United States v. Nelson Valdes

319 F. App'x 810
Procedural entryThis page is a short order in United States v. Nelson Valdes. Read the opinion of the Court — 298 F. App'x 927
Court of Appeals for the Eleventh Circuit·Decided March 17, 2009·No. 07-14721·Unpublished

Opinion

PER CURIAM:

Nelson Valdes appeals from his 151-month sentence for conspiracy to defraud the United States, to cause the submission of false claims, and to receive health care kickbacks, 18 U.S.C. § 371; conspiracy to *812 commit health care fraud, 18 U.S.C. § 1349; and soliciting and receiving kickbacks involving a federal health care program, 42 U.S.C. § 1320a-7b(b)(l), 18 U.S.C. § 2. On appeal, Valdes argues that: (1) the district court erroneously calculated the amount of loss under U.S.S.G. § 2B1.1; (2) the district court misapplied the sophisticated means enhancement under U.S.S.G. § 2Bl.l(b)(9)(C); (3) his sentence was substantively unreasonable; and (4) his sentence violated his Fifth and Sixth Amendment rights. After careful review, we affirm.

We review a district court’s application of the Guidelines to the facts de novo and all factual findings for clear error. United States v. Humber, 255 F.3d 1308, 1311 (11th Cir.2001). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.2007) (quotations omitted), cert. denied, - U.S. -, 128 S.Ct. 1295, 170 L.Ed.2d 117 (2008). However, where a party fails to raise an issue before the lower court, we review the issue for plain error only. United States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.2001). To prove plain error, a party must show: (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Generally, we review a sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)).

First, we reject Valdes’s claim that the district court erred in calculating the amount of loss under U.S.S.G. § 2B1.1. “It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quotations omitted). “The doctrine of invited error is implicated when a party induces or invites the district court into making an error.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005) (quotations omitted). A court is precluded from invoking the plain error rule and reversing a district court decision where invited error exists. Id.

Valdes invited any error resulting from the district court’s adoption of the amount of loss calculated in the PSI when he urged the court “to adopt [the probation officers’] position with respect to intended loss....” Thus, we will not review the district court’s determination of amount of loss. Id.

Second, we are unpersuaded that the district court misapplied the sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(9)(C). Under this provision, a sentencing court may increase the base offense level for fraud by two levels if “the offense otherwise involved sophisticated means.” U.S.S.G. § 2Bl.l(b)(9)(C). The application note defines “sophisticated means” as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1, cmt. n. 8(B). The examples include “hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts” or “in a telemarketing scheme, locating the main office *813 of the scheme in one jurisdiction but locating soliciting operations in another jurisdiction.” Id.

As applied here, the district court did not clearly err in applying the two-level sophisticated means enhancement under § 2Bl.l(b)(9)(C) to Valdes’s base offense level for fraud. The information provided at trial and contained in the PSI — that Valdes recruited beneficiaries and sought out doctors so as to aid in hiding the illegality of his Medicare claims, and converted F & M Medical into a pharmacy through which he continued to defraud Medicare — plainly supports the application of this provision.

Third, we do not agree that Valdes’s sentence was substantively unreasonable. In reviewing sentences for reasonableness, we ordinarily perform two steps. Pugh, 515 F.3d at 1190. First, we must “ ‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). 1 If we conclude that the district court did not procedurally err, we must consider the “ ‘substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,’ ” based on the “ ‘totality of the circumstances.’ ” Id. (quoting Gall, 128 S.Ct. at 597).

“[Wjhen the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). Furthermore, in considering the guideline factors, the district court need not discuss each of them individually.

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United States v. Nelson Valdes, 319 F. App'x 810 (11th Cir. 2009).

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