 951, 977. The sophisticated means of the conspiracy is also evidenced by
Rodriguez’s inside knowledge as a licensed pharmacy technician. See
Feaster,
798 F.3d at 1382. Further, the finding of sophisticated means is supported by
Rodriguez’s efforts to further the fraud over the course of 6 years without detection
using repetitive and coordinated conduct, including continual cash payments to the
criminal participants, and her responsibility for a loss of $6,595,845. See Feaster,
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798 F.3d at 1381;
Bane, 720 F.3d at 826-27. Therefore, it was not clear error for
the district court to determine that Rodriguez’s conduct, especially the use of a
reverse distributing company to conceal the fraud, justified applying the
sophisticated-means enhancement. See
Sosa, 777 F.3d at 1300 (explaining clear-
error review is deferential, and we will not disturb a district court’s findings unless
we are left with a definite and firm conviction that a mistake has occurred).
B. Manager or Supervisor Enhancement
Under § 3B1.1(b), a defendant’s offense level is enhanced by three levels if
the defendant was a manager or supervisor and the offense involved five or more
participants or was otherwise extensive. U.S.S.G. § 3B1.1(b). In determining
whether an aggravating-role increase applies, the district court should consider the
exercise of decision-making authority, the nature of participation in the offense, the
recruitment of accomplices, the claimed right to larger shares of fruits of the crime,
the participation in organizing the offense, the nature and scope of the offense, and
the control and authority exercised over others.
Id. § 3B1.1, comment. (n.4).
Aggravating-role adjustments are imposed based on the size of the criminal
organization and the degree to which the defendant was responsible for committing
the offense.
Id. § 3B1.1, comment. (backg’d.).
Impermissible double counting occurs when one part of the Guidelines is
applied to increase a defendant’s punishment for a harm that has already been fully
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accounted for by the application of another part of the Guidelines. United States v.
Dudley,
463 F.3d 1221, 1226-27 (11th Cir. 2006). We presume the U.S.
Sentencing Commission intended separate sections to apply cumulatively, unless
specifically directed otherwise.
Id. at 1227.
Because Rodriguez is arguing that applying the enhancements for her role as
a manager or supervisor and sophisticated means constituted double counting for
the first time on appeal, this Court should review her argument only for plain error.
See United States v. Lange,
862 F.3d 1290, 1293 (11th Cir. 2017) (stating when a
party did not raise an issue before the district court, we review only for plain error).
Rodriguez cannot show plain error. The explicit language of the Guidelines
does not prohibit the application of both enhancements simultaneously, nor is there
an opinion from this Court or the Supreme Court stating that the application of
both enhancements in this situation is impermissible double counting. See United
States v. Hesser,
800 F.3d 1310, 1325 (11th Cir. 2015) (stating “where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it”). Thus, there can be no plain error.
Furthermore, the two enhancements address different harms because the
sophisticated-means enhancement pertains to the execution or concealment of an
offense, while the aggravating-role enhancement pertains to the size of the criminal
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organization and degree to which the defendant was responsible. See U.S.S.G.
§§ 2B1.1., comment. (n.9(B)), 3B1.1., comment. (backg’d). The district court
addressed the two enhancements as different harms here. And this Court must
presume the Guidelines apply cumulatively. See
Dudley, 463 F.3d at 1227.
Finally, this Court has previously affirmed a sentence that applied both the
manager or supervisor enhancement and the sophisticated-means enhancement.
See
Sosa, 777 F.3d at 1300-02. Therefore, the district court did not plainly err
when it applied both enhancements in calculating Rodriguez’s Guidelines range.
C. Reasonableness
The district court must impose a sufficient sentence that is not greater than
necessary to satisfy the purposes listed in § 3553(a)(2), including the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a
particular sentence, the district court must also consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable Guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims.
Id.
§ 3553(a)(1), (3)-(7). The weight given to any specific § 3553(a) factor is
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committed to the sound discretion of the district court. United States v. Clay,
483
F.3d 739, 743 (11th Cir. 2007).
A claim based on unwarranted sentencing disparities assumes that the
defendants have similar records and have been found guilty of similar conduct.
United States v. Docampo,
573 F.3d 1091, 1101-02 (11th Cir. 2009). Defendants
who cooperate with the government and plead guilty are not similarly situated to
defendants who provide no assistance and proceed to trial.
Id. at 1101. A
defendant cannot steadfastly withhold cooperation from the government and then
complain when a codefendant benefits from rendering assistance to the
government.
Id.
The district court imposed a substantively reasonable total sentence because
it considered and balanced the proper factors, including the need to avoid
unwarranted sentencing disparities. While co-defendant Maria Inda played a
greater role in the conspiracy than Rodriguez, they were not similarly situated. See
Docampo, 573 F.3d at 1101-02. Inda pled guilty, received a reduction in her
Guidelines range for her timely acceptance of responsibility, cooperated with the
Government, and was willing to testify. In contrast, Rodriguez provided no
assistance to the Government and had a jury trial. Therefore, the district court’s
imposition of a total sentence more severe for Rodriguez than Inda was not
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unwarranted, even if Inda did play more of a leadership role than Rodriguez. See
Docampo, 573 F.3d at 1101.
Furthermore, the record indicates the district court considered the statements
of the parties, the PSI, the Guidelines range, and the statutory factors in sentencing
Rodriguez. See United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009)
(stating in considering the substantive reasonableness of a sentence, we consider
the totality of the circumstances and whether the sentence achieves the sentencing
purposes stated in § 3553(a)). It was within the court’s discretion to sentence
Rodriguez to provide sufficient punishment and deterrence. And the district court
sentenced Rodriguez to a term at the bottom of the Guidelines range and well
below the statutory maximum for the conspiracy charge, both of which indicate the
sentences were reasonable. See United States v. Stanley,
739 F.3d 633, 656 (11th
Cir. 2014) (stating we ordinarily expect a sentence falling within the Guidelines
range to be reasonable and a sentence imposed well below the statutory maximum
penalty also indicates a reasonable sentence). Accordingly, the court did not abuse
its discretion because Rodriguez’s within-Guidelines 121-month total sentence was
substantively reasonable. See Gall v. United States,
552 U.S. 38, 51 (2007)
(reviewing the substantive reasonableness of a sentence for an abuse of discretion).
II. CONCLUSION
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The district court did not clearly err when it applied the sophisticated-means
enhancement because Rodriguez’s actions to further and conceal the fraud
constituted intricate offense conduct, especially her use of a reverse distributing
company. Next, the district court did not plainly err when it applied both the
sophisticated-means enhancement and the aggravating-role enhancement for
Rodriguez’s role as a manager or supervisor because the Guidelines do not forbid
it, and there is no case from this Court or the Supreme Court directly resolving the
issue. Finally, Rodriguez’s sentences were also substantively reasonable because
there was no unwarranted disparity between Rodriguez’s and her codefendant’s
sentences where they were not similarly situated. Accordingly, we affirm
Rodriguez’s sentences.
AFFIRMED.
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