UNITED STATES of America, Plaintiff-Appellee,
v.
Susan REGUEIRO, Defendant-Appellant.
No. 99-14192
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Feb. 6, 2001.
Appeal from the United States District Court for the Southern District of Florida.(No. 97-00574-CR-JAL),
Joan A. Lenard, Judge.
Before CARNES and MARCUS, Circuit Judges, and HAND*, District Judge.
PER CURIAM:
Susan Regueiro appeals her 144-month sentence for conspiracy to defraud the United States by
submitting false Medicare claims,
18 U.S.C. § 371, conspiracy to commit money laundering,
18 U.S.C. §
1956(h), and money laundering,
18 U.S.C. § 1956(a)(1)(B)(i). She contends that the district court erred by
departing upward for disruption of a government function, pursuant to United States Sentencing Guideline
§ 5K2.7, based on her involvement in a scheme to defraud Medicare. Because the district court properly
concluded that the nature and scope of Regueiro's conduct significantly disrupted the government's provision
of Medicare benefits, we affirm its decision to depart pursuant to § 5K2.7.1
I. FACTS
Regueiro pleaded guilty to one count each of conspiracy to defraud the United States, conspiracy to
commit money laundering, and money laundering. The charges arose from her involvement in a scheme to
defraud Medicare through the submission of false claims for home health care services. Regueiro and
codefendant Leopoldo Perez worked as administrators for Mederi of Dade County, Inc., a not-for-profit home
health provider that had contracted to provide Medicare-covered services. As part of their fraudulent scheme,
Regueiro and Perez established more than 100 nursing groups whose ostensible purpose was to provide home
*
Honorable William B. Hand, U.S. District Judge for the Southern District of Alabama, sitting by
designation.
1
This case was originally scheduled for oral argument, but the panel has elected to remove the case
from oral argument pursuant to 11th Cir. R. 34-3(f).
health care services to qualified patients. However, Regueiro and Perez used the nursing groups to bill
Medicare for thousands of services that were never performed, or that were performed on patients who were
not eligible to receive Medicare benefits. Medicare of Dade County reimbursed Mederi for the false claims
through electronic fund transfers to bank accounts controlled by Regueiro and Perez, and they shared in the
profits from those false claims. Both of them were extensively involved in all aspects of the scheme,
including establishing the nursing groups, recruiting individuals to operate the nursing groups and physicians
and nurses to participate in the fraud, and creating false documents to support the fraudulent home health
visits. As part of their plea agreements, Regueiro and Perez agreed that the loss to Medicare from their
scheme totaled $15,238,489 and that the value of the funds laundered totaled $3,570,907.
Prior to sentencing, the Probation Office prepared a Pre-Sentencing Investigation Report, which it
made available to the parties. The PSI assigned Regueiro a base offense level of 20 according to U.S.S.G.
§ 2S1.1, the guideline applicable to the money-laundering offenses. The PSI then added seven levels to
Regueiro's base offense level due to the value of funds laundered, assessed her a four-level enhancement for
her role as an organizer or leader, and granted her a three-level reduction for acceptance of responsibility.
As a result, Regueiro's total offense level was 28. Neither party filed objections to the PSI.
On September 9, 1999, the district court conducted a final sentencing hearing regarding Regueiro.
Prior to that hearing, the district court had notified the parties that it was considering imposing an upward
departure on Regueiro because her conduct had significantly disrupted a governmental function. See U.S.S.G.
§ 5K2.7, p.s. After listening to arguments from both sides at the hearing, the court concluded that a four-level
upward departure was warranted. In imposing that departure, the district court cited United States v. Khan,
53 F.3d 507 (2d Cir.1995), as authority. The district court explained:
[T]he facts as they have been delineated in this case covered only a small portion of the large scale
Medicare fraud industry that [Regueiro] organized and participated in extensively.... [T]he scheme
here disrupted the government's function to efficiently administer the Medicare program and
[undermined] the public's confidence in government.
The court also found that Regueiro had organized the fraudulent scheme, had induced doctors and nurses to
abuse their positions of trust, and had created corporations to perpetrate and cover up the fraud. Based on
all of those facts, the district court concluded that the extent and nature of the disruption and the importance
of the government function that was affected warranted a four-level § 5K2.7 departure.
II. ANALYSIS
Generally, a sentencing court must impose a sentence within a guideline range unless it finds there
exists "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence
different from that described." United States v. Hoffer,
129 F.3d 1196, 1200 (11th Cir.1997) (quoting
18
U.S.C. § 3553(b)). Thus, to depart from the guidelines, the sentencing court must determine (1) whether any
factor makes the case atypical, meaning that it takes the case out of the "heartland" of cases involving the
conduct described in the applicable guideline, and (2) whether that factor should result in a different sentence.
See U.S.S.G. § 5K2.0 ("Presence of any [factor that has not been given adequate consideration by the
Sentencing Commission] may warrant departure from the guidelines, under some circumstances, in the
discretion of the sentencing court."); Hoffer, 129 F.3d at 1200 (citing Koon v. United States,
518 U.S. 81,
98,
116 S.Ct. 2035, 2046-47,
135 L.Ed.2d 392 (1996)).
A sentencing court's departure decision involves both factual and legal findings. The court
determines whether a case falls outside of the heartland by assessing the facts, and comparing them to the
facts of other cases that fall within the heartland of the applicable guideline. Hoffer,
129 F.3d at 1200. To
determine if a factor that takes a case out of the heartland should result in a different sentence, the court must
decide whether that "factor is forbidden, encouraged, discouraged, or unaddressed by the guidelines as a
potential basis for departure."
Id. If a factor is encouraged, the sentencing court is "authorized to depart from
the applicable guideline if the guideline does not already take that factor into account."
Id.
With the above framework in mind, we conclude that the district court did not abuse its discretion
in departing upward four levels pursuant to § 5K2.7. See Hoffer,
129 F.3d at 1200 (reviewing departures from
otherwise applicable sentencing guideline ranges for abuse of discretion). Regueiro was sentenced under
U.S.S.G. § 2S1.1, the general money-laundering guideline. Because that guideline does not encompass an
interference with the administration of a governmental program, we agree with the district court that
Regueiro's conduct takes this case out of the heartland of typical money laundering cases. See United States
v. Gunby,
112 F.3d 1493, 1500-01 & n. 11 (11th Cir.1997) ("[T]he significant disruption of a governmental
function is not inherent in the offense of large-scale fraud involving an abuse of public trust...."); Khan, 53
F.3d at 518. We also agree that U.S.S.G. § 5K2.7 warrants an upward departure. Section 5K2.7 states:
If the defendant's conduct resulted in a significant disruption of a governmental function, the court
may increase the sentence above the authorized guideline range to reflect the nature and extent of the
disruption and the importance of the governmental function affected.
U.S.S.G. § 5K2.7, p.s. Regueiro's conduct significantly disrupted the government's ability to administer its
Medicare program. Every time one of the more than 100 nursing groups that Regueiro helped organize and
establish fraudulently billed Medicare, the government lost funds that it otherwise could have used to provide
medical care to eligible Medicare patients. As the district court explained:
The Medicare program was created to help provide medical care, and this particular program, for
home care services, was specifically created and delineated so persons who were not able to receive
medical care otherwise would not be lacking for the medical care they sorely cried out for. Through
the fraudulent billing and the loss of over $15 million, those monies are no longer available for the
medical care for the persons in this program.
That reasoning is sound and finds support in the Second Circuit's Khan decision.
53 F.3d 507.
Kahn had helped organize an extensive scheme to defraud the government's Medicaid system out of
approximately $8 million.
Id. at 511. He set up four clinics and two corporations to provide patients with
drug prescriptions and to perform medical procedures and tests that those patients did not need. The clinics
then billed Medicaid for the unnecessary prescriptions and services.
Id. at 511-12. Khan was sentenced
under § 2F1.1, the general fraud guideline. Id. at 517-18. The Second Circuit affirmed the district court's
decision to depart upward from that guideline on that basis of § 5K2.7 because "[Khan's] scheme ... disrupted
the government's function of efficiently administering Medicaid ... [and] undermined the public's confidence
in government." Id. at 518. Although Regueiro was sentenced under a different guideline, the same
reasoning applies here. The only difference is that Regueiro's scheme was more massive and had a more
disruptive effect than the one in Khan.
Regueiro's primary argument on appeal is that the caselaw concerning U.S.S.G. § 5K2.7 does not
support the district court's decision to depart upward. See Gunby,
112 F.3d 1493; United States v. Baird,
109
F.3d 856 (3d Cir.1997); United States v. Horton,
98 F.3d 313 (7th Cir.1996); United States v. Dayea,
32
F.3d 1377 (9th Cir.1994); United States v. Murillo,
902 F.2d 1169 (5th Cir.1990); United States v.
Kikumura,
918 F.2d 1084 (3d Cir.1990). To the contrary, the cases Regueiro relies on suggest that the fraud
in this case is precisely the type that supports a § 5K2.7 departure because of interference with the day-to-day
functioning of government. See, e.g., Gunby,
112 F.3d at 1503 (affirming § 5K2.7 departure in case of
embezzlement of court filing fees); Baird,
109 F.3d at 871-72 (affirming § 5K2.7 departure in case of
widespread police misconduct); Murillo, 902 F.2d at 1174 (affirming § 5K2.7 departure in case of selling
false immigration documents).
In contrast, the cases that Regueiro relies on in which the § 5K2.7 departure was found inappropriate
involve overly attenuated effects on governmental functions. See Dayea,
32 F.3d at 1381-82 (involuntary
manslaughter resulting in death of police officer which produced "stress" in other officers did not warrant §
5K2.7 departure); Kikumura, 918 F.2d at 1116-17 (conduct designed to affect government policy does not
constitute attempt to disrupt a governmental function); see also Horton,
98 F.3d at 318 (eight-level upward
departure unreasonable for empty bomb threat against federal building).
Regueiro makes two additional arguments. First, she maintains that the district court improperly
relied on the amount of monetary loss in departing upward even though that factor was already taken into
account in her sentence. We disagree. While the district court made repeated references to the amount of
money that the government lost to Regueiro's scheme, it did so only to stress the scope and nature of
Regueiro's fraud and the substantial affect that it had on the Medicare program.
Finally, Regueiro argues that the district court's disparate treatment of her and her codefendant Perez
violates the sentencing guidelines. Specifically, she claims that the district court's failure to consider a §
5K2.7 departure for Perez indicates that the court's decision to impose the upward departure was based on
emotion and not on the facts of her case. Regueiro also claims that this disparate treatment violates the
principle of uniformity of sentencing that animates the guidelines. We disagree. Disparity between the
sentences imposed on codefendants is generally not an appropriate basis for relief on appeal. See United
States v. Chotas,
968 F.2d 1193, 1197-98 (11th Cir.1992) (holding that disparate sentencing among
codefendants was adequately considered by the Sentencing Commission and is therefore not an appropriate
ground for departure). As we explained in Chotas, "to adjust the sentence of a co-defendant in order to cure
an apparently unjustified disparity between defendants in an individual case will simply create another,
wholly unwarranted disparity between the defendant receiving the adjustment and all similar offenders in
other cases."
Id. at 1198 (citations omitted).
III. CONCLUSION
For the reasons set forth above, we conclude that the district court did not abuse its discretion in
departing upward, and AFFIRM the sentence imposed by the district court.
