           Case: 14-14583   Date Filed: 06/17/2015   Page: 1 of 9




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14583
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:14-cr-20301-FAM-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ANNILET DOMINGUEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 17, 2015)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Annilet Dominguez appeals her sixty-eight-month total sentence imposed

after she pleaded guilty to conspiracy to commit, and the commission of, health

care fraud. She avers that, although she held the title of administrator at her job at

Professional Medical Home Health, LLC (PMHH), there was no evidence that she

exercised control or leadership within the conspiracy. She asserts that the

uncontested facts demonstrate that she was not a decision maker and that the

district court disregarded the relevant evidence to this effect. We find that the facts

in the record are insufficient to support by a preponderance of the evidence that

Dominguez played a leadership role in the conspiracy; thus, the district court erred

in applying a leadership role enhancement. Accordingly, we vacate her sentence

and remand the case for resentencing.

                                           I.

      A grand jury indicted Dominguez for conspiracy to commit health care fraud

(Count One), in violation of 18 U.S.C. § 1349, and health care fraud (Counts

Three, Four, and Five), in violation of 18 U.S.C. § 1035(a)(1) and (2). The

indictment alleged that Dominguez, along with codefendant Annarella Garcia and

other coconspirators, filed fraudulent Medicare claims seeking payment for the

costs of health services that were not medically necessary or were not provided.

Dominguez initially entered a plea of not guilty, but she changed her plea to guilty

without the benefit of a plea agreement.


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      The district court conducted a change-of-plea colloquy before accepting

Dominguez’s guilty plea. At this hearing, the government laid out the factual basis

for the plea. Dominguez held the title of administrator at PMHH, a Miami-based

home health agency that served Medicare beneficiaries. Dominguez worked at

PMHH, but she did not have an equity interest in the company. She and her

coconspirators fraudulently billed Medicare.

      Dominguez’s role in the fraud scheme “involved managing and supervising

personnel at [PMHH], paying kickbacks and bribes to patient recruiters, interacting

with patient recruiters, and coordinating and overseeing the submission of

fraudulent claims that were submitted to the Medicare program.” Between

December 2008 and February 2014, Medicare paid PMHH approximately $6.25

million in fraudulent reimbursements. The money Dominguez received came in

the form of a salary and ten percent of any check she cashed on behalf of her

codefendant. Dominguez agreed with the factual basis that the government set

forth. Particularly relevant to this appeal was the following language:

      The actions taken by Dominguez were directed by, and at the
      instruction of, [codefendant] Garcia and other unindicted co-
      conspirators. Garcia and other unindicted co-conspirators were
      generally the ones to decide or negotiate: which patients/recruiters
      would be used by [PMHH], the amount of kickbacks/percentages to
      be paid out to patients or recruiters, the hiring or firing of employees,
      or what services would be billed.
      ....


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       A portion of the funds received from Medicare were cashed by the
       defendants, used to pay the patient recruiters, or used to perpetrate the
       fraud. . . . Furthermore, at the instruction of [codefendant] Garcia,
       Quick Employee Management was established by Dominguez. The
       company was used, in part, as a means to distribute money from the
       illegal activities at [PMHH] to various individuals, including several
       unindicted co-conspirators. For a portion of the time that the Quick
       Employee Management account was utilized, Dominguez was not
       directly involved because she was at the hospital caring for her ill son,
       who received a bone marrow transplant. During this time, Dominguez
       was instructed by Garcia to pre-sign blank checks from this account,
       and [Dominguez] complied with that instruction.

       A presentence investigation report (PSI) was prepared that assigned a base

offense level of six pursuant to U.S.S.G. § 2B1.1(a)(2). As relevant here, it applied

a three-level increase on the basis that Dominguez was a manager or supervisor in

the scheme pursuant to U.S.S.G. § 3B1.1(b). 1 Dominguez had no prior

convictions, so her criminal history category was I. Based on a total offense level

of twenty-six and a criminal history category of I, the guideline range was sixty-

eight to seventy-eight months’ imprisonment.

       In a supplemental sentencing memorandum and at sentencing, Dominguez

argued that the three-level leadership enhancement was inappropriate. Dominguez

criticized the government’s failure to have identified any individuals whom she

allegedly had supervised or managed and the lack of evidence establishing that she



       1
         The PSI also applied an eighteen-level increase for the amount of loss, pursuant to
§ 2B1.1(b)(1)(J); a two-level increase because the offense involved a government health care
program, pursuant to § 2B1.1(b)(7); and a three-level reduction for acceptance of responsibility,
pursuant to § 3E1.1(a) and (b). This resulted in a total offense level of twenty-six.
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had any control or decision-making authority. In response to the district court’s

questions, defense counsel stated that Dominguez had the title of administrator and

processed the papers that allowed the payment of kickbacks, but did not exercise

decision-making authority, recruit any accomplices, or claim a larger share of the

money. The district court stated that Dominguez’s admissions at the plea colloquy

were enough to apply the enhancement and overruled the objection. Accordingly,

the court sentenced her to a total of sixty-eight months of imprisonment, followed

by three years of supervised release. Following entry of judgment, Dominguez

appealed.

                                          II.

      The district court’s determination of a convicted defendant’s role in the

offense is a question of fact that we review for clear error, while “the application of

the [Sentencing] Guidelines to the facts is a question of law that we review de

novo.” United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir. 2001).

      When a defendant challenges one of the factual bases of her sentence set

forth in the PSI, the government has the burden of establishing the disputed fact by

a preponderance of the evidence. United States v. Martinez, 584 F.3d 1022, 1027

(11th Cir. 2009). “It is the district court’s duty to ensure that the [g]overnment

carries this burden by presenting reliable and specific evidence.” Id. (internal

quotation marks omitted).


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      The sentencing court may base its findings on “evidence heard during trial,

facts admitted by a defendant’s plea of guilty, undisputed statements in the

presentence report, or evidence presented at the sentencing hearing.” United States

v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). Because the district court is

required to calculate and consider the Sentencing Guidelines, “if the district court

erred in calculating the guideline range while imposing a sentence, we may vacate

the defendant’s sentence and remand the case for re-sentencing.” Martinez, 584

F.3d at 1025.

      The Guidelines provide for a three-level increase “[i]f the defendant was a

manager or supervisor.” § 3B1.1(b). “To qualify for an adjustment under this

section, the defendant must have been the organizer, leader, manager, or supervisor

of one or more other participants.” Id. § 3B1.1 cmt. n.2. Courts consider several

factors in determining whether to apply the aggravating role enhancement

including:

      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

Id. § 3B1.1 cmt. n.4; see also Martinez, 584 F.3d at 1026. “There is no

requirement that all of the considerations have to be present in any one case . . .

[because] these factors are merely considerations for the sentencing judge.”
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Martinez, 584 F.3d at 1026 (internal quotation marks omitted). Instead, imposition

of this role enhancement “requires the exercise of some authority in the

organization, the exertion of some degree of control, influence, or leadership.” Id.

(internal quotation marks omitted).

                                         III.

      Here, Dominguez objected to the imposition of a leadership role

enhancement, and the government did not present any additional evidence at the

sentencing hearing. While Dominguez and the government presented a statement

of stipulated facts, the court did not discuss those agreed upon facts before

overruling the objection. Instead, the district court relied on Dominguez’s

admissions in the plea colloquy—that Dominguez was an administrator at PMHH

and that she supervised and oversaw PMHH personnel—in order to impose the

leadership role enhancement.

      On their own, however, these admissions do not support the leadership

enhancement because it is unclear from the record whether any of the personnel

she supervised were members of the conspiracy. See id. at 1026 (holding that

imposition of the leadership enhancement under § 3B1.1 requires “evidence that

the defendant exerted some control, influence[,] or decision-making authority over

another participant in the criminal activity” (emphasis added)).




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      The determination as to whether the leadership role enhancement applies

should be based on Dominguez’s actual conduct rather than her job title as

administrator. However, even considering her other actions, such as forming the

Quick Employee Management corporation at her codefendant’s request, interacting

with recruiters, processing paperwork to facilitate the filing of false claims, and

writing checks to distribute the fraudulently obtained money (paying the patient

recruiters), the record does not show control over another member of the

conspiracy. See id. at 1026–29 (determining that leadership enhancement was

inappropriate even where the evidence showed that the defendant orchestrated drug

shipments, was directly involved in a wire transfer, and utilized others to mail and

receive drug shipments, because control over resources is not the same as control

over other participants). Nor can her management of the assets of the conspiracy

justify the leadership enhancement. See id. at 1026 (“[A] defendant’s management

of assets, standing alone, is insufficient to support an enhancement under Section

3B1.1.”).

      Further, there was no undisputed evidence that Dominguez exercised

independent decision making authority, recruited accomplices, or claimed a right

to a larger share of the fruits of the crime. See id. The agreed upon facts actually

indicated that it was the other coconspirators that decided and negotiated which

patients and recruiters would be utilized, what amount of kickbacks and


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percentages would be paid, which employees would be hired and fired, and what

services would be billed. Without more evidence regarding Dominguez’s role,

these facts suggest that factors such as the nature of her participation in the

commission of the offense and her degree of participation in planning or

organizing the offense weigh against a finding that Dominguez had a leadership

role in the conspiracy. See id.

      Thus, we find that the government failed to present sufficient evidence that

Dominguez was a manager or supervisor in the criminal activity. Accordingly, in

light of the “slender record presented,” the district court erred in concluding that

Dominguez was a manager or supervisor under § 3B1.1(b) and imposing the three-

level leadership role enhancement. See id. at 1023. Upon review of the record and

consideration of the parties’ briefs, we vacate Dominguez’s sentence and remand

the case for resentencing.

      SENTENCE VACATED AND CASE REMANDED.




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