         Case: 12-15128   Date Filed: 07/31/2013   Page: 1 of 25


                                                       [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-15127
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 2:12-cr-14030-KMM-2


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

WALDO GONZALEZ,

                                                        Defendant-Appellant.

                     ________________________

                           No. 12-15128
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 2:12-cr-14030-KMM-1


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus
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JORGE LUIS REYES,

                                                                      Defendant-Appellant.

                              ________________________

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

                                      (July 31, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM:

       Waldo Gonzalez and Jorge Luis Reyes 1 each appeal their total sentences of

120 months’ imprisonment imposed after they pled guilty to conspiracy to pay

health care kickbacks, in violation of 18 U.S.C. § 371, and payment of health care

kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(2)(B). For the reasons set forth

below, we affirm Gonzalez’s and Reyes’s sentences.

                                              I.

       Reyes and Gonzalez pled guilty to conspiracy to pay health care kickbacks

and payment of health care kickbacks, pursuant to written plea agreements. Their

convictions arose out of their ownership of W & J Rehabilitation Center (“W &

J”). Third parties known as “recruiters” recruited HIV-positive Medicare Part B

and Part C beneficiaries to visit W & J as patients. During their visits to W & J,

       1
          Gonzalez’s appeal has been consolidated with Reyes’s appeal, and we address the
issues that they raise in one opinion.
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the purported patients signed papers attesting to the treatment purportedly provided

to them. Reyes and Gonzalez made cash payments to recruiters each time their

patients visited the clinic and made cash payments to the HIV-positive patients

they purported to treat. Between 2005 and 2009, W & J submitted over $15

million in claims to Medicare and Medicare plan sponsors for the “purported

treatment of AIDS and related conditions.”

      At sentencing, Enelys Ramos, who previously worked at W & J, testified

that Reyes, in the presence of Gonzalez, spoke with Dr. Juan Julio Hernandez

Pombo, a physician at W & J, about expanding the practice to include

HIV-positive patients. Reyes indicated that they would provide infusion

treatments to HIV-positive patients, but that they were not actually going to give

the patients medications, despite billing Medicare for the treatments. After this

conversation, individuals recruited HIV-positive patients and directed them to visit

W & J. Ramos further testified that, at times, Dr. Pombo ordered her to give

HIV-positive patients injections and infusions of prescription drugs. At Reyes’s

direction, Ramos administered injections of Vitamin B-12 and infusions of saline

solution, as opposed to prescription drugs. The clinic had prescription drugs in

stock, but not enough to actually be administered as to all of the treatments ordered

by Dr. Pombo. At Reyes’s direction, Ramos emptied the bottles of prescription

medication and disposed of them.


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      Isaac Lloyd testified that he was HIV-positive, a Medicare beneficiary, and a

former patient at W & J’s Miami, Florida location. Lloyd suggested to Reyes and

Gonzalez that they also open a clinic in Fort Pierce, Florida because numerous

HIV-positive individuals lived there. Lloyd found a building in Fort Pierce where

the clinic could operate, and W & J began operating there.

      David Joel Nederhood, a pharmacology expert, testified that he had

reviewed a sampling of W & J’s Medicare billing data. He did not find a single

instance where the clinic administered a medication for the proper diagnosis, at the

proper frequency, and in the proper dose, all at the same time.

      Gonzalez and Reyes made various factual objections to their presentence

investigation reports (“PSIs”), and the court largely overruled their objections.

Both Gonzalez and Reyes also argued that the court should not apply a 20-level

increase to their offense levels under U.S.S.G. § 2B4.1(b)(1) because the loss

amount involved in the offense did not exceed $7 million. The court noted that

§ 2B4.1(b)(1) provided that “if the greater of the value of the bribe or the improper

benefit to be conferred exceeded $5,000 increase[] by the number of levels from

the table in [U.S.S.G. §] 2B1.1.” After examining the application notes to § 2B4.1

and U.S.S.G. § 2C1.1, the court noted that, under § 2B1.1, comment. (n.3), if the

defendant was convicted of a federal health care offense involving a government

health care program, the aggregate dollar amount of fraudulent bills submitted to


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the government health care program constituted prima facie evidence of the

amount of the intended loss. The court determined that it was undisputed that W &

J billed Medicare in excess of $7 million, and thus, the loss amount exceeded $7

million.

      The court also determined that Gonzalez’s and Reyes’s offense levels should

not be reduced for acceptance of responsibility under U.S.S.G. § 3E1.1. Without

acceptance-of-responsibility reductions, Gonzalez and Reyes each had a guideline

range of 121 to 151 months’ imprisonment. However, as the statutory maximum

was 5 years’ imprisonment as to each count to which Gonzalez and Reyes pled

guilty, their guideline sentences each became 120 months’ imprisonment.

      Both Gonzalez and Reyes requested that the court vary downward from their

applicable guideline range. The court determined that a downward variance was

not warranted with respect to either defendant, and it sentenced Gonzalez and

Reyes to total sentences of 120 months’ imprisonment.

                                         II.

      On appeal, both Gonzalez and Reyes challenge the district court’s decision

not to award them a three-level reduction in their offense levels for acceptance of

responsibility, pursuant to § 3E1.1. We review the district court’s determination

under § 3E1.1 for clear error. United States v. Moriarty, 429 F.3d 1012, 1022

(11th Cir. 2005). At sentencing, the district court’s credibility determinations with


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respect to witness testimony are afforded substantial deference, and we will not

question the district court’s credibility determinations absent some evidence to the

contrary. United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006). Because

the district court’s determination regarding a defendant’s acceptance of

responsibility is entitled to great deference, we will not set aside the district court’s

decision that a defendant is not entitled to a downward reduction for acceptance of

responsibility unless the record clearly establishes that the defendant accepted

responsibility. Moriarty, 429 F.3d at 1022-23. The defendant bears the burden of

clearly demonstrating acceptance of responsibility. Id. at 1023.

      Under § 3E1.1(a), a defendant is entitled to a two-level reduction in his

offense level where he clearly demonstrates his acceptance of responsibility.

U.S.S.G. § 3E1.1(a). Although a guilty plea can constitute significant evidence of

acceptance of responsibility, that evidence may be outweighed by conduct of the

defendant that is inconsistent with an acceptance of responsibility. Moriarty, 429

F.3d at 1023. The commentary to § 3E1.1 sets out a non-exclusive list of factors a

court may consider in determining whether a reduction for a defendant’s

acceptance of responsibility is warranted. U.S.S.G. § 3E1.1, comment. (n.1).

These factors include, inter alia, whether the defendant truthfully admitted the

conduct comprising the offense of conviction and truthfully admitted, as opposed

to falsely denying, any additional relevant conduct. U.S.S.G. § 3E1.1, comment.


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(n.1(A)). The commentary also provides that, where a defendant falsely denies or

frivolously contests relevant conduct that the court determines to be true, the

defendant has acted in a manner inconsistent with acceptance of responsibility. Id.

Relevant conduct includes all acts and omissions committed by the defendant that

occur during the commission of the offense of conviction or in preparation for that

offense. U.S.S.G. § 1B1.3(a)(1). Where a court reduces a defendant’s sentence for

his acceptance of responsibility under § 3E1.1(a), the court may reduce the

defendant’s sentence by one additional level under § 3E1.1(b), where the

government first files a motion providing, inter alia, that the defendant has assisted

authorities in the investigation or prosecution of his own misconduct. U.S.S.G.

§ 3E1.1(b).

                                            A.

      Gonzalez argues that the entry of his guilty plea and admission of all facts

relevant to support his convictions constituted significant and substantial evidence

of his acceptance of responsibility, and in light of this evidence, the district court

erred in denying him an adjustment for his acceptance of responsibility. Gonzalez

further argues that his objections at sentencing did not relate to the actual offenses

of conviction. Gonzalez also asserts that the testimony at sentencing supported his

objection that he did not agree with others to not provide treatment to patients at W




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& J, as the testimony showed that Gonzalez was “not present or not an active

participant” in the discussions concerning the agreement.

      The district court did not clearly err in declining to award Gonzalez a

two-level reduction in his offense level for acceptance of responsibility. Gonzalez

objected to the PSI’s assertion that he was part of an agreement to not provide

treatment to W & J’s patients. As the district court determined, Ramos credibly

testified that Reyes and Dr. Pombo agreed to bill Medicare for treatment that W &

J had not actually provided and that Gonzalez was present for at least some of

these conversations. Further, Ramos testified that, at Reyes’s direction, she would

administer infusions and injections that did not contain prescription medications,

despite W & J billing the infusions and injections as if they did contain such

medications. The district court did not clearly err in determining that Gonzalez

was part of that agreement to commit Medicare fraud, as he was present during the

conversation, was one of the owners of W & J, and benefited more than anyone

due to the commission of the fraud, as he received over $1 million in proceeds.

Thus, the district court was entitled to find that Gonzalez failed to truthfully admit

his role in the Medicare scheme, and thereby denied his relevant conduct. See

U.S.S.G. § 1B1.3(a)(1). Even if some of Gonzalez’s objections at sentencing

were well-founded, the record does not clearly establish that he accepted

responsibility. See Moriarty, 429 F.3d at 1022-23. Because the court did not


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clearly err in denying Gonzalez a reduction under § 3E1.1(a), a further one-level

reduction was not proper under § 3E1.1(b). See U.S.S.G. § 3E1.1(b). Therefore,

the district court did not clearly err in determining that an adjustment in Gonzalez’s

offense level under § 3E1.1(a), (b) was not warranted.

                                          B.

      Reyes argues that the district court erred in not reducing his sentence for his

acceptance of responsibility because (1) the court failed to look at the factors set

forth in § 3E1.1 and its application notes in determining that the reduction did not

apply, and (2) the facts to which he objected were not relevant to the actual

offenses to which he pled guilty. According to Reyes, Ramos’s testimony was not

credible. Although Ramos testified at sentencing that Reyes agreed with Dr.

Pombo that no treatment would be given, this testimony was inconsistent with

statements she had previously made and with unidentified “testimony of other

government witnesses.”

      The district court did not clearly err in determining that a reduction in

Reyes’s offense level was not warranted for acceptance of responsibility.

Although he pled guilty, the court could find that the evidence showing he

accepted responsibility was outweighed by other conduct inconsistent with an

acceptance of responsibility. See Moriarty, 429 F.3d at 1023. First, the court was

entitled to find that, by objecting to statements in the PSI, Reyes falsely denied his


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relevant conduct with respect to (1) his agreement to not provide treatment to

HIV-positive patients, despite submitting claims to Medicare for treatment, and

(2) his directing Ramos to not provide actual treatment to the patients. Ramos

testified that Reyes agreed with others that no actual medications would be

provided to the HIV-positive patients with respect to infusions and that Reyes

directed Ramos not to provide prescription medications when she administered

injections and infusions. Reyes did not show that Ramos’s testimony was

inconsistent with previous statements that she had made at sentencing, as he never

introduced into evidence any previous inconsistent statements. Further, Reyes has

not shown that Ramos’s testimony was inconsistent with any other testimony at

sentencing. Accordingly, we defer to the district court’s determination that

Ramos’s testimony was credible. See Pham, 463 F.3d at 1244. Based on Ramos’s

testimony, the district court could find that Reyes falsely denied his relevant

conduct as to the agreement not to provide treatment and directing Ramos in that

regard.

      The district court also was entitled to find that Reyes falsely denied his

relevant conduct with respect to his role in the offense as compared to Lloyd’s role.

Lloyd testified that Reyes and Gonzalez were the “bosses” of the clinic, Lloyd had

no control over W & J’s bank account, and he had no authority over W & J’s

employees. Reyes and Gonzalez were already engaging in criminal activity at W


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& J’s Miami clinic when Lloyd suggested that W & J establish a clinic in Fort

Pierce. Further, Reyes received almost $1 million in proceeds from the fraudulent

scheme, and Reyes acknowledged that Lloyd did not receive “anywhere close to a

million.” Based on this evidence, the district court did not clearly err in

determining that, contrary to Reyes’s assertions, Lloyd was not the “mastermind”

behind the offenses and had not enticed and manipulated Reyes into opening the

Fort Pierce clinic. The district court therefore did not clearly err in finding that

Reyes’s plea of guilty was outweighed by his false denials of his relevant conduct,

such that a reduction in his sentence for his acceptance of responsibility under

§ 3E1.1(a) was not warranted. Because the court did not clearly err in denying

Reyes a reduction under § 3E1.1(a), a further reduction was not proper under

§ 3E1.1(b). See U.S.S.G. § 3E1.1(b). Accordingly, we affirm the district court’s

determination that Gonzalez and Reyes were not entitled to a three-level reduction

in their offense levels, pursuant to § 3E1.1.

                                          III.

      Both Gonzalez and Reyes challenge the district court’s application of a

20-level increase to their offense levels, pursuant to § 2B4.1. Generally, we review

the district court’s determination under § 2B4.1(b)(1) for clear error. United States

v. Valladares, 544 F.3d 1257, 1266 (11th Cir. 2008). We review a district court’s

interpretation of the Guidelines de novo. United States v. Daniels, 685 F.3d 1237,


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1244 (11th Cir. 2012), cert. denied, 133 S.Ct. 1240 (2013). However, we will not

correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights. United States v.

Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010) (providing that plain error review

applies to procedural-error arguments). Where these three criteria are met, we may

reverse for plain error if the error seriously affects the fairness, integrity, or public

reputation of the court proceedings. Id. “It is the law of this circuit that, at least

where the explicit language of a statute or rule does not specifically resolve an

issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003). The plain error rule also applies when a defendant

states an inaccurate objection, as opposed to no objection at all. United States v.

Sorondo, 845 F.2d 945, 949 (11th Cir. 1988); see United States v.

Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995) (“To preserve an issue for

appeal, a general objection or an objection on other grounds will not suffice.”).

      Under § 2B4.1, a defendant’s base offense level is enhanced, pursuant to the

table set forth in § 2B1.1, if the “greater of the value of the bribe or the improper

benefit to be conferred” exceeds $5,000. See U.S.S.G. § 2B4.1(a), (b)(1)(B).

Under § 2B1.1, where the amount at issue exceeds $7 million, but is not more than

$20 million, a defendant’s offense level is increased by 20 levels. U.S.S.G.


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§ 2B1.1(b)(1)(K). Where the amount at issue exceeds $2.5 million, but is not more

than $7 million, a defendant’s offense level is increased by 18 levels. U.S.S.G.

§ 2B1.1(b)(1)(J).

      The commentary to § 2B4.1 defines the “value of the improper benefit to be

conferred” as the “value of the action to be taken or effected in return for the bribe”

and cites generally to the commentary to § 2C1.1. U.S.S.G. § 2B4.1, comment.

(n.2) (quotation omitted). Section 2C1.1, comment. (n.3) provides that the “loss to

the government” under § 2C1.1(b)(2)—which applies to offenses involving bribery

with respect to public officials—shall be determined in accordance with § 2B1.1,

comment. (n.3). U.S.S.G. § 2C1.1, comment. (n.3).

      Section 2B1.1, comment. (n.3) defines “loss” as the greater of “actual” loss

or “intended” loss. U.S.S.G. § 2B1.1, comment (n.3(A)). “Actual loss” is defined

as the reasonably foreseeable pecuniary harm that resulted from the offense, and

“intended loss” is defined as the pecuniary harm that was intended to result from

the offense, including pecuniary harm that would have been impossible or unlikely

to occur. Id. Where a defendant is convicted of a “Federal health care offense” 2

involving a governmental health care program, a special rule applies to the

loss-amount determination. U.S.S.G. § 2B1.1, comment. (n.3(F)(viii)) (quotation

omitted). Specifically, “the aggregate dollar amount of fraudulent bills submitted

      2
          A “Federal health care offense” includes a violation of § 1320a-7b. See U.S.S.G.
§ 2B1.1, comment. (n.1); 18 U.S.C. § 24(a)(1).
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to the Government health care program shall constitute prima facie evidence of the

amount of the intended loss, i.e., is evidence sufficient to establish the amount of

the intended loss, if not rebutted.” Id. In Valladares, a prosecution under several

statutes, including §§ 371 and 1320a-7b, we determined that, through a scheme to

submit fraudulent claims to Medicare, the defendant caused a $2.7 million loss to

Medicare, and that amount was properly considered by the court in applying an

18-level enhancement under § 2B4.1(b) because it was part of the defendant’s

relevant conduct. 544 F.3d at 1261, 1266-67.

                                          A.

      Gonzalez argues that the district court erred because it improperly used the

fraud-loss-amount standard in increasing his offense level under § 2B4.1(b), rather

than determining the “value of the kickback or the improper benefit from the

kickback.” Gonzalez further argues that the loss amount is irrelevant to the

Guidelines pertaining to offenses involving the payment of health care kickbacks,

as the amount of loss involved in an offense is not mentioned as a specific offense

characteristic under § 2B4.1(b). Gonzalez also argues that the plain language of

§ 2B4.1 required the district court to determine the value of the bribe or the net

value of the improper benefit. According to Gonzalez, because the court failed to

calculate the proper value under § 2B4.1, his sentence should be vacated and his

case remanded for resentencing.


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      Plain error review applies to Gonzalez’s argument on appeal. Gonzalez

never argued at sentencing that “loss” was irrelevant to the determination under

§ 2B4.1 or that the court was applying an incorrect legal standard. Assuming,

arguendo, that the district court erred in basing its determination under § 2B4.1(b)

on the intended loss to Medicare and the Medicare plan sponsors, Gonzalez cannot

show that the error was plain. Neither our Court nor the Supreme Court have

explicitly addressed whether a district court may use the loss to the victim to

determine the “value of the bribe or the improper benefit to be conferred,” at least

where the loss is to the government. Thus, any error as to this issue cannot be

plain. See Lejarde-Rada, 319 F.3d at 1291. Moreover, we previously have

affirmed a sentence in which the district court applied a § 2B4.1 increase based on

a loss of $2.7 million to Medicare. See Valladares, 544 F.3d at 1261, 1266-67.

Although we did not specifically address the question of whether a loss amount is

the proper standard for a court’s sentencing calculation under § 2B4.1(b) in

Valladares, our decision illustrates that any error that occurred in this case was not

plain. See United States v. Gandy, 710 F.3d 1234, 1240 (11th Cir. 2013)

(providing that a plain error is an error that is obvious and clear under current law).

Thus, Gonzalez has not shown that the court plainly erred in applying a 20-level

increase to his offense level under § 2B4.1(b).




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                                               B.

       Reyes argues that, to determine the loss amount under § 2B4.1(b), any

treatment W & J actually provided should be deducted from the loss amount, but,

here, the loss amount cannot be determined because the district court never

determined the amount of treatment W & J actually provided. Reyes argues that W

& J provided treatment of value because, although Ramos testified at sentencing

that Reyes agreed with Dr. Pombo that no treatment would be given, this testimony

was inconsistent with statements she had previously made and with other

testimony at sentencing.

       The district court did not clearly err when it determined that the government

proved that the loss to Medicare exceeded $7 million.3 See U.S.S.G.

§ 2B1.1(b)(1)(J), (b)(1)(K). Although Lloyd testified that he received antibiotics

and prescriptions at W & J when he was ill or had an infection, this does not show

that the court clearly erred with respect to its loss determination. Further, even

assuming that Lloyd’s testimony establishes that W & J provided at least some

actual treatment to its HIV-positive patients, his testimony does not show that the

court clearly erred in finding that W & J submitted at least $7 million in fraudulent

claims. Ramos testified that W & J did not provide any actual treatment by way of
       3
          Reyes does not challenge on appeal the district court’s use of a loss-amount standard to
make the sentencing determination under § 2B4.1(b). Thus, we do not address this issue as it
applies to Reyes. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998)
(finding that a defendant had abandoned an issue when he failed to raise the issue on appeal). In
any event, no plain error occurred in this respect, as discussed above.
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infusions and injections, and that that she emptied the bottles of prescription

medication that W & J had in stock. As discussed above, we afford substantial

deference to the court’s credibility finding with respect to Ramos’s testimony.

Additionally, although Nederhood did not review all of the claims that W & J

submitted, he did not find a single instance in the records he reviewed where W &

J provided the appropriate drug for the diagnosis, administered the correct dosage,

and administered the dosage at the correct frequency. Based on Ramos’s and

Nederhood’s testimony, the district court could conclude that at least $7 million of

the over $15 million in claims submitted to Medicare and the plan sponsors were

fraudulent, even considering Lloyd’s testimony. See United States v. Hoffman-

Vaile, 568 F.3d 1335, 1337, 1344 (11th Cir. 2009) (determining, in a Medicare

fraud case, that any error in failing to offset loss amounts with actual surgeries

performed was harmless where the evidence supported a finding of the required

threshold amount even after accounting for any offsets). Thus, the district court

did not clearly err in determining that the amount of fraudulent claims exceeded $7

million, such that a 20-level increase applied to Reyes’s offense level, pursuant to

§ 2B4.1(b)(1). Accordingly, we affirm the district court’s application of a 20-level

increase to Gonzalez’s and Reyes’s offense levels under § 2B4.1(b).




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                                         IV.

      Both Gonzalez and Reyes challenge the reasonableness of their sentences.

We review the reasonableness of a sentence under a deferential abuse of discretion

standard. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169

L.Ed.2d 445 (2007). A district court’s sentence need not be the most appropriate

one, but rather need only be a reasonable one. United States v. Irey, 612 F.3d

1160, 1191 (11th Cir. 2010) (en banc). We may set aside a sentence only if we

determine, after giving a full measure of deference to the sentencing judge, that the

sentence imposed truly is unreasonable. Id. The party challenging the sentence

has the burden of establishing that the sentence was unreasonable based on the

record and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). Further, we ordinarily expect a sentence imposed

with the applicable guideline range to be reasonable. Id.

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error, such as improperly calculating the

applicable guideline range. Gall, 552 U.S. at 51, 128 S.Ct. at 597. After we have

determined that a sentence is procedurally sound, we review a sentence’s

substantive reasonableness by examining the totality of the circumstances, which

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

question. United States v. Gonzales, 550 F.3d 1319, 1323-24 (11th Cir. 2008).


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The district court 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 offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. See 18 U.S.C. § 3553(a). In imposing a particular

sentence, the court must also consider the nature and circumstances of the offense,

the history and characteristics of the defendant, the kinds of sentences available,

the applicable guideline range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We do not

substitute our own judgment for that of the district court in weighing the relevant

sentencing factors absent a clear error of judgment. See United States v. Early, 686

F.3d 1219, 1223 (11th Cir. 2012).

                                           A.

      Gonzalez argues that the district court imposed an unreasonable sentence

because it sentenced him to the statutory maximum, despite his lack of criminal

history and the absence of any aggravating circumstances. According to Gonzalez,

the court failed to acknowledge that he was a first-time offender and that he closed

his clinic and ceased all of his illegal activity before being arrested or indicted.

Gonzalez contends that the court lacked any valid reason for sentencing him to the


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statutory maximum, and thus, it unreasonably weighed the § 3553(a) factors. He

also argues that the court impermissibly considered his Cuban alienage and did not

acknowledge the fact that he was a U.S. citizen at the time he was sentenced.

      Here, Gonzalez’s sentence is procedurally reasonable, as the court correctly

calculated the guideline range, and he raises no other argument as to why his

sentence is procedurally unreasonable. See Cunningham, 161 F.3d at 1344. Next,

Gonzalez’s total sentence of 120 months’ imprisonment, which was also his

guideline sentence and the statutory maximum, is substantively reasonable. As

Gonzalez’s sentence is a guideline sentence, we expect this sentence to be

reasonable. See Talley, 431 F.3d at 788. The record demonstrates that the district

court considered the § 3553(a) factors in imposing the total sentence, and Gonzalez

has not demonstrated that his sentence is unreasonable based on those factors.

      In considering Gonzalez’s history and characteristics, the court found it

significant that he entered into the United States illegally and then proceeded to

commit crimes against the U.S. government. Although Gonzalez argues that the

court sentenced him based on his Cuban alienage, a review of the record shows

that this is not the case. The court did not mention Gonzalez’s Cuban alienage, but

rather Gonzalez’s attorney noted that Gonzalez entered into the United States

illegally “with some kind of agreement with the Cuban Government.” Next, the

court also stated that it considered the PSI, which provided that Gonzalez had no


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criminal history and was a naturalized U.S. citizen. Cf. United States v. Ghertler,

605 F.3d 1256, 1262 (11th Cir. 2010) (providing that a court is not required to

articulate its consideration of each individual § 3553(a) factor).

      The district court also considered the seriousness of the offense, which

occurred over an extended period of time and involved multiple individuals,

millions of dollars, and “siphoning money from the [Medicare] program that could

otherwise be going to the people that truly need it.” Although Gonzalez argues

that he and Reyes closed W & J prior to being arrested and charged, they only

closed W & J after being arrested on state charges related to the instant offense.

Further, although Gonzalez argues that the statutory maximum sentence was not

appropriate based on his history and characteristics, the court was permitted to find

that other § 3553(a) factors, such as the seriousness of the offense and his “utter

contempt for the law,” outweighed his lack of a criminal history. Based on the

seriousness of the offense and the prevalence of fraud in South Florida, the court

also found that “anything other” than the statutory maximum penalty would send

the “wrong signal” to others who believed that they could commit similar offenses

and not suffer a serious penalty. We do not substitute our own judgment for that of

the district court in weighing the relevant sentencing factors absent a clear error of

judgment, which Gonzalez had not shown here. See Early, 686 F.3d at 1223.

Thus, Gonzalez has not shown that the district court’s decision to impose a total


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sentence of 120 months’ imprisonment was unreasonable.

                                               B.

      Reyes argues that the district court imposed a substantively unreasonable

sentence because it impermissibly considered the fact that he entered into the

United States illegally. Reyes further argues that the court, in sentencing him,

(1) should not have considered that fraud frequently occurred in South Florida and

other parts of the country and (2) did not consider his personal history, which was

set forth in several character letters submitted to the court. Reyes contends that the

court failed to properly consider the nature and circumstances of the offense

because the court did not compare Reyes’s role in the offense to Lloyd’s greater

role in the offense. Reyes also asserts that Ramos was given full immunity for her

cooperation with the government. Reyes contends that the court found that

Reyes’s actions resulted in others who needed Medicare funding not receiving such

funding, but that the government never proved that Reyes’s actions had this result.

Reyes argues that a sentence lower than his guideline sentence would have been

sufficient to deter similar conduct and promote adequate respect for the law and

that his motion for a variance should have been granted.

      Reyes’s sentence is reasonable regardless of whether his arguments concern

substantive reasonableness only or both procedural and substantive reasonableness.

In considering Reyes’s history and characteristics, the court found it significant


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that Reyes entered into the United States illegally and then proceeded to commit

crimes against the U.S. government. A district court judge “may not impose a

more severe sentence than he would have otherwise based on unfounded

assumptions regarding an individual’s immigration status or on his personal views

of immigration policy.” United States v. Velasquez, 524 F.3d 1248, 1252-53 (11th

Cir. 2008) (vacating sentence for supervised-release violation, on the ground that

the sentence had been based “entirely” on improper considerations). Here, in

considering Reyes’s history and characteristics, the district court judge properly

considered—as one of many considerations—the fact that Reyes entered into the

United States illegally and did not base Reyes’s sentence on unfounded

assumptions regarding Reyes’s immigration status or on the judge’s personal views

of immigration policy.

      Further, the district court also properly considered that fraud similar to the

fraud Reyes committed occurred frequently in South Florida because individuals

often believed that they could commit fraud without receiving punishment. The

court’s comments illustrated that it was considering the need to promote respect for

the law and deter others from committing similar acts of fraud in the future, as part

of the court’s consideration of the § 3553(a) factors. See 18 U.S.C.

§ 3553(a)(2)(A)-(B). The district court did not rely on an impermissible factor in

this respect.


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      Next, Reyes’s total sentence of 120 months’ imprisonment, which was also

his guideline sentence and the statutory maximum sentence, is substantively

reasonable. Reyes’s sentence, like Gonzalez’s sentence, is a guideline sentence,

and we expect this sentence to be reasonable. See Talley, 431 F.3d at 788. The

record demonstrates that the district court considered the § 3553(a) factors in

imposing the total sentence, and Reyes has not demonstrated that his total sentence

is unreasonable based on those factors. As discussed above with respect to

Gonzalez, the court properly considered the appellants’ history and characteristics

and the seriousness of the instant offense. By showing that Reyes committed fraud

by submitting claims to Medicare for treatment that was not actually provided, the

government proved that Medicare funds were not being used as intended.

      Next, the court also considered Reyes’s argument that a variance was

warranted due to Lloyd’s role in the offense. As discussed above, the evidence

supports the court’s determination that Reyes’s role in the offense was greater than

Lloyd’s role. The court properly considered Reyes’s role in the offense as a leader

who received significant proceeds from the offense. Further, Reyes has not shown

any unwarranted disparity between himself and Lloyd and Ramos, as he is not

similarly situated to Lloyd and Ramos. See 18 U.S.C. § 3553(a)(6). Lloyd and

Ramos both cooperated with the government, had not been prosecuted or convicted

of any conduct, and had not been sentenced. See United States v. Spoerke, 568


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F.3d 1236, 1252 (11th Cir. 2009) (providing that defendant was not similarly

situated to another individual because that individual was never prosecuted or

convicted of any conduct and not sentenced). Thus, no unwarranted disparity

exists in this case.

       Although Reyes submitted character letters to the court, the district court

was not required to specifically articulate its consideration of those letters. Cf.

Ghertler, 605 F.3d at 1262. To the extent Reyes argues that the court should have

placed more weight on the mitigating value of the letters he submitted to the court,

the court was permitted to find that other § 3553(a) factors, such as the seriousness

of the offense and his “utter contempt for the law,” outweighed any mitigating

value the letters may have had. We do not substitute our own judgment for that of

the district court in weighing the relevant sentencing factors absent a clear error of

judgment, which Reyes has not shown here. See Early, 686 F.3d at 1223. Thus,

Reyes has not shown that the district court’s decision to impose a total sentence of

120 months’ imprisonment was unreasonable. Accordingly, Gonzalez and Reyes

have not shown that the court imposed unreasonable sentences.

       For the foregoing reasons, we affirm Gonzalez’s and Reyes’s sentences.

       AFFIRMED.




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