           Case: 19-10095   Date Filed: 03/12/2020   Page: 1 of 10



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10095
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:18-cr-20453-UU-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ILEANA RODRIGUEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 12, 2020)



Before JORDAN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:
              Case: 19-10095    Date Filed: 03/12/2020   Page: 2 of 10



      Ileana Rodriguez challenges her 121-month total sentence for one count of

conspiracy to commit health care fraud and wire fraud, in violation of 18 U.S.C.

§§ 1343, 1347, 1349, and two counts of money laundering, in violation of 18

U.S.C. §§ 2, 1957. Rodriguez asserts the district court clearly erred when it

applied a two-level enhancement to her Guidelines range because it found her

conduct to further the health care fraud constituted sophisticated means.

Rodriguez also contends the district court erred when it applied enhancements for

both sophisticated means and her role as a manager or supervisor because applying

both would constitute double counting. Finally, Rodriguez argues her within-

Guidelines 121-month total sentence was substantively unreasonable because she

received a greater sentence than her more culpable codefendant. After review, we

affirm Rodriguez’s sentence.

                                 I. DISCUSSION

A. Sophisticated Means Enhancement

      A defendant’s offense level is enhanced by two levels if the offense involved

sophisticated means and the defendant intentionally engaged in or caused the

conduct constituting sophisticated means. U.S.S.G. § 2B1.1(b)(10)(C).

“Sophisticated means” means “especially complex or especially intricate offense

conduct pertaining to the execution or concealment of an offense.” Id. § 2B1.1,

comment. (n.9(B)). Examples of sophisticated means listed in the commentary


                                         2
              Case: 19-10095      Date Filed: 03/12/2020    Page: 3 of 10



include hiding assets or transactions, or both, using fictitious entities, corporate

shells, or offshore financial accounts. Id. However, the application notes do not

limit the ways in which a defendant could use sophisticated means to conceal her

crime. See United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009).

      The district court must examine the totality of the defendant’s conduct

because there is no requirement that each individual action the defendant took was

sophisticated. United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010).

Repetitive, coordinated conduct to further and conceal a fraud scheme supports a

sophisticated-means enhancement. United States v. Bane, 720 F.3d 818, 826-27

(11th Cir. 2013). Furthermore, the length of time that the conduct goes undetected

and the amount of loss inflicted can reflect on the sophistication of the scheme.

United States v. Feaster, 798 F.3d 1374, 1381 (11th Cir. 2015). Also, the use of

inside information is a factor supporting sophisticated means. Id. at 1382. We

have upheld the imposition of a sophisticated-means enhancement where the

scheme to defraud Medicare consisted of: (1) submitting fraudulent claims to

Medicare; (2) offering, paying, or receiving kickbacks for recruiting Medicare

beneficiaries; (3) paying kickbacks to patients; (4) concealing the submission of

fraudulent claims to Medicare; and (5) diverting the fraud proceeds for personal

use. United States v. Moran, 778 F.3d 942, 951, 977 (11th Cir. 2015).




                                           3
              Case: 19-10095     Date Filed: 03/12/2020    Page: 4 of 10



      The district court did not clearly err in finding that Rodriguez’s offense

involved sophisticated means. See United States v. Sosa, 777 F.3d 1279, 1300

(11th Cir. 2015) (stating we review for clear error a district court’s finding that an

offense involved sophisticated means). It was undisputed that Rodriguez was an

owner of Aqua Pharma, Inc. and employee of Caribbean Pharmacy, Inc., which

were both involved in a conspiracy to defraud Medicare. Rodriguez’s conduct

during the conspiracy consisted of: (1) paying patients and patient recruiters in

cash for fraudulent prescription referrals; (2) submitting claims to Medicare for

drugs that were never dispensed; and (3) selling the drugs to a reverse distributing

company to deceive insurance company audits. The district court considered the

use of a reverse distributing company as strong evidence of sophisticated means

because that company’s use was all about concealing fraud from the government.

Collectively, these actions show Rodriguez’s intricate offense conduct furthered

and concealed the fraud. See U.S.S.G. § 2B1.1, comment. (n.9(B)); Moran, 778

F.3d at 951, 977. The sophisticated means of the conspiracy is also evidenced by

Rodriguez’s inside knowledge as a licensed pharmacy technician. See Feaster,

798 F.3d at 1382. Further, the finding of sophisticated means is supported by

Rodriguez’s efforts to further the fraud over the course of 6 years without detection

using repetitive and coordinated conduct, including continual cash payments to the

criminal participants, and her responsibility for a loss of $6,595,845. See Feaster,


                                           4
              Case: 19-10095     Date Filed: 03/12/2020    Page: 5 of 10



798 F.3d at 1381; Bane, 720 F.3d at 826-27. Therefore, it was not clear error for

the district court to determine that Rodriguez’s conduct, especially the use of a

reverse distributing company to conceal the fraud, justified applying the

sophisticated-means enhancement. See Sosa, 777 F.3d at 1300 (explaining clear-

error review is deferential, and we will not disturb a district court’s findings unless

we are left with a definite and firm conviction that a mistake has occurred).

B. Manager or Supervisor Enhancement

      Under § 3B1.1(b), a defendant’s offense level is enhanced by three levels if

the defendant was a manager or supervisor and the offense involved five or more

participants or was otherwise extensive. U.S.S.G. § 3B1.1(b). In determining

whether an aggravating-role increase applies, the district court should consider the

exercise of decision-making authority, the nature of participation in the offense, the

recruitment of accomplices, the claimed right to larger shares of fruits of the crime,

the participation in organizing the offense, the nature and scope of the offense, and

the control and authority exercised over others. Id. § 3B1.1, comment. (n.4).

Aggravating-role adjustments are imposed based on the size of the criminal

organization and the degree to which the defendant was responsible for committing

the offense. Id. § 3B1.1, comment. (backg’d.).

      Impermissible double counting occurs when one part of the Guidelines is

applied to increase a defendant’s punishment for a harm that has already been fully


                                           5
              Case: 19-10095     Date Filed: 03/12/2020       Page: 6 of 10



accounted for by the application of another part of the Guidelines. United States v.

Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006). We presume the U.S.

Sentencing Commission intended separate sections to apply cumulatively, unless

specifically directed otherwise. Id. at 1227.

      Because Rodriguez is arguing that applying the enhancements for her role as

a manager or supervisor and sophisticated means constituted double counting for

the first time on appeal, this Court should review her argument only for plain error.

See United States v. Lange, 862 F.3d 1290, 1293 (11th Cir. 2017) (stating when a

party did not raise an issue before the district court, we review only for plain error).

      Rodriguez cannot show plain error. The explicit language of the Guidelines

does not prohibit the application of both enhancements simultaneously, nor is there

an opinion from this Court or the Supreme Court stating that the application of

both enhancements in this situation is impermissible double counting. See United

States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (stating “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”). Thus, there can be no plain error.

      Furthermore, the two enhancements address different harms because the

sophisticated-means enhancement pertains to the execution or concealment of an

offense, while the aggravating-role enhancement pertains to the size of the criminal


                                           6
              Case: 19-10095     Date Filed: 03/12/2020    Page: 7 of 10



organization and degree to which the defendant was responsible. See U.S.S.G.

§§ 2B1.1., comment. (n.9(B)), 3B1.1., comment. (backg’d). The district court

addressed the two enhancements as different harms here. And this Court must

presume the Guidelines apply cumulatively. See Dudley, 463 F.3d at 1227.

Finally, this Court has previously affirmed a sentence that applied both the

manager or supervisor enhancement and the sophisticated-means enhancement.

See Sosa, 777 F.3d at 1300-02. Therefore, the district court did not plainly err

when it applied both enhancements in calculating Rodriguez’s Guidelines range.

C. Reasonableness

      The district court must impose a sufficient sentence that is not greater than

necessary to satisfy 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)(2). In imposing a

particular sentence, the district 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 Guidelines 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.

§ 3553(a)(1), (3)-(7). The weight given to any specific § 3553(a) factor is


                                          7
              Case: 19-10095      Date Filed: 03/12/2020   Page: 8 of 10



committed to the sound discretion of the district court. United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007).

      A claim based on unwarranted sentencing disparities assumes that the

defendants have similar records and have been found guilty of similar conduct.

United States v. Docampo, 573 F.3d 1091, 1101-02 (11th Cir. 2009). Defendants

who cooperate with the government and plead guilty are not similarly situated to

defendants who provide no assistance and proceed to trial. Id. at 1101. A

defendant cannot steadfastly withhold cooperation from the government and then

complain when a codefendant benefits from rendering assistance to the

government. Id.

      The district court imposed a substantively reasonable total sentence because

it considered and balanced the proper factors, including the need to avoid

unwarranted sentencing disparities. While co-defendant Maria Inda played a

greater role in the conspiracy than Rodriguez, they were not similarly situated. See

Docampo, 573 F.3d at 1101-02. Inda pled guilty, received a reduction in her

Guidelines range for her timely acceptance of responsibility, cooperated with the

Government, and was willing to testify. In contrast, Rodriguez provided no

assistance to the Government and had a jury trial. Therefore, the district court’s

imposition of a total sentence more severe for Rodriguez than Inda was not




                                           8
              Case: 19-10095     Date Filed: 03/12/2020    Page: 9 of 10



unwarranted, even if Inda did play more of a leadership role than Rodriguez. See

Docampo, 573 F.3d at 1101.

      Furthermore, the record indicates the district court considered the statements

of the parties, the PSI, the Guidelines range, and the statutory factors in sentencing

Rodriguez. See United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009)

(stating in considering the substantive reasonableness of a sentence, we consider

the totality of the circumstances and whether the sentence achieves the sentencing

purposes stated in § 3553(a)). It was within the court’s discretion to sentence

Rodriguez to provide sufficient punishment and deterrence. And the district court

sentenced Rodriguez to a term at the bottom of the Guidelines range and well

below the statutory maximum for the conspiracy charge, both of which indicate the

sentences were reasonable. See United States v. Stanley, 739 F.3d 633, 656 (11th

Cir. 2014) (stating we ordinarily expect a sentence falling within the Guidelines

range to be reasonable and a sentence imposed well below the statutory maximum

penalty also indicates a reasonable sentence). Accordingly, the court did not abuse

its discretion because Rodriguez’s within-Guidelines 121-month total sentence was

substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007)

(reviewing the substantive reasonableness of a sentence for an abuse of discretion).

                                 II. CONCLUSION




                                          9
             Case: 19-10095     Date Filed: 03/12/2020    Page: 10 of 10



      The district court did not clearly err when it applied the sophisticated-means

enhancement because Rodriguez’s actions to further and conceal the fraud

constituted intricate offense conduct, especially her use of a reverse distributing

company. Next, the district court did not plainly err when it applied both the

sophisticated-means enhancement and the aggravating-role enhancement for

Rodriguez’s role as a manager or supervisor because the Guidelines do not forbid

it, and there is no case from this Court or the Supreme Court directly resolving the

issue. Finally, Rodriguez’s sentences were also substantively reasonable because

there was no unwarranted disparity between Rodriguez’s and her codefendant’s

sentences where they were not similarly situated. Accordingly, we affirm

Rodriguez’s sentences.

      AFFIRMED.




                                          10
