         Case: 12-15588   Date Filed: 02/07/2014   Page: 1 of 14


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 12-15588
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 1:12-cr-20275-KMM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus


JOSE L. VALDES GONZALEZ,
a.k.a. Roberto Gonzalez,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-15590
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 1:12-cr-20275-KMM-2
         Case: 12-15588   Date Filed: 02/07/2014   Page: 2 of 14


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

ALBERTO SOTOLONGO,
a.k.a. Ruben,

                                                        Defendant-Appellant.


                     ________________________

                           No. 12-15591
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 1:12-cr-20275-KMM-4



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

FRANCISCA GEMA VALDES,

                                                        Defendant-Appellant.

                     ________________________

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

                          (February 7, 2014)



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Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Jose Valdes Gonzalez, Alberto Sotolongo, and Francisca Gema Valdes each

pleaded guilty to one count of conspiracy to commit healthcare fraud, in violation

of 18 U.S.C. § 1349. In their plea agreements, the government agreed to pursue

sentences at the low end of each defendant’s advisory range under the United

States Sentencing Guidelines. The sentencing court, however, did not agree that

low-end sentences were warranted. It sentenced Gonzalez and Sotolongo to 84 and

72 months imprisonment respectively. Those sentences were above the advisory

ranges calculated under the guidelines. Valdes received a 46-month sentence,

which fell at the top of her guidelines range. Dissatisfied with that outcome, the

defendants now appeal their sentences on several grounds.

                                         I.

      The defendants conspired to commit healthcare fraud while working at Ilva

Pharmacy in Hialeah, Florida. As part of their conspiracy, Gonzalez had a

standing agreement to provide cash payments to a physician in exchange for

fraudulent prescriptions. The physician would give Gonzalez prescriptions for

patients the physician had not treated, and Gonzalez would pay him approximately

$250 for each patient for whom he wrote fraudulent prescriptions. Gonzalez would




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then seek reimbursement from Medicare for the prescribed medications, even

though he never dispensed them.

      Sotolongo and Valdes worked with Gonzalez to carry out the conspiracy.

Sotolongo falsified patient forms while Valdes provided information to the

physician so he could write the false prescriptions. According to the stipulated

facts in the plea agreements, the defendants and Ilva Pharmacy fraudulently billed

Medicare for approximately $1,352,936 in benefits from 2007 to 2011.

      When the probation office calculated the defendants’ advisory sentences

under the sentencing guidelines, it included several enhancements to their base

offense levels. Those adjustments included a 16-level enhancement under

U.S.S.G. § 2B1.1(b)(1)(I) because the loss amount fell between $1 million and

$2.5 million and a 2-level enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because

their offense involved sophisticated means. When each defendant’s criminal

history was taken into account, the sentencing guidelines provided the following

advisory sentence ranges: 37–46 months for Valdes, and 46–57 months for

Gonzalez and Sotolongo.

      At sentencing, the defendants challenged the guidelines calculations and

sought sentences below their advisory ranges. They first objected to the

sophisticated means enhancement. They contended that there was nothing

sophisticated about their conspiracy; it was just run-of-the-mill fraud. Gonzalez


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and Valdes also sought both downward variances and downward departures under

U.S.S.G. § 5K2.0 for providing substantial assistance to the government.

Sotolongo requested only a downward variance for providing assistance. They all

claimed that the government had indicted Angel Calderin, an individual involved

in fraud at another pharmacy, based upon information they had provided.

       The government opposed the departure and variance requests. With regard

to the defendants’ substantial assistance argument, the government explained that it

had not relied on any information they provided to indict Calderin. The

government stated that the defendants’ conspiracy had actually involved two other

pharmacies and a loss amount closer to $3 million. Calderin was involved with

one of those other two pharmacies, a fact that the government had learned from

bank cards found in Gonzalez’s wallet when he was arrested. The government did

not file a motion for a downward departure under § 5K1.1 of the guidelines

because it believed, contrary to the defendants’ claim, that they had hindered parts

of its investigation.

       The court applied the sophisticated means enhancement and denied the

defendants’ requests for downward departures and variances. Instead, it gave

upward variances to Gonzalez and Sotolongo, leading to sentences of 84 and 72

months, respectively. Valdes was sentenced to 46 months imprisonment, at the top

of her guidelines range.


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                                               II.

                                               A.

       The defendants’ first argument on appeal concerns the government’s

mention at sentencing of the approximately $3 million loss amount from the

conspiracy. All three defendants argue that (1) by mentioning that amount the

government breached their plea agreements, which stipulated to a loss amount of

about $1.3 million, and (2) the district court violated U.S.S.G. § 1B1.8 by

considering that $3 million loss amount in imposing an above-guidelines sentence.

The defendants ask this Court to vacate their sentences and remand for another

district court judge to resentence them or, in the alternative, allow them to

withdraw their guilty pleas.

       None of the defendants raised these two issues at sentencing.1 Therefore, we

review their contentions only for plain error. See United States v. Romano, 314

F.3d 1279, 1281 (11th Cir. 2002). To prevail, the defendants must establish that

(1) an error occurred; (2) that error was plain; (3) it affected their substantial rights;

and (4) it seriously affected the fairness, integrity, or public reputation of the

judicial proceedings. Id. An error is plain only if it is “clear or obvious, rather

than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135,


       1
         Although the defendants assert that they adequately preserved their objections at
sentencing, the record does not support that claim.


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129 S.Ct. 1423, 1429 (2009). Under that standard, the defendants’ argument that

the government breached the plea agreements fails because, even if we assume

there was error and that it was plain, they have not established that it affected their

substantial rights.

       Regarding the substantial rights requirement, the defendants have not carried

their “heavy burden” of showing a reasonable probability of a different sentence

had the government not made the comments that the defendants belatedly

challenge. See United States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010).

They cannot do so because the district court calculated all of the advisory

sentences using the $1.3 million loss amount, and it specifically mentioned the

$1.3 million loss amount when it explained its reasoning for imposing the

sentences that it did. In light of those facts, it is not clear that the district court

would have imposed different sentences if the government had not mentioned the

$3 million loss. That uncertainty means that the defendants have failed to satisfy

the third prong of the plain error standard. See id. (“[W]here the effect of an error

on the result in the district court is uncertain or indeterminate –– where we would

have to speculate –– the appellant has not met his burden of showing a reasonable

probability of a different result.”) (quotation marks omitted).

       The defendants’ next contention is that the district court violated U.S.S.G.

§ 1B1.8. When the government receives information from a cooperating defendant


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in exchange for a promise that the information will not be used against that

defendant, § 1B1.8 and the relevant guidelines commentary prohibit a sentencing

court from using that information to determine the defendant’s advisory guidelines

range or as a basis for departing upward from that advisory range. U.S.S.G.

§ 1B1.8; id. cmt. n.1. In contrast, a district court may consider that information in

determining whether to grant a downward departure pursuant to a government

motion under U.S.S.G. § 5K1.1. Id. § 1B1.8(b)(5). Here, the district court

mentioned the $3 million loss only in the context of discussing whether the

defendants should receive a downward departure. None of the defendants received

an upward departure, and the district court calculated all of the advisory sentences

using the loss amount agreed to in the plea agreements. Accordingly, there was no

violation of U.S.S.G. § 1B1.8.

                                              B.

       All three defendants contend that the district court erred in applying a 2-

level sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C)2 when

calculating their guidelines sentences. They claim that their scheme did not

include sophisticated means, such as the use of offshore accounts or the

falsification of physician documents. They also argue that the district court erred


       2
        The sophisticated means enhancement that the district court applied was in
§ 2B1.1(b)(9)(C) of the 2010 sentencing guidelines. This provision was moved to
§ 2B1.1(b)(10)(C) in the 2012 guidelines. The language of the two provisions is the same.
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in considering the length of their ongoing fraud in determining that it involved

sophisticated means.

      We review factfindings related to the district court’s imposition of

sentencing enhancements under a deferential clear-error standard, while we review

de novo the district court’s interpretation and application of the sentencing

guidelines. United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir. 2007). A

district court’s finding that a defendant used sophisticated means to commit an

offense is a factfinding reviewed only for clear error. United States v. Bane, 720

F.3d 818, 826 (11th Cir. 2013). We will not disturb that finding “unless we are left

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

States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009) (quotation marks omitted).

      Section 2B1.1(b)(10)(C) of the sentencing guidelines provides for a 2-level

enhancement for an offense that involved “sophisticated means.” U.S.S.G.

§ 2B1.1(b)(10)(C). The guidelines commentary defines “sophisticated means” as

“especially complex or especially intricate offense conduct pertaining to the

execution or concealment of an offense.” Id. cmt. n.8(B). The commentary also

provides a list of conduct that falls within the definition, such as “hiding assets or

transactions, or both, through the use of fictitious entities, corporate shells, or

offshore financial accounts.” Id. That list is not exclusive. Campbell, 491 F.3d at

1316. To decide whether this enhancement is applicable, we look to the


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sophistication of the overall scheme rather than to that of each individual act

committed by a defendant. United States v. Ghertler, 605 F.3d 1256, 1267 (11th

Cir. 2010).

      We have previously upheld application of the sophisticated means

enhancement in a Medicare fraud case where the defendant engaged in “repetitive

coordinated conduct” that involved falsifying medical documents and getting

medical facilities to assist in creating the appearance that certain treatments were

legitimate. Bane, 720 F.3d at 822–23, 826–27. The facts in this case are similar.

Over the course of two years, the defendants participated in a conspiracy in which

they paid a physician to provide them with fraudulent prescriptions for patients

whom the doctor had not treated. The defendants specifically provided the

physician with patient information that could be used to write the false

prescriptions. This “repetitive coordinated conduct” continued for two years and

resulted in the defendants fraudulently billing approximately $1.3 million worth of

prescriptions that were never dispensed. The defendants also perpetrated their

fraud by using a pharmacy that had been incorporated by a nominee owner, thus

shielding the identity of the corporation’s true owner, and they used Medicare’s

intricate lien and reimbursement process to pull off the fraud. In light of those

considerations and our deferential standard of review, the district court did not




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clearly err in applying the sophisticated means enhancement under the guidelines.

See id. at 826.

                                              C.

       Finally, all three defendants argue that the district court’s rejection of their

requests for a downward variance was an abuse of discretion because the district

court categorically refused to even consider a factor –– their cooperation with the

government –– that was relevant to sentencing. 3 That contention is unambiguously

contradicted by the record. All three defendants discussed their alleged

cooperation with the government at length during their sentence hearing. The

district court explicitly noted that it would consider those arguments for purposes

of the variance requests, and the court stated that it viewed the alleged cooperation

as relevant to the § 3553 factor concerning “the history and characteristics” of the

defendants. Accordingly, the district court, in determining the defendants’

sentences, did not fail to consider the defendants’ alleged cooperation. 4


       3
         At sentencing, Gonzalez and Valdes argued that their cooperation warranted a
sentencing reduction either as a downward departure under U.S.S.G. § 5K2.0 or as a downward
variance under 18 U.S.C § 3553. Sotolongo argued only that his cooperation warranted a
downward variance under § 3553. Neither Gonzalez nor Valdes argues on appeal that the district
court erred in denying their requests for a downward departure. Therefore, that argument is
abandoned. See Norelus v. Denny’s, Inc., 628 F.3d 1270, 1297 (11th Cir. 2010).
       4
         Valdes’ plea agreement included an appeal waiver that applied unless she received a
sentence that exceeded the statutory maximum or was the result of an upward departure or
variance. Valdes received a within-guidelines sentence, but she argued that we should not
enforce her appeal waiver because of due process and equal protection considerations. The
government responded in its brief, rather than through a separate motion, that we should dismiss
Valdes’ appeal because her waiver was valid. We need not decide whether the waiver was valid,
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                                              III.

       Gonzalez raises one last challenge on appeal concerning remarks the district

court made when discussing his criminal history at sentencing. Those remarks

related to Gonzalez’s arrival in the United States in 1980 as part of the Mariel

boatlift.5 First, as the district court began discussing Gonzalez’s criminal history in

its § 3553 analysis, the court stated that “it appears that [Gonzalez] came to the

United States in 1980 during the Mariel boatlift, so I assume he came to the United

States illegally.” The district court’s second comment came as it finished

reviewing Gonzalez’s criminal history and closed with the remark that his criminal

history characterized “his time in the United States since he came here illegally.”

At no point during his sentence hearing did Gonzalez object to those comments.

       Gonzalez now contends that the district court’s remarks reveal that it

erroneously relied on a prejudicial view of Cuban immigrants who came to

America during the Mariel boatlift in giving him an above-guidelines sentence. He

claims that the district court’s view was erroneous because we have previously



however, because we reject the defendants’ arguments on appeal and affirm their sentences,
mooting the appeal waiver issue.
       5
          The Mariel boatlift refers to the exodus of approximately 114,000 Cuban refugees, in
nearly 1,800 boats, from Cuba to the United States in 1980. See United States v. Frade, 709 F.2d
1387, 1389 (11th Cir. 1983). Although the Carter Administration was initially receptive to
granting some of those refugees political asylum, see id., it eventually changed its position and
instituted a blockade to prevent boats from leaving the United States to pick up Cuban refugees
and bring them here. See Pollgreen v. Morris, 496 F. Supp. 1042, 1047 (S.D. Fla. 1980).

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held that the Mariel boatlift was not illegal. 6 Based on that contention, Gonzalez

asks us to vacate his sentence and remand to a different district court judge for

resentencing.

       Because Gonzalez did not object at sentencing, we review the district court’s

actions only for plain error. Rodriguez, 627 F.3d at 1380. Accordingly, Gonzalez

must show that “(1) an error occurred; (2) the error was plain; (3) it affected [his]

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” Id. (quotation marks omitted).

       Assuming the district court’s comments were erroneous, Gonzalez “must

establish a reasonable probability of a different result but for the error” in order to

show that the district court’s actions affected his substantial rights. Id. at 1382

(quotation marks omitted). He cannot meet that burden. The court’s belief that

Gonzalez arrived in the United States illegally was only one of many

considerations it took into account when evaluating his criminal history. The court

also considered Gonzalez’s convictions for armed burglary, armed robbery, and

armed kidnapping, as well as an arrest for another armed robbery. It was those


       6
         The decisions Gonzalez cites for this proposition dealt with the criminal convictions of
Americans who helped to bring Cuban immigrants from Havana to the United States as part of
the boatlift. See United States v. Frade, 709 F.2d 1387 (11th Cir. 1983); United States v. Zayas-
Morales, 685 F.2d 1272 (11th Cir. 1982). Those decisions do not give us any indication of
Gonzalez’s immigration status when he arrived in the United States. Because it does not affect
the outcome of this appeal, however, we will assume that Gonzalez came to the United States
legally.


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violent offenses, not Gonzalez’s alleged illegal arrival in the United States, that the

district court referred to when it stated that Gonzalez had demonstrated “disrespect

for [the] law.”7 In addition, the court’s decision to impose an upward variance was

based not only on his prior criminal history but also on the characteristics of the

present offense. In light of these considerations, Gonzalez cannot show a

reasonable probability that he would have received a different sentence “but for the

sentencing judge’s comments about how [Gonzalez] came to be in this country or

but for the thoughts underlying those comments.” Rodriguez, 627 F.3d at 1382.

       AFFIRMED.




       7
         What the district court actually said was: “He has demonstrated a disrespect for law
including a violent conviction for armed robbery, bank robberies, and kidnapping.”
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