           Case: 12-16339   Date Filed: 10/16/2013   Page: 1 of 14




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16339
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:09-cr-20527-CMA-1



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

ARBILIO YANES,

                     Defendant - Appellant.

                       ________________________

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

                            (October 16, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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      Arbilio Yanes appeals his convictions and 151-month sentence after he

pleaded guilty to a 13-count indictment charging: conspiracy to commit health care

fraud and to pay health care kickbacks, in violation of 18 U.S.C. § 371 (Count 1);

health care fraud, in violation of 18 U.S.C. § 1347 (Counts 2 and 3); health care

kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A) (Counts 4–7); money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 8–11); and money

laundering, in violation of 18 U.S.C. § 1957 (Counts 12 and 13). On appeal, Yanes

argues that the district court (1) did not ensure that his guilty plea was knowing and

voluntary, (2) improperly imposed a four-level sentencing enhancement, and (3)

imposed a substantively unreasonable total sentence. After a thorough review of

the briefs and the record, we affirm.

                                               I.

      Yanes first argues that the district court failed to address two of the three

core concerns of Federal Rule of Criminal Procedure 11, namely, ensuring that his

guilty plea was free of coercion and that he was fully aware of the consequences of

pleading guilty. Even though Yanes indicated that threats had been levied against

both him and his children to ensure that he entered a guilty plea, he contends that

the district court failed to inquire into the nature of the threats. 1 Additionally, the



      1
          The plea colloquy proceeded as follows:


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court failed to inform Yanes that he had a right to persist in a not guilty plea, as

well as to ensure that he understood that by entering a guilty plea he was waiving

his right to a jury trial.

       Ordinarily, we review the voluntariness of a guilty plea de novo. See United

States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). In this case, however,

because Yanes did not raise the issue of the court’s failure to comply with Rule 11



       THE COURT: Is anyone putting pressure upon you, forcing you or coercing you to plead
       guilty?

       THE DEFENDANT: Well, you know what happened over there in Brazil. I am [sic]
       personally threatened and so was my family, especially my children. That if I came to
       the United States, I had to plead guilty to all the charges and that’s one of the things that I
       explained to my attorney.

       THE COURT: Mr. Yanes, if your plea today is not voluntary and free of coercion, I
       cannot accept it. Then we can proceed to trial.

       THE DEFENDANT: Well, I accept my guilt and what I did, my mistakes, I accept those.

       THE COURT: Are you being forced to plead guilty?

       THE DEFENDANT: No.

       THE COURT: Are any of these threats that you alluded to compelling you to plead
       guilty when you’re not?

       THE DEFENDANT: No. But I believe it is always important to let you know what
       happened.

       THE COURT: You need more time to think it over?

       THE DEFENDANT: No, no.

       THE COURT: Are any of these threats to yourself, your family and your children
       compelling you to enter a guilty plea to all of these charges?

       THE DEFENDANT: No.
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below, we review it only for plain error. See United States v. Moriarty, 429 F.3d

1012, 1019 (11th Cir. 2005) (per curiam) (holding that “when a defendant fails to

object to a Rule 11 violation, we review only for plain error”). To establish plain

error, a defendant must show (1) error, (2) that is plain, (3) that affected substantial

rights, and (4) that the error seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. See id.

      The Supreme Court has held that “a defendant who seeks reversal of his

conviction after a guilty plea, on the ground that the district court committed plain

error under Rule 11, must show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83, 124 S. Ct. 2333, 2340 (2004). “A guilty plea involves the waiver of a

number of a defendant’s constitutional rights, and must therefore be made

knowingly and voluntarily to satisfy the requirements of due process.” Moriarty,

429 F.3d at 1019. In accepting a defendant’s guilty plea, the district court must

specifically address the three core principles of Rule 11 to “ensur[e] that a

defendant (1) enters his guilty plea free from coercion, (2) understands the nature

of the charges, and (3) understands the consequences of his plea.” Id. “To ensure

compliance with the third core concern, Rule 11(b)(1) provides a list of rights and

other relevant matters about which the court is required to inform the defendant

prior to accepting a guilty plea. . . .” Id. A defendant has “the right to plead not


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guilty (or persist in such a plea).” Id.; see Fed. R. Crim. P. 11(b)(1)(B). We will

uphold a plea colloquy in which the district court fails to address an item required

by Rule 11 “so long as the overall plea colloquy adequately addresses the[] three

core concerns.” United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003).

      In this case, the district court addressed each of the Rule 11 concerns, and

specifically informed Yanes of the requirement that he enter his plea free of

coercion and of the consequences of entering a guilty plea. During the plea

colloquy, Yanes initially indicated that both he and his family had been threatened

in Brazil, and that if he returned to the United States, he “had to plead guilty to all

the charges.” At that point during the colloquy, the district court noted that it could

not accept Yanes’s plea unless it was voluntary and free of coercion. The court

also specifically questioned Yanes about whether the purported threats were

compelling him to plead guilty. Yanes, in response, confirmed that nobody had

threatened or coerced him or his family into entering a guilty plea, and he was

pleading guilty because he was in fact guilty of all the counts listed in the

indictment. Thus, the district court’s inquiry was sufficient. See Blackledge v.

Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 (1977) (noting that the Supreme

Court has stated that “[s]olemn declarations in open court carry a strong

presumption of verity” that cannot be overcome by the subsequent assertion of

conclusory and contradictory allegations).


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      Next, contrary to Yanes’s contention, it is clear that the district court advised

Yanes of the consequences of his plea, specifically explaining: (1) that the

guidelines were advisory, and that the district court would consider the presentence

investigation report (PSI) and other factors in determining Yanes’s sentence;

(2) the possible penalties for his crimes, including the statutory maximum sentence

for each offense; (3) that entering a guilty plea would cause him to forfeit his right

to a jury trial; and (4) that Yanes faced possible deportation as a result of his plea.

There is no indication in the record, nor does Yanes argue, that he did not

understand the above information or that he would not have entered his guilty plea

had the district court explicitly stated that he retained the right to persist in his not

guilty plea. See Fed. R. Crim. P. 11(h) (providing that “[a] variance from the

requirements of [Rule 11] is harmless error if it does not affect substantial rights”).

Accordingly, the district court did not plainly err in accepting Yanes’s guilty plea

as to all the counts listed in the indictment.

                                            II.

      Yanes next contends that the district court erred by imposing a four-level

enhancement to his offense level, pursuant to U.S.S.G. § 3B1.1(a), based on his

role in the crime because the government failed to meet its burden of proving the

facts required for the enhancement and where, as the government concedes,




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co-conspirator Efren Mendez played an equal role in the offense and only received

a three-level role enhancement, pursuant to § 3B1.1(b).

      We review the district court’s decision to apply an aggravating role

enhancement only for clear error. United States v. Poirier, 321 F.3d 1024, 1036

(11th Cir. 2003). We will not reverse “unless our review of the record leaves us

with the definite and firm conviction that a mistake has been committed.” Id.

at 1035 (internal quotation marks omitted).

      Where “the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive,” sentencing courts

should apply a four-level enhancement. U.S.S.G. § 3B1.1(a). By contrast, a

three-level enhancement applies where a defendant was a manager or supervisor,

but not an organizer or leader. See id. § 3B1.1(b). The Guidelines commentary

further explains that where, as here, the criminal organization is relatively small,

“the distinction between organization and leadership, and that of management and

supervision, is of less significance than in larger enterprises that tend to have

clearly delineated divisions of responsibility.” U.S.S.G. § 3B1.1 cmt. background.

Accordingly, the four-level enhancement could be imposed on Yanes only if he

were both (1) an organizer or leader, and (2) the criminal activity involved either

five or more participants or was otherwise extensive. See United States v. Alred,

144 F.3d 1405, 1421 (11th Cir.1998) (“[T]he plain language of [§] 3B1.1(a)


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requires both a leadership role and an extensive operation. Without proof of the

defendant’s leadership role, evidence of the operation’s extensiveness is

insufficient as a matter of law to warrant the adjustment.” (emphasis in original)

(internal quotation marks omitted)).

      Comment four to § 3B1.1, in turn, sets forth seven explanatory factors that

courts should consider in determining a defendant’s role in the offense as an

“organizer” or a “leader” for purposes of the aggravating-role enhancement:

      (1) the exercise of decision making authority, (2) the nature of
      participation in the commission of the offense, (3) the recruitment of
      accomplices, (4) the claimed right to a larger share of the fruits of the
      crime, (5) the degree of participation in planning or organizing the
      offense, (6) the nature and scope of the illegal activity, and (7) the
      degree of control and authority exercised over others.

United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006) (quoting U.S.S.G.

§ 3B1.1 cmt. n.4). “There is no requirement that all the considerations have to be

present in any one case.” United States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir.

2005) (per curiam). Instead, “these factors are merely considerations for the

sentencing judge.” Id. However, “[§] 3B1.1 requires the exercise of some

authority in the organization, the exertion of some degree of control, influence, or

leadership.” Gupta, 463 F.3d at 1198 (internal quotation marks omitted). Thus,

for example, a defendant’s management of assets, standing alone, is insufficient to

support an enhancement under § 3B1.1. See United States v. Glover, 179 F.3d

1300, 1303 (11th Cir. 1999) (“We now squarely decide that a [§] 3B1.1
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enhancement cannot be based solely on a finding that a defendant managed the

assets of a conspiracy.”). Rather, there must be evidence that the defendant

exerted some control, influence or decision-making authority over another

participant in the criminal activity. Id. Additionally, more than one person can

qualify as an organizer or leader of a criminal conspiracy. U.S.S.G. § 3B1.1 cmt.

n.4.

       Although Yanes did not dispute that the conspiracy involved five or more

participants or was otherwise extensive, he did object to the district court’s finding

that he was an organizer or leader of the conspiracy, and maintained that his role in

the offense conduct was comparable to Mendez, who only received a three-level

role enhancement under § 3B1.1(b).2 Subsequent to Mendez’s sentencing, the

government conceded that Mendez was “probably equally a leader” in the scheme

and that Yanes and Mendez “played an equal role in this offense.” However, the

government highlighted that there were pertinent differences between the two



       2
          Yanes also argues for the first time on appeal that the government failed to meet its
burden to show that he recruited accomplices or that he exercised any kind of control, influence,
or decision-making authority over another participant in the scheme. Even assuming that Yanes
had raised this issue below, he invited any purported error. See United States v. Love, 449 F.3d
1154, 1157 (11th Cir. 2006) (per curiam) (noting that the invited error doctrine precludes plain
error review of an error invited or induced by a party). During sentencing, Yanes affirmatively
represented that he should have been subject to a three-level role enhancement under § 3B1.1(b),
similar to codefendant Mendez, which would have required that he exercised control or authority
over at least one other criminal participant. See United States v. Martinez, 584 F.3d 1022, 1026
(11th Cir. 2009) (“Section 3B1.1 requires the exercise of some authority in the organization, the
exertion of some degree of control, influence, or leadership.” (alteration and internal quotation
marks omitted).
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defendants. Specifically, if Yanes had not fled to Brazil, he might have been able

to provide invaluable information about Mendez’s involvement in the offense

conduct that likely would have resulted in Mendez also receiving a four-level role

enhancement under § 3B1.1(a). See United States v. Vallejo, 297 F.3d 1154, 1169

(11th Cir. 2002) (“The defendant does not have to be the sole leader or kingpin of

the conspiracy in order to be considered an organizer or leader within the meaning

of the Guidelines.”); see also U.S.S.G. § 3B1.1 cmt. n.4 (“There can, of course, be

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

association or conspiracy.”).

      Moreover, even though Mendez may have been equally culpable in the

health care fraud scheme, there was sufficient evidence to support the district

court’s imposition of a four-level enhancement to Yanes’s offense level. Record

evidence shows, among other things, that Yanes signed the Medicare application

necessary to obtain a provider number and listed himself as the sole person with an

ownership interest in Research Center of Florida, Inc. He also signed the majority

of the checks that were paid to his co-conspirators, who in turn recruited patients

for the scheme. Additionally, the government introduced testimony at Yanes’s

sentencing hearing to show that Yanes created a large number of shell companies,

none of which had any legitimate purpose other than to launder funds. Based on

this record, the district court did not clearly err by applying a four-level


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enhancement, pursuant to § 3B1.1(a), based on Yanes’s role in the offense

conduct.

                                         III.

      Finally, Yanes asserts that the district court imposed an unreasonable

sentence because his total 151-month sentence, at the top-end of his advisory

guideline range, is almost double Mendez’s original 78-month sentence, even

though they occupied the same role in the criminal enterprise, and this resulted in

an unjust sentencing disparity between the two individuals.

      We review the reasonableness of a sentence “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The district court is required to impose a sentence “sufficient, but

not greater than necessary to comply with the purposes” listed in § 3553(a),

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. 18 U.S.C. § 3553(a)(2).

In imposing a particular sentence, the court also must 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. Id. §


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3553(a)(1), (3)–(7). District courts are to avoid unwarranted disparities among

defendants with similar records who have been found guilty of similar conduct. Id.

§ 3553(a)(6). However, a sentencing disparity is not “unwarranted” if the

individuals being compared are not similarly situated. See United States v.

Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Once we determine that a sentence is procedurally sound, we examine whether the

sentence was substantively unreasonable in light of the totality of the

circumstances and the § 3553(a) factors. Id., 128 S. Ct. at 597. “The party

challenging the sentence bears the burden to show it is unreasonable in light of the

record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). The weight given to the § 3553(a) factors is within the district

court’s sound discretion and “we will not substitute our judgment” in weighing

those factors. United States v. Irey, 612 F.3d 1160, 1261 (11th Cir. 2010) (en

banc). We reverse only if “left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (internal quotation marks omitted).


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      Here the district court did not abuse its discretion by imposing a 151-month

sentence, at the top-end of Yanes’s advisory Guideline range. Although a district

court is required to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct, Mendez, who

initially received a 78-month sentence, was not similarly situated. In fact, in a

sentencing memorandum Yanes conceded a “substantial” difference between

himself and his co-conspirators because he had to be extradited from Brazil to face

charges, and at sentencing, Yanes described his flight to Brazil as an “aggravating

factor.” Thus, although Yanes contends that he and Mendez were “equally

culpable,” he failed to show that they were similarly situated within the meaning of

§ 3553(a)(6).

      Next, the district court properly considered the § 3553(a) factors including

the seriousness of Yanes’s offense and the need to deter him and others from

committing Medicare fraud. See United States v. Martin, 455 F.3d 1227, 1240

(11th Cir. 2006) (noting that “[b]ecause economic and fraud-based crimes are more

rational, cool, and calculated than sudden crimes of passion or opportunity, these

crimes are prime candidates for general deterrence” (alternations and internal

quotation marks omitted)). Additionally, Yanes’s total 151-month sentence was

within the advisory Guidelines range of 121 to 151 months’ imprisonment. See

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam) (stating


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that “there is a range of reasonable sentences from which the district court may

choose,” and that “we ordinarily will expect” a sentence within the defendant’s

advisory Guidelines range “to be a reasonable one”). Based on the foregoing,

Yanes’s total 151-month sentence was substantively reasonable, and we therefore

affirm.

      AFFIRMED.




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