                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                                APR 29, 2010
                               No. 09-13617                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                     D. C. Docket No. 09-20053-CR-PAS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JESUS ESCOTO,

                                                          Defendant-Appellant.


                         ________________________

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

                               (April 29, 2010)

Before EDMONDSON, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

     Jesus Escoto appeals his sentence of 47 months of imprisonment for
conspiracy to commit health care fraud, 18 U.S.C. § 1349, and three counts of

health care fraud, id. § 1347. Escoto argues that his sentence is unreasonable. We

affirm.

      Agents of the Federal Bureau of Investigation discovered that Lester

Miranda had established businesses with nominee owners that had submitted

fraudulent medical claims to Medicare and had funneled payments received for

those false claims to Miranda and members of his conspiracy. As part of this

scheme, Miranda paid Escoto to serve as the nominee owner of Chaca Medical

Services, Inc. Between March 2004 and June 2004, Escoto submitted on behalf of

Chaca Medical false claims to Medicare of $9,536,027, and Medicare paid Chaca

Medical $3,209,750, which Escoto distributed to himself, Miranda, and other

members of the conspiracy.

      Escoto was indicted for conspiracy and three counts of health care fraud, and

he later entered blind pleas of guilt to the four crimes. Id. §§ 1347, 1349. Escoto’s

presentence investigation report listed an adjusted offense level of 25, and with a

criminal history category of I, the report provided a sentencing range between 57

and 71 months of imprisonment. The report stated that in 1998 Escoto had been

arrested and charged for being an immigrant without a visa and for fraud but the

“circumstances for [the] arrest” and disposition of the charges were unknown.



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      Escoto objected to the report and he moved for a downward variance based

on his work history, his fiscal obligations to his children, mother, and adult sister,

and his lack of a criminal history. Escoto argued that he was a nominee owner and

served a minimal role in the conspiracy. Escoto did not request a specific term of

imprisonment, but he stated that comparable coconspirators “were punished

appropriately” when they received sentences between 59 and 168 months of

imprisonment.

      The district court sentenced Escoto to 47 months of imprisonment and 3

months of supervised release. The district court explained that ordinarily it

“imposes within the guidelines for Medicare fraud,” but “in applying the 3553

factors,” the district court found that Escoto’s role as a nominee owner and

otherwise lawful conduct made a “variance in this particular case . . . appropriate.”

The district court stated that “a 47-month sentence . . . [was] sufficient to achieve

the need for respect for the law, deterrence, protect the community, and also take

into consideration avoidance of disparity . . . with other individuals within this

particular group . . . .” The district court acknowledged that there was “one person

who did receive a [reduction for a] minor role and was a nominee owner,” but the

court determined that Escoto was not entitled to a minor role reduction “because of

the amount of money involved.”



                                           3
      The district court did not abuse its discretion by imposing a sentence below

the advisory guideline range. The district court considered the sentencing factors

and reasonably determined that a 10-month downward variance would punish

Escoto for his crimes, deter him from future similar crimes, protect the public, and

avoid an unwarranted sentence disparity with similarly situated codefendants. See

18 U.S.C. § 3553(a); Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456,

2468 (2007). Escoto argues that the district court erred by considering his arrest

for immigration fraud, but the court stated that Escoto’s sentence was “appropriate

for a . . . man who has not otherwise had any criminal involvement.” We will not

disturb a sentence unless “‘we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.’” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.

2009) (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

Escoto requested and received a downward variance, and his sentence is

reasonable.

      We AFFIRM Escoto’s sentence.




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