United States v. Jose Luis Ferreiro ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 14, 2008
No. 07-11144 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-80133-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS FERREIRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 14, 2008)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Jose Luis Ferreiro appeals his 57-month sentence for one count of
conspiracy to pay kickbacks and six counts of paying kickbacks, for referrals of
Medicare patients, in violation of 18 U.S.C. § 371 and 42 U.S.C. § 1320a-
7b(b)(2)(A) and (B). Ferreiro argues that the district court (1) erred in applying an
enhancement under U.S.S.G. § 2B1.1(b)(1) based on the amount of loss caused
Medicare, as he was not convicted of filling fraudulent prescriptions for Medicare
patients, such that his offense did not cause the government a loss; and (2) imposed
an unreasonable sentence. For the reasons discussed below, we affirm.
I. § 2B1.1(b)(1) Enhancement
We normally review the sentencing court’s findings of fact for clear error
and application of those facts to the Sentencing Guidelines de novo. United States
v. Liss, 265 F.3d 1220, 1227 (11th Cir. 2001). However, when a defendant raises a
sentencing objection for the first time on appeal, as here, we review for plain error.
United States v. Dorman, 488 F.3d 936, 942 (11th Cir.), cert. denied, 128 S. Ct. 427
(2007). Under this standard, the defendant first must show (1) an error, (2) that is
plain, and (3) that affected his substantial rights. United States v. Olano, 507 U.S.
725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993). If the defendant
demonstrates a plain error that affected his substantial rights, we can correct the
error, but only if we find that the error seriously affected the fairness, integrity, or
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public reputation of the judicial proceedings. Id. at 732, 113 S.Ct. at 1776.
A defendant convicted of violating § 1320a-7b may be sentenced according
to U.S.S.G. § 2B4.1. U.S.S.G. App. A. This section includes a specific offense
characteristic enhancement for the “value of the bribe” in question. See U.S.S.G.
§ 2B4.1(b)(1)(B). Specifically, when the value of the bribe in question exceeds
$5,000, § 2B4.1 directs that the defendant’s base offense level be increased
according to a table in U.S.S.G. § 2B1.1. Id. This table otherwise pertains to the
amount of loss involved in a conviction for, inter alia, fraud. See generally
U.S.S.G. § 2b1.1(b)(1). As it pertains to offenses sentenced under § 2B4.1,
however, this table directs that, when a defendant pays a bribe that is more than $1
million but less than $2.5 million, his base offense level be increased by 16.
U.S.S.G. § 2B1.1(b)(1)(I).
Here, the district court sentenced Ferreiro under § 2B4.1. Following
§ 2B4.1(b)(1)’s instructions to use the table in § 2B1.1(b)(1) to enhance the base
offense level based on the amount of the bribe in question, it applied a specific
offense characteristic enhancement for the $1.2 million in kickbacks that Ferreiro
paid, an amount that Ferreiro does not contest. Ferreiro’s argument that the
enhancement should not have been applied because his offense conduct did not
cause Medicare a loss is without merit, as Ferreiro’s enhancement was not based
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on causing a loss to Medicare, but rather on paying a kickback, a fact that Ferreiro
does not contest.
To the extent that Ferreiro relies on our suggestion, in United States v.
Medina, 485 F.3d 1291, 1304 (11th Cir. 2007), that a defendant guilty of paying
kickbacks should not receive a § 2B1.1(b)(1) enhancement, Ferreiro is misguided,
as, in that case, we only considered the application of the § 2B1.1(b)(1) table to a
defendant sentenced under a fraud Guideline, and said nothing of the bribe-amount
provision in § 2B4.1. Therefore, the district court did not plainly err, and we
affirm as to this issue. See Dorman, 488 F.3d at 942.
II. Reasonableness
After the Supreme Court’s decision in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the sentencing court must not only
correctly calculate the guideline imprisonment range, but must treat that range as
advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d 784,
786 (11th Cir. 2005). Specifically, the district court must impose a sentence that is
both procedurally and substantively reasonable. United States v. Hunt, 459 F.3d
1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, No. 06-7949, slip op. at 12
(U.S. Dec. 10, 2007). The Supreme Court has explained that a sentence may be
procedurally unreasonable if the district court improperly calculates the guideline
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imprisonment range, treats the Guidelines as mandatory, fails to consider the
appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails
to adequately explain its reasoning. Gall, No. 06-7949, slip op. at 12. The Court
also has explained that the substantive reasonableness of a sentence is reviewed
under an abuse-of-discretion standard. Id. It has suggested that review for
substantive reasonableness under this standard involves inquiring whether the
statutory factors support the sentence in question. Id. at 17.
These statutory factors are found in § 3553(a). Booker, 543 U.S. at 246, 125
S.Ct. at 757. Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary” to comply with the purposes of
sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,
promoting respect for the law, providing just punishment for the offense, deterring
criminal conduct, protecting the public from future criminal conduct by the
defendant, and providing the defendant with needed educational or vocational
training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the
sentencing court to consider certain factors, including the nature and circumstances
of the offense, the history and characteristics of the defendant, the guideline
imprisonment range, and the need to avoid unwarranted sentencing disparities. See
18 U.S.C. § 3553(a)(1), (4), and (6).
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In considering the § 3553(a) factors and explaining the reasoning behind its
choice of sentence, the district court need not discuss or state that it has explicitly
considered each factor of § 3553(a). Talley, 431 F.3d at 786. Instead, an explicit
acknowledgment that the district court has considered the defendant’s arguments
and the § 3553(a) factors will suffice. United States v. Scott, 436 F.3d 1324, 1329-
30 (11th Cir. 2005); see also Rita v. United States, 551 U.S. __, 127 S. Ct. 2456,
2469, 168 L. Ed. 2d 203 (2007) (holding that the defendant’s sentence was
reasonable when the district court considered the parties’ arguments and provided
a reasoned basis for its choice of sentence).
Here, the district court imposed a procedurally reasonable sentence. See
Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. The district court
correctly calculated the guideline imprisonment range, as discussed above. See
Gall, No. 06-7949, slip op. at 12. The district court also considered the statutory
factors. See id. Indeed, the district court explicitly acknowledged that it had
considered the § 3553(a) factors. See Scott, 436 F.3d at 1329-30. The district
court likewise more than sufficiently explained its reasoning. See Gall, No. 06-
7949, slip op. at 12. Although it was not required to, the district court expressly
discussed at length certain of the § 3553(a) factors. See Scott, 436 F.3d at 1329-
30. Specifically, the district court acknowledged the nature and characteristics of
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the defendant, the seriousness of the offense, and the need for deterrence. See 18
U.S.C. § 3553(a)(1), (2).
The district court also imposed a substantively reasonable sentence. See
Hunt, 459 F.3d at 1182 n.3; Gall, No. 06-7949, slip op. at 12. While the district
court reasoned that Ferreiro had favorable characteristics, it ultimately was
influenced by the seriousness of the offense and the need to impose a sentence
sufficient to deter future Medicare-related crimes to exercise its discretion to
impose a sentence at the bottom of the guideline imprisonment range. Therefore,
the § 3553(a) factors supported the district court’s sentence, and the district court
did not abuse its discretion. See Gall, No. 06-7949, slip op. at 12, 20. Because the
district court considered the appropriate factors and appropriately exercised its
discretion, it imposed a reasonable sentence, and we affirm as to this issue.
SENTENCE AFFIRMED.
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