United States v. Ana Maria Perez , 285 F. App'x 706 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 30, 2008
No. 07-15707 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20292-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANA MARIA PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 30, 2008)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Ana Maria Perez appeals the 46-month sentence imposed after she pled
guilty to one count of conspiracy to defraud the United States, in violation of 18
U.S.C. § 371; one count of conspiracy to commit health care fraud, in violation of
18 U.S.C. § 1349; and three counts of soliciting and receiving kickbacks, in
violation of 42 U.S.C. § 1320a-7b(b)(1). Perez argues that the district court clearly
erred in applying a four-level leadership-role enhancement, pursuant to U.S.S.G.
§ 3B1.1(a). For the reasons discussed below, we affirm
I.
The Centers for Medicare and Medicaid Services ran a medical insurance
program that covered durable medical equipment (“DME”), such as prosthetic
limbs, braces, wheelchairs, aerosol medications, and oxygen concentrators. Under
this program, DME suppliers could seek reimbursement from the government for
the cost of DME items provided to Medicare patients. Generally, a doctor would
prescribe use of a certain DME item by a patient. If the patient was a Medicare
beneficiary, the government would pay a substantial portion of the cost of the
DME item. The patient would assign the right of payment of this reimbursement
to the DME supplier. The DME supplier then would submit a claim to the
government, including the Medicare beneficiary’s name and Medicare
identification number, the prescribing doctor’s name and Medicare identification
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number, the name and Medicare billing number of the DME item prescribed by the
doctor and provided by the DME supplier, and the date on which the DME item
was provided by the DME supplier.
Perez owned a DME-supply company. Through this company, Perez sought
to defraud the Medicare program with regard to aerosol medications. Specifically,
she established a relationship with co-conspirators Henry and Karla Gonzalez, who
owned two pharmacies. Henry Gonzalez gave Perez a list of aerosol medications
that could be “billed” to the Medicare program for reimbursement. Perez recruited
doctors to fraudulently prescribe these aerosol medications and more than 25
Medicare beneficiaries to pretend to need these aerosol medications. Perez
generally would pay the Medicare beneficiaries approximately $150 per month for
use of their names and Medicare identification numbers. Henry and Karla
Gonzalez then would submit claims for these fraudulent prescriptions to the
Medicare program. They would give Perez a kickback of 50% of the
reimbursement money they received for each fraudulent claim from the
government. The pharmacies owned by Henry and Karla Gonzalez ultimately
received a total of $204,763 in reimbursements from the government for
prescriptions arranged by Perez, and Perez ultimately received a total of $102,381
in kickbacks from Henry and Karla Gonzalez.
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Henry and Karla Gonzalez also “worked with” several other DME suppliers.
The pharmacies that they owned ultimately received a total of approximately $14
million in reimbursements from the government for prescriptions arranged by all of
these DME suppliers. Perez was aware of these other relationships, as she signed a
“log” that included their names when retrieving her kickback payments from
Henry and Karla Gonzalez.
Perez also sought to defraud the Medicare program with regard to
respiratory equipment, namely oxygen concentrators. Specifically, she recruited
doctors to fraudulently prescribe the use of respiratory equipment and Medicare
beneficiaries to pretend to need the respiratory equipment. She then would submit
claims for these fraudulent prescriptions to the Medicare program. The DME-
supply company owned by Perez ultimately received a total of $218,378.96 in
reimbursements from the government.
Before Perez’s sentencing, a probation officer prepared a presentence
investigation report. Therein, the probation officer recommended, inter alia, that
Perez receive a four-level leadership-role enhancement, pursuant to § 3B1.1(a),
because she was an organizer or leader of a criminal activity involving five or more
participants. The probation officer noted that Henry Gonzalez received a four-
level leadership-role enhancement, and Karla Gonzalez received a three-level
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managerial-role enhancement.
At sentencing, Perez objected to receiving a leadership-role enhancement,
arguing that a three-level managerial-role enhancement would be more appropriate.
She asserted that Henry and Karla Gonzalez were the organizers of the conspiracy.
She asserted that she did not “control” the Medicare beneficiaries, as they were
willing participants and were free to work with another DME supplier, and did not
recruit necessarily all of the Medicare beneficiaries involved, as many of them
likely “recruited” each other. The district court overruled Perez’s leadership-role
objection. The district court reasoned that Perez recruited many Medicare
beneficiaries into the aerosol-fraud portion of the conspiracy and organized and ran
the respiratory-equipment-fraud portion of the conspiracy entirely on her own.
II.
We review a district court’s application of a leadership-role enhancement for
clear error. United States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003).
Pursuant to § 3B1.1(a), a district court can increase a defendant’s base offense
level by four “[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” Pursuant to
the commentary to § 3B1.1(a), the factors the district court should consider in
determining whether a defendant held a leadership role in a conspiracy include “the
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exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.” U.S.S.G. § 3B1.1, comment. (n.
4). Also, pursuant to the commentary, there can be more than one leader or
organizer in a conspiracy. Id. Likewise, we have held that “[t]he defendant does
not have to be the sole leader or kingpin of the conspiracy in order to be considered
an organizer or leader within the meaning of the Guidelines.” Rendon, 354 F.3d at
1332.
III.
The district court did not clearly err in applying a leadership-role
enhancement. See Rendon, 354 F.3d at 1331. With regard to the conspiracy
involving aerosol-medication claims submitted by Henry and Karla Gonzalez, the
record demonstrates that Perez’s participation within the conspiracy was integral,
as she provided the doctors and Medicare beneficiaries willing to participate. The
scheme would not have worked absent her contribution. Also, the record
demonstrates that Perez claimed a larger share of the fruits of the crime than many
of its participants, namely the Medicare beneficiaries involved. Indeed, Perez
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claimed an equal share of the profits as the player she admits was an organizer, or
Karla Gonzalez.1
Pursuant to the commentary to § 3B1.1, these characteristics of Perez’s role
are consistent with a leadership-role enhancement. See U.S.S.G. § 3B1.1,
comment. (n. 4). With regard to this conspiracy involving respiratory-equipment
claims submitted by Perez herself, the record demonstrates that Perez recruited the
doctors and Medicare beneficiaries, claimed the largest share of the profits, and
planned and organized the offense. Pursuant to the commentary to § 3B1.1, these
characteristics of Perez’s role are consistent with a leadership-role enhancement.
See U.S.S.G. § 3B1.1, comment. (n. 4). The fact that Henry Gonzalez also played
a leadership role does not affect this conclusion. See Rendon, 354 F.3d at 1332.
Thus, the district court did not clearly err in applying the leadership-role
enhancement. See id. at 1331.
AFFIRMED.
1
Perez claims that she received far fewer fruits of the crime than Henry and Karla
Gonzalez because she was obligated to share her 50% with the Medicare beneficiaries.
However, the government pointed out at sentencing that Henry and Karla Gonzalez also had
costs associated with maintaining their pharmacies. We also note that Henry and Karla
Gonzalez received 50% of the reimbursed money as a couple, while Perez received 50% alone.
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