                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                       FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                 JANUARY 14, 2008
                             No. 07-11144        THOMAS K. KAHN
                                                      CLERK
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket No. 06-80133-CR-DTKH

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                  versus

JOSE LUIS FERREIRO,

                                                 Defendant-Appellant.


                       ________________________

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


                            (January 14, 2008)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Jose Luis Ferreiro appeals his 57-month sentence for one count of

conspiracy to pay kickbacks and six counts of paying kickbacks, for referrals of

Medicare patients, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a-

7b(b)(2)(A) and (B). Ferreiro argues that the district court (1) erred in applying an

enhancement under U.S.S.G. § 2B1.1(b)(1) based on the amount of loss caused

Medicare, as he was not convicted of filling fraudulent prescriptions for Medicare

patients, such that his offense did not cause the government a loss; and (2) imposed

an unreasonable sentence. For the reasons discussed below, we affirm.

                            I. § 2B1.1(b)(1) Enhancement

      We normally review the sentencing court’s findings of fact for clear error

and application of those facts to the Sentencing Guidelines de novo. United States

v. Liss, 265 F.3d 1220, 1227 (11th Cir. 2001). However, when a defendant raises a

sentencing objection for the first time on appeal, as here, we review for plain error.

United States v. Dorman, 488 F.3d 936, 942 (11th Cir.), cert. denied, 128 S.Ct. 427

(2007). Under this standard, the defendant first must show (1) an error, (2) that is

plain, and (3) that affected his substantial rights. United States v. Olano, 507 U.S.

725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). If the defendant

demonstrates a plain error that affected his substantial rights, we can correct the

error, but only if we find that the error seriously affected the fairness, integrity, or



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public reputation of the judicial proceedings. Id. at 732, 113 S.Ct. at 1776.

      A defendant convicted of violating § 1320a-7b may be sentenced according

to U.S.S.G. § 2B4.1. U.S.S.G. App. A. This section includes a specific offense

characteristic enhancement for the “value of the bribe” in question. See U.S.S.G.

§ 2B4.1(b)(1)(B). Specifically, when the value of the bribe in question exceeds

$5,000, § 2B4.1 directs that the defendant’s base offense level be increased

according to a table in U.S.S.G. § 2B1.1. Id. This table otherwise pertains to the

amount of loss involved in a conviction for, inter alia, fraud. See generally

U.S.S.G. § 2b1.1(b)(1). As it pertains to offenses sentenced under § 2B4.1,

however, this table directs that, when a defendant pays a bribe that is more than $1

million but less than $2.5 million, his base offense level be increased by 16.

U.S.S.G. § 2B1.1(b)(1)(I).

      Here, the district court sentenced Ferreiro under § 2B4.1. Following

§ 2B4.1(b)(1)’s instructions to use the table in § 2B1.1(b)(1) to enhance the base

offense level based on the amount of the bribe in question, it applied a specific

offense characteristic enhancement for the $1.2 million in kickbacks that Ferreiro

paid, an amount that Ferreiro does not contest. Ferreiro’s argument that the

enhancement should not have been applied because his offense conduct did not

cause Medicare a loss is without merit, as Ferreiro’s enhancement was not based



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on causing a loss to Medicare, but rather on paying a kickback, a fact that Ferreiro

does not contest.

      To the extent that Ferreiro relies on our suggestion, in United States v.

Medina, 485 F.3d 1291, 1304 (11th Cir. 2007), that a defendant guilty of paying

kickbacks should not receive a § 2B1.1(b)(1) enhancement, Ferreiro is misguided,

as, in that case, we only considered the application of the § 2B1.1(b)(1) table to a

defendant sentenced under a fraud Guideline, and said nothing of the bribe-amount

provision in § 2B4.1. Therefore, the district court did not plainly err, and we

affirm as to this issue. See Dorman, 488 F.3d at 942.

                                 II. Reasonableness

      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 sentencing court must not only

correctly calculate the guideline imprisonment range, but must treat that range as

advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d 784,

786 (11th Cir. 2005). Specifically, the district court must impose a sentence that is

both procedurally and substantively reasonable. United States v. Hunt, 459 F.3d

1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, No. 06-7949, slip op. at 12

(U.S. Dec. 10, 2007). The Supreme Court has explained that a sentence may be

procedurally unreasonable if the district court improperly calculates the guideline



                                           4
imprisonment range, treats the Guidelines as mandatory, fails to consider the

appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails

to adequately explain its reasoning. Gall, No. 06-7949, slip op. at 12. The Court

also has explained that the substantive reasonableness of a sentence is reviewed

under an abuse-of-discretion standard. Id. It has suggested that review for

substantive reasonableness under this standard involves inquiring whether the

statutory factors support the sentence in question. Id. at 17.

      These statutory factors are found in § 3553(a). Booker, 543 U.S. at 246, 125

S.Ct. at 757. Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,

promoting respect for the law, providing just punishment for the offense, deterring

criminal conduct, protecting the public from future criminal conduct by the

defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

of the offense, the history and characteristics of the defendant, the guideline

imprisonment range, and the need to avoid unwarranted sentencing disparities. See

18 U.S.C. § 3553(a)(1), (4), and (6).



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      In considering the § 3553(a) factors and explaining the reasoning behind its

choice of sentence, the district court need not discuss or state that it has explicitly

considered each factor of § 3553(a). Talley, 431 F.3d at 786. Instead, an explicit

acknowledgment that the district court has considered the defendant’s arguments

and the § 3553(a) factors will suffice. United States v. Scott, 436 F.3d 1324, 1329-

30 (11th Cir. 2005); see also Rita v. United States, 551 U.S. __, 127 S.Ct. 2456,

2469, 168 L.Ed.2d 203 (2007) (holding that the defendant’s sentence was

reasonable when the district court considered the parties’ arguments and provided

a reasoned basis for its choice of sentence).

      Here, the district court imposed a procedurally reasonable sentence. See

Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. The district court

correctly calculated the guideline imprisonment range, as discussed above. See

Gall, No. 06-7949, slip op. at 12. The district court also considered the statutory

factors. See id. Indeed, the district court explicitly acknowledged that it had

considered the § 3553(a) factors. See Scott, 436 F.3d at 1329-30. The district

court likewise more than sufficiently explained its reasoning. See Gall, No. 06-

7949, slip op. at 12. Although it was not required to, the district court expressly

discussed at length certain of the § 3553(a) factors. See Scott, 436 F.3d at 1329-

30. Specifically, the district court acknowledged the nature and characteristics of



                                            6
the defendant, the seriousness of the offense, and the need for deterrence. See 18

U.S.C. § 3553(a)(1), (2).

      The district court also imposed a substantively reasonable sentence. See

Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. While the district

court reasoned that Ferreiro had favorable characteristics, it ultimately was

influenced by the seriousness of the offense and the need to impose a sentence

sufficient to deter future Medicare-related crimes to exercise its discretion to

impose a sentence at the bottom of the guideline imprisonment range. Therefore,

the § 3553(a) factors supported the district court’s sentence, and the district court

did not abuse its discretion. See Gall, No. 06-7949, slip op. at 12, 20. Because the

district court considered the appropriate factors and appropriately exercised its

discretion, it imposed a reasonable sentence, and we affirm as to this issue.

      SENTENCE AFFIRMED.




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