                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                    ________________________ ELEVENTH CIRCUIT
                                                                          SEP 09, 2011
                                            No. 11-11909                   JOHN LEY
                                        Non-Argument Calendar                CLERK
                                      ________________________

                               D.C. Docket No. 1:10-cr-20477-JAL-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

REINIER ACOSTA RODRIGUEZ,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (September 9, 2011)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

         The United States Sentencing Guidelines provide for a 14-level increase in

the calculation of a base offense level if the loss amount from a fraud was more
than $400,000.00. U.S.S.G. § 2B1.1(b)(1)(H). Reinier Acosta Rodriguez seeks to

avoid that enhancement on this appeal from his 24-month sentence, imposed after

he pled guilty to six counts of health care fraud, in violation of 18 U.S.C. § 1347.

Acosta Rodriguez was the president of Miami Springs Outpatient Services

(“MSOS”), a purported provider of durable medical equipment to Medicare

beneficiaries. He argues on appeal that the Guidelines enhancement should not

apply because there was insufficient evidence to conclude that he intended to

submit fraudulent Medicare claims on behalf of MSOS, and because the district

court’s calculation of loss was based on mere speculation.

      We review a district court’s interpretation of the Sentencing Guidelines de

novo, and the amount of loss determination for clear error. United States v.

Medina, 485 F.3d 1291, 1297 (11th Cir. 2007).

      Acosta Rodriguez argues that another MSOS employee was involved in the

fraud scheme and that there was no evidence presented at the sentencing hearing

that it was he who actually submitted the fraudulent Medicare claims. However,

the evidence presented at the sentencing hearing reflects that it was Acosta

Rodriguez who applied for MSOS’s medical enrollment, and the fraudulent billing

began almost immediately after he became president of the company. Acosta

Rodriguez withdrew funds deposited into MSOS’s account by Medicare after it

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was fraudulently billed. Acosta Rodriguez was a signatory on MSOS’s corporate

bank account during the time that the company submitted the claims. The

evidence showed that 77% of the patients for whom claims were submitted were

never seen by doctors, and thus, the claims made on their behalf were fraudulent.

      Acosta Rodriguez states that the evidence showed that MSOS actually

received only $7,813.55 of the $606,579.00 in claims submitted. He further states

that law enforcement only verified that a certain percentage of claims, rather than

all of those submitted, was fraudulent. Our precedent, however, requires that the

district court make a reasonable estimate of the loss amount, which is the greater

of the actual loss or the intended loss. United States v. Hoffman-Vaile, 568 F.3d

1335, 1343 (11th Cir. 2009). The Guidelines define “intended loss” as “the

monetary harm that was intended to result from the offense.” Id. at 1344 (citing

U.S.S.G. § 2B1.1 cmt. n.3(A)(ii), (iii)). A district court’s valuation of the loss or

intended loss need not be made with precision—“although the district court must

not speculate concerning the existence of a fact which would permit a more severe

sentence under the guidelines, its reasonable estimate of the intended loss will be

upheld on appeal.” United States v. Dominguez, 109 F.3d 675, 676 (11th Cir.

1997) (citations and internal quotation marks omitted). We have held that an

intended loss need not be realistically possible, and we have expressly rejected the

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position, adopted by other circuits, “that an intended loss cannot exceed the loss

that a defendant in fact could have occasioned if his fraud had been successful.”

United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997) (per curiam)

(concerning U.S.S.G. § 2F1.1, which was deleted by consolidation with § 2B1.1 in

2001).

      Based on the evidence presented at the sentencing hearing, the district

court’s determination of the loss attributable to Acosta Rodriguez was a

reasonable estimate of the loss. Acosta Rodriguez has not shown that the district

court engaged in speculation, or that the calculation was without factual support.

Therefore, we find no clear error by the district court in its determination that

Acosta Rodriguez was responsible for intended losses of over $400,000.00, and

thus, that the 14-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H) was

appropriate. Accordingly, we affirm Acosta Rodriguez’s sentence.

      AFFIRMED.




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