                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                   U.S. COURT OF APPEALS
                                No. 08-13820         ELEVENTH CIRCUIT
                                                         MAY 25, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                     D. C. Docket No. 07-20291-CR-CMA

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MAIVI RODRIGUEZ,
MARIA HERNANDEZ,
a.k.a. Mayte Hernandez,
MARTA JIMENEZ,
ANA CAOS,


                                                         Defendants-Appellants,


                          ________________________

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

                               (May 25, 2011)
Before EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.

PER CURIAM:

       Maivi Rodriguez, Maria Hernandez, Marta Jimenez, and Ana Caos appeal

their convictions and sentences related to their participation in a scheme to defraud

the United States. These defendants raise a host of arguments on appeal, all of

which lack merit. We affirm.

                                    I. BACKGROUND

       The defendants’ convictions stem from a kickback scheme to defraud the

federal Medicare program. Owners of durable medical equipment companies paid

doctors to write prescriptions for drugs and medical equipment that yielded high

reimbursements from Medicare. They also paid others to pose as patients in need

of drugs and equipment. The owners of the durable medical equipment companies

then delivered prescriptions to pharmacies, which filled the prescriptions, sought

reimbursements from Medicare, and gave 50 percent of the reimbursements to the

owners of the durable medical equipment companies as a kickback. Many of the

patients were not ill and did not need the prescribed medications or equipment.

Maria Hernandez, Marta Jimenez, and Maivi Rodriguez were principals of durable

medical equipment companies called Esmar Medical Equipment and Action Best


       *
       Honorable Orinda D. Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.

                                               2
Medical Supplies, and they were prosecuted for their participation in the scheme.

Ana Caos is a doctor who was also prosecuted for her involvement.

      A federal grand jury in the Southern District of Florida returned a

superseding indictment that charged Maivi Rodriguez, Maria Hernandez, Marta

Jimenez, and Ana Caos with conspiracy to defraud the United States, to cause the

submission of false claims, and to receive health care kickbacks, 18 U.S.C. §§ 287,

371; 42 U.S.C. § 1320a-7b(b)(1); and conspiracy to commit health care fraud, 18

U.S.C. §§ 1347, 1349. The indictment also charged Rodriguez, Hernandez, and

Jimenez with two counts each of soliciting and receiving kickbacks involving a

federal health care program, 18 U.S.C. § 2; 42 U.S.C. § 1320a-7b(b)(1). A jury

convicted Rodriguez, Hernandez, Jimenez, and Caos of all counts. The district

court declared a mistrial as to Caos because she had testified in her own defense

and had been prohibited from consulting with her counsel overnight about her

ongoing testimony. Caos proceeded to another trial and a jury again convicted her

of both counts of conspiracy. The district court sentenced Rodriguez to concurrent

periods of 51 months of imprisonment followed by concurrent 3-year periods of

supervised release; Jimenez to concurrent periods of 31 months of imprisonment

followed by concurrent 3-year periods of supervised release; Hernandez to

concurrent periods of 51 months of imprisonment followed by concurrent 3-year



                                          3
periods of supervised release; and Caos to concurrent periods of 41 months of

imprisonment followed by concurrent 3-year periods of supervised release.

                          II. STANDARDS OF REVIEW

      Several standards of review govern this appeal. We review the denial of a

guilty plea for abuse of discretion. United States v. Crosby, 739 F.2d 1542, 1544

(11th Cir. 1984). “We will not generally consider claims of ineffective assistance

of counsel raised on direct appeal where the district court did not entertain the

claim nor develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284

(11th Cir. 2002). “We review a district court’s evidentiary rulings for abuse of

discretion.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005).

“Evidentiary errors that are not specifically objected to at trial are reviewed for

plain error.” United States v. Williford, 764 F.2d 1493, 1502 (11th Cir. 1985).

“We review cases dealing with discovery violations under [Federal Rule of

Criminal Procedure] 16 using an abuse of discretion standard.” United States v.

Hastamorir, 881 F.2d 1551, 1559 (11th Cir. 1989). “This court applies a two-part

test to claims of prosecutorial misconduct: the challenged statements must be

improper, and must have prejudicially affected the defendant’s substantial rights.

A defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the remarks, the outcome would be different.”



                                           4
United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995) (citation omitted). This

Court reviews a claim challenging the sufficiency of the evidence “de novo, but in

the light most favorable to the government, and accepting all reasonable inferences

which support the verdict[s] in order to determine if there was substantial evidence

from which a reasonable trier of fact could have concluded that the defendants

were guilty beyond a reasonable doubt.” United States v. Adkinson, 158 F.3d

1147, 1150 (11th Cir. 1998). “A motion for new trial based on newly discovered

evidence is committed to the sound discretion of the trial court and will not be

overturned absent abuse of discretion.” United States v. Garcia, 13 F.3d 1464,

1472 (11th Cir. 1994). “We review a district court’s findings of fact for clear error

and its application of the Sentencing Guidelines de novo.” United States v.

Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003). The decision of the district court

to enhance a sentence for a defendant’s role “as a leader or organizer under

Guideline 3B1.1 is a finding of fact reviewed only for clear error.” United States

v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “The district court’s

determination of whether a defendant is entitled to a reduction for acceptance of

responsibility is a finding of fact which is entitled to great deference on appeal and

will be affirmed unless clearly erroneous.” United States v. Rodriguez, 959 F.2d

193, 195 (11th Cir. 1992). “We review for clear error the district court’s



                                           5
determination regarding the amount of loss under the [Sentencing] Guidelines.”

United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005).

                                 III. DISCUSSION

      We divide our discussion of this appeal in seven parts. First, we discuss

whether the district court abused its discretion when it refused to accept

Hernandez’s guilty plea. Second, we discuss whether Hernandez’s trial counsel

rendered ineffective assistance when he conceded in opening statements that

Hernandez had accepted kickbacks. Third, we discuss whether the district court

abused its discretion when it admitted certain evidence against Rodriguez, Jimenez,

and Caos. Fourth, we discuss whether Jimenez merits a reversal of her convictions

because of a discovery violation. Fifth, we discuss whether there was sufficient

evidence to support the conspiracy convictions of Rodriguez and Caos. Sixth, we

discuss whether the district court abused its discretion when it denied Caos’s

motion for a new trial based on newly discovered evidence. Seventh, we discuss

whether the district court clearly erred when it sentenced Hernandez and

Rodriguez.

      A. The District Court Did Not Abuse Its Discretion When It Refused to
                    Accept Hernandez’s Untimely Guilty Plea.

      Hernandez argues that the district court abused its discretion when it refused

to accept her guilty plea, but we disagree. Hernandez’s guilty plea was untimely

                                           6
because she proffered it more than two weeks after the court-imposed deadline,

and we have held that “courts may reject guilty pleas that are tendered after a

deadline set by the court.” United States v. Gamboa, 166 F.3d 1327, 1331 (11th

Cir. 1999).

          B. Hernandez Failed to Develop a Record for Her Argument of
                        Ineffective Assistance of Counsel.

      Hernandez argues that she received ineffective assistance of counsel because

during opening statements her lawyer conceded that she received kickbacks. “We

will not generally consider claims of ineffective assistance of counsel raised on

direct appeal where the district court did not entertain the claim nor develop a

factual record.” Bender, 290 F.3d at 1284. This issue should be raised on

collateral review.

    C. The District Court Did Not Abuse Its Discretion In Admitting Evidence.

      Rodriguez, Jimenez, and Caos contend that the district court abused its

discretion on three occasions when it admitted certain evidence. First, Rodriguez

argues that the district court abused its discretion when it allowed one of the

pharmacy owners, Henry Gonzalez, to testify as a government witness about a

purported phone conversation between his wife, Karla, and Rodriguez. Second,

Rodriguez and Jimenez contend that the district court abused its discretion when it

admitted evidence about Rodriguez and Jimenez’s involvement with companies

                                           7
that were not included in the indictment. Third, Caos argues that the district court

abused its discretion when it admitted testimony from Dr. Cuni about his and

Caos’s involvement in the scheme. These arguments fail.

 1. The District Court Did Not Abuse Its Discretion When It Admitted Gonzalez’s
            Testimony About His Wife’s Conversation with Rodriguez.

      Rodriguez argues that the district court abused its discretion when it allowed

Gonzalez to testify about an alleged phone conversation between his wife and

Rodriguez. Gonzalez testified that his wife told him she received a call from

someone who identified herself as “Maivi,” which is Rodriguez’s first name, and

who complained in a “caustic” and “abrasive” manner about a drop in the amount

of kickbacks she was receiving. Rodriguez argues that the government failed to

lay a foundation to admit this evidence under Federal Rule of Evidence

801(d)(2)(E), that the evidence should have been barred by Federal Rule of

Evidence 805 as hearsay within hearsay, and that the government did not properly

authenticate this testimony under Federal Rule of Evidence 901. We disagree.

      The government laid a proper foundation to admit Gonzalez’s testimony

about the telephone conversation, which included both the admission of a party

opponent under Rule 801(d)(2)(A) and the nonhearsay statement of a coconspirator

under Rule 801(d)(2)(E). “To lay a foundation for the admission of a

coconspirator’s statement, ‘the government must establish by a preponderance of

                                          8
the evidence: (1) that a conspiracy existed, (2) that the defendant and the declarant

were members of the conspiracy, and (3) that the statement was made during the

course and in furtherance of the conspiracy.’” United States v. Schlei, 122 F.3d

944, 980 (11th Cir. 1997) (quoting United States v. Van Hemelryck, 945 F.2d

1493, 1497–98 (11th Cir. 1991)). The government satisfied these requirements

when it presented evidence that a conspiracy existed; that Rodriguez, Gonzalez,

and Gonzalez’s wife were members of that conspiracy; and that Rodriguez made

the statement during the course and in furtherance of the conspiracy.

[R:16:387:177–87]. Rodriguez’s statement to Karla is an admission by a party

opponent, Fed. R. Evid. 801(d)(2)(A), and Karla’s statement to Gonzalez is a

statement by a coconspirator of a party made during the course and in furtherance

of the conspiracy, Fed. R. Evid. 801(d)(2)(E).

      The district court also acted within its discretion when it concluded that

circumstantial evidence, coupled with Rodriguez’s self identification, authenticated

the telephone conversation sufficiently to satisfy Federal Rule of Evidence 901,

which provides that “[t]he requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.” Fed. R. Evid.

901(a). Persuasive circumstantial evidence, including testimony that the caller



                                           9
identified herself as “Maivi” and disclosed Rodriguez’s group numbers, patient

names, and pay periods, supports the determination that the call was authentic. See

United States v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B Nov. 1981).

  2. The District Court Did Not Abuse Its Discretion When It Admitted Evidence
      Regarding A&A Home Health Care and M&M Assisted Living Facility.

      Rodriguez and Jimenez argue that the district court abused its discretion

when it admitted evidence about two home healthcare agencies that they managed,

A&A Home Health Care and M&M Assisted Living Facility. This evidence

included several billing records that established that these agencies, the durable

medical equipment companies, and the pharmacies all billed Medicare for several

of the same patients, and testimony from a witness involved with the agencies who

has since admitted to Medicare fraud. The district court instructed the jury that

there were no allegations that these agencies submitted fraudulent claims to

Medicare. Rodriguez and Jimenez argue that the district court abused its discretion

when it admitted evidence about these companies because the admission violated

of Federal Rules of Evidence 402, 403, and 404(b).

      The district court did not abuse its discretion. When considering a challenge

under Rule 403, we “look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial impact.”

United States v. Elkins, 885 F.2d 775, 784 (11th Cir. 1989). This evidence was

                                          10
relevant and had probative value under Rules 401 and 403 because it related to

how the scheme worked and tended to prove Rodriguez and Jimenez had a degree

of control over patient beneficiaries. The district court also did not abuse its

discretion when it allowed the jury to consider the evidence for “other purposes”

under Rule 404(b).

 3. The District Court Did Not Abuse Its Discretion When It Admitted Testimony
                  Against Caos by Others Involved in the Scheme.

      Caos argues that she deserves a new trial because the district court abused its

discretion when it admitted testimony from Dr. Cuni and Mrs. Palacios about their

involvement in the scheme. It does not appear from the record that Caos objected

to this testimony, and when a party fails to object to testimony at trial, “‘[w]e

correct only for errors that are particularly egregious and that “seriously affect the

fairness, integrity or public reputation of judicial proceedings,” and then only when

a miscarriage of justice would result.’” United States v. Jernigan, 341 F.3d 1273,

1280 (11th Cir. 2003) (alteration in original) (quoting Williford, 764 F.2d at 1502).

      Caos cannot satisfy this demanding standard. Cuni’s testimony had

significant probative value in establishing that Caos knowingly participated in the

scheme. According to Cuni, Hernandez stated that Caos would take Cuni’s place

and write prescriptions for the scheme when Cuni left for a medical procedure.

Cuni also testified that he had patients in common with Caos and that Caos

                                           11
eventually assisted some of his patients in the scheme. Palacios’s testimony also

had probative value because it related to how the scheme worked. There was no

miscarriage of justice.

    D. The Discovery Violation Did Not Cause Jimenez Substantial Prejudice.

      Jimenez argues that the government caused her undue prejudice and

committed prosecutorial misconduct when it violated a discovery obligation, but

we disagree. The government violated a discovery order that required it to “state

whether defendant(s) was/were identified in any lineup, showup, photospread or

similar identification proceeding, and produce any pictures utilized or resulting

therefrom.” Henry Gonzalez testified, as a government witness, that he had

positively identified Jimenez during a photograph examination in April 2007 and

had identified Jimenez again in a photograph examination weeks before the trial.

The government did not disclose these identifications to Jimenez before trial. The

district court instructed the jury to disregard those portions of Gonzalez’s

testimony. “A discovery violation under . . . a standing discovery order is

reversible error only when it violates a defendant’s substantial rights.” United

States v. Camargo-Vergara, 57 F.3d 993, 998 (11th Cir. 1995). This discovery

violation did not violate Jimenez’s substantial rights because the district court

struck the contested portions of Gonzalez’s testimony and instructed the jury to



                                          12
disregard them. “When a curative instruction has been given to address some

improper and prejudicial evidence, we will reverse only if the evidence ‘is so

highly prejudicial as to be incurable by the trial court’s admonition.’” United

States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994) (quoting United States v.

Funt, 896 F.2d 1288, 1295 (11th Cir. 1990)). Jimenez also cannot establish that

she warrants a new trial based on prosecutorial misconduct, which “‘is an extreme

sanction which should be infrequently utilized.’” United States v. Accetturo, 858

F.2d 679, 681 (11th Cir. 1988) (quoting United States v. Pabian, 704 F.2d 1533,

1536 (11th Cir. 1983)).

E. The Government Presented Sufficient Evidence to Convict Rodriguez and Caos.

      Rodriguez contends that the government failed to present sufficient evidence

to convict her of conspiracy to engage in health care fraud and conspiracy to

defraud the United States to receive kickbacks, but we disagree. The government

offered sufficient evidence to allow a rational trier of fact to find Rodriguez guilty

of these conspiracies. The government presented myriad documents from Henry

Gonzalez that were replete with references to Rodriguez, including prescription

logs with Rodriguez’s group numbers; account logs that contained Rodriguez’s

name, cellular phone number, and group number; and a document that listed

Rodriguez as one of a group of “[c]lients that still [have] not pick[ed] up the



                                           13
envelopes.” Government witnesses also testified that Rodriguez picked up

payment envelopes three or four times from a pharmacy involved in the scheme,

pharmacy managers called Rodriguez to discuss kickback payments, and

Rodriguez and Hernandez sometimes picked up payment envelopes together. This

evidence, viewed in the light most favorable to the government, supports

Rodriguez’s convictions.

      Caos also contends that the government failed to present sufficient evidence

to support her conspiracy convictions, and that she did not “knowingly and

willfully participate[] in the larger, unified single conspiracy charged in the

indictment,” see United States v. Chandler, 388 F.3d 796, 811–13 (11th Cir. 2004).

She argues that there is a variance between the conspiracies charged in the

indictment and the evidence introduced at trial and that, at most, she may have

participated in narrow kickback arrangements with owners of durable medical

equipment companies, known as “hub and spoke” or “rimless wheel” conspiracies.

“[T]o prove a single, unified conspiracy as opposed to a series of smaller,

uncoordinated conspiracies, the government must show an interdependence among

the alleged co-conspirators.” Chandler, 388 F.3d at 811. “While each defendant

must have joined the conspiracy intentionally, each need not be privy to all the

details of the conspiracy or be aware of all the other conspirators.” United States



                                           14
v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987).

      The government presented sufficient evidence for a rational trier of fact to

find that there was an interdependence among Caos and the other coconspirators.

Caos prescribed medications that were later brought to the pharmacies by owners

of durable medical equipment companies. Henry Gonzalez testified that five

owners of durable medical equipment companies—Pascual, Valdes, Hernandez,

Jimenez, and Smith—all obtained prescriptions from Ana Caos for their patients,

and Pascual testified that he personally took patients to Caos’s office, gave Caos a

list of medications that he wanted her to prescribe, and paid Caos $100 for each

prescription she wrote. Caos prescribed the same medications used in the scheme

to seven different patients on the same day, and sought reimbursements from

Medicare for patient visits. Caos need not have been “privy to all the details of the

conspiracy or be[en] aware of all the other conspirators” to sustain her convictions.

Id. Instead, “[i]f there is one overall agreement among the various parties to

perform different functions in order to carry out the objectives of the conspiracy,

then those performing the functions are engaged in one conspiracy.” Chandler,

388 F.3d at 811. The jury reasonably found that Caos was guilty of being a

member of these conspiracies.




                                          15
        F. The District Court Did Not Abuse Its Discretion When It Denied
                          Caos’s Motion for a New Trial.

      Caos argues that the district court abused its discretion when it denied her

motion for a new trial and refused to conduct an evidentiary hearing after newly

discovered evidence established that Orlando Pascual, a witness for the

government, was suspected of wrongdoing in another Medicare fraud

investigation. Pascual testified that he was serving a prison term of 46 months for

Medicare fraud, that he had entered into an agreement to cooperate truthfully with

the government, but the government had made no promises in exchange for his

cooperation, and that he had “always cooperated fully and honestly with” the

government and that “every time [he had] been questioned by them, [he] told them

the whole truth.” Caos argues that the newly discovered evidence of Pascual’s

involvement in another Medicare fraud establishes that Pascual perjured himself at

trial. Caos moved for a new trial under Rule 33 of the Federal Rules of Criminal

Procedure. The district court concluded that Caos failed to satisfy two

requirements for a new trial under Rule 33 because the newly discovered evidence

was merely cumulative and impeaching and because a new trial would not produce

a different result, and denied the motion.

      The district court did not abuse its discretion when it determined that

Pascual’s involvement in another Medicare fraud was cumulative and impeaching.

                                             16
The government presented Pascual to the jury as a convict who serving a sentence

of 46 months for Medicare fraud, and the district court instructed the jury to

consider Pascual’s testimony with more caution because he had entered an

agreement with the government and “may have a reason to make a false

statement.” Caos contends that the newly discovered evidence was more than

cumulative or impeaching because Pascual committed “undisputable perjury,” but

the district court was entitled to find otherwise. Caos fails to establish that Pascual

was asked directly whether he was engaging in other criminal activities, and, as the

district court found, “Pascual did not affirmatively state he had committed no other

crimes . . . , nor did he or the government paint Pascual to be a reformed criminal.”

      The district court acted within its discretion when it determined that Caos

failed to establish that a new trial would probably produce a different result

because “there was ample other evidence, both testimonial and documentary, to

support [Caos’s] convictions.” Apart from Pascual’s testimony, the government

introduced evidence that Caos wrote prescriptions for the drugs involved in the

scheme that yielded high reimbursements, and that owners of durable medical

equipment companies delivered prescriptions that Caos wrote to the pharmacies

involved. Dr. Cuni, a government witness who admitted to his involvement in the

scheme, testified that Hernandez had mentioned that Caos would replace Cuni in



                                           17
the scheme when Cuni left for a medical procedure. The government also

introduced evidence that Caos sought reimbursements from Medicare for patient

visits and that the pharmacies, the owners of durable medical equipment

companies, and Caos all billed Medicare for the same beneficiaries. This evidence

supports as reasonable the determination of the district court that, even if the jury

had known about Pascual’s other criminal activities, it would not have reached a

different result.

                    G. The District Court Did Not Abuse Its Discretion
                      When It Sentenced Hernandez and Rodriguez.

       Rodriguez and Hernandez argue that the district court clearly erred when it

determined their respective sentences. We address Rodriguez’s and Hernandez’s

sentencing arguments in three parts. First, we address Rodriguez and Hernandez’s

argument that the district court erred when it imposed a four-level increase to their

sentences for their roles as organizers or leaders of a criminal activity that involved

five or more participants, U.S. Sentencing Guidelines Manual § 3B1.1(a) (2007).

Second, we address Hernandez’s contention that she merits a two-level reduction

for acceptance of responsibility, id. § 3E1.1. Third, we address Hernandez’s

argument that the district court erred when it calculated the amount of loss

attributable to her.




                                            18
  1. The District Court Did Not Err When It Enhanced Their Sentences for Their
                         Roles as Organizers or Leaders.

      Rodriguez and Hernandez contend that the district court erred when it

imposed a four-level increase to their sentences for their roles as organizers or

leader of criminal activity, but we disagree. A sentence may be enhanced by four

levels under section 3B1.1(a) “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). The government introduced evidence that

Hernandez recruited and supervised 35 Medicare beneficiaries to participate in the

scheme and paid Juan Molina for his fraudulent prescriptions. The government

also introduced evidence that Rodriguez exercised control over patients at an

assisted living facility who received medications involved in the scheme, and that

one of Rodriguez’s employees, Adela Pique, delivered cash payments to a patient

under Rodriguez’s supervision. The evidence also established that Rodriguez and

Hernandez “claimed right to a larger share of the fruits of the crime,” U.S.S.G. §

3B1.1(a) cmt. n.4, because they received 50 percent of the Medicare

reimbursements for the prescriptions they sent to the pharmacies and kept 100

percent of the Medicare reimbursements for durable medical equipment.

Rodriguez and Hernandez contend that the district court erred because it merely

provided “one paragraph with no particulars” to support its decision to enhance

                                          19
their sentences, but “[i]n making the ultimate determination of the defendant’s role

in the offense, the sentencing judge has no duty to make any specific subsidiary

factual findings,” United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999)

(en banc).

   2. The District Court Did Not Err When It Denied Hernandez a Reduction for
                           Acceptance of Responsibility.

      Hernandez fails to establish that the district court clearly erred when it

denied her a two-level reduction for acceptance of responsibility. “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). The district court concluded that Hernandez did not carry

her burden because she merely “attempt[ed] to plead at the 11th hour and even then

was not admitting responsibility in full for all of her conduct, and the position she

has taken since has been one in which she has not acknowledged full responsibility

for her actions in this case.” We agree.

     3. The District Court Did Not Err When It Calculated the Amount of Loss
                      Attributable to Hernandez and Rodriguez.

      Hernandez and Rodriguez challenge the calculation by the district court of

the amount of loss attributable to them for sentencing purposes, but their challenge

is without merit. “[A]lthough the district court must not speculate concerning the



                                           20
existence of a fact which would permit a more severe sentence under the

guidelines, its reasonable estimate of the intended loss will be upheld on appeal.”

United States v. Dominguez, 109 F.3d 675, 676 (11th Cir. 1997) (citation and

internal quotation marks omitted). The district court based its calculation of loss

on 80 percent of the amount allowed by Medicare for reimbursements attributable

to Hernandez and Rodriguez, and concluded that Hernandez and Rodriguez were

each responsible for a loss in the range of $200,000 to $400,000. Evidence

presented at the hearing supports this calculation as reasonable, including the

testimony of Hernandez and Rodriguez’s own expert witness, who testified that

Hernandez and Rodriguez had received “approximately 80 percent of the [amount]

allowable” under the Medicare fee schedules. The calculation of loss by the

district court also excluded charges outside of the conspiracy period, charges for

equipment not related to the kinds of medications prescribed in the scheme, and

charges associated with A&A Home Healthcare and M&M Assisted Living

Facility. We conclude that the calculation of loss by the district court was

reasonable.

                                IV. CONCLUSION

      We AFFIRM the judgments of convictions and sentences.




                                          21
