                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 18, 2008
                             No. 07-15466
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                   D. C. Docket No. 07-20282-CR-UUB

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

AIDA LOPEZ,

                                                     Defendant-Appellant.


                       ________________________

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

                              (June 18, 2008)


Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Aida Lopez appeals her 57-month sentence imposed for conspiring to

defraud the government under 18 U.S.C. § 371 and conspiring to commit health

care fraud under 18 U.S.C. § 1349. Lopez raises a single claim on appeal–that the

district court erred in imposing a four-level enhancement under U.S.S.G.

§ 3B1.1(a) for being a leader or organizer in a criminal activity that involved five

or more people or was otherwise extensive. She attacks the enhancement in three

ways, claiming the district court erred by: (1) treating the patients as participants

under U.S.S.G. § 3B1.1(a); (2) admitting certain hearsay statements into evidence

in her sentencing hearing; and (3) failing to raise the Government’s burden of

proof in the sentencing hearing. We affirm Lopez’s sentence.

      The enhancement for a defendant’s role “as a leader or organizer under

U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error.” United States

v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). A four-level increase is applied

if the defendant “was an organizer or leader” in an offense with more than five

participants. U.S.S.G. § 3B1.1(a). In determining the defendant’s role in the

offense, the district court should consider:

      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of




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      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

U.S.S.G. § 3B1.1, comment. (n.4).

      Additionally, the commentary notes clarify: “There can, of course, be more

than one person who qualifies as a leader or organizer of a criminal association or

conspiracy.” Id. However, each person who qualifies as a leader under this

enhancement must supervise at least one participant. U.S.S.G. § 3B1.1, comment.

(n.2). Only people who are criminally responsible may be classified as

participants. See United States v. Eidson, 108 F.3d 1336, 1345 (11th Cir. 1997),

abrogated on other grounds by Rapanos v. United States, 126 S. Ct. 2208 (2006).

All individuals who were criminally responsible, even if not convicted, may be

counted to determine the number of participants in criminal activity. See id. The

defendant can be counted as one of the five participants. See United States v.

Rodriguez, 981 F.2d 1199, 1200 (11th Cir. 1993). Further, enhancement under

U.S.S.G. § 3B1.1(a) is appropriate without five participants when the criminal

activity is “otherwise extensive.” Id. (quoting U.S.S.G. § 3B1.1(a)).

      Lopez’s claim the district court erred in imposing a four-level role

adjustment is without merit because there is sufficient evidence in the record to

support a finding the criminal activity included five or more participants or was



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otherwise extensive. Lopez’s first assertion, that the district court erred in

determining there were five or more participants, is without merit. In this case,

participants included Henry Gonzalez, Karla Gonzalez, Domingo Santana, Hilda

Prado, the doctor to which Prado was taken, and Lopez herself. As this exceeds

five participants, the requirement of five or more participants is satisfied.

Moreover, the 70 patients organized by Lopez are sufficiently numerous to classify

the criminal activity as otherwise extensive. See Rodriguez, 981 F.2d at 1200

(holding, in the alternative, there were five or more participants and the criminal

activity was otherwise extensive).

      Lopez’s second assertion, that the district court erred in admitting the

hearsay testimony of Hilda Prado at the sentencing hearing, is also without merit.

Hearsay may be admitted at sentencing if there are “sufficient indicia of reliability,

the [district] court makes explicit findings of fact as to credibility, and the

defendant has an opportunity to rebut the evidence.” United States v. Zlatogur,

271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). In this case, the

statements of Hilda Prado were consistent with the overall allegations describing

the conspiracy to commit health care fraud. Lopez admitted she utilized patients to

acquire fraudulent prescriptions from doctors, while Prado provided a detailed

description of a particular patient being used to get a fraudulent prescription.



                                            4
Therefore, Prado’s statements have a sufficient indicia of reliability. Notably,

Lopez’s brief does not argue the district court made insufficient findings of fact or

denied Lopez an opportunity to rebut the hearsay statements. Although the district

court did not explicitly state it found the evidence credible, the district court did

explicitly rely on Prado’s hearsay statements. Finally, Lopez was offered an

opportunity to rebut the hearsay statements made by Hilda Prado.

      Lopez’s third assertion, that the district court erred by refusing to raise the

burden of proof, is also without merit. As a preliminary matter, Lopez did not

request the district court raise the burden of proof during the sentencing hearing.

When an issue was not raised before the district court, this Court reviews for plain

error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005).

      Here, there is no plain error because there is no error. Lopez asserts the

substantive holding of United States v. Booker, 125 S. Ct. 738 (2005), requires a

re-evaluation of the burden of proof to be applied in sentencing hearings. To guide

that re-evaluation, Lopez asserts this Court should follow Addington v. Texas, 99

S. Ct. 1804 (1979), in determining the appropriate burden of proof. In Addington,

the Supreme Court explained the burden of proof “serves to allocate the risk of

error between the litigants and to indicate the relative importance attached to the

ultimate decision.” Id. at 1808. Lopez asserts following this analysis would



                                            5
require a higher burden of proof than preponderance of the evidence. However,

nothing in Booker requires a re-evaluation of the burden of proof. See United

States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005) (holding district courts are

permitted to make findings of fact by a preponderance of the evidence in applying

the advisory Guidelines).

      We conclude the district court did not err in imposing a four-level

enhancement under U.S.S.G. § 3B1.1(a) for being a leader or organizer in a

criminal activity that involved five or more people or was otherwise extensive.

Thus, we affirm Lopez’s sentence.

      AFFIRMED.




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