                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        MAY 12, 2008
                                                     THOMAS K. KAHN
                               No. 07-11884
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                    D. C. Docket No. 06-20496-CR-KMM

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                    versus

FRANTZ ACHILLE,

                                                    Defendant-Appellant.

                         ________________________

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

                                (May 12, 2008)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

     Frantz Achille was convicted of one count of conspiracy to defraud the
United States, in violation of 18 U.S.C. § 1349, and five counts of health care

fraud, in violation of 18 U.S.C. §§ 1347 and 2 in connection with his role as a

medical doctor in two different AIDS and HIV clinics where he and his co-

conspirators filed fraudulent Medicare claims for the cost of prescribed

medications and treatments that were not medically necessary. Following a jury

trial, he was sentenced to 78 months’ imprisonment.

      On appeal, Achille argues that the district court erred by (1) admitting expert

testimony under Fed. R. Evid. (“Rule”) 403, (2) enhancing his offense level for

risk of death or serious bodily injury under U.S.S.G. § 2B1.1(b)(12)(A), and

(3) enhancing his offense level for obstruction of justice under U.S.S.G. § 3C1.1.

After a thorough review of the record, we affirm.

      1. Admission of Expert Testimony

      “A defendant must object at trial to preserve an objection on appeal; the

overruling of a motion in limine does not suffice.” United States v. Khoury, 901

F.2d 948, 966 (11th Cir. 1990). Where a defendant fails to preserve an issue for

appeal, we review for plain error only. See United States v. Edouard, 485 F.3d

1324, 1343 (11th Cir. 2007). To prevail under the plain error standard, an

appellant bears the burden of demonstrating that (1) the district court plainly erred,

and (2) the error implicated his substantial rights. Id. at 1343, n.7. We may then



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correct the error if the error has “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” Id. Here, we will review for plain error

because Achille failed to make a contemporaneous objection at trial to the

admission of the expert testimony.

      Rule 403 provides, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.

Evid. 403. Evidence is relevant or probative when it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence.” Fed. R. Evid. 401.

“Rule 403 does not mandate exclusion merely because some overlap exists” among

different types of evidence. United States v. De Parias, 805 F.2d 1447, 1454 (11th

Cir. 1986), overruled on other grounds, United States v. Kaplan, 171 F.3d 1351

(11th Cir. 1999). “The jury is free to choose between or among the reasonable

conclusions to be drawn from the evidence presented at trial, and the court must

accept all reasonable inferences and credibility determinations made by the jury.”

United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (quotation omitted).

      Achille challenges the admission of testimony from expert witness Dr.



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Moreno on the grounds that the evidence was prejudicial and duplicative.

      After a review of the evidence and viewing the testimony in the light most

favorable to admission, we conclude that the expert testimony, now challenged,

was probative and not unfairly prejudicial. Dr. Moreno testified that the treatment

prescribed by Achille was not within the accepted standard of care for treatment of

AIDS patients, that the treatment was administered improperly, and that such

treatment could have caused serious bodily harm. Given the nature of the charges,

such testimony was relevant and probative. Accordingly, the district court did not

plainly err in admitting the expert testimony.

      2. Enhancement for risk of death or serious bodily injury

      “Although the Sentencing Guidelines are no longer mandatory after United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), district

courts must continue to determine the appropriate guidelines sentencing range

under the law as they did prior to Booker.” United States v. Kinard, 472 F.3d

1294, 1297 (11th Cir. 2006). “We review for clear error the district court’s

findings of fact regarding whether a defendant should receive an enhanced

sentence under the Guidelines.” United States v. Campbell, 491 F.3d 1306, 1315

(11th Cir. 2007) (quotation and ellipsis omitted). A district court’s choice between

permissible views of the evidence cannot be clear error. United States v. Ndiaye,



                                          4
434 F.3d 1270, 1305 (11th Cir. 2006). “We review de novo the district court’s

interpretation of the Guidelines and its application of the Guidelines to the facts.”

Id. (quotation omitted).

      Achille argues that patients at his clinics were not at risk of death or serious

bodily injury because prescribed medications were never given to the patients.

      Section 2X1.1 of the Sentencing Guidelines applies to conspiracies that are

not covered by a specific offense guideline and instructs that the base offense level

for the conspiracy is the same as the base offense level “for any intended offense

conduct that can be established with reasonable certainty.” U.S.S.G. § 2X1.1(a).

Under § 2B1.1, which applies to fraud offenses such as those involved here,

sentencing courts should apply a two-level increase in offense level if the offense

involved “the conscious or reckless risk of death or serious bodily injury.”

U.S.S.G. § 2B1.1(b)(12)(A). Serious bodily injury is defined as injury “involving

extreme physical pain or the protracted impairment of a function of a bodily

member, organ, or mental faculty; or requiring medical intervention such as

surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1, comment.

(n.1(L)). Interpreting the enhancement, this court has stated, “[t]he Guidelines . . .

do not require that the victim actually suffer serious bodily injury. Rather, the

question is whether the defendant placed the victim at such a risk.” United States



                                           5
v. Snyder, 291 F.3d 1291, 1294-95 (11th Cir. 2002).

      We conclude that it was not clearly erroneous for the district court to

determine that Achille placed patients at risk of serious bodily injury. One of the

clinic nurses testified that some patients received drug injections. Dr. Moreno

testified that the drugs involved carried the risk of serious side effects, and these

side effects qualify as serious bodily injuries. See U.S.S.G. § 1B1.1, comment.

(n.1(L)). Thus, the district court did not err in applying the two-level enhancement

under U.S.S.G. § 2B1.1(b)(12)(A).

      3. Enhancement for obstruction of justice

      Achille argues that he did not significantly obstruct or impede the

government’s investigation by making false statements during an interview

because the government was already well-informed by the time he was

interviewed.

      Where the operative facts are not in dispute, and the district court decides

“as a matter of law, whether the undisputed facts triggered the enhancement for

obstruction of justice,” we review the district court’s conclusion de novo. United

States v. Banks, 347 F.3d 1266, 1269 (11th Cir. 2003). When the district court

applies the obstruction-of-justice enhancement, “it should note specifically what

[the] defendant did, why that conduct warrants the enhancement, and, if applicable,



                                            6
how that conduct actually hindered the investigation or prosecution of the offense.”

United States v. Alpert, 28 F.3d 1104, 1108 (11th Cir. 1994).

      The Sentencing Guidelines provide for a two-level increase in offense level

if the defendant “willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution,

or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The

application notes provide:

      This provision is not intended to punish a defendant for the exercise of
      a constitutional right. A defendant’s denial of guilt (other than a
      denial of guilt under oath that constitutes perjury), refusal to admit
      guilt or provide information to a probation officer, or refusal to enter a
      plea of guilty is not a basis for application of this provision.

U.S.S.G. § 3C1.1, comment. (n.2). Covered conduct includes “providing a

materially false statement to a law enforcement officer that significantly obstructed

or impeded the official investigation or prosecution of the instant offense.”

U.S.S.G. § 3C1.1, comment. (n.4(g)). The enhancement does not apply to making

false statements not under oath that do not significantly obstruct or impede the

investigation or prosecution. U.S.S.G. § 3C1.1, comment. (n.5(b)).

      Here, we conclude that the record supports the district court’s finding that

Achille’s false statements caused additional investigative work. The record shows

that Achille made several false statements about his role and the roles of his co-



                                          7
conspirators, and these false statements resulted in further substantial investigative

efforts it otherwise would not have taken. Cf. United States v. McGuinness, 451

F.3d 1302, 1305 (11th Cir. 2006); United States v. Arguedas, 86 F.3d 1054, 1059

(11th Cir. 1996). Accordingly, the district court did not err in applying the

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

      For the foregoing reasons, we AFFIRM Achille’s convictions and

sentences.




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