Case: 19-10039 Date Filed: 01/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10039 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-20699-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOITE GALINDO,
Defendant-Appellant.
________________________
No. 19-10040 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-20427-KMM-1
Plaintiff-Appellee, Case: 19-10039 Date Filed: 01/09/2020 Page: 2 of 7
Defendant - Appellant.
Appeals from the United States District Court for the Southern District of Florida ________________________
(January 9, 2020)
Before GRANT, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Loite Galindo appeals his 84-month sentence imposed following his
convictions for health care fraud, money laundering, and conspiracy to commit
those offenses. Galindo brings two issues on appeal, which we address in turn.
After review,1 we affirm Galindo’s sentence.
I. DISCUSSION
A. Sophisticated means enhancement
Galindo asserts the district court clearly erred by applying the two-level
sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because
1 We review a district court’s decision to impose sentencing enhancements for clear error. United States v. Sosa, 777 F.3d 1279, 1300 (11th Cir. 2015). Review for clear error is deferential, and “we will not disturb a district court’s findings unless we are left with a definite and firm conviction that a mistake has been committed.” Id. (quotations omitted).
2 Case: 19-10039 Date Filed: 01/09/2020 Page: 3 of 7
nothing in this case was especially complex, intricate, or sophisticated. Under
§ 2B1.1(b)(10)(C), a defendant’s offense level is enhanced by two levels if the
offense “involved sophisticated means and the defendant intentionally engaged in
or caused the conduct constituting sophisticated means.” U.S.S.G.
§ 2B1.1(b)(10)(C). “‘Sophisticated means’ means especially complex or
especially intricate offense conduct pertaining to the execution or concealment of
an offense.” Id. comment. (n. 9(B)). Examples of sophisticated means listed in the
commentary include “hiding assets or transactions, or both, through the use of
fictitious entities, corporate shells, or offshore financial accounts.” Id. However,
the application notes do not limit the ways in which a defendant could use
sophisticated means to conceal his crime. See United States v. Clarke, 562 F.3d
1158, 1165 (11th Cir. 2009).
In gauging sophistication, the court must examine the totality of the
defendant’s conduct, as there is no requirement that each of the defendant’s
individual actions be sophisticated. United States v. Ghertler, 605 F.3d 1256, 1267
(11th Cir. 2010). Use of repetitive, coordinated conduct to perpetuate and conceal
a fraud scheme supports this enhancement. United States v. Bane, 720 F.3d 818,
826-27 (11th Cir. 2013). In previous cases involving Medicare fraud, we have
affirmed the application of the sophisticated means enhancement where the
defendant hired a billing service through which the company submitted more than
3 Case: 19-10039 Date Filed: 01/09/2020 Page: 4 of 7
$1,000,000 in false claims in three months, the company surreptitiously paid
patients to receive inexpensive injections while billing for expensive drugs, and the
defendant took a portion of his profits through a company he owned rather than
receiving a check directly. See United States v. Sosa, 777 F.3d 1279, 1302 (11th
Cir. 2015). Likewise, we have affirmed the enhancement where the offense
involved the use of kickbacks, the falsification of group therapy notes, and the
laundering of proceeds from the fraud. See United States v. Moran, 778 F.3d 942,
977 (11th Cir. 2015).
The district court did not clearly err in applying a sophisticated means
enhancement. Galindo hired a Medicare biller to repetitively bill LINET, a
specific program of Medicare Part D, for months and paid him $5,000 each time he
billed the program. Furthermore, Galindo used nominee owners to hide his
ownership of Gables and Olorun, which were phantom pharmacies. He took steps
to conceal the offense by laundering some of the fraud proceeds through other
companies for a fee and directed his codefendants to launder the money using
personal accounts. Thus, we affirm in this respect.
B. Aggravating role enhancement
Galindo also contends the district court clearly erred by applying the
four-level leader or organizer enhancement under U.S.S.G. § 3B1.1(a) because the
Government’s only evidence that he owned two of the three pharmacies was
4 Case: 19-10039 Date Filed: 01/09/2020 Page: 5 of 7
hearsay and he consistently denied owning those pharmacies. “The government
must prove the existence of an aggravating role by a preponderance of the
evidence.” United States v. Alred, 144 F.3d 1405, 1421 (11th Cir. 1998). “A
sentencing court may consider any evidence, regardless of its admissibility at trial,
in determining whether factors exist that would enhance a defendant’s sentence,
provided that (1) the evidence has sufficient indicia of reliability, (2) the court
makes explicit findings of fact as to credibility, and (3) the defendant has an
opportunity to rebut the evidence.” United States v. Hernandez, 906 F.3d 1367,
1369 (11th Cir. 2018). We have upheld enhancements solely based on hearsay
under these considerations. See United States v. Zlatogur, 271 F.3d 1025, 1031
(11th Cir. 2001) (upholding an enhancement for obstruction of justice where a
government agent testified about the statements of an unindicted co-conspirator).
The sentencing guidelines prescribe a four-level enhancement for a
defendant who (1) was an organizer or leader of a criminal activity that
(2) involved either five or more participants or was otherwise extensive. U.S.S.G.
§ 3B1.1(a). We examine whether a defendant was an organizer or leader, as
compared to a manager or supervisor, by considering the following factors:
(1) the exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others. 5 Case: 19-10039 Date Filed: 01/09/2020 Page: 6 of 7
United States v. Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018). In many cases
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Case: 19-10039 Date Filed: 01/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10039 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-20699-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOITE GALINDO,
Defendant-Appellant.
________________________
No. 19-10040 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-20427-KMM-1
Plaintiff-Appellee, Case: 19-10039 Date Filed: 01/09/2020 Page: 2 of 7
Defendant - Appellant.
Appeals from the United States District Court for the Southern District of Florida ________________________
(January 9, 2020)
Before GRANT, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Loite Galindo appeals his 84-month sentence imposed following his
convictions for health care fraud, money laundering, and conspiracy to commit
those offenses. Galindo brings two issues on appeal, which we address in turn.
After review,1 we affirm Galindo’s sentence.
I. DISCUSSION
A. Sophisticated means enhancement
Galindo asserts the district court clearly erred by applying the two-level
sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C) because
1 We review a district court’s decision to impose sentencing enhancements for clear error. United States v. Sosa, 777 F.3d 1279, 1300 (11th Cir. 2015). Review for clear error is deferential, and “we will not disturb a district court’s findings unless we are left with a definite and firm conviction that a mistake has been committed.” Id. (quotations omitted).
2 Case: 19-10039 Date Filed: 01/09/2020 Page: 3 of 7
nothing in this case was especially complex, intricate, or sophisticated. Under
§ 2B1.1(b)(10)(C), a defendant’s offense level is enhanced by two levels if the
offense “involved sophisticated means and the defendant intentionally engaged in
or caused the conduct constituting sophisticated means.” U.S.S.G.
§ 2B1.1(b)(10)(C). “‘Sophisticated means’ means especially complex or
especially intricate offense conduct pertaining to the execution or concealment of
an offense.” Id. comment. (n. 9(B)). Examples of sophisticated means listed in the
commentary include “hiding assets or transactions, or both, through the use of
fictitious entities, corporate shells, or offshore financial accounts.” Id. However,
the application notes do not limit the ways in which a defendant could use
sophisticated means to conceal his crime. See United States v. Clarke, 562 F.3d
1158, 1165 (11th Cir. 2009).
In gauging sophistication, the court must examine the totality of the
defendant’s conduct, as there is no requirement that each of the defendant’s
individual actions be sophisticated. United States v. Ghertler, 605 F.3d 1256, 1267
(11th Cir. 2010). Use of repetitive, coordinated conduct to perpetuate and conceal
a fraud scheme supports this enhancement. United States v. Bane, 720 F.3d 818,
826-27 (11th Cir. 2013). In previous cases involving Medicare fraud, we have
affirmed the application of the sophisticated means enhancement where the
defendant hired a billing service through which the company submitted more than
3 Case: 19-10039 Date Filed: 01/09/2020 Page: 4 of 7
$1,000,000 in false claims in three months, the company surreptitiously paid
patients to receive inexpensive injections while billing for expensive drugs, and the
defendant took a portion of his profits through a company he owned rather than
receiving a check directly. See United States v. Sosa, 777 F.3d 1279, 1302 (11th
Cir. 2015). Likewise, we have affirmed the enhancement where the offense
involved the use of kickbacks, the falsification of group therapy notes, and the
laundering of proceeds from the fraud. See United States v. Moran, 778 F.3d 942,
977 (11th Cir. 2015).
The district court did not clearly err in applying a sophisticated means
enhancement. Galindo hired a Medicare biller to repetitively bill LINET, a
specific program of Medicare Part D, for months and paid him $5,000 each time he
billed the program. Furthermore, Galindo used nominee owners to hide his
ownership of Gables and Olorun, which were phantom pharmacies. He took steps
to conceal the offense by laundering some of the fraud proceeds through other
companies for a fee and directed his codefendants to launder the money using
personal accounts. Thus, we affirm in this respect.
B. Aggravating role enhancement
Galindo also contends the district court clearly erred by applying the
four-level leader or organizer enhancement under U.S.S.G. § 3B1.1(a) because the
Government’s only evidence that he owned two of the three pharmacies was
4 Case: 19-10039 Date Filed: 01/09/2020 Page: 5 of 7
hearsay and he consistently denied owning those pharmacies. “The government
must prove the existence of an aggravating role by a preponderance of the
evidence.” United States v. Alred, 144 F.3d 1405, 1421 (11th Cir. 1998). “A
sentencing court may consider any evidence, regardless of its admissibility at trial,
in determining whether factors exist that would enhance a defendant’s sentence,
provided that (1) the evidence has sufficient indicia of reliability, (2) the court
makes explicit findings of fact as to credibility, and (3) the defendant has an
opportunity to rebut the evidence.” United States v. Hernandez, 906 F.3d 1367,
1369 (11th Cir. 2018). We have upheld enhancements solely based on hearsay
under these considerations. See United States v. Zlatogur, 271 F.3d 1025, 1031
(11th Cir. 2001) (upholding an enhancement for obstruction of justice where a
government agent testified about the statements of an unindicted co-conspirator).
The sentencing guidelines prescribe a four-level enhancement for a
defendant who (1) was an organizer or leader of a criminal activity that
(2) involved either five or more participants or was otherwise extensive. U.S.S.G.
§ 3B1.1(a). We examine whether a defendant was an organizer or leader, as
compared to a manager or supervisor, by considering the following factors:
(1) the exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others. 5 Case: 19-10039 Date Filed: 01/09/2020 Page: 6 of 7
United States v. Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018). In many cases
where we have affirmed the district court’s application of the four-level
enhancement, “there was evidence that the defendant had recruited participants,
had instructed participants, or had wielded decision-making authority.” Id.
(quotations omitted).
Galindo admitted at the plea colloquy that he was the true owner of the
Gables and Olorun pharmacies and conspired to launder the fraud proceeds, so he
cannot now contest these facts. See United States v. Martinez, 584 F.3d 1022,
1027 (11th Cir. 2009) (stating a fact admitted to during a guilty plea cannot later be
contested when it appears in the defendant’s PSI). Based on the PSI and Agent
Eddie Calienes’ testimony, Galindo hired Juan Carmanate for his expertise in
billing Medicare and LINET, directed him to bill LINET on the understanding the
patients were not legitimate, and paid him $5,000 per billing cycle. Furthermore,
he contracted with two private companies to launder fund proceeds for Gables and
Olorun and directed their nominee owners to launder other fund proceeds through
personal accounts. He also took the lion’s share of the fraud proceeds. Therefore,
he exercised decision-making authority, recruited accomplices, claimed the largest
share of fraud proceeds, and organized the offense—all of which are relevant to the
application of the four-level leadership enhancement. The Government proved
6 Case: 19-10039 Date Filed: 01/09/2020 Page: 7 of 7
Galindo was a leader or organizer by a preponderance of the evidence, and thus the
district court did not clearly err in imposing the enhancement.
II. CONCLUSION
The district court did not clearly err in applying a sophisticated means
enhancement because Galindo used nominee owners to conceal his true ownership;
targeted LINET, a specific program of Medicare Part D; and laundered a portion of
the fraud proceeds through private businesses and the nominee owners’ personal
bank accounts. The district court did not clearly err in applying a four-level
leadership or organizer enhancement because Galindo was the true owner of all
three pharmacies, received the lion’s share of the fraud proceeds, directed the
nominee owners to launder money, and hired an expert in pharmacy billing to
defraud Medicare. Accordingly, we affirm Galindo’s sentence.
AFFIRMED.