            Case: 13-14347   Date Filed: 07/25/2014   Page: 1 of 8


                                                      [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14347
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:10-cr-20183-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JORGE ALIPIO PEREZ VILLA,

                                                          Defendant-Appellant.

                       ________________________

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

                              (July 25, 2014)

Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
                Case: 13-14347       Date Filed: 07/25/2014       Page: 2 of 8


       Jorge Alipio Perez Villa appeals his 47-month sentence, imposed after he

pleaded guilty to one count of healthcare fraud, in violation of 18 U.S.C. § 1347.

He contends that even though the government did not request a one-point offense

level reduction under U.S.S.G. § 3E1.1(b), the district court erred by not granting

him one. 1

                                               I.

       Perez Villa and the government entered into a written plea agreement that

specifically addressed “Acceptance of Responsibility.” The agreement provided:

       Upon compliance with Paragraph 8 hereto, the defendant’s offense
       level shall be decreased by three (3) levels pursuant to [U.S.S.G.]
       Sections 3E1.1(a) and 3E1.1(b) because the defendant has clearly
       demonstrated acceptance of responsibility for his offense and assisted
       authorities in the investigation and prosecution of his own misconduct
       by notifying authorities of his intention to enter a plea of guilty.

Paragraph 8, the part of the agreement that Perez Villa was required to comply

with in order to trigger the government’s obligation to move for an acceptance of

responsibility reduction, stated:

       [The government] agrees that it will recommend at sentencing that the
       Court reduce by two levels the sentencing guideline level applicable
       to the defendant’s offense, pursuant to Section 3E1.1(a) of the
       Sentencing Guidelines, based upon the defendant’s recognition and
       affirmative and timely acceptance of responsibility. If at the time of
       sentencing the defendant’s offense level is determined to be 16 or
       greater, [the government] will file a motion requesting an additional
       one level decrease pursuant to Section 3E1.1(b) of the Sentencing

       1
       Perez Villa also contends that the sentence appeal waiver provision in his written plea
agreement is invalid. That issue is moot.
                                               2
              Case: 13-14347      Date Filed: 07/25/2014   Page: 3 of 8


      Guidelines, stating that the defendant has assisted authorities in the
      investigation or prosecution of the defendant’s own misconduct . . . .
      [The government] further agrees to recommend that the defendant be
      sentenced at the low end of the guideline range, as that range is
      determined by the Court. [The government], however, will not be
      required to make this motion and these recommendations if the
      defendant: (1) fails to make a full, accurate and complete disclosure
      to [the government] and/or the probation office of the circumstances
      surrounding the relevant offense conduct, including the whereabouts
      of the proceeds of the crime; (2) is found to have misrepresented facts
      to the government prior to entering into this plea agreement; or (3)
      commits any misconduct after entering into this plea agreement,
      including but not limited to committing a state or federal offense,
      violating any term of release, or making false statements or
      misrepresentations to any government entity or official.

(emphasis added).

      At his plea hearing, Perez Villa acknowledged that his lawyer had read the

written plea agreement to him and that he had understood and signed it. The

district court discussed the agreement and its terms in detail, telling Perez Villa

that “[u]pon compliance with Paragraph 8, your offense level should be decreased

by three levels.”

      The presentence investigation report determined that Perez Villa’s base

offense level was 6. See U.S.S.G. § 2B1.1(a)(2) (Nov. 2005). The PSR applied an

18-level increase under U.S.S.G. § 2B1.1(b)(1)(J) because the amount of loss was

between $2,500,000 and $7,000,000. Because Perez Villa had not yet provided an

acceptance of responsibility statement, the PSR did not apply any reduction for

acceptance of responsibility. With a total offense level of 24 and a criminal history


                                           3
              Case: 13-14347     Date Filed: 07/25/2014     Page: 4 of 8


category of I, the PSR calculated his guidelines range to be 51 to 63 months

imprisonment. Perez Villa later provided an acceptance of responsibility

statement, but the PSR still did not recommend any acceptance of responsibility

reduction because Perez Villa had failed to identify his “recruiter” in the fraud

scheme.

      Before his sentence hearing, Perez Villa objected to the PSR, contending

that he was entitled to the three-level reduction because he had submitted a truthful

and detailed acceptance of responsibility statement. He stated that he was “unable

to identify the name of his recruiter because he never met that person face-to-face.”

Instead, he had been “contacted by telephone and selected to participate in the

scheme . . . because he had a reputation as someone who would be willing to

commit fraud.” He also argued that his recruiter would not have wanted to be

known to him and that the government’s skepticism about his disclosures should

not undermine his entitlement to a three-level reduction.

      At the sentence hearing the government responded to Perez Villa’s

objection, arguing that his claim that he was recruited into a multi-million dollar

fraud scheme by an unknown person over the telephone was not credible. The

government stated:

      The Defendant was basically entrusted with over $3 million of fraud
      in several bank accounts. He was the sole signer and the only person
      who had access to that money.


                                          4
              Case: 13-14347     Date Filed: 07/25/2014   Page: 5 of 8


      So I can’t fathom a scenario where somebody who doesn’t know this
      Defendant is entrusting him with millions of dollars and says with a
      wink and a nod — not a handshake, because they never actually met
      — but, You’ll put your name on it but you’ll give me not just some of
      the proceeds, but the lion’s share of the proceeds, and you’ll drop it
      off in some mailbox that I designate to you.

The government went on to argue:

      I would submit to the Court that he does know exactly who that
      person is. He doesn’t want to tell us because he either is going to
      continue to be supported by this individual or it was a family member
      that he’s protecting.

      The other part of his acceptance statement that also does not ring true
      is the fact that he claims that this recruiter, who he doesn’t know, also
      told him to get out of town and to — and paid for some of his hotels
      while he was gallivanting around Central America on the
      Government’s dime.

      Why would a recruiter pay for his hotel expenses? Why? Because —
      normally, to buy loyalty: You’re not going to flip on me. You’re not
      going to tell the Government that we’re involved in this criminal
      enterprise.

      But according to the Defendant, he didn’t know the recruiter from
      Adam, couldn’t pick him out of a lineup. So that recruiter would have
      absolutely no incentive to pay for his hotel expenses because this
      Defendant, according to him, could never identify him.

      Rejecting the government’s § 3E1.1(a) argument, the court found that Perez

Villa had “provide[d] voluntary assistance to at least provide the information that

he ha[d] as to where the monies went,” and it granted him a two-level reduction for

acceptance of responsibility on that basis. The government declined to move for




                                          5
                 Case: 13-14347       Date Filed: 07/25/2014        Page: 6 of 8


the additional one-level reduction under § 3E1.1(b), however, based on Perez

Villa’s failure to identify his recruiter.

       Perez Villa argued that his timely guilty plea entitled him to the additional

one-point reduction under § 3E1.1(b). The government responded that based on

Paragraph 8 of the plea agreement, it was not required to move for an offense level

reduction because Perez Villa had failed to fully disclose the circumstances

surrounding the offense, including the location of the proceeds.

       The court found that, “based on upon the plea agreement between the

parties, and additionally 3E1.1(b), that the government can — has good cause to

not make the motion. It is not in violation of the plea agreement, nor is it in

violation of §3E1.1(b).” Based on a revised total offense level of 22, Perez Villa’s

guidelines range was 41 to 51 months imprisonment. The court sentenced him to

47 months imprisonment and ordered him to pay $616,710 in restitution.

                                                II.

       Perez Villa contends that his sentence is procedurally unreasonable because

the district court should have granted him a reduction under § 3E1.1(b) and

calculated his guidelines range accordingly. 2 Under § 3E1.1(b), if a defendant

qualifies for § 3E1.1(a)’s two-level acceptance of responsibility reduction and he


       2
         If the district court had applied that one-level reduction, despite the government’s
decision not to request it, Perez Villa’s adjusted offense level would have been 21 and his
resulting guidelines range would have been 37 to 46 months.
                                                 6
               Case: 13-14347     Date Filed: 07/25/2014   Page: 7 of 8


has an offense level of 16 or higher before that reduction is applied, he is eligible

for another one-level reduction in his offense level. U.S.S.G. § 3E1.1(b). He is

eligible for that reduction, however, only “upon motion of the government stating

that the defendant has assisted authorities in the investigation or prosecution of his

own misconduct by timely notifying authorities of his intention to enter a plea of

guilty, thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources efficiently.” Id.

The commentary to § 3E1.1(b) provides, “Because the Government is in the best

position to determine whether the defendant has assisted authorities in a manner

that avoids preparing for trial, an adjustment under subsection (b) may only be

granted upon a formal motion by the Government at the time of sentencing.” Id. §

3E1.1 cmt. n.6 (emphasis added).

      In the present case, the plea agreement expressly gave the government

discretion to decline to seek any reduction based on acceptance of responsibility if

Perez Villa “fail[ed] to make a full, accurate and complete disclosure to [the

government] and/or the probation office of the circumstances surrounding the

relevant offense conduct, including the whereabouts of the proceeds of the crime.”

Perez Villa has pointed to no authority to establish that that provision is invalid or

unenforceable. Based on the provision, and the particular facts and circumstances

of this case, the government chose not to move for the § 3B1.1(b) one-level


                                           7
              Case: 13-14347     Date Filed: 07/25/2014   Page: 8 of 8


reduction. The plea agreement gave the government the authority to decide not to

move for it, and the facts and circumstances of the case clearly supported its

decision. In the absence of a motion by the government, the district court correctly

declined to apply the additional one-level reduction. See id. § 3E1.1 cmt. n.6.

      AFFIRMED.




                                          8
