                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-11452         ELEVENTH CIRCUIT
                                                      JUNE 30, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                 D. C. Docket No. 07-00062-CR-01-CC-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WILLIAM STEARNS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (June 30, 2010)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
          William Stearns appeals his convictions and 60-month sentences for health

care fraud and money laundering, 18 U.S.C. §§ 1347, 1957. Stearns asserts (1) the

district court erred in allowing a deliberate ignorance jury instruction, (2) the

district court clearly erred in enhancing Stearns’ sentences based on his role in the

offense and (3) Stearns’ sentences were not reasonable. Stearns was an

independent chiropractor who formed Comprehensive Care Medical Group with

Steven Levine and Chris Topel. Stearns, Levine, and Topel submitted materially

false and misleading bills to insurance companies for procedures not covered by

insurance. Levine and Topel both entered into plea agreements with the

Government. After review, we affirm Stearns’ convictions and sentences.

                                 I. JURY INSTRUCTION

          Stearns asserts the district court’s error was not harmless because (1) the

government’s theory was that he had actual knowledge the billing practices were

fraudulent; (2) the evidence supporting actual knowledge was not overwhelming;

and (3) the Government presented no evidence showing conscious avoidance of the

truth.1




          1
         We apply a deferential standard of review to a district court’s jury instructions. United
States v. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003). Considering the jury charge as a whole,
we will reverse only if we are “left with a substantial and eradicable doubt as to whether the jury
was properly guided in its deliberations.” Id. (quotation omitted).

                                                 2
      Deliberate ignorance instructions should be given only where the facts

“point in the direction of deliberate ignorance.” United States v. Rivera, 944 F.2d

1563, 1571 (11th Cir. 1991). Namely, the instruction is warranted where “the facts

support the inference that the defendant was aware of a high probability of the

existence of the fact in question and purposely contrived to avoid learning all of

the facts in order to have a defense in the event of a subsequent prosecution.” Id.

Moreover, “where the evidence supports both actual knowledge and deliberate

ignorance, the instruction is properly given.” United States v. Arias, 984 F.2d

1139, 1143 (11th Cir. 1993) (quotation omitted).

      The record sufficiently indicates support for the inference of actual

knowledge or deliberate ignorance. Specifically, there was testimony (1) Levine

learned the proper insurance coding at a conference, but he, Topel and Stearns

decided not to change it because the insurance would not cover it, (2) another

doctor told Topel the coding was improper and possibly fraudulent, and (3) Levine,

Topel, and Stearns asked their attorney for advice on coding without informing

him of the new insurance code for the procedure. A jury could have inferred either

Stearns knew the billing was fraudulent, or he suspected as much but made an

effort to avoid learning the truth. Accordingly, the district court did not err in




                                           3
instructing the jury on deliberate ignorance because the evidence at trial supported

both actual knowledge and deliberate ignorance.

                               II. ROLE IN THE OFFENSE

       Stearns contends the district court clearly erred in imposing a two-level

enhancement for his managerial role in the offense because neither Levine nor

Topel received such an enhancement, even though their roles in the offense were

more serious than his. Stearns contends Levine and Topel (1) were involved in the

scheme for years before he became involved; (2) both profited more than he did;

and (3) were managing and directing others. Stearns also asserts the Government

failed to prove by a preponderance he was an organizer, leader, manager, or

supervisor of any criminal activity.2

       According to U.S.S.G. § 3B1.1(c), a two-level enhancement is appropriate

where “the defendant was an organizer, leader, manager, or supervisor in any

criminal activity.” U.S.S.G. § 3B1.1(c). “A ‘participant’ is a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” Id. n .1.




       2
         “A defendant’s role as an organizer or leader is a factual finding that we review for clear
error.” United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). The government must
prove the existence of an aggravating role by a preponderance of the evidence. United States v.
Yates, 990 F.2d 1179, 1182 (11th Cir. 1993).

                                                 4
       The district court did not clearly err in enhancing Stearns’ sentence for his

role in the offense. Testimony at trial showed Stearns was directly in charge of

billing, directed the office manager to refer to the procedure by a false name and

independently directed the use of a surgical code for another non-surgical

procedure. The billing manager said she knew she had to stop using the correct

name because insurance companies would not cover it. The district court did not

clearly err in enhancing Stearns’s sentences based on his role in the offense

because the record showed he supervised another participant.

                                III. REASONABLENESS

       Stearns asserts his 60-month sentences were unreasonable when compared to

Levine’s and Topel’s sentences. Stearns claims his sentences should not have been

significantly longer than his codefendants because (1) he was neither the leader nor

organizer of the offense; and (2) he did not recruit anyone, was the last one to join

the scheme, participated in the criminal conduct for a much shorter period than

Topel and Levine, and received less money than his partners. Accordingly, he

argues the district court failed to give enough weight to the extreme disparity

between his sentences and those of his business partners.3


       3
         We review the final sentence imposed by the district court for reasonableness. United
States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007). The Supreme Court has clarified the
reasonableness standard means review of sentences for abuse of discretion. Gall v. United States,
128 S. Ct. 586, 597 (2007).

                                                5
      “[D]isparity between sentences imposed on codefendants is generally not an

appropriate basis for relief on appeal” because “to adjust the sentence of a

co-defendant in order to cure an apparently unjustified disparity between

defendants in an individual case will simply create another, wholly unwarranted

disparity between the defendant receiving the adjustment and all similar offenders

in other cases.” United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir.

2001) (quotations omitted). Similarly, “defendants who cooperate with the

government and enter a written plea agreement are not similarly situated to a

defendant who provides no assistance to the government and proceeds to trial.”

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

      Stearns’ sentences were reasonable. The record shows the district court

properly calculated the advisory Guidelines range and then considered the

Guidelines range, the arguments of the parties, and the § 3553(a) factors. As

Levine and Topel both cooperated with the Government and entered into plea

agreements, they are not similarly situated with Stearns. Stearns’ argument his

sentence was disproportionate to Levine’s and Topel’s does not show it was

substantively unreasonable. Accordingly, we affirm Stearns’ sentences.

      AFFIRMED.




                                          6
