United States v. Oslay Borrego Alarcon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 21, 2017
• Docket: 15-15807
• Status: Unpublished

Opinion

Case: 15-15805 Date Filed: 12/21/2017 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 15-15805 ________________________

D.C. Docket No. 1:15-cr-20411-DMM-3

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANGELINA GONZALEZ,

Defendant - Appellant.

__________________________

No. 15-15806 __________________________

D.C. Docket No. 1:15-cr-20411-DMM-4

ODALYS DE CARMEN BORREGO, Case: 15-15805 Date Filed: 12/21/2017 Page: 2 of 12

Defendant – Appellant.

No. 15-15807 __________________________

D.C. Docket No. 1:15-cr-20411-DMM-9

OSLAY BORREGO ALARCON,

No. 15-15808 __________________________

D.C. Docket No. 1:15-cr-20411-DMM-2

MARIA E. ECHARRI,

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________________________

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

(December 21, 2017)

Before HULL and DUBINA, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

Appellants, Angelina Gonzalez (“Gonzalez”), Maria E. Echarri (“Echarri”),

Odalys De Carmen Borrego (“O. Borrego”), Oslay Borrego Alarcon (“Borrego

Alarcon”), and eight other individuals were charged by a federal grand jury in the

United States District Court for the Southern District of Florida in a 30-count

superseding indictment with conspiracy to commit health care and wire fraud, in

violation of 18 U.S.C. § 1349 (Count 1) and related substantive charges.

Subsequently, the four defendants/appellants entered guilty pleas and submitted

written factual proffers regarding their involvement in the offenses.

I. BACKGROUND

This is a huge Medicare fraud case. After uncovering that a group of

pharmacies had all purported to have repeatedly filled the same drug prescriptions

for the same exact pool of Medicare beneficiaries, the Department of Health and

* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 3 Case: 15-15805 Date Filed: 12/21/2017 Page: 4 of 12

Human Services (“DHHS”) began an investigation of the pharmacies. As a result

of the investigation, the DHHS learned that all of the defendants involved in this

appeal, as well as Daniel Suarez (“Suarez”), Borrego Alarcon’s 23-year-old son,

owned and managed a number of pharmacies that they used to engage in a

conspiracy whose object was to obtain payments fraudulently from Medicare and

Medicare Program Providers for prescription drugs that the pharmacies had not

purchased or dispensed. From their fraud, Suarez and the defendants received

reimbursements in the amount of $21,000,000 from Medicare and Medicare drug

plans.

As part of the conspiracy, the defendants paid patient recruiters to locate and

pay Medicare beneficiaries for the use of their beneficiary numbers. The

conspirators then used the numbers on reimbursement claims they submitted to

Medicare through all of the pharmacies. The claims falsely and fraudulently

represented that various healthcare benefits, primarily prescription drugs, were

medically necessary, prescribed by a doctor, and had been provided to Medicare

beneficiaries by the pharmacies. Law enforcement officers determined that the

proceeds of the fraud were distributed to various bank accounts for the personal

benefit and use of each of the defendants. After his arrest, Suarez informed law

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enforcement officers that he and the defendants equally managed and profited from

the pharmacies involved in Count 1 of the offense.

After the defendants entered guilty pleas, the United States Probation Office

prepared a presentence investigation report (“PSI”) for each of the defendants. All

of the PSIs contained the same calculation of the defendants’ offense levels under

the United States Sentencing Guidelines (“USSG”). Each PSI calculation set the

defendants’ base offense level at seven, pursuant to USSG §§ 2B1.1 and

2X1.1(c)(1); each PSI added twenty levels, pursuant to USSG § 2B1.1(b)(1)(K),

because the defendants were held accountable for a loss greater than $9,500,000

but less than $25,000,000; each PSI added three levels, pursuant to USSG

§2B1.1(b)(7), because the loss involved a government health care program and was

greater than $7,000,000; each PSI added two levels, pursuant to USSG

§ 2B1.1(b)(10)(C), because the offense involved sophisticated means; and each

PSI added three levels, pursuant to USSG § 3B1.1(b), based on the defendants’

roles as managers or supervisors of a criminal activity that involved five or more

participants or was otherwise extensive. The PSI also recommended a three-level

downward adjustment for each of the defendants, pursuant to USSG §§ 3E1.1(a)

and (b), for their timely acceptance of responsibility for the offenses.

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After adjustments, each defendant’s total offense level was 32. None of the

defendants had any criminal history points and, as a result, the PSI assigned each

defendant a criminal history category of I. Based upon a criminal history category

of I and a total offense level of 32, each defendant’s guideline imprisonment range

was 121 to 151 months. The PSI further reported that the statutory maximum

sentence for the offense was 20 years’ imprisonment, pursuant to 18 U.S.C. §

1343. Each of the defendants submitted a sentencing memorandum and a motion

for a downward variance.

The government filed a written response arguing that the defendants should

be held responsible for the entire loss from the fraud because bank records,

interviews of co-conspirators, and the defendants themselves confirmed that they

had worked together as a family to own and operate a well-organized fraudulent

enterprise using the eight pharmacies to effectuate the fraud. The government

asserted that the defendants’ offense levels were properly calculated, but did

concede that, based upon the district court’s ruling during Suarez’s sentencing

hearing, the two-level sophisticated means enhancement should not be applied.

After sustaining the defendants’ objections to the two-level sophisticated

means enhancement, the district court found that each of the defendant’s total

offense level was 30. Thus, an offense level of 30 and a criminal history category

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of I resulted in a recommended guideline range of imprisonment of 97 to 121

months’ imprisonment. Following the parties’ arguments, the district court

imposed a sentence of 108 months’ imprisonment for each defendant. Defendants

then perfected this appeal.

II. ISSUES

(1) Whether the district court clearly erred when it found each

defendant was a manager or supervisor of the criminal activity.

(2) Whether the district court clearly erred in determining the

amount of the loss and amount of restitution attributable to

each of the defendants.

(3) Whether the district court abused its discretion by imposing

the same 108-month sentence on each of the defendants.

III. STANDARDS OF REVIEW

We review for clear error the district court’s determination of the facts

regarding a defendant’s role in the offense. United States v. Martinez, 584 F.3d

1022, 1025 (11th Cir. 2009).

We also review the district court’s determination of the amount of the loss

attributable to a defendant for clear error. United States v. Barrington, 648 F.3d

1178, 1197 (11th Cir. 2011).

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In addition, we review for clear error the factual findings underlying a

restitution order. United States v. Brown, 665 F.3d 1239, 1252 (11th Cir. 2011).

We review the substantive reasonableness of a sentence for an abuse of

discretion. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013).

IV. DISCUSSION

A. Managerial Roles

In our view, the district court properly enhanced the defendants’ offense

levels, pursuant to USSG § 3B1.1(b), for their managerial roles in the Medicare

fraud conspiracy. First of all, the standard of review cuts against the defendants’

arguments. It is a monumental hurdle to establish clear error. Indeed, in their

factual proffers, each defendant admitted that he/she owned and operated

pharmacies used to commit the fraud and that he/she submitted claims and

received payments for prescription drugs which he/she knew that the pharmacies

neither possessed nor dispensed.

The government presented evidence that these pharmacies had little or no

legitimate business; that the fraud involved more than 30 participants including

patient recruiters and Medicare beneficiaries, whom the defendants paid in order to

use their beneficiary numbers to file false Medicare claims; that the defendants

were signatories on the various bank accounts used to receive and conceal the

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fraud proceeds; and that their co-conspirators stated that they had acted as a

“family” to manage the fraud activities. The record demonstrates that the

defendants’ claims regarding each one’s lack of leadership responsibilities are

contrary to their own prior admissions and the evidence presented at the sentencing

hearing. Accordingly, we affirm the three-level enhancement for the defendants’

roles as managers or supervisors in the conspiracy.

B. Amount of Loss and Restitution

It is also our view that the district court was correct in attributing the amount

of loss and calculating the amount of restitution owed by each defendant. A

defendant’s specific offense characteristics, such as the amount of the loss

attributable to him under USSG § 2B1.1, are determined based upon all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity. See USSG § 1B1.3(a)(1)(B).

In the present case, in determining the defendants’ offense level at

sentencing, the district court calculated the amount of the loss caused by the

offenses with respect to each of the defendants. See USSG § 2B1.1. The district

court need only make a reasonable estimate of the loss amount based upon a

preponderance of the evidence. See 18 U.S.C. § 3664(e) (providing that the

government prove the loss amount by a preponderance of the evidence); see also

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United States v. Martin, 803 F.3d 581, 595 (11th Cir. 2015) (citing to United States

v. Futrell, 209 F.3d 1286, 1290 (11th Cir. 2000)). Here, the district court made

individualized findings that supported its determination that each of the defendants

was responsible for between $9.5 million and $25 million in losses by first

determining the scope of each defendant’s criminal activity and then calculating

the foreseeable loss. The court’s conservative and methodical analysis was

appropriate and, as a result, the 20-level enhancement of the defendants’ offense

levels under USSG § 2B1.1(b)(1)(K) was correct. We therefore affirm the district

court’s calculation of the loss amount.

The district court also made findings to support its imposition of restitution

under 18 U.S.C. § 3664, which states that “the court shall order restitution to each

victim in the full amount of each victim’s losses as determined by the court[.]” 18

U.S.C. § 3664(f)(1)(A). In allotting restitution, § 3664(h) states that “[i]f the court

finds that more than 1 defendant has contributed to the loss of a victim, the court

may make each defendant liable for payment of the full amount of restitution or

may apportion liability among the defendants to reflect the level of contribution to

the victim’s loss and economic circumstances of each defendant.” 18 U.S.C. §

3664(h). Because we discern no clear error in the district court’s restitution

determination, we affirm the district court’s order.

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C. Reasonableness of Sentences

Finally, the defendants argue that the district court’s decision to impose

identical sentences on each of them was unreasonable and that the district court

should have given more consideration to their individual circumstances and

individual roles in the conspiracy. We disagree. We review the substantive

reasonableness of the sentence for abuse of discretion, based upon the totality of

the circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).

In announcing the defendants’ sentences, the district court stated that it had

considered the § 3553(a) factors and discussed several of those factors on the

record. The court acknowledged that the consequences of the sentences on the

defendants’ families would be severe because the fraud was perpetrated as a family

affair, involving many members of the same family. The district court stated,

however, that the fraud involved a tremendous loss in that the defendants

defrauded the Medicare program of more than $20,000,000 within a period of a

few years.

Finally, the district court acknowledged that although the 108-months’

sentence was harsh, the differences in the level of participation in the offense by

the individual members was minimal, and each of the defendants received a

significant amount of the known fraud proceeds. Much of that money is still

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unaccounted for, and the amount was substantial with respect to each of the

defendants.

In conclusion, we hold that the sentences were reasonable. For the

foregoing reasons, we affirm the defendants’ sentences.

AFFIRMED.