USCA11 Case: 22-13935 Document: 34-1 Date Filed: 07/20/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13935
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEYKER HERRERA FELIPE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:12-cr-20752-JLK-1
____________________
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2 Opinion of the Court 22-13935
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Jeyker Herrera Felipe appeals the 24-month sentence, which
the district court imposed after he pled guilty to one count of
healthcare fraud. He argues that the district court erred when it
refused to apply a two-level downward adjustment to his offense
level under the Sentencing Guidelines for his minor role in the
fraudulent scheme. After careful review, we vacate and remand.
I.
This criminal case arises out of a healthcare fraud scheme
involving AD Pharmacy. The pharmacy submitted false and fraud-
ulent claims to Medicare and Medicaid drug plan sponsors for pre-
scription drugs that were never purchased or provided to Medicare
beneficiaries. It received $615,725 in payments for its fraudulent
claims.
According to the government, Jose L. Valdes Gonzalez was
the mastermind behind the fraudulent scheme. To make the phar-
macy appear to be a legitimate business, Gonzalez operated it in
Herrera Felipe’s name. AD Pharmacy filed documents with the
State of Florida that listed Herrera Felipe as its sole officer. In addi-
tion, Herrera Felipe opened two bank accounts for the pharmacy
and signed a lease on its behalf. Gonzalez kept the checkbooks and
debit cards for the pharmacy’s bank accounts. Because Herrera Fe-
lipe was the sole signatory on the bank accounts, Gonzalez would
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22-13935 Opinion of the Court 3
direct him to make cash withdrawals or sign checks to disburse
money that the pharmacy was paid on the fraudulent claims.
In 2012, Gonzalez was arrested, and AD Pharmacy ceased
operations. Around this time, Herrera Felipe left the United States
and returned to Cuba where his family lived.
Later that year, a federal grand jury in the Southern District
of Florida returned an indictment charging Herrera Felipe with five
counts of healthcare fraud in violation of
18 U.S.C. § 1347. Because
Herrera Felipe was in Cuba, he was not immediately apprehended.
In March 2022, Herrera Felipe attempted to enter the United
States at the border in Texas and was arrested. He was then trans-
ported to the Southern District of Florida where the healthcare
fraud charges were pending. He ultimately pled guilty to one count
of healthcare fraud, and the government agreed to dismiss the re-
maining counts.
In advance of sentencing, the probation office prepared a
presentence investigation report (“PSR”). The PSR stated that Her-
rera Felipe’s base offense level was 6. See U.S. Sent’g Guidelines
Manual § 2B1.1(a)(2) (U.S. Sent’g Comm’n 2021). It then applied a
14-level adjustment to the offense level based on the loss amount
of $615,725. See id. § 2B1.1(b)(1)(H). The PSR also applied a three-
level reduction for acceptance of responsibility, yielding a total of-
fense level of 17. Given the total offense level and Herrera Felipe’s
criminal history category of I, the PSR calculated his guideline
range as 24 to 30 months’ imprisonment.
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4 Opinion of the Court 22-13935
Prior to the sentencing hearing, Herrera Felipe filed objec-
tions to the PSR, arguing that he was entitled to an additional two-
level reduction to his offense level because he was a minor partici-
pant in the scheme. See id. § 3B1.2(b). He emphasized his limited
involvement, noting that he did not “prepare or submit” any insur-
ance claims or “make any independent decisions regarding the con-
duct in this case.” Doc. 33 at 3–4. 1 He relied on commentary to the
Guidelines, which stated that “a defendant in a health care fraud
scheme, whose participation in the scheme was limited to serving
as a nominee owner and who received little personal gain relative
to the loss amount, may receive an adjustment under this guide-
line.” U.S.S.G. § 3B1.1 cmt. n.3. If the court applied the adjustment,
Herrera Felipe observed, his total offense level would be reduced
to 15 and his guidelines range would become 18 to 24 months.
The government agreed that Herrera Felipe should receive
a minor-role adjustment. It noted that a similarly situated defend-
ant in a related case, Angel Calderin, had also received a minor-role
adjustment. The government explained that Calderin faced similar
charges after Gonzalez opened a pharmacy in his name.
At the sentencing hearing, Herrera Felipe renewed his re-
quest for a minor-role adjustment, noting that the government
joined in the recommendation. The court initially “approve[d] the
joint recommendation” of the parties. Doc. 49 at 6. It calculated the
total offense level as 15 and the guidelines range as 18 to 24 months.
1 “Doc.” numbers refer to the district court’s docket entries.
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22-13935 Opinion of the Court 5
It also stated that it was “inclined to sentence within the guideline
range.” Id.
Herrera Felipe then requested a downward variance and
asked the court to impose a sentence of one year and one day. He
argued that a variance was appropriate given his limited role in the
scheme. He also asked the court to consider that he left Florida in
2012 to return to Cuba to care for his ailing grandmother, not be-
cause of the charges in the case. And he explained that he had re-
turned to the United States with the intention of working and
providing for his family in Cuba.
The government opposed the request for a variance and
urged the court to impose a 24-month sentence. The government
argued that a sentence at the high-end of the guidelines range was
appropriate because Herrera Felipe had left the country after Gon-
zalez and others were arrested.
After considering the parties’ positions, the court denied the
request for a variance based on the § 3553(a) factors. 2 The court
2 Under § 3553(a), a district court is required to impose a sentence “sufficient,
but not greater than necessary, to comply with the purposes” of the statute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness
of the offense; promote respect for the law; provide just punishment; deter
criminal conduct; protect the public from the defendant’s future criminal con-
duct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment.
Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
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6 Opinion of the Court 22-13935
discussed the seriousness of the offense and the need to deter oth-
ers who might seek to participate in a conspiracy to commit Medi-
care fraud. The court also stated that it had considered Herrera Fe-
lipe’s arguments about his personal history and characteristics.
After denying the request for a variance, the court changed
its position on the calculation of Herrera Felipe’s guidelines range.
The court stated that the total offense level was 17 and the applica-
ble guidelines range was 24 to 30 months. At that point, Herrera
Felipe reminded the court that it had decided to apply a minor-role
adjustment. And the government confirmed that it agreed to the
adjustment.
The court then described the extent of Herrera Felipe’s par-
ticipation in the scheme. It stated that he had agreed “to appear to
be the owner of something” and to “let [his] name be used.” Id. at
34. It acknowledged that Herrera Felipe was “paid a whole lot less”
than others involved in the scheme and that he “may have been
outsmarted, he may have been tricked, [and] he may have been
cheated by his codefendants.” Id. at 34–35.
But the court refused to apply a minor-role adjustment be-
cause it did not “think there is such a thing as a minor role in a
criminal conspiracy in medical fraud.” Id. at 33. The court summa-
rized its reasoning by stating: “If you’re going to get involved with
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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22-13935 Opinion of the Court 7
[a scheme] knowingly, you have to pay the penalty” because “that’s
the life of crime.” Id. at 35.
Herrera Felipe responded that the district court’s position—
that a minor-role adjustment should not be applied in a healthcare
fraud scheme—conflicted with commentary to the Guidelines. He
pointed out that the commentary stated that a role adjustment may
apply when a defendant in a healthcare fraud scheme’s participa-
tion “was limiting to serving as a nominee owner” and he “received
little personal gain relative to the loss amount.” Id. at 35–36 (dis-
cussing U.S.S.G. § 3B1.2).
The district court was unpersuaded. It stated that it was re-
fusing to award a minor-role adjustment to give a “clear message”
to the public that “this Court and the Congress and the law does
not abide by or permit or agree with this type of manipulation of
the fraud where it works to somebody’s advantage.” Id. at 38. The
court ultimately imposed a 24-month sentence.
This is Herrera Felipe’s appeal.
II.
On appeal, Herrera Felipe argues that the district court erred
in denying him a two-level reduction in offense level under
U.S.S.G. § 3B1.2(b) because of his minor role in the offense.
Section 3B1.2 provides that a defendant is entitled to a two-
level decrease in his offense level if he was a “minor participant” in
the criminal activity. U.S.S.G. § 3B1.2(b). A “minor participant” is
someone “who is less culpable than most other participants in the
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8 Opinion of the Court 22-13935
criminal activity, but whose role could not be described as mini-
mal.” Id. § 3B1.2 cmt. n.5. The decision whether to apply a minor-
role adjustment is “based on the totality of the circumstances and
involves a determination that is heavily dependent upon the facts
of the particular case.” Id. § 3B1.2 cmt. n.3(C).
We review a district court’s denial of a role adjustment for
clear error. See United States v. Cruickshank,
837 F.3d 1182, 1192
(11th Cir. 2016). “Clear error review is deferential, and we will not
disturb a district court’s findings unless we are left with a definite
and firm conviction that a mistake has been committed.”
Id. (inter-
nal quotation marks omitted). We have explained that a district
court’s “choice between two permissible views of the evidence as
to the defendant’s role in the offense will rarely constitute clear er-
ror so long as the basis of the trial court’s decision is supported by
the record and does not involve a misapplication of a rule of law.”
Id. (internal quotation marks omitted).
When deciding whether to apply a minor-role adjustment,
we have instructed district courts to consider “first, the defendant's
role in the relevant conduct for which [he] has been held account-
able at sentencing, and, second, [his] role as compared to that of
other participants in [his] relevant conduct.” United States v. Rodri-
guez De Varon,
175 F.3d 930, 940 (11th Cir. 1999). “These principles
advance both the directives of the Guidelines and our case prece-
dent by recognizing the fact-intensive nature of this inquiry and by
maximizing the discretion of the trial court in determining the de-
fendant’s role in the offense.”
Id. at 934.
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22-13935 Opinion of the Court 9
The commentary to § 3B1.2 also guides courts when evalu-
ating minor-role adjustments. It directs district courts to consider
the following factors: (a) “the degree to which the defendant un-
derstood the scope and structure of the criminal activity”; (b) “the
degree to which the defendant participated in planning or organiz-
ing the criminal activity”; (c) “the degree to which the defendant
exercised decision-making authority”; (d) “the nature and extent of
the defendant’s participation in the commission of the criminal ac-
tivity”; and (e) “the degree to which the defendant stood to benefit
from the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(C). The com-
mentary also advises that a defendant may receive a minor-role ad-
justment when he is held accountable for a loss amount that
“greatly exceeds [his] personal gain from a fraud offense” or when
he “had limited knowledge of the scope of the scheme.” Id. § 3B1.2
cmt. n.3(A).
This commentary was added by Amendment 794, a clarify-
ing amendment that took effect in November 2015. See Cruick-
shank,
837 F.3d at 1194. The Sentencing Commission promulgated
Amendment 794 after finding that the “mitigating role [adjustment
was] applied inconsistently and more sparingly than the Commis-
sion intended.” U.S.S.G. supp. to app. C, amend. 794, Reason for
Amendment. It advises that “a defendant who does not have a pro-
prietary interest in the criminal activity and who is simply being
paid to perform certain tasks should be considered for an adjust-
ment under this guideline.” Cruickshank,
837 F.3d at 1194 (quoting
Amendment 794). It also states that the fact that a defendant per-
formed a task that was “essential or indispensable” to the criminal
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10 Opinion of the Court 22-13935
activity “is not determinative,” and such a defendant still may re-
ceive an adjustment if he was “substantially less culpable than the
average participant in the criminal activity.”
Id. (quoting Amend-
ment 794).
When deciding whether to grant a minor-role adjustment, a
court “must consider all of the[] factors [identified in § 3B1.2’s com-
mentary] to the extent applicable, and it commits legal error in
making a minor role decision based solely on one factor.” United
States v. Valois,
915 F.3d 717, 732 (11th Cir. 2019) (internal quotation
marks omitted). Our decision in Cruickshank is instructive. See
837
F.3d at 1192–95.
In Cruickshank, we reviewed a district court’s denial of a mi-
nor-role adjustment. The defendant in that case was apprehended
on a vessel in international waters that was carrying over 150 kilo-
grams of cocaine.
Id. at 1186. At sentencing, when explaining why
it was not applying a minor-role adjustment, the district court sug-
gested that “the quantity of cocaine being transported . . . was so
large that no participant in the scheme could ever have been eligi-
ble for a minor-role reduction.”
Id. at 1194. Although the district
court was permitted to “consider[] the drug quantity with which
the defendant was involved as an indicator of his role,” we con-
cluded that it was “legal error for the district court to say that this
is the only factor to be considered in a case like this one.”
Id. at 1195
(emphasis in original). We thus vacated the sentence and re-
manded for the district court to consider whether to apply a minor-
role adjustment “based on the totality of the circumstances, taking
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22-13935 Opinion of the Court 11
into account the variety of factors laid out in De Varon and Amend-
ment 794.”
Id.
After carefully reviewing the record in this case, we con-
clude that the district court committed a similar error here. Alt-
hough the court initially agreed with the parties that Herrera Felipe
was entitled to a minor-role adjustment, it abruptly changed its po-
sition and refused to apply the adjustment. The court’s explanation
for not applying the adjustment shows that it applied a categorical
rule that no defendant in a healthcare fraud conspiracy case should
ever receive a minor-role adjustment. See Doc. 49 at 33 (stating “I
don’t think there is such a thing as a minor role in a criminal con-
spiracy in medical fraud where somebody helps” the mastermind
of the conspiracy). Because the district court’s statements showed
that it considered only one factor in deciding whether to apply a
minor-role adjustment—whether Herrera Felipe assisted the mas-
termind of a healthcare conspiracy—it made a legal error. See
Cruickshank,
837 F.3d at 1195; see also United States v. Presendieu,
880
F.3d 1228, 1250 (11th Cir. 2018) (vacating and remanding because
district court made a legal error in denying minor-role adjustment
when it considered “only one of many relevant factors”).
Given this error, “we think the wisest course of action is to
vacate the district court’s decision and remand for resentencing.”
Cruickshank,
837 F.3d at 1195. On remand, to determine whether
to apply a minor-role adjustment, the district court should examine
Herrera Felipe’s role in the relevant criminal conduct based on the
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12 Opinion of the Court 22-13935
totality of the circumstances and look to the relevant factors artic-
ulated in De Varon and the commentary to U.S.S.G. § 3B1.2. 3
III.
For the reasons set forth above, we vacate Herrera Felipe’s
sentence and remand for resentencing consistent with this opin-
ion.4
VACATED AND REMANDED.
3 In its appellate brief, the government argues that based on the totality of the
circumstances, a factfinder could conclude that Herrera Felipe played more
than a minor role. But there is no indication in the record that the district court
relied on such reasoning when it denied the minor-role adjustment. We thus
conclude that remand is appropriate.
4 Herrera Felipe also argues on appeal that his sentence should be vacated
because it was substantively unreasonable. Because we conclude that remand
is warranted for the district court to consider the minor-role adjustment issue,
we do not reach his substantive reasonableness argument.
