              Case: 17-15300    Date Filed: 10/16/2018   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-15300
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:17-cr-20088-CMA-4



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

                                      versus

BELKYS LEYVA,
a.k.a. Belkis Leyva,

                                                 Defendant - Appellant.

                           ________________________

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

                                (October 16, 2018)

Before WILSON, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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       Belkys Leyva pleaded guilty to several counts of healthcare fraud.1 Leyva

stipulated to knowingly conspiring with home health staffing companies to falsely

certify that she provided physical therapy to Medicare beneficiaries. The staffing

companies paid Leyva for her false certifications and fraudulently submitted them

to Medicare for reimbursement. Leyva now appeals her 51-month sentence.

Leyva first argues that her sentence is procedurally unreasonable because the

district court erroneously calculated the loss amount under U.S.S.G. §

2B1.1(b)(1)(I). Second, Leyva argues the district court’s additional enhancement

under U.S.S.G. § 2B1.1(b)(7) constitutes impermissible double counting.

                                               I.

       This Court reviews a district court’s factual findings for clear error and its

application of the Guidelines to those facts de novo. United States v. Kinard, 472

F.3d 1294, 1297 n.3 (11th Cir. 2006). A district court’s amount of loss calculation

is a factual finding reviewed for clear error. United States v. Moran, 778 F.3d 942,

959, 974 (11th Cir. 2015). The reviewing court will not disturb a district court’s

factual finding unless it is left with the definite and firm conviction that a mistake

was made. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017).




       1
         Leyva pleaded guilty to conspiracy to commit healthcare and wire fraud under 18
U.S.C. § 1349, conspiracy to make false statements relating to healthcare matters under 18
U.S.C. § 371, and false statements relating to healthcare matters under 18 U.S.C. § 1035(a)(2).
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      The Guidelines instruct a district court to apply a 16-level enhancement

when an offense involving fraud or deceit results in loss exceeding $1.5 million.

U.S.S.G. § 2B1.1(b)(1)(I). The loss amount “is the greater of the actual loss or

intended loss.” Id. at § 2B1.1, cmt. n.3(A). Actual loss is the reasonably

foreseeable pecuniary harm that results from the crime. Id. at § 2B1.1, cmt.

n.3(A)(i). Intended loss is the pecuniary harm that the defendant purposefully

sought to inflict, even if it would have been impossible or unlikely to occur. Id. at

§ 2B1.1, cmt. n.3(A)(ii). Because the amount of loss is often difficult to precisely

determine, a district court’s amount of loss determination need only be a

“reasonable estimate.” Id. at § 2B1.1, cmt. n.3(C); United States v. Medina, 485

F.3d 1291, 1304 (11th Cir. 2007). The government has the burden of proving the

loss amount by a preponderance of the evidence, which must be reliable and

specific. Medina, 483 F.3d at 1304.

      When a defendant’s conduct is fraudulent, a district court does not commit

clear error by treating the amount transferred from the victim to the fraudulent

enterprise as the starting point for calculating the loss amount. United States v.

Campbell, 765 F.3d 1291, 1305 (11th Cir. 2014). Each coconspirator is

responsible for the reasonably foreseeable acts of her coconspirators committed in

furtherance of the conspiracy. Moran, 778 F.3d at 974. To impute the acts of one

coconspirator to another, the district court must engage in a two-part inquiry. The


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district court must first, make individualized findings regarding the scope of

criminal activity undertaken by the defendant, and second, determine if the

coconspirators’ acts were reasonably foreseeable. Id.

       Leyva argues that the district court’s amount of loss determination of

$2,139,425.63 was erroneous because it includes losses attributable to invoices that

contained her forged signature or that were submitted for services she lawfully

rendered. Leyva also asserts that the loss amount was inflated by acts of her

coconspirators that were not reasonably foreseeable, including submitting invoices

to Medicare that were highly inflated and contained her forged signature.

       First, the district court did not clearly err in basing the loss calculation on the

total amount transferred from Medicare to the staffing companies. See Campbell,

765 F.3d at 1305. Leyva stipulated that the sum of invoices submitted under her

name was $2,139,425.63. She did not prove that any portion of that amount was

lawfully earned.2 Second, the district court properly attributed to Leyva the acts of

her coconspirators. See Moran, 778 F.3d at 974. The district court made sufficient

individualized factual findings to support this determination, including Leyva’s

own stipulation that she “knew her falsified certifications would be going to home



       2
         This Court is not persuaded by Leyva’s argument on appeal that her corporate tax
returns show that a large portion of the submitted invoices were for services she lawfully
rendered. Reporting amounts received for “contract services” on a tax return does not prove any
of those services were lawfully rendered. In light of the uncontroverted evidence presented by
the Government, the district court did not clearly err in declining to reduce the loss amount.
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healthcare agencies that would submit those forms to Medicare to get paid.” The

district court then properly recognized that it was reasonably foreseeable that

Leyva’s coconspirators could take her signature and place it on other forms in

order to increase their earnings from the scheme. See id. at 975 (declining to limit

coconspirator’s loss amount “to the billings for only his individual patients or his

personal actions”).

      Finally, the district court did not err in including losses from invoices that

were allegedly inflated or contained Leyva’s forged signature. The purpose of the

scheme—in which Leyva knowingly participated—was to profit by making

fraudulent claims to Medicare in order to receive payments for services that were

never rendered. Consistent with that goal, it was reasonably foreseeable that

Leyva’s coconspirators would use her forged signature and submit inflated

invoices in order to increase profits earned under the scheme. See id.

Consequently, the district court did not clearly err in calculating the loss amount or

applying the 16-level enhancement under the Guidelines.

                                         II.

      Allegations of impermissible double counting under the Guidelines are

reviewed de novo. United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).

Double counting is impermissible when one part of the Guidelines is applied to

increase the defendant’s sentence for a kind of harm already fully accounted for by


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application of another part of the Guidelines. United States v. Webb, 665 F.3d

1380, 1382 (11th Cir. 2012). “Absent a specific direction to the contrary,” there is

a presumption “that the Sentencing Commission intended to apply separate

sections cumulatively . . . .” Id. Rebutting this presumption is a “tough task.” Id.

      Leyva argues that the district court erred in applying an additional two-level

enhancement under U.S.S.G. § 2B1.1(b)(7) because the harm was accounted for by

the 16-level enhancement applied under U.S.S.G. § 2B1.1(b)(1)(I). The plain

language of the Guidelines makes clear that the 16-level enhancement under

section 2B1.1(b)(1)(I) addresses the general harm from fraud. Committing fraud

against a government healthcare program is an aggravating factor, which is

separately addressed by the two-level enhancement under section 2B1.1(b)(7). See

U.S.S.G. § 2B1.1(b)(2)-(9) (providing enhancements “[i]f the offense” falls into an

enumerated category). Because these are different harms, the district court did not

engage in impermissible double counting.

      Accordingly, we affirm the sentence as reasonable.

      AFFIRMED.




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