United States v. Gonzalez

644 F. App'x 456
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 16, 2016
DocketNo. 14-5889
StatusPublished
Cited by6 cases

This text of 644 F. App'x 456 (United States v. Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gonzalez, 644 F. App'x 456 (6th Cir. 2016).

Opinion

DAMON J. KEITH, Circuit Judge.

After a jury trial, Defendant Yennier Capote Gonzalez (“Gonzalez”) was convicted for five counts of healthcare fraud in violation of 18 U.S.C. § 1347; one count of money laundering in violation of 18 U.S.C. § 1957; and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. On appeal, we reversed his conviction of aggravated identity theft on sufficiency-of-the-evidence grounds and remanded the case for resentencing. He was then resentenced to fifty-two months of imprisonment. He now appeals that sentence, arguing that the district court erred in applying a two-level enhancement for obstruction of justice under § 3C1.11 and a two-level enhancement for an offense involving the unauthorized use or transfer of a means of identification under [458]*458§ 2B1.1.2 For the reasons below, we AFFIRM Gonzalez’s sentence.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The underlying facts

The facts related to this appeal are as follows:3 In June 2010, Gonzalez- formed a company called Gainesboro Ultimate Med Service (“Gainesboro Med”). Gonzalez, 560 Fed.Appx. at 556. In the corporate charter for Gainesboro Med, Gonzalez listed himself as the president. Id. He applied for a business license from Jackson County, Tennessee to operate Gainesboro Med as an “online medical billing” company. Id.

On July 13, 2010, an individual named Manuel Trujillo sent a text message to a cell phone number listed with the Gaines-boro Med checking account. Id. Gonzalez had opened the checking account and was the sole authorized signatory. Id. The text message included the name of “Ti-denee Prince, M.D.” and an NPI4 number. Id. Two days after that, Trujillo sent several text messages to that cell phone number with the following names: Orlando Martinez, Jorge Valdez, Monica Rodriguez, and Rosemary Mir. Id.

Over the next few weeks, Gainesboro Med submitted online claims to two insurance companies, Wellpoint and Cigna, seeking reimbursement for injections that were purportedly administered to the individuals listed in Trujillo’s text messages Id. Each claim listed Dr. Prince’s NPI number and listed Dr. Prince as the physician who administered these injections. Id.

On August 12, 2010, Cigna mailed a check payable in the amount of $38,116 to Gainesboro Med for medical services purportedly provided to Rosemary Mir and Monica Rodriguez. Id. at 557. This check was deposited into the Gainesboro Med account. Id. Gonzalez then wrote a check to Mr. Trujillo for $2,000 and another check in- the same amount to himself. Id. On August 23, 2010, Gonzalez obtained a $14,400 cashier’s check, payable to his landlord, which was drawn from the Cigna funds in the Gainesboro Med account. Id. at 556-57.

A special agent at the Department of Health and Human Services investigated Gonzalez’s activity. Id. Gonzalez was eventually arrested and, after a jury trial, was convicted for five counts of healthcare fraud in violation of 18 U.S.C. § 1347; one count of money laundering in violation of 18 U.S.C. § 1957; and two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. The district court denied Gonzalez’s motion for judgment of acquittal or new trial, and sentenced him to sixty-seven' months of imprisonment. Gonzalez appealed his conviction and sentence.

B. Gonzalez’s first appeal

Gonzalez challenged, among other things, the sufficiency of the evidence for each of his convictions. Id. at 559. On March 28, 2014, we affirmed all of his convictions except his conviction for aggravated identity theft. For that conviction to be proper, the government was “required to prove that [Gonzalez] knew that [459]*459the means of identification at issue belonged to another person.” Id. at 560 (citation and quotation marks omitted). “[T]he means of identification at issue was Dr. Prince’s NPI number.” Id. “[F]or Gonzalez’s conviction to stand, the government must have proved that Gonzalez knew that [Dr.] Prince was a real person.” Id. We found that the government failed to present sufficient evidence that would allow a jury to infer, beyond reasonable doubt, that Gonzalez knew that Dr. Prince was a real person. Id. at 561. Because we reversed the conviction for aggravated identity theft, we did not address any sentence-related arguments. Id. We thus remanded the case for resentencing. Id.

C. Resentencing on remand

i Revised presentence report (“PSR").

The PSR was prepared on July 1, 2014. R. 183 at 1448. The district court adopted the PSR without change. R. 181 at 1422. According to the PSR, Gonzalez’s offense level was 23. R. 183 at 1468. This offense level included various sentencing enhancements, two of which are relevant to this appeal: (1) an enhancement under § 3C1.1 for obstruction of justice; and (2) an enhancement under § 2B1.1 for an offense involving the unauthorized use or transfer of a means of identification.

§ SCl.l Enhancement. To begin, the PSR identified three bases for imposition of the enhancement under § 3C1.1: (i) Application Note 4(b) (committing, suborning, or attempting to suborn perjury); (ii) Application Note 4(c) (producing a false document or record during an official investigation or judicial proceeding); and (iii), Application Note 4(f) (providing materially false information to a judge or magistrate judge). R. 183 at 1458, ¶ 27.

The following facts are also relevant to the § 3C1.1 enhancement:

The defendant submitted a sworn financial statement5 dated September 22, 2010, prior to being placed on pretrial release supervision on September 24, 2010. The financial statement asked whether, in the preceding 12 months, he received any income from a business, profession, or other form of self-employment, or from rent payments, interest, dividends, retirement or other sources. In response to this question, the defendant checked the box next to “No.” At trial, however, the defendant stated under oath that on June 30, 2010, he received $5000 from Manuel Trujillo in accordance with a contract titled “Web Development Agreement.”
The Government advised that the defendant’s sworn statement at trial was material because it was an integral part of the defense theory that he was not guilty of the charges against him. The sworn statement in the financial affidavit, relating to the same period (the 12-month period preceding September 22, 2010), addressed the same subject matter, namely, the defendant’s receipt of income.

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Bluebook (online)
644 F. App'x 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gonzalez-ca6-2016.