United States v. Lawrence S. Duran

Court Case Details
Court Case Opinion

Case: 11-14429 Date Filed: 02/25/2013 Page: 1 of 24

[DO NOT PUBLISH]


IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-14429

Non-Argument Calendar

________________________

D.C. Docket No. 1:10-cr-20767-JLK-1



UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus


LAWRENCE S. DURAN,

Defendant-Appellant.

________________________

No. 11-14507

Non-Argument Calendar

________________________

D.C. Docket No. 1:10-cr-20767-JLK-2



UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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versus


MARIANELLA VALERA,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(February 25, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Lawrence S. Duran and Marianella Valera appeal their convictions and

sentences for conspiracy to commit health care fraud, in violation of 18 U.S.C.

§ 1349; health care fraud, in violation of 18 U.S.C. § 1347; conspiracy to defraud

the United States and participate in a kickback scheme, in violation of 18 U.S.C.

§ 371; conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h); money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and

structuring to avoid reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(1)

and (d)(2). Duran also appeals his convictions and sentences for money

laundering, in violation of 18 U.S.C. § 1957.

Duran and Valera pleaded guilty to conspiring to defraud the Medicare

health care program from December 2002 until October 2010. Valera, as the

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incorporator, registered agent, and sole officer of American Therapeutic

Corporation (ATC), registered ATC to be eligible to submit claims to Medicare.

Appellants did not associate ATC with Duran because he owed Medicare over $2

million in connection with another business.

The fraud scheme involved Appellants’ payment of kickbacks to assisted

living facilities (ALFs) and halfway houses so that the ALFs and halfway houses

would require their Medicare-eligible patients to participate in the ATC’s partial

hospitalization programs (PHPs), regardless of the patients’ needs or medical

conditions. Patients were selected based on their conditions or disorders, but they

did not receive proper medical treatment or doctor attention.

Duran and Valera submitted over $202 million in false claims, and received

payments totaling over $87 million as a result of their scheme. Despite the higher

figure that Appellants billed, they purportedly knew Medicare would only issue

payments based on a publicly available schedule of rates, which provided rates

lower than the amount billed. Appellants appealed every claim that was denied,

and collected co-payments on all of their claims. Duran’s stated intent was to get

as much money out of Medicare as possible, and he explained that he probably

would not have given any money back if he did receive the full billed amount.

Duran was also involved in commissioning a study to try and increase the amount

of money that PHPs could receive from Medicare.

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Appellants used Medlink Professional Management Group (Medlink) as a

vehicle to launder Medicare funds into cash for kickbacks and personal monetary

gain. They also implemented payment schemes through the use of shell companies

and sham transactions.

Throughout the course of the case, both Appellants filed multiple requests

for a jury trial on various sentencing issues, including the determination of the

amount of loss for which they would be held responsible, but neither defendant

requested to withdraw his or her plea. The district court denied these requests on

the basis that it had discretion to make findings of fact as to sentencing issues.

Duran and Valera were assessed the same guideline calculations, except that Duran

received an upward departure for disruption of a government function and Valera

received an enhancement for abuse of trust. The district court ultimately sentenced

Duran to 50 years’ imprisonment, while Valera received a 35-year term. They now

attack various aspects of their guilty pleas and sentences. We affirm.

I.

Duran and Valera first argue that the court incorrectly calculated their loss

amount by attributing the full amount billed to Medicare—over $202 million—as

the amount of loss. They contend that the court applied the wrong standard by

determining that the amount billed to Medicare was prima facie evidence of the

intended loss amount. They further assert that because they knew in advance that

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Medicare would only pay 80% of any given claim, their knowledge of the

predetermined, allowable amount Medicare would actually pay on a claim is the

proper amount of loss. We disagree.

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

under the guidelines for clear error. United States v. Hoffman-Vaile, 568 F.3d

1335, 1340 (11th Cir. 2009). A district court’s choice between two permissible

views of the evidence is not clearly erroneous. United States v. Rodriguez De

Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc).

The loss amount is calculated as “the greater of actual loss or intended loss”

for purposes of the Sentencing Guidelines. U.S.S.G. § 2B1.1 cmt. n.3. Actual loss

is the “reasonably foreseeable pecuniary harm that resulted from the offense,”

whereas intended loss “means the pecuniary harm that was intended to result from

the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i)-(ii). Importantly, intended loss

includes pecuniary harm that would have been impossible or unlikely to occur.

U.S.S.G. § 2B1.1 cmt. n.3(A)(ii). Because “[t]he sentencing judge is in a unique

position to assess the evidence and estimate the loss based upon that evidence,” the

district court is only required to make a reasonable estimate of the loss amount, and

its reasonable estimate will be upheld on appeal. U.S.S.G. § 2B1.1 cmt. n.3(C).

Turning to the instant case, the district court’s conclusion that Appellants’

intended loss was the total amount billed to Medicare is supported by a permissible

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view of the evidence. See Rodriguez De Varon, 175 F.3d at 945 (“So long as the

basis of the trial court’s decision is supported by the record and does not involve a

misapplication of a rule of law, we believe that it will be rare for an appellate court

to conclude that the sentencing court’s determination is clearly erroneous.”

(emphasis in original)). The evidence shows that Duran and Valera intended to get

as much money out of Medicare as possible. And though Appellants argue quite

strenuously that they could not have received the full amount billed and that it

should therefore not be counted in the amount of loss, intended loss includes

pecuniary harm that would have been impossible or unlikely to occur. See

U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)(II). “The court need only make a reasonable

estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C). We think using the amount

billed to Medicare as an estimate for the amount of loss was reasonable, and that

the district court’s determination of the amount of loss was not clearly erroneous.

II.

Duran and Valera also argue that neither of them should have received a

four-level vulnerable victim enhancement under U.S.S.G. § 3A1.1. They contend

that the victim impact was already contemplated in their base offense level, and the

government did not establish that any of the patients were physically or financially

harmed. These arguments fall wide of the mark.

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The district court’s application of the guidelines to the facts is a question of

law that we review de novo. United States v. McGarity, 669 F.3d 1218, 1232 (11th

Cir.), cert. denied, 133 S. Ct. 378 (2012). A court’s determination of the facts that

support the enhancement is a finding of fact reviewed only for clear error. Id. We

review allegations of impermissible double counting de novo. United States v.

Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005) (per curiam). Double counting

occurs when a district court applies one part of the guidelines to increase a

defendant’s punishment on account of a kind of harm that was already fully

accounted for by the application of another part of the guidelines. United States v.

Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006) (per curiam). “We presume that

the Sentencing Commission intended separate guideline sections to apply

cumulatively unless specifically directed otherwise.” Id. at 1227 (internal

quotation marks omitted).

Under U.S.S.G. § 3A1.1, a two-level increase is applied where the defendant

knew, or should have known, that a victim of the offense was a vulnerable victim,

and an additional two-level increase is applied if the offense involved a large

number of vulnerable victims. U.S.S.G. § 3A1.1(b). A vulnerable victim is “a

person (A) who is a victim of the offense of conviction and any conduct for which

the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is

unusually vulnerable due to age, physical or mental condition, or who is otherwise

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particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2. The

enhancement applies whenever a defendant selected his victim to take advantage of

that victim’s perceived susceptibility to the offense. United States v. Bradley, 644

F.3d 1213, 1288 (11th Cir. 2011), cert. denied, 132 S. Ct. 2375 (2012). Neither

bodily injury nor financial loss is required for an individual to qualify as a victim.

Id. at 1288 & n.128.

The patients here were vulnerable victims because they were forced to

participate in the scheme on account of their serious illnesses and disorders, and

they were not given proper treatment. Many of these patients had limited cognitive

ability and were unable to feed themselves, defecated on themselves, or were

unresponsive to group therapy. Doctors rarely saw these patients, except to fill out

paperwork, and Appellants frequently included false diagnoses in patient files to

maximize the amount of money they could extract from the patients’ suffering. In

other words, these were vulnerable victims of the most basic kind. And though

Appellants argue that the application of this enhancement double counts their

conduct, they identify no authority that demonstrates that the Sentencing

Commission did not intend for the guidelines to be applied in exactly this fashion.

See Dudley, 463 F.3d at 1227.

Additionally, we have previously rejected the argument that patients

involved in healthcare fraud were not victims because the government—not the

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patients—was the entity actually harmed by the fraud. See Bradley, 644 F.3d

at 1288 & n.128 (holding that patients who received faulty prescription drugs in a

Medicaid fraud scheme were victims for purposes of the vulnerable victim

enhancement). The damage to these patients—collateral or otherwise—was real.

Finally, there was more than sufficient evidence to find that a large number of

these particularly vulnerable individuals were the victims of Appellants’ scheme.

The district court did not clearly err in applying the four-level vulnerable victim

enhancement.

Duran and Valera also contend that the district court erred in applying an

enhancement for sophisticated laundering under § 2S1.1(b)(3) because the

enhancement was duplicative of the enhancements for money laundering

(§ 2S1.1(b)(2)(B)) and sophisticated means (§ 2B1.1(b)(9)(C)), but they are wrong.

Section 2S1.1(b)(3) of the guidelines provides for a two-level increase if the

money laundering enhancement of subsection (b)(2)(B) applies and the offense

involved sophisticated laundering. The commentary to the guidelines explains that

sophisticated laundering means complex or intricate offense conduct pertaining to

the execution or concealment of a § 1956 offense, and typically involves the use of

fictitious entities, shell corporations, or two or more layers of transactions.

U.S.S.G. § 2S1.1 cmt. n.5(A).

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In contrast, the money laundering enhancement under § 2S1.1(b)(2)(B) only

requires that the defendant was convicted under § 1956. See U.S.S.G.

§ 2S1.1(b)(2)(B). The sophisticated means enhancement under § 2B1.1(b)(9)(C),

for its part, provides for a two-level enhancement where the conduct involves

especially complex or intricate activity pertaining to the execution or concealment

of the offense, but does not limit the offense to money laundering. U.S.S.G.

§ 2B1.1 cmt. n.8(B). Instead, it is sufficient if the totality of the scheme is

sophisticated. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011),

cert. denied, 132 S. Ct. 1066 (2012).

In this case, Duran and Valera used shell corporations and sham transactions

to transfer the funds involved. See U.S.S.G. § 2S1.1 cmt. n.5(A). Though

Appellants contend that the enhancement is duplicative of the enhancements for

sophisticated means and money laundering, they identify no authority that

demonstrates that the Sentencing Commission did not intend for the guidelines to

be applied in this fashion. See Dudley, 463 F.3d at 1227 (explaining that, in the

absence of evidence to the contrary, we assume the Sentencing Commission

intended for enhancements to apply cumulatively). Further, the enhancements

have separate requirements and are based on separate conduct. For example,

though the sophisticated laundering enhancement refers only to the act of

laundering the proceeds of the fraud, the sophisticated means enhancement of

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§ 2B1.1(b)(9)(C) is directed more globally at the fraudulent scheme itself.

Accordingly, it was not clearly erroneous for the district court to apply the

sophisticated laundering enhancement on top of the enhancements for money

laundering and sophisticated means.

III.

Appellants next argue that the district court committed reversible error by

failing to verify whether each of them had personally received and reviewed a copy

of the presentence investigation report (PSR) prior to sentencing. They claim that

the district court only confirmed with their respective attorneys that the attorneys

had received and discussed the PSR with the Appellants, and that this is not

enough. We again disagree.

Federal Rule of Criminal Procedure 32 requires a sentencing court to “verify

that the defendant and the defendant’s attorney have read and discussed the [PSR]

and any addendum to” the PSR prior to sentencing. Fed. R. Crim. P. 32(i)(1)(A).

Here, the district court confirmed with the attorneys for Duran and Valera that they

had gone over the PSR with their clients. In the absence of some indication to the

contrary, a sentencing judge is permitted to rely on an attorney’s submission that

he has gone over the PSR with his client. The district judge therefore satisfied

Rule 32.

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IV.

Duran next argues that his plea colloquy violated the requirements of

Federal Rule of Criminal Procedure 11, which rendered his guilty pleas defective

and involuntary. He contends that the magistrate judge erred by failing to:

(1) obtain a waiver of his right to enter his plea before a district court; (2) explain

the nature of the offenses or ensure that Duran understood them; (3) explain the

applicable maximum penalties; (4) enter a factual basis for the plea; and

(5) explain that Duran could not enter guilty pleas while reserving the right to have

his loss amount determined at a trial. As to the last assertion, Duran specifically

states that he entered his guilty plea based on the condition that he would receive a

jury trial for the amount of loss issues.

Similarly, Valera argues that all of her sentencing enhancements were

improperly imposed because they violated the terms of her guilty plea. To that

end, she asserts that, as a condition to her guilty plea, she reserved her right to a

jury trial as to any fact used to enhance her sentence. All of Appellants’ arguments

in this regard lack merit.

Where a defendant did not move to withdraw his plea, we review any issues

regarding his plea colloquy for plain error. United States v. Moriarty, 429 F.3d

1012, 1019 & n.2 (11th Cir. 2005) (per curiam). Arguments raised for the first

time on appeal in a criminal case are reviewed for plain error. United States v.

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Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “We will find plain error only

where (1) there is an error in the district court’s determination; (2) the error is plain

or obvious; (3) the error affects the defendant’s substantial rights in that it was

prejudicial and not harmless; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Clark, 274

F.3d 1325, 1326 (11th Cir. 2001) (per curiam). There can be no plain error where

there is no statute, rule, or binding precedent from the Supreme Court or from this

Court directly resolving the issue. United States v. Lejarde-Rada, 319 F.3d 1288,

1291 (11th Cir. 2003) (per curiam).

In accepting a defendant’s guilty plea, the district court must specifically

address the three core principles of Rule 11 by “ensuring that a defendant

(1) enters his guilty plea free from coercion, (2) understands the nature of the

charges, and (3) understands the consequences of his plea.” Moriarty, 429 F.3d

at 1019. The Supreme Court has ruled that a defendant who seeks to establish

plain error with regard to Rule 11 “must show a reasonable probability that, but for

the error, he would not have entered the plea.” United States v. Dominguez

Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004).

Finally, “[w]e have also held that a district court may make additional

factual findings under a preponderance of the evidence standard,” and “may

enhance a sentence based upon judicial fact-finding provided that its findings do

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not increase the sentence beyond the statutory maximum authorized by facts

determined in a guilty plea or jury verdict.” United States v. Dean, 487 F.3d 840,

854 (11th Cir. 2007) (per curiam).

Turning to the facts at hand, Appellants have failed to carry their burden of

demonstrating that they would not have entered a guilty plea but for the alleged

errors in the court below. See Dominguez Benitez, 542 U.S. at 83, 124 S. Ct.

at 2340. Even were that not so, the core requirements of Rule 11 were satisfied

and none of the alleged defects in the pleas are supported by the record. The

district court acted within its discretion in making factual findings with regard to

Duran’s and Valera’s sentencing issues, and their pleas were entered without any

representations regarding a jury trial for sentencing issues. See Dean, 487 F.3d

at 854. And even if they could point to some error below, that error would not be

plain. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).

Accordingly, the court did not err by accepting Appellants’ guilty pleas or by

denying their request for a jury trial as to the facts underlying their guidelines

calculations.

V.

Appellants next argue that their sentences were substantively unreasonable.

Specifically, Duran submits that his sentence is unreasonable because the district

court did not consider his individual circumstances, but instead aimed at

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formulating a sentence to address the overall culture of corruption and fraud in the

medical field. He emphasizes his good character and background, age, and the

nonviolent nature of his offenses as evidence that the district court’s 50-year

sentence was unreasonable. Valera, for her part, avers that her sentence is

substantively unreasonable because it did not consider her individual

circumstances, including her work ethic, her subordinate personal and professional

relationship with Duran, her cooperation with the government, and the nonviolent

nature of the offenses.

We review the substantive reasonableness of the sentence imposed by the

district court “under [the] deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). In determining whether a

sentence is substantively reasonable, we engage in a “deferential” assessment of

whether the sentence imposed is sufficient, but not greater than necessary, to

comply with the purposes of sentencing set forth in § 3553(a)(2). United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). We measure

reasonableness against the factors outlined in § 3553(a). United States v. Pugh,

515 F.3d 1179, 1188 (11th Cir. 2008); see also Talley, 431 F.3d at 788 (“We must

evaluate whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in [§] 3553(a).”). These factors include: (1) the

nature and circumstances of the offense and the history and characteristics of the

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defendant; (2) the need for the sentence to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense; (3) the

need to deter criminal conduct; (4) the need to protect the public from further

crimes of the defendant; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of sentences

available; (7) the guideline range; (8) policy statements of the United States

Sentencing Commission; (9) the need to avoid unintended sentencing disparities;

and (10) the need to provide restitution to victims. See 18 U.S.C. § 3553(a).

The party challenging a sentence “bears the burden of establishing that the

sentence is unreasonable in the light of both th[e] record and the factors in

[§] 3553(a).” Talley, 431 F.3d at 788. “In our evaluation of a sentence for

reasonableness, we recognize that there is a range of reasonable sentences from

which the district court may choose, and when the district court imposes a sentence

within the advisory [g]uidelines range, we ordinarily will expect that choice to be a

reasonable one.” Id. Thus, we will vacate and remand for a new sentencing “if,

but only if, we are left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en

banc) (internal quotation marks omitted); see also Pugh, 515 F.3d at 1194

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(observing that “a sentence may be unreasonable if it is grounded solely on one

factor, relies on impermissible factors, or ignores relevant factors”).

Duran and Valera wholly fail to carry their burdens of demonstrating that the

district court committed a clear error of judgment in weighing the § 3553(a)

factors. See Irey, 612 F.3d at 1190. The offenses in this case spanned nearly eight

years and involved Appellants paying ALFs and halfway houses to exploit

thousands of seriously impaired individuals for their Medicare benefits.

Appellants submitted over $200 million in bogus Medicare claims, received over

$87 million in fraudulent payments, and used shell corporations and sham

transactions to launder their ill-gotten gains. They did so at the expense of the

public fisc and thousands of individuals unable to effectively care for themselves.

In our view, crimes such as these stem from greed of the worst variety, and evince

a parasitism and disregard for societal norms that are anathema to civil society. It

is the very aim of sentencing to exorcise individuals such as these from the public

square. See 18 U.S.C. § 3553(a)(2) (providing that the purposes of sentencing

include providing just punishment for an offense, deterring future criminals, and

The district court considered the

protecting the public from the defendant).

sentencing factors and sought to fashion total sentences that adequately punished

the Appellants, provided sufficient deterrence to would-be criminals, and promoted

respect for the law. These sentences do just that.

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Finally, and though Appellants raise various mitigating factors in their

defense, the weight to be given any particular factor is left to the sound discretion

of the district court, and we will not disturb the exercise of that discretion absent a

clear error in judgment. See Irey, 612 F.3d at 1190. What is more, the sentences

imposed actually constitute a significant downward variance from the guideline

sentence. Duran’s 50-year total sentence, for example, is well below his guideline

sentence of life imprisonment and his statutory maximum sentence of 435 years’

imprisonment, a fact that augurs strongly in favor of the reasonableness of his

sentence in light of the scope and nature of these offenses. See Gonzalez, 550 F.3d

at 1324 (noting, in upholding sentence as reasonable, that it was “well below the

maximum ten-year sentence”). Same goes for Valera, whose 35-year total

sentence is far shy of her guideline sentence

of life imprisonment and her statutory

1

maximum sentence of 235 years.

See id. In sum, we think the sentences imposed

on Duran and Valera by the district judge in this case were not only reasonable, but

proper.

VI.

Duran next contends that the district court’s application of an upward

departure for significant disruption of a government function under U.S.S.G.

1

Though the guideline range was life imprisonment, the maximum guideline penalty

cannot exceed the statutory maximum penalty, see U.S.S.G. § 5G1.1(b), so Duran’s guideline
sentence was technically 435 years’ imprisonment and Valera’s guideline sentence was 235
years’ imprisonment.

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§ 5K2.7 was clear error because it was based on the same underlying conduct that

led to his convictions and there was no factual support for the court’s rationale that

the Medicare program was unduly burdened by the sheer volume of Duran’s

scheme. Like the others, this argument falls flat.

The sentencing guidelines authorize a district court to depart from a

defendant’s applicable guideline range “[i]f the defendant’s conduct resulted in a

significant disruption of a governmental function.” See U.S.S.G. § 5K2.7. We

have previously held that “the significant disruption of a governmental function is

not inherent in the offense of large-scale fraud involving an abuse of public trust.”

United States v. Gunby, 112 F.3d 1493, 1501 (11th Cir. 1997). And in holding that

the significant disruption departure was properly applied to a fraudulent billing

scheme where Medicare lost $15 million, we explained that “[e]very time [a

defendant defrauds] Medicare, the government los[es] funds that it otherwise could

have used to provide medical care to eligible Medicare patients.” United States v.

Regueiro, 240 F.3d 1321, 1324 (11th Cir. 2001) (per curiam). Just so here. It is no

great secret that the Medicare program is cash strapped, and that the amount of

money left in the pot for the legitimate care of our neediest citizens dwindles with

each dollar the program pays out to the criminals such as Duran who seek to

defraud it. We find the argument that Duran did not cause a significant disruption

to the government’s ability to administer the Medicare program when he diverted

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over $87 million in funds from the program through a concerted scheme of

fraudulent billing, appealing every claim denied, and concealment of the fraud to

be unpersuasive, if not verging on frivolity. The district court did not clearly err in

applying the § 5K2.7 departure.

VII.

Valera additionally argues that the district court deprived her of the right to

be present at all stages of sentencing. She states that the district court improperly

incorporated the proceedings from Duran’s sentencing and the trial of Judith

Negron, another codefendant in this case. She argues that it was error to consider

the evidence from these proceedings because she did not have an opportunity to be

presented with, or make challenges to, the evidence. Because this argument was

raised for the first time on appeal, we review it only for plain error. See Rodriguez,

398 F.3d at 1298. We find none.

A defendant has a constitutional right to be present at sentencing. United

States v. Portillo, 363 F.3d 1161, 1166 (11th Cir. 2004) (per curiam). However,

the defendant need not be afforded the same degree of due process protections at

sentencing as he is entitled to at trial. United States v. Satterfield, 743 F.2d 827,

840 (11th Cir. 1984). A district court may take judicial notice of its own records.

United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987).

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Valera has failed to establish that the district court was not permitted to

incorporate the proceedings of Valera’s codefendants. See id.; see also United

States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir. 1990) (explaining that a court

may consider evidence adduced at a codefendant’s proceeding, even if defendant

was not present at that sentencing, so long as the defendant has an opportunity to

challenge the evidence at her own sentencing). Where “the explicit language of

the statute or rule does not specifically resolve the issue, and there is no precedent

from this Court or the Supreme Court directly resolving it, there is no plain error.”

United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010). Valera points to no

rule or statute, nor anything from this Court or the Supreme Court, that would

render erroneous the district court’s consideration of the related proceedings of her

codefendant in this matter. Hence, she cannot show plain error. See Lejarde-

Rada, 319 F.3d at 1291.

VIII.

Valera also asserts for the first time on appeal that the district court erred by

imposing a general sentence rather than articulating individual sentences for each

of the counts she was convicted for. She contends that such a general sentence is

per se illegal. We reject Valera’s argument on this point, however, because her

sentence was not a general sentence in the first place.

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We review the legality of a sentence de novo. Moriarty, 429 F.3d at 1025.

A general sentence is per se illegal and requires a remand. Id. “A general sentence

is an undivided sentence for more than one count that does not exceed the

maximum possible aggregate sentence for all the counts but does exceed the

maximum allowable sentence on one of the counts.” Id. (internal quotation marks

omitted). Even where the sentencing court errs in sentencing a defendant, the court

may correct a sentence that resulted from clear error within 14 days after oral

pronouncement of the sentence. Fed. R. Crim. P. 35.

In the present case, the district court expressly stated at sentencing that it

was announcing the total sentence imposed, but that it would provide a written

order with the specific sentence as to each count in a written judgment. True to its

word, the court filed a written order the same day the sentence was orally

pronounced setting forth the specific breakdown of Valera’s sentence. See also

Fed. R. Crim. P. 35. There was no error.

IX.

Finally, Valera contends that the district court plainly erred in applying a

two-level enhancement under U.S.S.G. § 3B1.3 for abuse of trust because the

government was the sole victim of the offenses and Medicare providers do not

occupy positions of trust relative to the Medicare program. She also argues that

the enhancement is improper as applied to her relationship with the patients

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Case: 11-14429 Date Filed: 02/25/2013 Page: 23 of 24

because the conduct used to justify the enhancement on that score would be

encompassed by her underlying convictions.

A defendant is subject to a two-level enhancement of his offense level if she

“abused a position of public or private trust, or used a special skill, in a manner

that significantly facilitated the commission or concealment of the offense.”

U.S.S.G. § 3B1.3. A position of trust is “characterized by professional or

managerial discretion,” and a person occupying a position of trust ordinarily

receives less supervision than an employee whose responsibilities are non-

discretionary in nature. U.S.S.G. § 3B1.3 cmt. n.1. In the fraud context, § 3B1.3

applies “where a fiduciary or personal trust relationship exists with other entities,

and the defendant takes advantage of the relationship to perpetrate or conceal the

offense.” United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998) (internal

quotation marks omitted); see United States v. Liss, 265 F.3d 1220, 1229–30 (11th

Cir. 2001) (holding that a physician who received kickbacks for patient referrals

abuses a position of trust for purposes of § 3B1.3 enhancement).

We discern no error here. Based on her position as a licensed mental health

counselor who knowingly submitted false claims to Medicare, Valera enjoyed a

position of trust and exploited that position of trust in executing her fraud. She has

failed to identify any controlling authority that establishes that the district court

erred in applying the enhancement in this case, especially in light of the fact that

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she used her positions as a licensed mental health counselor and the registered

agent and sole officer of ATC to perpetuate and conceal her fraud offenses. See

Lejarde-Rada, 319 F.3d at 1291 (explaining the stringent requirements of the plain

error standard). Even if she had identified an error, she has failed to demonstrate

that the “error affect[ed] [her] substantial rights in that it was prejudicial and not

harmless,” Clark, 274 F.3d at 1326, so her argument would fail in any event. Had

the abuse-of-trust enhancement not been applied, Valera’s offense level would

have been 45, which would yield the same guideline sentence (life imprisonment)

as would an offense level of 47. See U.S.S.G. Sentencing Table (providing for life

imprisonment for any offense level of 43 or above). Accordingly, Valera cannot

show plain error with respect to application of the abuse-of-trust enhancement.

For the foregoing reasons, we conclude that neither Duran nor Valera points

to any error sufficient to disturb the district court’s judgment in this case. The

sentences are harsh, but the offenses were grave. So goes the world of crime and

punishment.

AFFIRMED.

24

Referenced Cases

  1. United States v. Barrington
  2. United States v. Pugh
  3. United States v. Gunby
  4. United States v. Byron Leonel Portillo
  5. United States v. Josie Clark
  6. United States v. McGarity
  7. United States v. Isabel Rodriguez De Varon
  8. United States v. John Kevin Talley
  9. United States v. Alejandro Castellanos
  10. United States v. Hoffman-Vaile
  11. United States v. William Rey
  12. United States v. Ward Franklin Dean
  13. United States v. Henry Affit Lejarde-Rada
  14. United States v. Daniel Francisco Ramirez
  15. United States v. Irey
  16. United States v. Bradley
  17. United States v. Ira Harvey Liss
  18. United States v. Frank
  19. United States v. David Wayne Monroe
  20. United States of America v. Edward Eugene Satterfield A/K/A "Pig" Satterfield
  21. United States v. Tracey Dudley
  22. United States v. Garrison
  23. United States v. Susan Regueiro
  24. United States v. Dominguez Benitez
  25. Gall v. United States