Case: 15-12928 Date Filed: 01/23/2018 Page: 1 of 23
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-12928 ________________________
D.C. Docket No. 8:14-cr-00092-SCB-JSS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GLADYS FUERTES, MARIO FUERTES,
Defendants – Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(January 23, 2018)
Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.
MARTIN, Circuit Judge: Case: 15-12928 Date Filed: 01/23/2018 Page: 2 of 23
Gladys and Mario Fuertes appeal their convictions and sentences imposed
after a jury found them guilty of healthcare fraud, conspiracy to commit healthcare
fraud, and obstructing a healthcare crime investigation. Ms. Fuertes was also
found guilty of aggravated identify theft. After careful consideration, and with the
benefit of oral argument, we affirm.
I. BACKGROUND
Mr. and Ms. Fuertes owned and operated several healthcare clinics in Florida,
including GA&S Medical Center (“GA&S”), Morgan Medical & Therapy Center
(“Morgan”), Gables Medical & Therapy Center (“Gables”), and NGF Medical
Center (“NGF”). 1 These clinics all purported to provide medical services to
patients and all submitted bills to Universal Health Care (“Universal”), an
insurance company. 2 The clinics primarily served patients with severe medical
conditions, many of whom had HIV. The Fuerteses sought out HIV patients
because insurance companies would generally not question their high-cost medical
treatments or prescriptions. Brian Kelly recruited patients, promising to pay them
to go to appointments at the Fuerteses’ clinics. Patients would also be prescribed
Oxycodone, which they would then sell to Mr. Kelly.
1 GA&S listed Ms. Fuertes as a corporate officer. Morgan, Gables, and NGF listed both Mr. and Ms. Fuertes as corporate officers. In addition, Morgan, Gables, and NGF all used the same address in their filings with the Florida Department of State. 2 Universal received bills from GA&S between January 2008 and September 2009; from Morgan between February 2011 and October 2011; from Gables between March 2011 and August 2012; and from NGF between December 2012 and January 2013. 2 Case: 15-12928 Date Filed: 01/23/2018 Page: 3 of 23
In 2012, Dennis Dean, a former tenant of Mr. Kelly, received an explanation
of benefits from his insurer, Universal. He noticed that Universal had been billed
for over $100,000 in services by Gables that he had not actually received. He
contacted Universal about the over-billing and told Universal that Mr. Kelly
recruited patients for Gables and paid patients in pills.
Universal launched an investigation and contacted law enforcement as well
as the relevant regulatory agencies. Universal reported potentially fraudulent
billing from GA&S, Morgan, Gables, and NGF, all clinics operated by the
Fuerteses. Universal’s billing records from Gables listed Dr. Alvaro Ocampo as
performing many different procedures for a small population of patients, including
Mr. Dean. In total, Universal determined that over the course of eight months,
Gables billed Universal for close to $1 million in services by Dr. Ocampo, given
for only eight patients. Universal also determined that a different clinic owned by
the Fuerteses, NGF, had billed for services for many of the same patients. When
Universal contacted Dr. Ocampo to confirm that he had performed the services that
had been billed, he responded that he was not involved with Gables and had not
treated the patients in question.
The Fuerteses were later served with a subpoena for all records relating to
GA&S, Morgan, Gables, and NGF. In the records they produced, Dr. Ocampo’s
name had been crossed out and replaced with another provider’s name. The
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records also contained appointment notes that had been written after the fact by
Miguel Sanchez. Ms. Fuertes had hired Mr. Sanchez to complete forms describing
therapies that had purportedly been performed at Gables before he was employed
there. One patient, Cathleen Ortega, testified that the Fuerteses met with patients
and told them to lie to investigators by saying they had not been paid to attend the
clinic and they had been seen by a number of doctors they hadn’t actually seen.
On March 13, 2014, Mr. and Ms. Fuertes were charged by indictment with
conspiracy to commit healthcare fraud, healthcare fraud, aggravated identity theft,
and obstructing a healthcare crime investigation. On March 24, 2015, a jury found
Ms. Fuertes guilty of all counts. Mr. Fuertes was found not guilty of the
aggravated identify theft counts but guilty of all remaining counts. Ms. Fuertes
was sentenced to 234-months imprisonment. Mr. Fuertes was sentenced to 135
months. The court imposed a restitution obligation of $262,229.30 jointly and
severally on Mr. and Ms. Fuertes. This appeal followed.
II. EVIDENTIARY CHALLENGE
The Fuerteses challenge the District Court’s admission of evidence relating
to (1) the prescription drug scheme; and (2) the Fuerteses’ operation of earlier
clinics that were not charged. We review for an abuse of discretion the District
Court’s evidentiary rulings. United States v. Fortenberry, 971 F.2d 717, 721 (11th
Cir. 1992).
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Under Rule 404, evidence of uncharged crimes is not admissible to prove a
defendant’s character. Fed. R. Evid. 404(b)(1). However, such evidence may be
admissible for other purposes, including to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2); Fortenberry, 971 F.2d at 721. The 404(b) restriction on
the admission of evidence of uncharged crimes does not apply to conduct that is
“intrinsic” to the charged conduct. Fortenberry, 971 F.2d at 721. Evidence of
uncharged offenses is “intrinsic” to the charged conduct if it (1) “arose out of the
same transaction or series of transactions as the charged offense;” (2) is “necessary
to complete the story of the crime;” or (3) is “inextricably intertwined with the
evidence regarding the charged offense.” United States v. McLean, 138 F.3d 1398,
1403 (11th Cir. 1998) (quotation omitted). Intrinsic evidence is thus admissible
“so long as it meets the usual requirements for admissibility of evidence,” meaning
that it is relevant under Rule 401, and its probative value is not substantially
outweighed by unfair prejudice under Rule 403. United States v. Richardson, 764
F.2d 1514, 1522 (11th Cir. 1985).
A. PRESCRIPTION DRUG SCHEME
First, Mr. Fuertes challenges the District Court’s admission of evidence
relating to the prescription drug scheme. At trial, evidence was presented that Mr.
Kelly recruited patients to the clinics, and that they were prescribed Oxycodone,
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which he would buy, then resell. The District Court admitted this evidence,
finding it was intrinsic to the charged conduct and not so prejudicial as to outweigh
its probative value. Mr. Fuertes argues this evidence was unfairly prejudicial and
unrelated to the charged conduct of healthcare fraud. As a result, he says the
District Court should not have admitted this evidence under either Federal Rule of
Evidence 403 or 404(b). The government responds by saying that evidence of the
Oxycodone scheme was intrinsic to the overall conspiracy to commit healthcare
fraud and was not unfairly prejudicial.
The District Court did not abuse its discretion in admitting evidence of the
prescription drug scheme. We begin by considering whether the challenged
evidence was intrinsic to the charged conduct. While it is true that the Fuerteses
were not charged with drug trafficking crimes, the Oxycodone prescription scheme
was a part of the overall conspiracy. Indeed, the indictment said that it was “part
of the conspiracy that Gladys Fuertes and Mario Fuertes would, and did, facilitate
the provision of fraudulent prescriptions for controlled substances, including
Oxycodone, to Gables patients/Medicare beneficiaries.” It also charged that it was
“part of the conspiracy that Brian Kelly would, and did, purchase Oxycodone pills
from Gables patients/Medicare beneficiaries for cash and distribute Oxycodone to
others in exchange for cash, with Gladys Fuertes’ and Mario Fuertes’ knowledge
and consent.” The evidence of this scheme was relevant to showing why patients,
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and particularly Mr. Kelly (who recruited patients), participated in the conspiracy.
It was, in other words, “inextricably intertwined” with the charged conduct and
“necessary to complete the story” of explaining Mr. Kelly’s and some patients’
involvement. See McLean, 138 F.3d at 1403. Because the evidence was intrinsic,
it was admissible whether or not it qualified as an exception under Rule 404(b).
Neither did the District Court abuse its discretion in finding the drug scheme
evidence relevant under Rule 401, such that its probative value was not
substantially outweighed by a risk of unfair prejudice under Rule 403. Richardson,
764 F.3d at 1521. Evidence is “relevant” if “it has any tendency to make a fact
more or less probable than it would be without the evidence.” Fed. R. Evid.
401(a). Because this evidence explained why patients and Mr. Kelly participated
in the healthcare fraud scheme, it was relevant. And we cannot say that the
evidence’s probative value was substantially outweighed by its prejudicial value.
Evidence is unfairly prejudicial if it would “lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged.” Old Chief v.
United States, 519 U.S. 172, 180, 117 S. Ct. 644, 650 (1997). While evidence of
the drug scheme may have been prejudicial, we cannot say it was unfairly so. As
we’ve explained, the evidence of the drug scheme helped explain the functioning
of the healthcare fraud scheme, thus making the evidence probative of the charged
conduct. The District Court did not abuse its discretion in admitting this evidence.
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B. EVIDENCE OF EARLIER CLINICS
Next, the Fuerteses argue the evidence of their operation of earlier
fraudulent clinics was admitted in error. At trial, the District Court treated the
evidence of earlier clinics the same as evidence of the prescription drug scheme,
finding it to be intrinsic, relevant, and not unfairly prejudicial. The Fuerteses argue
that evidence of the prior clinics was extrinsic evidence not supported by sufficient
proof, and that it was overly prejudicial.
Whether the evidence of the earlier clinics was intrinsic to the charged
conduct is a closer question. But even if this evidence were extrinsic to the
charged conduct, the District Court did not abuse its discretion in admitting it. To
be admissible, extrinsic evidence must satisfy a three-part test:
First, the evidence must be relevant to an issue other than the defendant’s character. Second, as part of the relevance analysis, there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act. Third, the probative value of the evidence must not be substantially outweighed by its undue prejudice, and the evidence must meet the other requirements of Rule 403.
United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir. 2010) (quotations and
citations omitted).
Applying this test, the District Court did not abuse its discretion in admitting
the evidence of the Fuerteses’ operation of earlier clinics. First, the evidence was
relevant to an issue other than the Fuerteses’ character. That is, using the same
methods to commit healthcare fraud across a number of clinics supported a finding 8 Case: 15-12928 Date Filed: 01/23/2018 Page: 9 of 23
that the fraud was knowing and intentional, which was contested at trial. Second,
there was sufficient proof that the jury could find the Fuerteses committed the
extrinsic acts. The government’s witness analyzed data on insurance claims from
the earlier clinics and testified that millions of dollars in those claims were
fraudulent. Third, the probative value was not substantially outweighed by undue
prejudice.
C. CONFRONTATION CLAUSE
Ms. Fuertes also briefly argues that evidence presented by Richard Ostrom,
an expert witness for the government, violated the Confrontation Clause.
However, Ms. Fuertes admits that that claim was not raised below and therefore
must be reviewed here for plain error. “Under plain error review, an appellate
court may not correct an error not raised at trial unless there is (1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v. Arbolaez, 450 F.3d
1283, 1291 (11th Cir. 2006) (per curiam) (quotation omitted).
There was no error in the admission of Mr. Ostrom’s testimony. When Mr.
Ostrom opined once on how often a treatment should be administered, defense
counsel objected, and the District Court sustained that objection. Contrary to Ms.
Fuertes’s allegations, Mr. Ostrom did not otherwise testify “to the hearsay opinion
of unidentified doctors that GA&S’ billing data was fraudulent and not for
necessary medical procedures.” Instead, Mr. Ostrom testified based on his own
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review of the clinics’ data on insurance claims, as well as other business records,
none of which were testimonial for Confrontation Clause purposes. See Crawford
v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367 (2004); United States v.
Naranjo, 634 F.3d 1198, 1213–14 (11th Cir. 2011). Thus, there was no error in the
admission of that testimony.
III. SUFFICIENCY OF THE EVIDENCE
Mr. Fuertes challenges the sufficiency of the evidence for his convictions.
We review de novo a challenge to the sufficiency of the evidence. United States v.
Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015). “We examine the evidence in the
light most favorable to the government and resolve all reasonable inferences and
credibility issues in favor of the guilty verdicts.” Id. (quotation omitted and
alteration adopted). This Court will not overturn a guilty verdict or disturb the
denial of a Rule 29 motion “unless no reasonable trier of fact could find guilt
beyond a reasonable doubt.” Id. (quotation omitted).
A. HEALTHCARE FRAUD AND CONSPIRACY TO COMMIT HEALTHCARE FRAUD
To prove healthcare fraud under 18 U.S.C. § 1347, the government must
show that a defendant:
knowingly and willfully execute[d], or attempt[ed] to execute, a scheme or artifice— (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property
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owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services . . . .
18 U.S.C. § 1347. A defendant may also be convicted under a theory of aiding and
abetting healthcare fraud if the government proves he “in some way associated
himself with the criminal venture, that he wished to bring it about, and that he
sought by his actions to make it succeed.” See United States v. Sosa, 777 F.3d
1279, 1292 (11th Cir. 2015) (quotation omitted).
To prove a conspiracy to commit healthcare fraud, the government must
show: (1) the existence of a conspiracy to commit healthcare fraud under 18 U.S.C.
§ 1347; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly
and voluntarily joined it. United States v. Gonzalez, 834 F.3d 1206, 1214 (11th
Cir. 2016). Proof of an express agreement is not required, and the existence of a
conspiracy may be inferred from circumstantial evidence. United States v. Parker,
839 F.2d 1473, 1478 (11th Cir. 1988).
For both his substantive healthcare fraud counts and the conspiracy to
commit healthcare fraud count, Mr. Fuertes challenges the sufficiency of the
evidence presented to show that he “knowingly and willfully participated in the
fraudulent billing schemes.” He says “the evidence established that Mr. Fuertes
was an unwitting pawn in a scheme orchestrated by Brian Kelley and perhaps even
Gladys Fuertes.” 11 Case: 15-12928 Date Filed: 01/23/2018 Page: 12 of 23
The record shows otherwise. Mr. Fuertes was active in the operations of the
fraudulent clinics. He was the registered agent and a corporate officer for both
Gables and Morgan Medical. He jointly held the bank accounts that were used to
get payments from insurance companies and pay kickbacks to clinic patients. He
also signed checks written from those accounts. The government presented
evidence of at least one check that Mr. Fuertes endorsed to cash in order to pay Mr.
Kelly and other patients. Mr. Fuertes also received substantial proceeds from the
clinics—over $700,000 from GA&S alone. A number of patients testified that Mr.
Fuertes would often be present at the clinics. That meant he would have seen that
only a very small number of patients actually came in, and at least at Gables, that a
doctor was present only one day per week. The government proved that fraudulent
healthcare claims were submitted by the clinics owned and operated by Mr.
Fuertes. Viewing the evidence in the light most favorable to the government, a
jury could reasonably infer that Mr. Fuertes sought to make the fraudulent scheme
succeed based on evidence that he was involved with the clinics’ day-to-day
operations; provided cash to pay patients and the patient recruiter; and accepted
substantial payments from the clinics. Sosa, 777 F.3d at 1292. Sufficient evidence
was also presented to allow a reasonable jury to find that Mr. Fuertes entered into
an agreement with other participants to execute the healthcare fraud scheme.
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B. OBSTRUCTION
To prove obstruction of a health care investigation, the government must
show that a defendant “willfully prevent[ed], obstruct[ed], misle[d], delay[ed], or
attempt[ed] to prevent, obstruct, mislead, or delay the communication of
information or records relating to a violation of a Federal health care offense to a
criminal investigator.” 18 U.S.C. § 1518.
Mr. Fuertes was convicted of two counts of obstruction. Count 16 related to
documents Mr. Fuertes provided in response to a grand jury subpoena. Mr. Fuertes
argues that, even assuming the documents were altered, there was insufficient
evidence to prove he altered them or knew they had been altered. In support, Mr.
Fuertes says that he wouldn’t have offered to turn over the documents immediately
after being personally served with the subpoena (an offer the investigator
declined), if he’d intended to alter the documents before submitting them. Count
17 charged Mr. Fuertes regarding a meeting in which he asked a former patient,
Ms. Ortega, to mislead investigators. Ms. Ortega testified that Mr. Fuertes showed
her pictures of doctors, including Dr. Ocampo, and told her to tell investigators that
she’d been treated by them. Mr. Fuertes argues there was insufficient evidence on
this count because Ms. Ortega’s “testimony was not credible and made no sense,”
and no other evidence was offered in support of Count 17.
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Mr. Fuertes’s convictions for obstruction were supported by sufficient
evidence. For both counts, Mr. Fuertes argues, in essence, that the story presented
by the government was not believable. However, Mr. Fuertes is simply reasserting
here, the same argument his attorney made at trial. The jury was free to make its
own credibility determinations and draw reasonable conclusions from the evidence
presented. See United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006). On
appeal, we must draw all inferences in favor of the government, and the testimony
of Ms. Ortega and of the FBI investigators who described the falsified medical
records was sufficient to support Mr. Fuertes’s convictions for obstruction of a
healthcare investigation.
IV. GUIDELINES CALCULATIONS
The Fuerteses both argue that the District Court erred in (1) calculating their
loss amounts; (2) determining the scheme was conducted with “sophisticated
means;” and (3) determining their roles in the offense. Ms. Fuertes also argues that
her sentence was not reasonable.
“We review a district court’s interpretation and application of the Sentencing
Guidelines de novo but accept the court’s factual findings unless they are clearly
erroneous.” United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). A
factual finding is clearly erroneous only if we “have a definite and firm conviction
that a mistake has been made.” Id.
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A. LOSS AMOUNT
The Fuerteses both argue that the District Court erred in calculating their
loss amount. In particular, they argue that the District Court should not have held
them accountable for all of the clinics they operated, but rather should have set
their sentences based on just their actions related to the clinics for which they were
charged. In addition, the Fuerteses argue that the loss amount should have been
reduced by the Medicare rate reduction and offset by the amount of legitimate
medical services provided. Finally, they argue the loss amount evidence from the
uncharged clinics was not sufficiently reliable to include in the calculation.
We review the District Court’s calculation of loss amount for clear error.
Ford, 784 F.3d at 1396. “[T]he district court is required only to make a reasonable
estimate of the loss.” Id. We must give the court’s estimate “appropriate
deference,” but it cannot be overly speculative. Id. (quotation omitted). Instead
the District Court “must base its estimate on reliable and specific evidence.” Id.
1. Relevant Conduct
“When calculating a defendant’s sentencing range under the Guidelines, the
sentencing court must consider all ‘relevant conduct’ as defined in [USSG]
§ 1B1.3.” United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015).
Relevant conduct is defined to include “all acts and omissions . . . that were part of
the same course of conduct or common scheme or plan as the offense of
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conviction.” USSG § 1B1.3(a)(2) (2014). And a “common scheme or plan” is in
turn defined as any other offense substantially connected “by at least one common
factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” Id. § 1B1.3 cmt. n.9(A).
The Fuerteses were held responsible for the loss amounts relating to both the
charged clinics (Gables and NGF) and uncharged clinics (GA&S and Morgan).
This resulted in the Fuerteses being held responsible for $12,493,757.69 in
intended loss, but with only $1,075,724.72 attributable to the clinics that were
actually charged. However, the uncharged clinics qualify as “relevant conduct”
under the Guidelines. All of the clinics had common victims (Universal), a
common purpose (Medicare insurance fraud), and a similar modus operandi
(charging insurance companies for expensive procedures allegedly performed for
patients with HIV). And under our precedent, so long as at least “one of the four
factors” substantially connects a prior uncharged offense, it can be included “as
relevant conduct when calculating the sentencing range for the [] offense of
conviction.” Siegelman, 768 F.3d at 1334. The District Court did not clearly err in
determining that the schemes at the uncharged clinics were “relevant conduct.”
2. Intended Loss
USSG § 2B1.1 defines “loss” as “the greater of actual loss or intended loss.”
USSG § 2B1.1 cmt. n.3(A) (2014). Intended loss is “the pecuniary harm that was
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intended to result from the offense,” while actual loss is the “reasonably
foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt.
n.3(A)(i)–(ii) (2014). “Put another way, when a sentencing court is determining
the proper punishment for a defendant’s fraud, the court uses the reasonable
mathematical limit of his scheme, rather than the concrete result. A criminal pays
for the ambition of his acts, not their thoroughness.” United States v. Patterson,
595 F.3d 1324, 1327 (11th Cir. 2010).
The Fuerteses argue that it was improper to calculate the loss amount using
the amount billed because everyone knew that the amounts actually received would
be much lower. And in fact, the Fuerteses did receive less than half of the amount
for which they were sentenced. However, the District Court found no evidence to
show the Fuerteses did not intend to receive as much of the amount billed as
possible. As the court observed, the Fuerteses billed over $12 million in claims,
and if the government had paid that entire amount, they would have taken it.
Because USSG § 2B1.1 bases the calculation on intent, not results, the District
Court did not clearly err in setting the loss amount at the amount billed, rather than
the amount received.3
3 The 2014 version of the Sentencing Guidelines was in effect at the time of Mr. and Ms. Fuertes’s sentencing. Some parts of the Guidelines were amended on November 1, 2015, including the definition of “intended loss.” Mr. Fuertes argues that the 2015 amendments were clarifying and therefore should be considered on appeal. We need not decide whether the amendments to the Guideline governing loss amount were substantive or clarifying because the 17 Case: 15-12928 Date Filed: 01/23/2018 Page: 18 of 23
3. Reliable and Specific Evidence
In addition, the Fuerteses argue that the loss amount should have been
discounted based on the value of nonfraudulent medical services the clinics
actually provided to patients. While the District Court acknowledged that some of
the clinics may have provided legitimate medical services, the court ultimately
found that “the vast majority of the billings were fraudulent,” and the reason the
clinics were set up was to commit fraud, not to provide medical services. Having
found insufficient evidence to quantify the value of the legitimate services
provided, the court calculated loss based on the entire amount billed. This was not
clear error. Even on appeal, the Fuerteses do not proffer any value for the
legitimate services provided by the clinics, and the evidence was sufficient to tie
all of the clinics into the fraudulent scheme. This satisfied the District Court’s
responsibility to make a “reasonable estimate of the loss.” Ford, 784 F.3d at 1396.
B. SOPHISTICATED MEANS
The Fuerteses both challenge the application of a “sophisticated means”
enhancement to their sentences. The Guidelines provide for a 2-level
enhancement if the offense involved “sophisticated means.” USSG
§ 2B1.1(b)(10)(C) (2014). An offense involves sophisticated means if it includes
District Court considered both the 2014 and 2015 versions when it sentenced Mr. Fuertes and determined the results were the same under either version. This was not clear error. 18 Case: 15-12928 Date Filed: 01/23/2018 Page: 19 of 23
“especially complex or especially intricate offense conduct pertaining to the
execution or concealment of an offense.” Id. § 2B1.1 cmt. n.9(B). “There is no
requirement that each of a defendant’s individual actions be sophisticated in order
to impose the enhancement. Rather, it is sufficient if the totality of the scheme was
sophisticated.” United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010).
We review for clear error the District Court’s finding that a defendant used
sophisticated means. Id.
The Fuerteses argue that their scheme “was actually very simple,” and that a
sophisticated means enhancement was therefore inappropriate. In addition, Mr.
Fuertes argues that even if the scheme itself was sophisticated, his role in the
scheme was not. The District Court found otherwise. The court found the scheme
to be sophisticated because the Fuerteses (1) sought out a small number of
particularly complex patients, many of whom were HIV positive, which made
extensive billing easier; (2) encouraged patients to sign up with a particular
Medicare plan that paid out more easily; (3) stole a doctor’s provider information
and exaggerated how much another doctor worked; and (4) hired someone to write
and alter patient notes after the fact.4
4 Ms. Fuertes also argues that it was “double punishment” for the court to base its sophisticated means enhancement on her alteration of documents since she’d already received an obstruction of justice enhancement. Ms. Fuertes cites no authority for this proposition, and in any event, the sophisticated means enhancement can stand on other grounds. 19 Case: 15-12928 Date Filed: 01/23/2018 Page: 20 of 23
On the record before us, we cannot say that the District Court clearly erred.
The Fuerteses recruited specific types of patients and targeted specific insurance
plans they knew would make it easier for them to get higher payouts. And they
hired Mr. Sanchez to create thousands of patient treatment records in an attempt to
make their scheme harder to detect. In addition, the Fuerteses transferred proceeds
from the scheme across many different personal and business bank accounts to
make it more difficult to trace. And even if Mr. Fuertes’s role in the scheme was
more minor than Ms. Fuertes’s (as the District Court recognized), evidence was
presented to show that he intentionally participated in the scheme. 5 Considering
the totality of the scheme rather than each defendant’s individual actions, it was
not clear error for the District Court to apply the sophisticated means enhancement.
See Ghertler, 605 F.3d at 1267.
C. LEADERSHIP ROLES
The Fuerteses both challenge the District Court’s decisions about their
respective roles in the scheme. Ms. Fuertes argues that the District Court erred in
applying a 4-level enhancement for her aggravating role in the offense. Mr.
Fuertes argues that the District Court erred in not applying a 2-level reduction for
his mitigating role in the offense. 5 Similar to his argument on the intended loss amount, Mr. Fuertes also argues that we should retroactively apply the 2015 amendments to the Guidelines relating to sophisticated means. However, the District Court considered the language on sophisticated means in both the 2014 and 2015 versions of the Guidelines and determined Mr. Fuertes qualified under either version. This was not clear error. 20 Case: 15-12928 Date Filed: 01/23/2018 Page: 21 of 23
Under § 3B1.1(a), a sentencing court may apply a 4-level enhancement if the
defendant “was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” And under § 3B1.2, a sentencing
court may apply a 2-level reduction if the defendant was a “minor participant.” In
assessing the defendant’s role in an offense, the District Court considers both “the
defendant’s role in the relevant conduct for which []he has been held accountable
at sentencing” and his “role as compared to that of other participants in [the]
relevant conduct.” United States v. De Varon, 175 F.3d 930, 940 (11th Cir. 1999).
The District Court’s determination of a defendant’s role in the offense is reviewed
only for clear error. Id. at 937.
The District Court did not clearly err in enhancing Ms. Fuertes’s sentence as
an “organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” See USSG § 3B1.1(a) (2014). Ms. Fuertes argues
both that the scheme was not “otherwise extensive” and that it did not involve five
or more people. But she cannot show that either of those findings were in error, as
she must in order to undermine her enhancement. In particular, the District Court
did not err in finding that the fraud was “otherwise extensive” based on the number
of patients, doctors, and billing companies involved. And while Ms. Fuertes
argues that some of these actors did not knowingly participate in the fraud, in
determining whether a scheme was otherwise extensive, “all persons involved
21 Case: 15-12928 Date Filed: 01/23/2018 Page: 22 of 23
during the course of the entire offense are to be considered, including outsiders
who provide unknowing services.” United States v. Holland, 22 F.3d 1040, 1045
(11th Cir. 1994) (quotation omitted).
Neither did the District Court clearly err in declining to reduce Mr. Fuertes’s
sentence as a “minor participant.” While the District Court acknowledged that Mr.
Fuertes was less culpable than Ms. Fuertes, that did not mean that Mr. Fuertes was
necessarily deserving of a minor role adjustment. The District Court found that
Mr. Fuertes received a substantial part of the proceeds of the scheme, was named
on several bank accounts, was a registered agent for some of the clinics and the
Vice President at Gables, and was clearly involved in attempts to cover up the
scheme. The District Court did not clearly err in finding this behavior did not
make Mr. Fuertes less culpable than most other participants in the scheme. See De
Varon, 175 F.3d at 944.
D. PROCEDURAL AND SUBSTANTIVE REASONABLENESS
Last, Ms. Fuertes argues that her sentence was not substantively reasonable.
We review the reasonableness of a sentence for abuse of discretion. Gall v. United
States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). Reasonableness review is a
two-step process. First, we review for procedural error, “such as miscalculating
the advisory guidelines range, treating the guidelines as mandatory, failing to
consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly
22 Case: 15-12928 Date Filed: 01/23/2018 Page: 23 of 23
erroneous facts, or failing to adequately explain the chosen sentence.” United
States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). Second, we review whether
the sentence was substantively unreasonable “under the totality of the
circumstances and in light of the § 3553(a) factors.” Id. The party challenging the
sentence bears the burden of showing it is unreasonable. Id. at 893.
Ms. Fuertes’s claims of procedural error mirror her Guidelines claims that
we have already addressed. As to substantive reasonableness, Ms. Fuertes was
sentenced to 234-months imprisonment, which was in the middle of her guideline
range. Ms. Fuertes argues this sentence was unreasonable because the court did
not consider her family and employment history, and was longer than necessary to
achieve the sentencing goals. But the District Court did consider all of those
factors. Given the facts of Ms. Fuertes’s case, we are not “left with the definite
and firm conviction that the district court committed a clear error of judgment” in
setting Ms. Fuertes’s sentence. Cubero, 754 F.3d at 893 (quotation omitted).
V. CONCLUSION
We affirm both defendants’ convictions and sentences for healthcare fraud,
conspiracy to commit healthcare fraud, obstructing a healthcare crime
investigation, and aggravated identify theft.
AFFIRMED.