                                                  [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                   ________________________         FILED
                                           U.S. COURT OF APPEALS
                        No. 09-10423         ELEVENTH CIRCUIT
                                                 APRIL 9, 2010
                    Non-Argument Calendar
                                                  JOHN LEY
                  ________________________
                                                   CLERK

                D. C. Docket No. 08-20258-CR-UU

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                            versus


REMBERTO SARMIENTO PEREZ,

                                                  Defendant-Appellant.


                  ________________________

                        No. 09-10424
                    Non-Argument Calendar
                  ________________________

                D. C. Docket No. 08-20262-CR-UU

UNITED STATES OF AMERICA,


                                                    Plaintiff-Appellee,

                            versus
REMBERTO SARMIENTO PEREZ,

                                                                Defendant-Appellant.


                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (April 9, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

      Remberto Sarmiento Perez appeals his convictions for twenty counts of

Medicare fraud and the sentences imposed. Perez contends that the district court

erred in giving a jury instruction on deliberate ignorance and improperly applied a

two-level obstruction of justice enhancement.

                                          I.

      Perez contends that the district court erred in giving a jury instruction on

deliberate ignorance because no evidence showed that he purposefully avoided

learning that he was committing health care fraud. “Because a challenge to a jury

instruction presents a question of law, our review is de novo.” United States v.

Stone, 9 F.3d 934, 938 (11th Cir. 1993). As we have held before, “We need not



                                          2
decide whether the evidence justified the deliberate ignorance instruction, because

our decision in United States v. Stone, 9 F.3d 934 (11th Cir. 1993), says that it

does not matter.” United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006). It

does not matter because the error of giving a deliberate ignorance instruction with

no basis in the evidence will always be harmless. Id.; Stone, 9 F.3d at 937–38.

Thus, Perez’s argument is without merit.

                                           II.

      Perez also contends that the district court erred in imposing a two-level

obstruction of justice enhancement to his sentence. See U.S.S.G. § 3C1.1. He

argues that his statements to the FBI did not significantly impair its investigation

and therefore the obstruction of justice enhancement was improper. Again, Perez’s

argument lacks merit. We have held that when a district court expressly states that

it would have imposed the same sentence even without the sentencing

enhancement, it is unnecessary for us to review the enhancement issue. See United

States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006) (explaining that this is

because “a decision either way will not affect the outcome of this case. We know

it will not because the district court told us that the enhancement made no

difference to the sentence imposed.”); see also United States v. Williams, 431 F.3d

767, 775–76 (11th Cir. 2005) (Carnes, J., concurring). After sentencing Perez to



                                           3
97-months imprisonment, the district court stated, “I do want to make it clear that I

think a 97 month sentence would have been a reasonable sentence . . . and an

appropriate sentence under consideration of the [§ 3553(a)] factors regardless of

application of the guidelines.” The district court’s statement makes it clear that the

obstruction of justice enhancement made no difference to Perez’s sentence, and

therefore we do not need to review it.

       When a district court gives us this kind of guidance, we review only the

reasonableness of the sentence imposed. Keene, 470 F.3d at 1349. In determining

whether the sentence was reasonable, we “assume that there was a guidelines

error—that the guidelines issue should have been decided in the way the defendant

argued and the advisory range reduced accordingly—and then ask whether the

final sentence resulting from consideration of the § 3553(a) factors would still be

reasonable.” Id.

       If the district court had decided the obstruction of justice enhancement issue

in Perez’s favor, the advisory guidelines range would have been 63 to 78 months,

instead of the 78 to 97 months range that the court arrived at by applying the two-

level enhancement.1 The question is whether the 97-month sentence imposed is


       1
        Using the 2008 Sentencing Guidelines, Perez’s base offense level was 6 under U.S.S.G. §
2B1.1(a)(2). He received an 18-level enhancement under § 2B1.1(b)(1)(J) because the amount of
the loss was more than $2.5 million but less than $7 million. Perez also received a 2 level
sophisticated means enhancement, see § 2B1.1(b)(9)(C), and a 2 level obstruction of justice

                                              4
reasonable, assuming exactly the same conduct and other factors in the case, but

using an advisory range of 63 to 78 months.

       “Our post-Booker reasonableness review takes into account the § 3553(a)

factors as well as the advisory guidelines range. It is a ‘deferential’ review, and the

burden is on the defendant to prove that his sentence is unreasonable in light of the

record and § 3553(a).” Id. at 1350 (internal citations omitted). Perez cannot carry

his burden of showing that his 97-month sentence was unreasonable even with an

assumed advisory guidelines range of 63 to 78 months. Although the district court

imposed a sentence above the lower advisory guidelines range, Perez used stolen

patient information to fraudulently bill Medicare for equipment never actually

purchased by those patients. The scheme resulted in substantial losses to the

government. We cannot say that the district court’s decision to impose a 97-month

sentence was unreasonable.

       AFFIRMED.




enhancement. See § 3C1.1. With a total offense level of 28 and a criminal history category of I,
his advisory guidelines range was 78–97 months imprisonment. Without the obstruction of justice
enhancement, his advisory guidelines range would have been 63–78 months based on a total offense
level of 26 and a criminal history category of I.

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