           Case: 13-10309   Date Filed: 09/29/2014   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-10309
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:12-cr-80108-DMM-8



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

JANICE VELEZ and
ANA OVANDO,

                                                     Defendants - Appellants.

                       ________________________

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

                            (September 29, 2014)

Before WILSON, WILLIAM PRYOR, and COX, Circuit Judges.

PER CURIAM:
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      Defendants Janice Velez and Ana Ovando were convicted on charges

relating to an insurance fraud scheme in which both defendants participated in

staged automobile accidents and then prepared fraudulent insurance documentation

for personal-injury-protection (“PIP”) benefits related to chiropractic and massage

therapy treatments. Velez pled guilty and appeals her 24-month total sentence for

one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 and

eight counts of mail fraud in violation of 18 U.S.C. § 1341. Ovando was found

guilty by a jury and appeals her convictions and total 78-month sentence for one

count of conspiracy to commit mail fraud in violation of § 1349 and 14 counts of

mail fraud in violation of § 1341. After review, we affirm.

                              I. Defendant Ovando

      Ovando contends that the district court committed reversible error by: (1)

permitting testimony at trial that Ovando refused to give a written statement to

investigators; (2) giving a jury instruction on the mail fraud counts that

constructively amended the superseding indictment; and (3) imposing an

unreasonable sentence. We briefly address each contention in turn.

  A. Testimony of Avando’s Refusal to Give a Voluntary Written Statement

      Our case law is clear: the Government may introduce evidence of silence if

it occurred prior to the time of an arrest and a Miranda warning. United States v.

Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991). Both parties agree that is what


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happened here.     Federal agents asked her for a written statement about her

involvement with the accident, and she refused. The district court did not err in

allowing a federal agent to testify about her refusal.

                           B. Constructive Amendment

      The district court’s jury instructions on mail fraud did not constitute a

constructive amendment because they did not “broaden the possible bases for

conviction beyond what is contained in the indictment.” See United States v.

Madden, 733 F.3d 1314, 1318 (11th Cir. 2013) (quoting United States v. Keller,

916 F.2d 628, 634 (11th Cir. 1990)). Ovando did not raise this objection in the

district court, so we review the district court’s instructions only for plain error. Id.

at 1319. For us to reverse a district court’s decision under plain-error review there

must “(1) be an error (2) that is plain (3) that affects the defendant’s substantial

rights and (4) that seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1321.

      In charging Ovando with mail fraud, the superseding indictment alleged that

Ovando “and other persons known and unknown . . . did knowingly, with intent to

defraud, devise and intend to devise a scheme to defraud . . . .” (Doc. 158 at 12).

The indictment further indicated that the charged conduct was in violation of not

only 18 U.S.C. § 1341, the mail-fraud statute, but also 18 U.S.C. § 2, the aiding

and abetting statute.    Section 2 “does not define a crime.         It simply makes


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punishable as a principal one who aids or abets the commission of the substantive

crime.” See United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980). In other

words, under the superseding indictment, there were two bases for convicting

Ovando of mail fraud: Either she herself devised a fraud scheme or she aided and

abetted others who devised a scheme to defraud.

      In charging the jury, the district court instructed that for Ovando to be guilty

of mail fraud, the government had to prove that Ovando “knowingly devised or

participated in a scheme to defraud . . . .” Although Ovando argues that the “or

participated in” language of the instruction constructively amended the indictment,

her argument ignores the fact that she also was charged with aiding and abetting

mail fraud. Further, as to aiding and abetting, the district court instructed the jury

that Ovando could be found guilty of a substantive charge “even without evidence

that the defendant personally performed every acted charged,” if there is proof that

she “intentionally join[ed]” with another person to commit the crime,

“intentionally associated with or participated in the crime,” and “was a willful

participant.”    In short, the district court’s instructions, as a whole, correctly

charged the jury that proof beyond a reasonable doubt that Ovando intentionally

participated in the mail fraud scheme devised by others was sufficient to establish

her guilt as an aider and abetter. See United States v. Behety, 32 F.3d 503, 508–09

(11th Cir. 1994) (stating that we must view the jury instructions in context to


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determine whether they constructively amended the indictment). Accordingly, the

district court’s instructions did not broaden the possible bases for Ovando’s mail

fraud convictions beyond what was alleged in the superseding indictment. Ovando

has not shown error, much less plain error.

        C. Substantive Reasonableness of Ovando’s 78-Month Sentence

      We review the reasonableness of a sentence for an abuse of discretion.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We first look at

whether the district court committed any procedural error. Id. And we next look at

whether, under the totality of the circumstances, the sentence is substantively

unreasonable under the 18 U.S.C § 3553(a) factors.                 In reviewing the

reasonableness of Ovando’s sentence (outside the advisory Guidelines ranges), we

take into account the district court’s justification and the extent of the variance, but

we do not require extraordinary circumstances to justify such a sentence or

presume that such a sentence is unreasonable. United States v. Irey, 612 F.3d

1160, 1186–87 (11th Cir. 2010) (en banc). Ovando bears the burden to show her

sentence is unreasonable in light of the record and the § 3553(a) factors. See

United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

      Here, Ovando has not met her burden to show that her total 78-month

sentence, 21-months above the advisory Guidelines range of 46 to 57 months’

imprisonment, is substantively unreasonable.           The district court explicitly


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addressed the § 3553(a) factors, and its reasons for the upward variance were

sufficiently compelling to justify the extent of the variance. Ovando’s contention

that her sentence is unreasonable because it resulted in an unwarranted sentencing

disparity with her codefendants is unavailing.            Sentence disparities among

conspirators are not “unwarranted” unless the defendants are similarly situated.

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). The district

court adequately explained why Ovando was not similarly situated to the other co-

conspirators.     Ovando’s sentence was neither procedurally nor substantively

unreasonable. And under the totality of circumstances, the district court did not

abuse its discretion by imposing a 78-month sentence.

                                 II. Defendant Velez

      Velez contends that the district court erred by denying her: (1) a two-level

minor-role reduction under U.S.S.G. § 3B1.2(b); (2) a two-level acceptance-of-

responsibility reduction under U.S.S.G. § 3E1.1(a); and (3) a downward variance

pursuant to 18 U.S.C. § 3553(a).

                             A. Minor-Role Reduction

      Under U.S.S.G. § 3B1.2, when an offense is committed by more than one

participant, a defendant may receive a two-level reduction in her offense level if

she was a minor participant. U.S.S.G. § 3B1.2(b) & cmt. n.2. A defendant is a

minor participant if she is less culpable than most other participants, but her role


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cannot be described as minimal. Id. § 3B1.2 cmt. n.5. The defendant has the

burden to establish (by a preponderance of the evidence) that her role in the

offense was minor. United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999)

(en banc). The determination of whether to apply a minor-role reduction “is

heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt.

n.3(c). Accordingly, we review the district court’s denial of a role reduction for

clear error. United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010).

      “Two principles guide a district court’s consideration: (1) the court must

compare the defendant’s role in the offense with the relevant conduct attributed to

[her] in calculating [her] base offense level; and (2) the court may compare the

defendant’s conduct to that of other participants involved in the offense.” United

States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006) (emphasis added).

When the relevant conduct attributed to the defendant is the same as her actual

conduct, she “cannot prove that [she] is entitled to a minor-role adjustment simply

by pointing to some broader scheme for which [she] was not held accountable.”

Id.; see also De Varon, 175 F.3d at 942–43 (concluding that “when a drug

courier’s relevant conduct is limited to her own act of importation, a district court

may legitimately conclude that the courier played an important or essential role in

the importation of those drugs”).




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      Here, the district court did not clearly err in denying Velez a minor-role

reduction. At her plea hearing, Velez admitted participating in a staged accident,

filing a false accident report, and taking herself, her two sons, and her boyfriend to

a chiropractic center where she completed false insurance forms and had her

boyfriend do the same. In calculating Velez’s offense level, the district court held

her accountable for the $56,460 in losses resulting from the staged accident in

which she participated. In other words, Velez’s relevant conduct matched her

actual conduct. Thus, Velez cannot show her role was minor by pointing to the

wider fraud conspiracy involving numerous other accidents and multiple

chiropractic clinics for which she was not held accountable. See De Varon, 175

F.3d at 941. As the district court found, Velez played a “central” role in the fraud

resulting from her own conduct.

                         B. Acceptance of Responsibility

      Velez argues that the district court erred in denying her a two-level reduction

for acceptance of responsibility since she pleaded guilty—albeit on the third day of

trial after learning of a new witness against her. The district court’s assessment of

a defendant’s acceptance of responsibility is entitled to great deference, and we

review it only for clear error. United States v. Moriarty, 429 F.3d 1012, 1022

(11th Cir. 2005). We will not find clear error unless our review of the record

leaves us with the “definite and firm conviction” that a mistake has been made.


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United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009) (quotations omitted).

The defendant bears the burden of clearly demonstrating acceptance of

responsibility and must present more than just a guilty plea.” United States v.

Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

      Here, Velez has not shown that the district court clearly erred when it denied

her a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a).

Specifically, because the district court had the opportunity to observe Velez

personally at trial, its determination that it did not see any signs of acceptance of

responsibility is entitled to great deference.

      The district court also noted that Velez’s guilty plea was untimely. The

Guidelines commentary supports the district court’s reluctance to give Velez the

benefit of a reduction for her untimely plea. A § 3E1.1 reduction “is not intended

to apply to a defendant who puts the government to its burden of proof at trial by

denying the essential factual elements of guilt . . . .” U.S.S.G. § 3E1.1 cmt. n.2.

Moreover, given Velez’s pre-trial statements and conduct in denying responsibility

and proceeding to trial, this is not one of those “rare situations” in which “a

defendant may clearly demonstrate an acceptance of responsibility for [her]

criminal conduct even though [s]he exercises [her] constitutional right to a trial.”

Id. Accordingly, the district court did not err by denying Velez’s request for an

acceptance-of-responsibility reduction.


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          C. Substantive Reasonableness of Velez’s 24-month Sentence

      Again, we review the reasonableness of a sentence for an abuse of discretion

using a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.

2008). We first look at whether the district court committed any procedural error.

Id. And we next look at whether, under the totality of the circumstances, the

sentence is substantively unreasonable under the 18 U.S.C § 3553(a) factors.

Velez bears the burden to show her sentence is unreasonable in light of the record

and the § 3553(a) factors. See United States v. Thomas, 446 F.3d 1348, 1351 (11th

Cir. 2006). We ordinarily expect a sentence within the Guidelines range to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence

imposed well below the statutory maximum penalty is another indicator of a

reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008) (holding that the sentence was reasonable in part because it was well

below the statutory maximum).

      Velez has not shown that her sentence was substantively unreasonable. Her

sentence of 24 months’ imprisonment fell within the Guidelines range of 24 to 30

months.    We ordinarily expect a sentence within the Guidelines range to be

reasonable. See Hunt, 526 F.3d at 746. And her sentence was well below the 20-

year statutory maximum. See Gonzalez, 550 F.3d at 1324. The district court

considered Velez’s mitigation evidence, and determined that 24 months’


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imprisonment was an appropriate sentence. We have reviewed this evidence, and

find that the district judge’s sentence was reasonable. Because the district court

did not commit a clear error of judgment in weighing the evidence and imposing a

sentence, it did not abuse its discretion by imposing a 24-month sentence on Velez.

                                    III. Conclusion

      Velez’s sentence is affirmed and Ovando’s conviction and sentence are

affirmed.

      AFFIRMED.




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