           Case: 15-15259   Date Filed: 10/18/2016   Page: 1 of 13


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-15259
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:15-cr-20144-RNS-7



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

ALEJANDRO JESUS CURA,

                                                       Defendant-Appellant.

                       ________________________

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

                            (October 18, 2016)

Before HULL, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Alejandro Cura appeals his 51-month sentence for

conspiracy to commit health care and wire fraud, in violation of 18 U.S.C. § 1349.

On appeal, Cura raises only one issue. Cura argues that the district court erred in

holding him accountable for the “intended loss” amount of $31 million and

increasing his base offense level by 22 levels under U.S.S.G. § 2B1.1(b)(1)(L).

After review, we affirm.

                           I. FACTUAL BACKGROUND

A.    Indictment

      Cura, along with 15 codefendants, was indicted for conspiracy to commit

healthcare fraud and wire fraud, in violation of 18 U.S.C. §§ 1347, 1343, and 1349

(Count 1), and for 11 counts of healthcare fraud, in violation of 18 U.S.C. § 1347

(Counts 2-11).

      Count 1 alleged that Cura and his co-conspirators “knowingly and willfully,

. . . with the intent to further the objects of the conspiracy,” agreed to: (1)

“knowingly and willfully execute a scheme and artifice to defraud” several

healthcare benefit programs, including insurance plans managed by United

Healthcare (UHC), BlueCross Blue Shield (BCBS), and Cigna; and (2) “knowingly

and with intent to defraud, devise and intend to devise a scheme and artifice to

defraud and for obtaining money and property” by knowingly making materially




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false and fraudulent representations using wire communications in interstate

commerce.

      The purpose of the conspiracy was for Cura and his co-conspirators to

“unlawfully enrich themselves by, among other things: (a) submitting and causing

the submission of false and fraudulent claims to a health care benefit program; (b)

concealing the submission of false and fraudulent claims to a health care benefit

program; (c) concealing the receipt of the fraud proceeds; and (d) diverting the

fraud proceeds for their personal use and benefit, and the use and benefit of others,

and to further the fraud.”

      As to the manner and means of the conspiracy, the indictment charged that

Cura and others “agreed, in exchange for a fee, to have companies placed in their

names, to open bank accounts and check cashing accounts in the names of the

companies, and to cash and deposit checks received from Cigna, BCBS, and

UHC.” These 31 companies were actually owned and controlled by some of

Cura’s co-defendants. The conspirators then submitted false claims to the private

insurance plans on behalf of these 31 companies, seeking in total over $125 million

as reimbursement for medical treatments, items, and services that were not ordered

by a physician or provided to the beneficiary as claimed.

B.    Plea Agreement and Stipulations




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      Pursuant to a written plea agreement, Cura pled guilty to Count 1, and the

government agreed to dismiss the remaining counts. Cura and the government

agreed to recommend jointly to the sentencing court these factual findings and

conclusions: (1) under U.S.S.G. § 2B1.1(a)(1), the base offense level was 7; (2)

under U.S.S.G. § 2B1.1(b)(1)(L), the actual or intended loss resulting from Cura’s

conduct in the indictment was between $20,000,000 and $50,000,000; (3) Cura

was a minor participant in the offense; (4) Cura’s offense did not involve the use of

sophisticated means; and (5) Cura should receive a 3-level reduction in his offense

level for acceptance of responsibility. Cura also agreed to, among other things, a

judgment of forfeiture and restitution in the amount of $13,853,392.

C.    Guilty Plea and Colloquy

      In August 2015, Cura pled guilty to Count 1. During the plea colloquy,

Cura stated that his attorney had translated the plea agreement into Spanish, he and

his attorney had reviewed the plea agreement, and Cura understood and agreed to

its terms. Cura admitted, inter alia, that he had conspired with others “to engage in

a scheme to fraudulently bill insurance companies,” and that he was “a registered

agent for several companies, including Doral Recovery, JRG, Lauralex, Premier

and Universal,” and that he “use[d] [his] companies to assist the scheme in

fraudulently billing several different insurance companies[.]”

D.    Presentence Investigation Report


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      The revised Presentence Investigation Report (“PSI”) recounted these

undisputed facts. The health care fraud scheme Cura participated in was centered

on inducing licensed massage therapists to open health care clinics, which enabled

the conspirators to bill insurance carriers through the clinics without having to

undergo a lengthy application process. After the clinics were opened, the

conspirators fraudulently billed insurance carriers for medical services that were

never provided. The conspirators would often change the clinics’ ownership by

finding new nominee owners, and the nominee owners were paid approximately

$2,000 to $10,000 per month, per clinic, for their roles in the scheme. The

conspiracy was led by Reynaldo Castillo and several members of his family, who

were the true owners of the fraudulent clinics.

      From October 2012 to February 2015, Cura served as the nominee owner for

five of the fraudulent clinics: (1) Doral Recovery Center, Inc. (“Doral”); (2) JRG

Rehabilitation Center, Inc. (“JRG”); (3) Lauralex Medical Services, Inc.

(“Lauralex”); (4) Premier Health Services, Inc. (“Premier”); and (5) Universal

Recovery Center, Corp. (“Universal”). Cura agreed to have these companies

placed in his name, to open bank accounts and check cashing accounts for these

companies, and to cash and deposit checks received from the insurance providers.

During the conspiracy, Cura’s five clinics submitted claims totaling $31,662,510,

and were paid $5,082,570 by insurance companies. Cura became the owner of


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these clinics from the time they were created, and corporate records confirmed his

involvement with the clinics.

      The PSI also noted that Cura was responsible for a total loss of

$31,662,509.67, which was the amount of the fraudulent claims submitted by the

five clinics. The PSI recommended a minor role adjustment because Cura lacked

knowledge of the entire scope of the conspiracy and had profited much less than

his co-conspirators.

      The PSI calculated a base offense level of 7, pursuant to U.S.S.G.

§§ 2B1.1(a)(2) and 2X1.1(a)(1), and included a 22-level increase, pursuant to

§ 2B1.1(b)(1)(L), because the intended loss amount of $31,662,509.67 was more

than $25,000,000 but less than $65,000,000. The PSI included: (1) a 2-level

increase, pursuant to U.S.S.G. § 2B1.1(b)(10)(C), because Cura committed the

offense using sophisticated means; (2) a 3-level reduction based on Cura’s

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a)-(b); and (3) an

additional 2-level reduction, pursuant to U.S.S.G. § 3B1.2(b), based on Cura’s

minor role in the conspiracy, yielding a total offense level of 26.

      With a criminal history category of I and a total offense level of 26, Cura’s

advisory guidelines range was 63 to 78 months’ imprisonment, and the maximum

statutory penalty was 20 years’ imprisonment.




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      In his October 2015 written objections, Cura did not dispute the total amount

of $31,662,509.67 that his five clinics billed the insurance companies. Cura did

object to the PSI’s 22-level increase under § 2B1.1(b)(1)(L). Cura argued that he

should receive only an 18-level increase because of a proposed amendment to the

definition of “intended loss” in the commentary to § 2B1.1, which would be

effective November 1, 2015. Cura also objected to the 2-level increase for

sophisticated means.

E.    Sentencing Hearing

      At his November 12, 2015 sentencing hearing, Cura argued that, as the

nominee owner of the five clinics, he was unaware of the many millions of dollars

in fraudulent claims his co-conspirators submitted to the insurance companies, and

therefore he did not have the subjective intent to inflict the total pecuniary harm of

$31,662,509.67. Cura maintained that instead he should be held accountable for

only the actual loss—the $5,082,570 the insurance companies paid to the five

clinics—which would result in an 18-level increase.

      The district court stated that the government had proved that the intended

loss amount of $31 million was reasonably foreseeable to anyone participating in

the conspiracy, including Cura, given the number of clinics Cura nominally owned

and the fact that he admitted signing blank checks. The district court also noted




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that the parties had “agreed to a certain number of facts” that indicated it was

reasonably foreseeable to Cura that there would be “a significant amount of fraud.”

      The government emphasized that Cura, in his plea agreement, had already

agreed to a loss amount between $20,000,000 and $50,000,000. When Cura

indicated he wished to testify, the district court stated that it would consider Cura’s

testimony as to what he believed.

      Cura testified that he originally worked as a massage therapist at World of

Rehab, a clinic that treated accident victims. Cura was hired by a man named

Danny Jacomino, whom Cura believed owned World. After Cura left World, he

learned that Reynaldo Castillo was the true owner of World and that the clinic was

involved in staging accidents.

      Three or four months later, Castillo approached Cura, and Cura agreed to

lend Castillo his name to a new clinic, Lauralex, but that Castillo would be the true

owner. Cura also worked at the clinic as a massage therapist. Although Cura

admitted that he knew Castillo had already been involved in operating a fraudulent

clinic, Cura claimed he did not know that Castillo planned to engage in fraudulent

billing at Lauralex. Cura began to grow suspicious when he “was writing quite a

lot of checks and the figures were quite high,” and “saw that the incoming amount

of money had no relationship to the flow of staff.” Cura said he was not involved

with patient billing or depositing incoming checks from insurance companies.


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      However, Cura admitted he took out large sums of money and signed checks

whenever Castillo directed. Cura maintained that many of the checks he signed at

Castillo’s direction were blank, but that the checks with a stated amount were for

$6,000 or $7,000, at most. Cura also admitted that he deposited checks from

Lauralex into his own personal account and then at Castillo’s direction withdrew

amounts of $4,000 or $5,000 at a time and gave it to Castillo.

      Cura knew illegal activity was taking place after he fielded a call from a

doctor who complained that he had received a bill for services he had not provided.

Cura complained to Castillo and demanded that his name be taken off Lauralex’s

corporate documents. Nonetheless, Cura admitted that he agreed to open more

clinics with the Castillos and that he knew the Castillos were going to use those

clinics to bill private insurance companies. Cura claimed that the Castillos assured

him that the clinic would be a legitimate business, but Cura admitted he did not ask

to see billing or bank statements and “simply worked there as a therapist.”

      After Cura testified, Cura’s attorney argued that although Cura knew about

the money he handled, “at no point would he have become aware or could have

become aware there was $31 million.” The district court responded by finding

Cura’s testimony lacked credibility. Even if Cura’s testimony were credible, the

district court found Cura’s testimony established willful blindness, as follows:

           Wait. You say at no point did he or could he. He could have.
      He just said the third time around he didn’t ask, even though he
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      supposedly quit two other times when he found out something illegal
      was going on, which, I mean, based upon all of his testimony, he’s not
      really entitled to much credibility.
             But let’s assume I credit him and believe him. So he’s back in
      the third time with the same people committing fraud and he says
      nothing changed, okay? He didn’t ask to see the bank statements,
      didn’t ask to see the billing, didn’t do anything at all. Isn’t this
      exactly what willful blindness is all about? Don’t tell me anything so
      that way I can’t be responsible.
After listening to the parties’ arguments, the district court explained that Cura had

not testified credibly about his subjective belief as to the loss amount.

      The district court overruled Cura’s objection to the 22-level increase, finding

that the government had proved that the participants in the conspiracy intended a

loss of $31 million and that Cura had not testified credibly that he was unaware of

that intended loss amount, as follows:

      Let me just say again, I think the government has proven that the
      intended loss of the people who participated in this crime is $31
      million. The new guidelines allow a particular defendant to say, wait
      a minute, I did not understand that and here is why I didn’t understand
      it was that much, okay? And your client failed to do that.
The district court sustained Cura’s objection to the sophisticated means

enhancement and calculated a total offense level of 24, which yielded an advisory

guidelines range of 51 to 63 months.

      The district court sentenced Cura to a 51-month prison term.

                                 II. DISCUSSION




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       The district court did not clearly err in finding Cura responsible for the full

intended loss from the five clinics that Cura nominally owned for the health

insurance fraud conspiracy. See United States v. Moran, 778 F.3d 942, 974 (11th

Cir.), cert denied sub nom. Huarte v. United States, 136 S. Ct. 268 (2015);

U.S.S.G. §§ 1B1.3(a)(1)(B), 2B1.1 cmt. n.3(A)(ii).1 The record contains Cura’s

guilty plea, the factual stipulations in Cura’s plea agreement, and the undisputed

facts in the PSI. Taken together, they support the district court’s attribution of loss.

See United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002).

       Count 1 charged that Cura committed the fraud conspiracy “knowingly and

willfully, with the intent to further the objects of the conspiracy.” The specific

objects of the conspiracy in Count 1 were for the conspirators to enrich themselves

by, among other things, submitting fraudulent claims to health insurance

companies and concealing the fraud and its proceeds. Count 1 charged that Cura’s

particular role in the conspiracy was to act as a nominal owner of the companies

used to perpetrate the fraudulent billing and to open accounts used to receive and

distribute the fraud proceeds. Cura pled guilty to Count 1 as charged.




       1
         We review the district court’s factual findings under the Sentencing Guidelines for clear
error and its legal interpretation of the Guidelines de novo. United States v. Williams, 340 F.3d
1231, 1238-39 (11th Cir. 2003). The district court’s determination as to the loss amount is a
factual finding reviewed for clear error. See United States v. Barrington, 648 F.3d 1178, 1197
(11th Cir. 2011).
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      Furthermore, during his plea colloquy, Cura admitted that he had agreed

with his co-conspirators to engage in the scheme to fraudulently bill the insurance

companies, that he was the registered agent for five of the companies used to

conduct the fraudulent billing, and that he “use[d] [his] companies to assist the

scheme in fraudulently billing several different insurance companies[.]” At

sentencing, Cura admitted he signed company checks, most of which were blank,

whenever directed to do so by the conspiracy’s leader, Reynaldo Castillo, and also

deposited fraud proceeds received by his companies into his own personal account

and then withdrew those proceeds in cash amounts and gave them to Castillo as

directed.

      Most importantly though, in his plea agreement, Cura stipulated that the

loss, whether actual or intended, resulting from his conduct in the charged

conspiracy was between $20 million and $50 million. Indeed, at sentencing, Cura

did not dispute that his co-conspirators used his five companies to submit over $31

million in fraudulent claims to health insurance companies.

      To the extent Cura did not personally submit the fraudulent claims or deposit

the fraud proceeds, the district court properly included the amount of the claims

filed by his co-conspirators at the five clinics as relevant conduct because those

claims were reasonably foreseeable to Cura. See U.S.S.G. § 1B1.3(a)(1)(B);

United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010).


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      Further, given the specific objectives of the fraud conspiracy Cura joined

and Cura’s admission that he used the five clinics to facilitate those objectives, the

district court did not clearly err in finding that Cura shared his co-conspirators’

intent to cause $31 million in fraudulent insurance claims. That is, the record

supports the district court’s finding that Cura, along with his co-conspirators,

sought to inflict the pecuniary harm reflected in the $31 million in fraudulent

claims submitted through Cura’s five clinics. See U.S.S.G. § 2B1.1 cmt.

n.3(A)(ii). While Cura testified that he was unaware of the full extent to which his

co-conspirators were fraudulently billing, the district court found Cura’s testimony

not credible.

      For these reasons, the district court did not clearly err in holding Cura

accountable for the full amount of the intended loss from the five clinics Cura

owned for the conspiracy’s purposes and imposing a 22-level increase in Cura’s

offense level under U.S.S.G. § 2B1.1(b)(1)(L).

      AFFIRMED.




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