                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 10-13695                ELEVENTH CIRCUIT
                            Non-Argument Calendar              AUGUST 15, 2011
                          ________________________               JOHN LEY
                                                                  CLERK
                      D.C. Docket No. 1:09-cr-21019-UU-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

DAVID MARRERO,

                                                            Defendant-Appellant.

                          ________________________

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

                                (August 15, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      David Marrero appeals his sentence of 120 months of imprisonment for

defrauding Medicare by operating a fraudulent healthcare clinic, 18 U.S.C.
§ 1347; conspiring to launder money, id. § 1956(h); and money laundering, id.

§ 1957. Marrero challenges findings of fact about the extent of his misconduct,

the calculation of the amount of loss, and the enhancement of his sentence for his

leadership role. We affirm.

      The district court did not clearly err in its factual findings about Marrero’s

crimes. The district court relied on the evidence that it had heard at trial and

selected a base offense level for Marrero’s conviction of defrauding Medicare.

The evidence established that Marrero incorporated and later operated Tendercare

through counseling his wife, to whom he transferred the business after their

divorce, and through his relationship with Keith Russell, whom Marrero hired to

manage Tendercare. At Marrero’s direction, Tendercare submitted to Medicare

false invoices for treatments of patients allegedly suffering from human

immunodeficiency virus and acquired immunodeficiency syndrome, including

Marrero’s aunt. Marrero recruited patients, instructed his wife to order

medication, taught her about Medicare procedures, recruited Jorge Pacheco to

falsify blood tests, falsified and trained Eda Milanes and others to falsify blood

samples, signed “therapy pages” that recorded dosages of medication allegedly

administered to patients, received payment from Tendercare for treatment

allegedly administered to his aunt, and counseled his wife to pay patients

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kickbacks from Tendercare’s illegal profits. Marrero complains that evidence

about his role in a conspiracy to defraud was used to determine his sentence, but

the district court was entitled to consider all conduct relevant to Marrero’s crimes,

United States Sentencing Guidelines Manual § 1B1.3 (2009), including conduct

for which Marrero was acquitted, see United States v. Culver, 598 F.3d 740, 752

(11th Cir. 2010).

      The district court also did not clearly err in determining the amount of loss.

Marrero argues that he was held accountable for a loss between $7 and $20

million, but the district court attributed to Marrero a loss between $2.5 and $7

million. The district court took into account Marrero’s misconduct and “all

reasonably foreseeable acts and omissions of others in furtherance of” the scheme

to defraud Medicare, U.S.S.G § 1B1.3(a), and relied on the undisputed testimony

of Marrero’s wife that Medicare was billed approximately $5.8 million in

fraudulent claims. Moreover, Marrero admits that “the evidence at trial showed

that . . . the amount that was paid by Medicare [to Tendercare] . . . was

$2,743,473.80.”

      The district court likewise did not clearly err when it enhanced Marrero’s

sentence based on his role as a leader in the scheme to defraud. A defendant is

subject to a four-level enhancement of his sentence for serving as an “organizer or

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leader” of a criminal activity “that involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(a). Facts relevant to a determination that

an individual is a leader or organizer include his “exercise of decision making

authority,” his participation in and “degree of participation in planning or

organizing the offense, . . . [his] recruitment of accomplices, . . . and the degree of

control and authority [he] exercised over others.” Id. cmt. n.4. Marrero does not

dispute that his offense involved more than five participants. The evidence

established that Marrero founded and later instructed his wife how to operate

Tendercare, established a bank account for Tendercare, falsified test results and

paperwork, and recruited patients and staff to defraud Medicare. See United

States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006). Although Marrero’s wife

had a significant role in the fraud, Marrero orchestrated the scheme to defraud.

      We AFFIRM Marrero’s sentence.




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