                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 10-11126                ELEVENTH CIRCUIT
                            Non-Argument Calendar              JANUARY 7, 2011
                          ________________________               JOHN LEY
                                                                  CLERK
                     D.C. Docket No. 1:08-cr-20851-JAL-7

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                    versus

SCARLET DUARTE,

                                                            Defendant-Appellant.

                         ________________________

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

                                (January 7, 2011)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Scarlet Duarte appeals her sentence of 97 months of imprisonment and

convictions for one count of conspiring to launder money, 18 U.S.C. § 1956(h),
and 5 counts of money laundering, id. § 1956(a)(1)(B)(i). Duarte challenges the

sufficiency of the evidence to support her convictions, the calculation of her base

offense level based on a factual finding that she was responsible for the activities

of two of her co-conspirators, the enhancement of her sentence for using

sophisticated means and for obstructing justice, and the reasonableness of her

sentence. We affirm.

      The district court did not err by denying Duarte’s motions for a judgment of

acquittal for “all crimes charged in [her] second superseding indictment.” A

combination of bank records, corporate documents, and the testimony of federal

agents and employees; a pharmacist; Duarte’s co-conspirators, Diana Sotto and

Maria Loriga; and Duarte’s stepfather established that Duarte and her co-

conspirators used billing companies and shell corporations to submit fraudulent

claims to Medicare and funneled payments received for those false claims to

Duarte and her cohorts. Duarte laundered over $500,000 through her own

corporation, SND Medical Services, by processing checks received from two

Medicare billing companies, the Research Center of Florida and M&C Health

Center, using an account Duarte opened at La Bamba Check Cashing Company.

In one transaction, Duarte produced an invoice from SND charging M&C Health

Center for $40,000 in medical equipment that was not purchased, and Duarte

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cashed the $40,000 check provided by M&C. Duarte also laundered money

through two shell corporations, Falcon Transport and 24-Hour Network Solutions.

Duarte encouraged her stepfather to incorporate Falcon Transport ostensibly to

transport patients to Sotto’s medical clinic, but Falcon never conducted any

legitimate business and Duarte’s stepfather withdrew from the venture. Falcon

was funded with payments from Sotto and the Project New Hope clinic owned by

several co-conspirators, including Loriga and Sotto, and Duarte laundered the

money by withdrawing $4700 from the account and having co-workers at another

business cash checks made payable to them for amounts less than $10,000. Duarte

also incorporated 24-Hour Network Solutions through which she laundered

payments for nonexistent medical equipment and services from the Project New

Hope clinic and All Medical Billing, which was owned by Sotto. Duarte, as the

sole signatory on the 24-Hour Network account, endorsed $24,300 in checks made

payable to herself or to cash and approved payments exceeding $20,000 to third

parties for services received by Duarte and her cohorts.

      Duarte argues that she acted at the direction of Sotto and was unaware that

the money being transferred was proceeds of health care fraud, but we disagree.

Duarte worked with Sotto in the health care industry and Duarte processed

payments made to SND, Falcon Transport, and the 24-Hour Network for health

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care equipment and services those companies never provided. Duarte testified and

ran the risk that, if disbelieved, her testimony would be considered substantive

evidence of her guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).

“This rule applies with special force where the elements to be proved for a

conviction include highly subjective elements: for example, the defendant’s intent

or knowledge . . . .” Id. The jury was entitled to disbelieve Duarte’s testimony

that she complied unwittingly with Sotto’s instructions and to find that Duarte

knew the money she laundered had been obtained by defrauding Medicare.

      The district court did not clearly err by finding Duarte accountable for all

the monies that passed through SND Medical Services. In the case of “jointly

undertaken criminal activity,” a defendant’s base offense level must be determined

based on “all reasonably foreseeable acts and omissions of others in furtherance of

the jointly undertaken criminal activity that occurred during the commission of the

offense of conviction . . . .” United States Sentencing Guidelines Manual

§ 1B1.3(a)(1)(B) (2009). Even if Sotto was the architect of the money laundering

scheme and Duarte acted at her direction, Duarte incorporated SND, opened an

account to cash its checks, and conducted illegal transactions. Whether or not

Duarte endorsed all the checks cashed by SND, she was accountable for those

monies because she controlled the financial operations of SND and because she

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could reasonably foresee that her co-conspirators would use the SND account to

launder money.

      The district court also did not clearly err by enhancing Duarte’s sentence for

using sophisticated means to launder money. The Sentencing Guidelines provide

for a two-level enhancement if the offense in question “involved sophisticated

means,” which the commentary defines as “especially complex or especially

intricate offense conduct pertaining to the execution or concealment of the

offense.” Id. § 2B1.1(b)(9)(C) & cmt. n.8(B). Duarte established three corporate

shells, SND, Falcon Transport, and 24-Hour Network Solutions, to launder money,

produced false documents to camouflage money transfers, enlisted her father to

serve as the nominee owner of Falcon, and recruited persons unaware of the

conspiracy to withdraw money from Falcon.

      The district court also did not clearly err in enhancing Duarte’s sentence for

obstructing justice. The district court found that Duarte testified falsely at trial

about her knowledge of and participation in the $40,000 transfer from M&C

Health Center to SND Medical Services, in establishing a check cashing account

for SND, and in incorporating and accepting payments on behalf of Falcon

Transport, and the record supports those findings. Duarte argues that the district

court improperly based its decision on Duarte’s false testimony at Sotto’s hearing

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for a new trial, but the district court refused to consider that earlier testimony on

the ground that it did not relate to “the investigation, prosecution, or sentencing of

the instant offense of conviction,” id. § 3C1.1. The district court enhanced

Duarte’s sentence for obstructing justice based on “her testimony on the stand in

the case before” the district court.

      The district court also did not abuse its discretion by imposing a sentence at

the high end of the sentencing range. The district court reasonably determined

that a sentence of 97 months of imprisonment took into account Duarte’s

responsibilities to her children and her lack of criminal history and addressed the

seriousness of Duarte’s offense, the need to deter and protect the public from

similar future misconduct, and the need to avoid unwarranted sentencing

disparities. 18 U.S.C. § 3553(a). Duarte participated in a conspiracy that

defrauded the Medicare program of more than $20 million dollars, and she

employed more sophisticated means than some of her co-conspirators to launder

money. Duarte’s sentence is reasonable.

      We AFFIRM Duarte’s convictions and sentence.




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