                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             NOVEMBER 4, 2009
                               No. 09-11212                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 08-20424-CR-JAL

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ALBERTO HERNANDEZ,

                                                            Defendant-Appellant.


                         ________________________

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

                              (November 4, 2009)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

     Alberto Hernandez pled guilty to all six counts of an indictment: Count 1,
conspiracy to commit health care fraud, in violation of 18 U.S.C. §1349; Count 2

through 6, health care fraud, in violation of 18 U.S.C. §§ 1347 and 2, and the

district court sentenced him to concurrent prison terms of 60 months. He now

appeals his sentences.

                                           I.

      First, Hernandez argues that the district court should not have enhanced his

offense level by two levels pursuant to U.S.S.G. § 2B1.1(b)(9)(C) for use of

“sophisticated means.” Specifically, he claims that his actions were not

complicated at all, but rather simple, thereby making application of the two-level

enhancement inappropriate.

      We review a district court’s finding that a defendant utilized sophisticated

means for clear error. See United States v. Robertson, 493 F.3d 1322, 1329-30

(11th Cir. 2007) (applying a sophisticated-means enhancement under U.S.S.G.

§ 2F1.1(b)(5)(C) (1998)). A finding is clearly erroneous “when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Id. at 1330

(quotation omitted).

      The Sentencing Guidelines provides for an enhancement of two levels if the

offense in question “involved sophisticated means.” § 2B1.1(b)(9)(C). Application



                                           2
note 8(B) to that Guideline states:

      . . . “sophisticated means” means especially complex or especially
      intricate offense conduct pertaining to the execution or concealment of
      an offense. For example, in a telemarketing scheme, locating the
      main office of the scheme in one jurisdiction but locating soliciting
      operations in another jurisdiction ordinarily indicates sophisticated
      means. Conduct such as hiding assets or transactions, or both,
      through the use of fictitious entities, corporate shells, or offshore
      financial accounts also ordinarily indicates sophisticated means.

U.S.S.G. § 2B1.1, comment. (n.8(B)). In interpreting a prior version of

§ 2B1.1(b)(9)(C) in Robertson, we upheld a sophisticated means enhancement for

a defendant who utilized fictitious names and addresses to insulate himself from

detection. 493 F.3d at 1332. In addition, the defendant created fictitious entities

that were switched every 30 days to take advantage of the victim company’s

policies. Consequently, relying on these facts and a prior, but nearly identical

version of § 2B1.1 application note 8(B), we explicitly rejected the defendant’s

argument that his scheme was “simple.” Id.

      Here, the district court did not commit clear error in applying the two-level

sophisticated means enhancement to Hernandez’s Guidelines calculation. The

court correctly noted that Hernandez’s conduct fell squarely within the plain

language of § 2B1.1 application note 8(B). Moreover, the court’s application of

§ 2B1.1(b)(9)(C) is in accord with our holding in Robertson. Consequently, we

affirm the district court’s imposition of a two-level sophisticated means

                                          3
enhancement.

                                          II.

      Second, Hernandez argues that his sentence was both procedurally and

substantively unreasonable. In sum, he claims that the district court improperly

relied on one of the 18 U.S.C. § 3553(a) sentencing factors, the protection of the

public, and consequently failed to consider other § 3553(a) factors.

      After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), we

established a two-part process for district courts to use in calculating sentences.

United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). First, the district

court must consult and correctly calculate the sentence range prescribed by the

Sentencing Guidelines. Second, the district court must fashion a reasonable

sentence by considering the factors enumerated in § 3553(a). Id.

      We review the reasonableness of a sentence under an abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, __, 128 S.Ct. 586, 594 (2007). A

defendant challenging his sentence bears the burden of establishing that it is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Overall, the analysis is a two-step process. United Stats v, Pugh, 515 F.3d 1179,

1190 (2008). First, we examine whether the district court committed any

significant procedural error. Second, after it has been determined that a sentence is



                                           4
procedurally sound, we review the substantive reasonableness of a sentence. Id.

      When reviewing for procedural unreasonableness, we should ensure that the

district court: (1) properly calculated the Guidelines sentence range; (2) treated the

Guidelines as advisory; (3) considered the § 3553(a) factors; (4) did not select a

sentence based on clearly erroneous facts; and (5) adequately explained the chosen

sentence. Gall, 552 U.S. at __, 128 S.Ct. at 597. When the district court considers

the § 3553(a) factors, the court need not discuss each factor. Talley, 431 F.3d at

786. All that is required is that the court acknowledge that it has considered the

defendant’s arguments and the § 3553(a) factors. United States v. Scott, 426 F.3d

1324, 1330 (11th Cir. 2005).

      A sentence is substantively unreasonable “if it does not achieve the purposes

of sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quotation omitted).

The analysis includes “examining the totality of the circumstances, including an

inquiry into whether the statutory factors in § 3553(a) support the sentence in

question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert.

denied, 129 S.Ct. 2848 (2009). The factors in § 3553(a) that the court must

consider are:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      of the offense, to promote respect for the law, and to provide just
      punishment for the offense; (3) the need for deterrence; (4) the need to

                                           5
       protect the public; (5) the need to provide the defendant with needed
       educational or vocational training or medical care; (6) the kinds of
       sentences available; (7) the Sentencing Guidelines range; (8) pertinent
       policy statements of the Sentencing Commission; (9) the need to
       avoid unwanted sentencing disparities; and (10) the need to provide
       restitution to victims.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).

       The weight the district court accords to “any given § 3553(a) factor is a

matter committed to the sound discretion of the district court . . . .” United States

v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation omitted). In terms of

the sentence range, we have held that “when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Talley, 431 F.3d at 788. Also, where the sentence imposed is

only a fraction of the statutory maximum, this supports a finding of

reasonableness. See Gonzalez, 550 F.3d at 1324 (noting the importance of the

defendant’s 50-month sentence being “well below the maximum ten-year sentence

available . . . .”).

       The district court did not abuse its discretion in imposing concurrent prison

sentences of 60 months each. Procedurally, the district court properly considered

the § 3553(a) factors, the parties’ arguments, and the record. Furthermore, the

sentence imposed was within the Guidelines sentence range and well below the

statutory maximum, creating strong support for a finding of reasonableness.

                                           6
AFFIRMED.




            7
