United States v. Orlando Olver Bustabad

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 6, 2018
• Docket: 17-15203
• Status: Unpublished

Opinion

Case: 17-15203 Date Filed: 09/06/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15203 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cr-20441-KMM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORLANDO OLVER BUSTABAD,

Defendant-Appellant.

________________________

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

(September 6, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

Orlando Olver Bustabad appeals his 168-month sentence after he pleaded

guilty to one count of conspiracy to commit healthcare and wire fraud, in violation

of 18 U.S.C. § 1349. On appeal, he argues that the district court clearly erred by Case: 17-15203 Date Filed: 09/06/2018 Page: 2 of 4

imposing a 2-level enhancement for use of “sophisticated means,” U.S.S.G. §

2B1.1(b)(10)(C), during the commission or concealment of the offense. After

thorough review, we affirm.

A district court’s finding that the defendant used sophisticated means is a

finding of fact reviewed for clear error. United States v. Barrington, 648 F.3d

1178, 1199 (11th Cir. 2011). Review for clear error is deferential, and we will not

disturb a district court’s findings unless we are left with the definite and firm

conviction that a mistake was committed. United States v. Ghertler, 605 F.3d

1256, 1267 (11th Cir. 2010). An error that does not affect the sentence imposed is

harmless. United States v. Lozano, 490 F.3d 1317, 1324 (11th Cir. 2007).

The Guidelines provide for a two-level enhancement if an 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). The

commentary to § 2B1.1 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, comment. (n.9(B)) (2016). Conduct such as hiding

assets or transactions “through the use of fictitious entities, corporate shells, or

offshore financial accounts” ordinarily indicates sophisticated means. Id. There is

no requirement that each of a defendant’s individual actions be sophisticated.

Ghertler, 605 F.3d at 1267. Rather, it is sufficient if the totality of the scheme was

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sophisticated. Id. In looking at the totality of the scheme to determine its

sophistication, the court may consider the number of distinct and repetitive acts

that the defendant undertook throughout the scheme, the length of the scheme, and

the loss inflicted by it. United States v. Feaster, 798 F.3d 1374, 1381 (2015).

In United States v. Campbell, a tax evasion case involving the nearly

identical § 2T1.1(b)(2), defendant Campbell, the former mayor of Atlanta, used

campaign accounts and credit cards issued to others in order to conceal cash

expenses and the extent of his tax fraud. 491 F.3d 1306, 1309, 1315 (11th Cir.

2007). We upheld the district court’s finding of sophisticated means, explaining

that using “a straw man or campaign fund” was no different than hiding assets or

transactions through shell corporations or offshore accounts. Id. at 1316.

Here, the district court did not clearly err in finding that, in perpetrating a

healthcare and wire fraud scheme, Bustabad intentionally engaged in conduct that

constituted sophisticated means. See U.S.S.G. § 2B1.1(b)(10)(C). As the record

reveals, Bustabad, his father, and their coconspirators performed numerous

different and repetitive acts in order to perpetrate the fraud. See Feaster, 798 F.3d

at 1381. For starters, Bustabad and his father used nominee owners to hide their

ownership of nine of pharmacies. The nominee owners incorporated the

pharmacies and opened bank accounts in their names to receive payments from

Medicare, which concealed Bustabad’s and his father’s identities. See Campbell,

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491 F.3d at 1316. Bustabad and his father collected and provided compromised

Medicare beneficiary data and compromised doctor identification information to

submit fraudulent claims. Medicare then paid the claims to the pharmacies and the

nominee owners withdrew the funds via checks, cash counter withdrawals at

banks, or check cashing for themselves, Bustabad, and his father. The total scheme

lasted 4 years and it caused an intended loss of $10,678,160 and an actual loss of

$4,857,235. See Feaster, 798 F.3d at 1381. On this record, as the district court

explained, the sophisticated-means enhancement was warranted based on the

number of people involved in the scheme, the length of the scheme, the quickness

with which the nominee owners could get in and out of the corporations they set

up, and the intent to cause over $10 million in loss.

Moreover, the district court twice explained during the sentencing hearing of

Bustabad and his conconspirators that, even if the sophisticated-means

enhancement did not apply, it would impose the same sentence. Thus, even if

there was error in applying the enhancement, the error was harmless. See Lozano,

490 F.3d at 1324. Accordingly, we affirm.

AFFIRMED.