United States v. Rene Rodriguez ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 07, 2007
No. 07-11417 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20560-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 7, 2007)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Rene Rodriguez (“Rodriguez”) appeals his 48-month sentence imposed
following his guilty plea for medicare fraud in violation of 18 U.S.C. § 1347. The
district court imposed a sentence variance above the guidelines range. Rodriguez
challenges that variance and argues that his sentence is unreasonable. We affirm.
I. Background
Rodriguez pleaded guilty to medicare fraud.1 The scheme involved the
fraudulent billing of medicare for approximately $4 million. Medicare paid
roughly $2.2 million to the appellant’s criminal enterprise.
At the sentencing hearing, the judge determined that the adjusted offense
level was 19 with a criminal history of 1. The guideline range was 30-37 months.
The district judge, however, determined that the guideline sentence was
inadequate. She stated that she thought the scheme was “audacious” and that it
“calls out for deterrence.” She stated:
I think this community is plagued with Medicare fraud, based on my
experience here in this courtroom, and that there is a need for
deterrence in the community . . . [Rodriguez] came to this country in
1993. He has no skills. He has no education. His best opportunity,
frankly, for rehabilitation . . . is in prison. So I’m going to go above
1
Rodriguez waived his right to appeal unless, inter alia, the court imposed an upward
departure in fashioning the sentence. The government, however, failed to raise this argument in
its brief.
2
the guidelines . . . I think a reasonable sentence, considering all of the
factors in this case is a 48-month sentence.
She stated that she considered the statements of the parties, the guidelines,
and the statutory factors. Rodriguez now appeals his sentence for reasonableness.
II. Standard of Review
This court reviews a district court’s final sentence for reasonableness.
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). We do not apply
the reasonableness standard to every decision made during the sentencing process;
rather, we review the final sentence for reasonableness. U.S. v. Winingear, 422
F.3d 1241, 1245 (11 Cir. 2005). Our review is deferential. Thomas, 446 F.3d at
1351. The appellant bears the burden of establishing that the sentence is
unreasonable in light of the record and the sentencing factors contained in 18
U.S.C. § 3553(a). United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007).
III. Discussion
This court has stated that district courts should follow a two-step process in
fashioning sentences. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
First, the district court must consult the guidelines and correctly calculate the range
provided by the guidelines. These guidelines are not mandatory but are only
advisory. See United States v. Booker, 543 U.S. 220 (2005). Second, the district
3
court must consider the 3553(a) factors to determine a reasonable sentence.
The 3553(a) factors are: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the sentencing
guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a).
We do not require that the judge mention every one of the factors. United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). An acknowledgment that
the judge has considered the factors will suffice. Talley, 431 F.3d at 786.
Here, the district judge stated several times that she considered the factors
and stated that the sentence was based upon them. She specifically mentioned the
characteristics of the defendant, the nature and circumstances of the offense, and
the need for deterrence. She also insinuated that Rodriguez would gain from the
educational or vocational training in prison. Thus, Rodriguez has not met his
burden of showing that the sentence imposed was unreasonable.
4
IV. Conclusion
For the above reasons, we AFFIRM.
5