United States v. Ricardo Aguera , 281 F. App'x 893 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 16, 2008
No. 07-12950
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-20609-CR-RWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO AGUERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 16, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Ricardo Aguera appeals his 121-month sentence for conspiracy to solicit and
receive kickbacks in violation of 18 U.S.C. § 371 and four counts of soliciting and
receiving kickbacks involving a federal health care program in violation of 42
U.S.C. § 1320a-7b(b)(1) and 18 U.S.C. § 2. On appeal, Aguera initially argues that
the district court erred in finding him responsible for the entire amount of loss to
Medicare resulting from the conspiracy. He maintains that he did not design or
execute the scheme, pool profits or resources with his co-conspirators, or work
with them. He asserts that he cannot be held accountable based on his mere
awareness of the scope of the overall operation.
We review the district court’s interpretation of the sentencing guidelines de
novo and its factual findings for clear error. United States v. Masferrer, 514
F.3d 1158, 1164 (11th Cir. 2008). Section 2B4.1 of the Sentencing Guidelines,
which applies to offenses involving commercial bribery, requires the district court
to increase the offense level if the value of the bribe or the improper benefit
exceeds $5,000. U.S.S.G. § 2B4.1(b)(1). Under U.S.S.G. § 1B1.3(a)(1)(B), “the
district court may hold participants in a conspiracy responsible for the losses
resulting from the reasonably foreseeable acts of co-conspirators in furtherance of
the conspiracy.” United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003).
To determine the limits of sentencing accountability, the district court must first
make individualized findings concerning the scope of the criminal activity
2
undertaken by a particular defendant. Id. It may consider “any explicit agreement
or implicit agreement fairly inferred from the conduct of the defendant and others”
in determining the scope of the agreement. Id. at 1319-20. Second, it must
determine whether the conduct was “(1) in furtherance of the jointly undertaken
criminal activity[] and (2) reasonably foreseeable in connection with that criminal
activity.” Id. at 1319.
In determining whether activity is jointly undertaken, a court may consider
whether the participants pool resources, such as sharing lead sheets of potential
victims and telephones. United States v. Hall, 996 F.2d 284, 285-86 (11th
Cir. 1993) (per curiam). Another relevant factor is “whether the defendant assisted
in designing and executing the scheme.” Hunter, 323 F.3d at 1321. However, a
defendant’s mere awareness of the scope of the overall operation is not enough to
hold him accountable for the activities of the entire conspiracy. Id.The illustrations appended to U.S.S.G. § 1B1.3 provide guidance in
determining whether a defendant should be accountable for his co-conspirator’s
actions. Id. One illustration follows:
Defendant K is a wholesale distributor of child pornography.
Defendant L is a retail-level dealer who purchases child pornography
from Defendant K and resells it, but otherwise operates independently
of Defendant K. Similarly, Defendant M is a retail-level dealer who
purchases child pornography from Defendant K and resells it, but
otherwise operates independently of Defendant K. Defendants L
3
and M are aware of each other’s criminal activity but operate
independently. Defendant N is Defendant K’s assistant who recruits
customers for Defendant K and frequently supervises the deliveries to
Defendant K’s customers. Each defendant is convicted of a count
charging conspiracy to distribute child pornography. Defendant K is
accountable . . . for the entire quantity of child pornography sold to
Defendants L and M. Defendant N also is accountable for the entire
quantity sold to those defendants . . . because the entire quantity was
within the scope of his jointly undertaken criminal activity and
reasonably foreseeable.
U.S.S.G. § 1B1.3, comment. (illus. (c)(4)).
In United States v. Studley, 47 F.3d 569 (2d Cir. 1995) (persuasive
authority), the Second Circuit vacated the sentence of a salesman who participated
in a fraudulent telemarketing scheme, which secured application fees by false
representation. Id. at 570. Because Studley did not design or develop the
telemarketing scam, further the scheme outside of his individual sales efforts, pool
profits with the overall operation, assist other representatives with sales, or share
resources with his co-conspirators, that circuit concluded that “[he] had no interest
in the success of the operation as a whole, and took no steps to further the
operation beyond executing his sales.” Id. at 576. Similarly, the court Hunter
vacated the sentences of several “runners” recruited by a ring of counterfeiters to
cash counterfeit checks at various banks. Hunter, 323 F.3d at 1316-17. We noted
that the runners’ mere knowledge of the larger check-cashing ring could not make
them accountable for the activities of the entire conspiracy. Id. at 1321. Further,
4
the government failed to “present[] any evidence of sharing or mutuality from
which an agreement in the larger scheme [could] be inferred.” Id. at 1322.
By contrast, in United States v. McCrimmon, 362 F.3d 725 (11th Cir. 2004),
we affirmed the district court’s finding that the entire loss caused by a money
laundering scheme properly was attributed to the defendant because he “was fully
aware of the objective of the conspiracy and was actively involved in recruiting
investors to further the . . . scheme.” Id. at 732. The scheme was “dependent upon
[McCrimmon’s] success in increasing the entire pool of money that could be
redistributed to investors as interest payments, or pocketed by the other
conspirators.” Id. (internal quotations omitted). Although he did not design the
scheme, McCrimmon “concocted a method in which he could continue to put
investors into the program and further the scheme” and “was certainly not a low-
end operative merely aware that he was participating in some sort of criminal
ring.” Id. at 733.
Because the evidence established that Aguera recruited accomplices in
furtherance of the conspiracy and participated in the scheme, with full knowledge
of its nature and scope, the district court did not err in finding him responsible for
the entire amount of loss caused by the conspiracy. While Aguera did not design
the scheme or pool resources with other DME companies, he furthered the
5
conspiracy by aiding Gonzalez and Rodriguez in their effort to recruit DME
companies. He also made their scheme significantly more profitable by recruiting
nearly 200 patients to participate in the conspiracy. The criminal activities of the
other DME companies were reasonably foreseeable because Aguera observed the
extensive list of participating DME companies in the log book when he signed in
to retrieve his kickbacks every month.
Aguera’s reliance on Hunter and Studley is misplaced because those
defendants, unlike Aguera, did not recruit participants to expand the overall
conspiracy. Further, Aguera’s attempts to distinguish McCrimmon fail. While the
scheme may not have depended on Aguera’s individual success, Gonzalez testified
that the scheme depended on the ability of the individual DME companies to
recruit Medicare eligible patients. Therefore, by recruiting additional DME
companies and nearly 200 patients, Aguera significantly increased the likelihood of
success for both Gonzalez and Rodriguez. Although Aguera did not design the
scheme or pool profits with other DME companies, such a finding is not necessary
when a defendant recruits accomplices in furtherance of the entire conspiracy and
participates in the scheme. See U.S.S.G. § 1B1.3, comment. (illus. (c)(4)). Thus,
the district court did not err in finding that Aguera was accountable for the entire
amount of loss caused by Gonzalez and Rodriguez because it “was within the
6
scope of jointly undertaken criminal activity and reasonably foreseeable.” Id.
Aguera also argues that the district court erred in finding that he was a leader
or organizer in the conspiracy, warranting a four-level role enhancement under
U.S.S.G. § 3B1.1(a). He asserts that he played a small role in the overall scheme
because he did not share profits with his co-conspirators, participate in the part of
the essential operations of the scheme, or design, plan, or organize the scheme.
The Sentencing Guidelines provide for an increase in the offense level based
on the defendant’s role in the offense. U.S.S.G. § 3B1.1. Section 3B1.1(a)
provides a four-level enhancement when a defendant plays an organizational or
leadership role. Id. The enhancement is appropriate when the criminal activity
involves five or more participants or when the defendant’s role is “otherwise
extensive.” United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994).
Section 1B1.3 of the Guidelines defines the relevant conduct to be considered in
determining a defendant’s role under U.S.S.G. § 3B1.1. Id. Relevant conduct
includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant” and “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity,” “occurr[ing] during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid
7
detection or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1).
The district court should consider the following factors in determining a
leadership and organizational role:
[T]he 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). The defendant need not be the sole leader or
kingpin of the conspiracy to merit enhancement. United States v. Rendon, 354
F.3d 1320, 1332 (11th Cir. 2003). However, application of the section “requires
the exercise of some authority in the organization, the exertion of some degree of
control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182
(11th Cir. 1993).
The district court did not err in applying a four-level role enhancement
pursuant to U.S.S.G. § 3B1.1(a), because Aguera exerted control over the
conspiracy and recruited accomplices. The evidence established that Aguera
exercised a degree of control over the conspiracy and recruited accomplices,
including his codefendants and nearly 200 patients. While Aguera did not have a
right to receive a larger share of the Medicare reimbursements, Gonzalez and
Rodriguez split the payments in half with the DME companies. Although he did
8
not manage operations as a pharmacy owner like Gonzalez and Rodriguez, Aguera
had direct control over the organization and management of his DME company and
its methods of patient recruitment. Gonzalez testified that DME companies were
necessary to accomplish the scheme because they controlled the flow of patients to
the pharmacies. Thus Aguera, as DME owner and operator, had direct control and
influence in the scheme’s success.
Finally, Aguera argues that the district court plainly erred by applying
U.S.S.G. § 2B4.1 rather than U.S.S.G. § 2B1.1 in calculating the base offense
level. He maintains that the ultimate purpose of the scheme was fraud rather than
bribery and contends that the error was plain, affected his substantial rights, and
affected the fairness and integrity of the judicial process because it resulted in a
higher base offense level.
Where a defendant raises a sentencing objection for the first time on appeal,
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). An error is plain if it is “‘obvious’ and ‘clear under current law.’” United
States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999). Clear under current law
9
means that “at least where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this [Circuit] directly resolving it.” United
States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (citation omitted).
The substantive offense in this case is 42 U.S.C. § 1320a-7b, soliciting and
receiving kickbacks involving a federal health care program. The Statutory Index
lists two possible guidelines for that offense, U.S.S.G. §§ 2B1.1 (larceny)
and 2B4.1 (commercial bribery). U.S.S.G. app. A, at 537. If more than one
section is referenced for a particular statute, the sentencing court should use the
section “most appropriate for the nature of the conduct charged.” United States v.
Starks, 157 F.3d 833, 841 (11th Cir. 1998).
Section 2B1.1 of the Guidelines applies generally to (1) larceny,
embezzlement, and other forms of theft, (2) offenses involving stolen property,
(3) property damage or destruction, (4) fraud and deceit, (4) forgery, and
(5) offenses involving altered or counterfeit instruments other than counterfeit
bearer obligations of the United States. U.S.S.G. § 2B1.1. On the other hand,
U.S.S.G. § 2B4.1 applies to bribery in the procurement of a bank loan and other
commercial bribery. U.S.S.G. § 2B4.1.
Because any error was not clear under current law, the district court did not
10
plainly err in applying U.S.S.G. § 2B4.1 rather than U.S.S.G. § 2B1.1 to determine
Aguera’s base offense level.
AFFIRMED.1
1
Aguera’s request for oral argument is denied.
11