             Case: 13-14217     Date Filed: 09/12/2014   Page: 1 of 13


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-14217
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20123-JAL-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

RITA LOPEZ,

                                                              Defendant-Appellant.

                          ________________________

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

                                (September 12, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Rita Lopez appeals her 41-month sentence, imposed after she pled guilty to

health-care fraud. We affirm.
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                                   I. BACKGROUND

       Between March and October 2011, Lopez paid a doctor for prescriptions for

home-health services for various Medicare beneficiaries. The doctor had not

properly diagnosed the beneficiaries or prescribed the services. Lopez gave the

prescriptions to others, who submitted false Medicare claims based on the

prescriptions. Lopez also introduced others to the doctor who engaged in the same

conduct. Medicare paid approximately $335,036 to various entities based on the

fraudulent prescriptions. Lopez knew the prescriptions were fraudulent and would

be used to submit fraudulent Medicare claims. 1

       After the government charged Lopez with one count of health-care fraud, in

violation of 18 U.S.C. § 1347, Lopez signed a written plea agreement, in which she

agreed to plead guilty to the charged count. The parties jointly agreed to

recommend the following Sentencing Guidelines calculations: (1) a base offense

level of 6, under U.S.S.G. § 2B1.1; (2) a loss amount of $335,036 and a resulting

12-level increase, under § 2B1.1(b)(1)(G); (3) a 3-level acceptance-of-

responsibility reduction, under U.S.S.G. § 3E1.1; (4) a total offense level of 15;

(5) a criminal history category of I; and (6) a resulting Guidelines range of 18-24

months of imprisonment. The agreement stated the government would not be

bound to make these recommendations, if Lopez (a) failed to make full, accurate,

       1
          The plea agreement provided that, if the case went to trial, the government would be
able to prove these facts beyond a reasonable doubt.
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and complete disclosure to the Probation Office of the circumstances surrounding

her relevant offense conduct; (b) was found to have misrepresented facts to the

government before entering into the plea agreement; or (c) committed any

misconduct after entering into the agreement, including making any false

statements or misrepresentations to any government entity or official.

      In the agreement, the government reserved the right to inform the judge and

the Probation Office of all facts pertinent to sentencing, including all relevant

information concerning Lopez and her background and any offenses committed,

whether charged or not. The government further reserved the right “to make any

recommendation as to the quality and quantity of punishment,” “[s]ubject only to

the express terms of any agreed-upon sentencing recommendations contained in

th[e] agreement.” R. at 59.

      In addition, Lopez agreed to entry of a money judgment against her in the

amount of $335,036. She also agreed to assist the government in all proceedings

involving the forfeiture of her interests in property to satisfy the money judgment.

Lopez agreed to provide the government with a financial statement within 30 days

of the judge’s acceptance of her plea.

      On May 14, 2013, Lopez pled guilty to the charged count. The district judge

accepted Lopez’s plea and adjudicated her guilty on that date. The Sentencing

Guideline calculations in Lopez’s initial presentence investigation report (“PSI”)


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were the same as those agreed on by the parties, and yielded a Guidelines range of

18-24 months of imprisonment. Lopez filed a sentencing memorandum, in which

she requested a sentence of probation with limited home confinement. Lopez

asserted she had played a limited role in the scheme and did not retain any of the

Medicare funds, which were paid to her employer. Lopez further contended she

had introduced the doctor to only one other person, who had obtained fee-based

prescriptions.

      The government responded that, in Lopez’s sentencing memorandum, she

had “completely misrepresented herself and the nature of her criminal conduct.”

R. at 91. The government detailed Lopez’s multiple doctor visits, during which

she bought fraudulent prescriptions and discussed what she paid other doctors for

such prescriptions. The government asserted Lopez had introduced several other

participants into the scheme, and she had lied when government agents initially

approached her. Consequently, the government requested a 24-month sentence.

      During Lopez’s initial August 2013 sentencing hearing, she withdrew her

assertion that she had introduced only one other person to the doctor. The district

judge noted Lopez’s PSI appeared to contain incomplete information as to her

finances and contained no information about her prior employment or her

husband’s income. The probation officer stated Lopez had provided little financial

information during her interview. Lopez stated her husband, who recently had left


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her, previously had worked at Wal-Mart, but currently was retired on a pension.

The government noted Lopez previously had said her husband ran a travel agency.

The judge adjourned the hearing, to give Lopez the opportunity to make a full

disclosure of her finances.

        An amended PSI, which again contained the same Guidelines calculations,

included additional information concerning Lopez’s prior employment. The

amended PSI stated that, from 2006 through 2010, Lopez had cared for her ailing

mother-in-law, who had died in 2010. Lopez reported her husband had supported

her financially during this time. From April 2010 through December 2012, Lopez

had worked as a marketer for Florida Patient Care and had been paid $6.15 per

hour.

        During Lopez’s continued sentencing hearing, disagreements between the

parties remained as to the accuracy of the financial information provided by Lopez.

Following two recesses, Lopez explained she and the government had resolved

several issues. The sole remaining issue concerned whether Lopez had been

employed from 2006 to 2010. Lopez’s counsel suggested an evidentiary hearing

be held to resolve the government’s claim that Lopez had lied about her

employment.

        Following a third recess, Lopez identified a correction to be made to the

information she had provided to the Probation Office. She explained that, while


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caring for her mother-in-law from 2006 through 2010, she had been paid at times

by OD Home Healthcare for her work as her mother-in-law’s home healthcare

aide. Lopez further stated she also ran a corporation named Lucky Job

Employment, through which she had been paid by OD Home Healthcare for home

healthcare aide referrals.

      The government called Special Agent Liz Santa Maria, of the Federal

Bureau of Investigation (“FBI”). Agent Santa Maria testified that, while

conducting an investigation into Continuous Home Care Services, Inc. (“CHCS”),

a home healthcare agency, she identified various checks written from CHCS to

Lucky Job Employment Corp., Rita Lopez, and R&R Employment Corp. Lucky

Job Employment and R&R Employment were incorporated by Lopez. Santa Maria

identified 10 checks dated between January and July 2010, in amounts ranging

from $500 to $2,200, for a total of approximately $14,000. She testified agents

had not sought to find all checks written to Lopez.

      Agent Santa Maria further testified she had interviewed Daisy Acosta, who

was a patient recruiter for Paradise Home Healthcare and a “check-casher.” R. at

223. Acosta told Santa Maria that Acosta had spoken with Lopez before speaking

with government agents. Lopez told Acosta “she didn’t have to speak to agents

and, if she were asked any questions, to say, ‘No,’ ‘No,’ ‘No.’” R. at 224. Santa

Maria first spoke with Acosta on June 7, 2013.


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      The district judge admitted into evidence Lopez’s 2010 federal tax return, in

which she had reported income of $49,463. Agent Santa Maria testified she did

not know whether that amount included the previously identified checks. Santa

Maria also testified that, when she initially approached Lopez, Santa Maria had

sought information about various doctors and home healthcare agencies. Lopez

steadfastly had declined to cooperate in the FBI’s investigation and similarly had

told Acosta not to cooperate with authorities.

      The government argued the evidence showed Lopez had made false

statements to the Probation Office as to her employment history in 2010. The

government, however, declined to seek a sentencing enhancement for obstruction

of justice or to withhold an acceptance-of-responsibility reduction. Instead, the

government intended to seek an upward variance to a 36-month-imprisonment

sentence. The district judge granted the government’s motion for a § 3E1.1

reduction and adopted the PSI’s factual findings and Guidelines calculations.

      Lopez withdrew her request for a downward variance and asked for a

within-Guidelines imprisonment sentence. She argued that, although she had

declined to cooperate in the investigation, she never had intended to deceive the

government, and had accepted responsibility. Moreover, she asserted, she had

“lost everything.” R. at 246. The government argued at length for a 36-month

sentence, because Lopez had continued to lie and change her story.


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      Before imposing her sentence, the district judge recounted the inadequate

financial information in the initial PSI and Lopez’s subsequent disclosures. The

judge discussed the conduct underlying Lopez’s offense, which the judge described

as “very serious” and an abuse of the “very fragile Medicare health system,” R. at

260, while noting Lopez had no prior criminal history. The judge also found

Lopez had not been truthful as to her income between January and April 2010,

which came “perilously close to obstruction of justice and to a negation of any

acceptance of responsibility.” R. at 261.

      The judge added:

             Having considered all of the factors under [18 U.S.C.
      §] 3553(a) and being especially mindful of both the nature and
      circumstances of the offense, the lack of forthrightness of this
      Defendant before this Court and the need for the sentence imposed to
      reflect just how serious this offense is, to promote respect for the law
      and provide just punishment for this offense, and to afford adequate
      deterrence to criminal conduct not only of this Defendant, but other
      persons who may be considering such conduct—Medicare fraud is
      rampant in our community. The sentence that I impose must speak
      loudly and clearly to the fact that this type of conduct is not
      acceptable.

R. at 262-63.

      The judge sentenced Lopez to 41 months of imprisonment, to be followed by

3 years of supervised release, and ordered Lopez to pay $335,036 in restitution to

the Centers for Medicare and Medicaid Services. The judge explained she had

“considered the statements of the parties, the advisory presentence investigation


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report and its addendums, which contain[ed] the advisory guidelines and the

statutory factors set[] forth in Title 18, United States Code, Section 3553(a)(1)

through (7).” R. at 264. Lopez renewed her prior objections.

      Lopez argues on appeal the government breached her plea agreement by

seeking an upward variance. Lopez contends breach occurred when, by seeking an

upward variance, the government contradicted its prior assertion that Lopez’s false

statements to the Probation Office did not warrant different Guidelines

calculations. Lopez further argues her sentence is substantively unreasonable,

because the circumstances of her case did not warrant an upward variance. Lopez

contends the fact that she pled to a “very serious offense” and the “fragile” nature

of Medicare were improper considerations for the judge, since they are built into

the Guidelines. Lopez Br. at 26 (internal quotation marks omitted). Moreover, she

argues the judge over-emphasized the nature and circumstances of the crime and

Lopez’s lack of candor in choosing a sentence.

                                 II. DISCUSSION

A. Government’s Alleged Breach of Plea Agreement

      We generally review de novo whether the government breached a plea

agreement. See United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008). Where a defendant fails to raise this issue before the district judge,

however, we review for plain error. Id. Establishing plain error requires showing


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(1) an error (2) that was plain, (3) affected one’s substantial rights, and

(4) seriously affected the fairness, integrity, or public reputation of judicial

proceedings. Id.

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). Whether a plea agreement was

violated is determined according to the defendant’s reasonable understanding,

when she entered the plea. United States v. Horsfall, 552 F.3d 1275, 1281 (11th

Cir. 2008) (per curiam)

      Regardless of the standard of review, the government did not breach Lopez’s

plea agreement, which did not prohibit the government from seeking an upward

variance. Lopez’s plea agreement did not bind the government to make any

particular recommendation as to Lopez’s ultimate sentence. To the contrary, the

agreement limited the government’s recommendations only as to Lopez’s

Guidelines calculations. Subject only to that restriction, the government explicitly

reserved the right to make “any recommendation as to the quality and quantity of

punishment.” R. at 59.

      Given the district judge’s finding that Lopez had not provided truthful

information as to her income, which Lopez does not challenge on appeal, the

government was released from its obligations under the agreement. Even if the


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agreement had prohibited the government from seeking an upward variance, any

such limitation was eliminated by the judge’s finding as to Lopez’s truthfulness.

      Lopez’s assertion on appeal, that the breach occurred when the government

contradicted its representation that her false statements did not warrant different

guideline calculations, is meritless. The government’s decision not to withhold a

motion for an acceptance-of-responsibility reduction, did not induce Lopez to

plead guilty, which she already had done. Cf. Taylor, 77 F.3d at 370 (explaining

the government is bound by any material promises that induce a defendant to plead

guilty). Moreover, Lopez’s plea agreement did not prohibit the government from

seeking an upward variance in the first instance. Lopez has cited no authority

supporting her suggestion that the government’s decision not to withhold an

acceptance-of-responsibility motion barred it from seeking by other means a

sentence it deemed appropriate.

B. Substantive Reasonableness

      We examine the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard, in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,

597 (2007). The district judge must impose a sentence sufficient, but not greater

than necessary, to comply with the purposes listed in § 3553(a)(2), including the

need to reflect the seriousness of the crime, promote respect for the law, provide


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just punishment for the offense, deter criminal conduct, and protect the public from

the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). The party

challenging the sentence has the burden of showing it is unreasonable. United

States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011).

       The weight to be accorded any given § 3553(a) factor is a matter committed

to the sound discretion of the district judge. United States v. Williams, 526 F.3d

1312, 1322 (11th Cir. 2008) (per curiam). We will reverse only if left with the

“definite and firm conviction” the judge committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence outside the range of

reasonable sentences dictated by the facts of the case. United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc) (citation and internal quotation marks

omitted). A sentence imposed well below the statutory maximum is one indicator

of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008) (per curiam). Conversely, a judge’s unjustified reliance upon any

one § 3553(a) factor may be a symptom of an unreasonable sentence. United

States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006) (holding a sentence of five

hours of imprisonment was unreasonable, when the district judge focused “single-

mindedly” on the goal of restitution to the detriment of all other sentencing

factors).




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      Lopez has not met her burden of showing her sentence is substantively

unreasonable in light of the record and the § 3553(a) factors. See Gall, 552 U.S. at

51, 128 S. Ct. at 597; Dean, 635 F.3d at 1203-04. Her 41-month sentence is well

below the 10-year statutory maximum penalty. See 18 U.S.C. § 1347; Gonzalez,

550 F.3d at 1324. Moreover, her sentence met the goals embodied in § 3553(a).

In particular, the judge expressed concern regarding Lopez’s truthfulness in the

proceedings and the seriousness of Medicare fraud, while accounting for Lopez’s

lack of prior criminal history. Considering the judge’s findings as to Lopez’s lack

of candor and involvement in the offense, the judge did not abuse her discretion,

when she concluded a sentence outside the Guidelines range was needed to

promote respect for the law, provide just punishment, and deter Lopez and others

from further criminal activity. See 18 U.S.C. § 3553(a); Gall, 552 U.S. at 51, 128

S. Ct. at 597. Although the judge emphasized Lopez’s untruthfulness and the

characteristics of the crime, the record does not suggest the judge did so “single-

mindedly” to the detriment of all other § 3553(a) factors, which she also explicitly

acknowledged. See Crisp, 454 F.3d at 1292.

      AFFIRMED.




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