United States v. Lawrence S. Duran

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14429
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20767-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE S. DURAN,
Defendant-Appellant.
________________________
No. 11-14507
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20767-JLK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
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versus
MARIANELLA VALERA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 25, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Lawrence S. Duran and Marianella Valera appeal their convictions and
sentences for conspiracy to commit health care fraud, in violation of 18 U.S.C.
§ 1349; health care fraud, in violation of 18 U.S.C. § 1347; conspiracy to defraud
the United States and participate in a kickback scheme, in violation of 18 U.S.C.
§ 371; conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h); money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and
structuring to avoid reporting requirements, in violation of 31 U.S.C. §§ 5324(a)(1)
and (d)(2). Duran also appeals his convictions and sentences for money
laundering, in violation of 18 U.S.C. § 1957.
Duran and Valera pleaded guilty to conspiring to defraud the Medicare
health care program from December 2002 until October 2010. Valera, as the
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incorporator, registered agent, and sole officer of American Therapeutic
Corporation (ATC), registered ATC to be eligible to submit claims to Medicare.
Appellants did not associate ATC with Duran because he owed Medicare over $2
million in connection with another business.
The fraud scheme involved Appellants’ payment of kickbacks to assisted
living facilities (ALFs) and halfway houses so that the ALFs and halfway houses
would require their Medicare-eligible patients to participate in the ATC’s partial
hospitalization programs (PHPs), regardless of the patients’ needs or medical
conditions. Patients were selected based on their conditions or disorders, but they
did not receive proper medical treatment or doctor attention.
Duran and Valera submitted over $202 million in false claims, and received
payments totaling over $87 million as a result of their scheme. Despite the higher
figure that Appellants billed, they purportedly knew Medicare would only issue
payments based on a publicly available schedule of rates, which provided rates
lower than the amount billed. Appellants appealed every claim that was denied,
and collected co-payments on all of their claims. Duran’s stated intent was to get
as much money out of Medicare as possible, and he explained that he probably
would not have given any money back if he did receive the full billed amount.
Duran was also involved in commissioning a study to try and increase the amount
of money that PHPs could receive from Medicare.
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Appellants used Medlink Professional Management Group (Medlink) as a
vehicle to launder Medicare funds into cash for kickbacks and personal monetary
gain. They also implemented payment schemes through the use of shell companies
and sham transactions.
Throughout the course of the case, both Appellants filed multiple requests
for a jury trial on various sentencing issues, including the determination of the
amount of loss for which they would be held responsible, but neither defendant
requested to withdraw his or her plea. The district court denied these requests on
the basis that it had discretion to make findings of fact as to sentencing issues.
Duran and Valera were assessed the same guideline calculations, except that Duran
received an upward departure for disruption of a government function and Valera
received an enhancement for abuse of trust. The district court ultimately sentenced
Duran to 50 years’ imprisonment, while Valera received a 35-year term. They now
attack various aspects of their guilty pleas and sentences. We affirm.
I.
Duran and Valera first argue that the court incorrectly calculated their loss
amount by attributing the full amount billed to Medicare—over $202 million—as
the amount of loss. They contend that the court applied the wrong standard by
determining that the amount billed to Medicare was prima facie evidence of the
intended loss amount. They further assert that because they knew in advance that
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Medicare would only pay 80% of any given claim, their knowledge of the
predetermined, allowable amount Medicare would actually pay on a claim is the
proper amount of loss. We disagree.
We review the district court’s determination regarding the amount of loss
under the guidelines for clear error. United States v. Hoffman-Vaile, 568 F.3d
1335, 1340 (11th Cir. 2009). A district court’s choice between two permissible
views of the evidence is not clearly erroneous. United States v. Rodriguez De
Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc).
The loss amount is calculated as “the greater of actual loss or intended loss”
for purposes of the Sentencing Guidelines. U.S.S.G. § 2B1.1 cmt. n.3. Actual loss
is the “reasonably foreseeable pecuniary harm that resulted from the offense,”
whereas intended loss “means the pecuniary harm that was intended to result from
the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i)-(ii). Importantly, intended loss
includes pecuniary harm that would have been impossible or unlikely to occur.
U.S.S.G. § 2B1.1 cmt. n.3(A)(ii). Because “[t]he sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon that evidence,” the
district court is only required to make a reasonable estimate of the loss amount, and
its reasonable estimate will be upheld on appeal. U.S.S.G. § 2B1.1 cmt. n.3(C).
Turning to the instant case, the district court’s conclusion that Appellants’
intended loss was the total amount billed to Medicare is supported by a permissible
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view of the evidence. See Rodriguez De Varon, 175 F.3d at 945 (“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, we believe that it will be rare for an appellate court
to conclude that the sentencing court’s determination is clearly erroneous.”
(emphasis in original)). The evidence shows that Duran and Valera intended to get
as much money out of Medicare as possible. And though Appellants argue quite
strenuously that they could not have received the full amount billed and that it
should therefore not be counted in the amount of loss, intended loss includes
pecuniary harm that would have been impossible or unlikely to occur. See
U.S.S.G. § 2B1.1 cmt. n.3(A)(ii)(II). “The court need only make a reasonable
estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C). We think using the amount
billed to Medicare as an estimate for the amount of loss was reasonable, and that
the district court’s determination of the amount of loss was not clearly erroneous.
II.
Duran and Valera also argue that neither of them should have received a
four-level vulnerable victim enhancement under U.S.S.G. § 3A1.1. They contend
that the victim impact was already contemplated in their base offense level, and the
government did not establish that any of the patients were physically or financially
harmed. These arguments fall wide of the mark.
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The district court’s application of the guidelines to the facts is a question of
law that we review de novo. United States v. McGarity, 669 F.3d 1218, 1232 (11th
Cir.), cert. denied, 133 S. Ct. 378 (2012). A court’s determination of the facts that
support the enhancement is a finding of fact reviewed only for clear error. Id. We
review allegations of impermissible double counting de novo. United States v.
Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005) (per curiam). Double counting
occurs when a district court applies one part of the guidelines to increase a
defendant’s punishment on account of a kind of harm that was already fully
accounted for by the application of another part of the guidelines. United States v.
Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006) (per curiam). “We presume that
the Sentencing Commission intended separate guideline sections to apply
cumulatively unless specifically directed otherwise.” Id. at 1227 (internal
quotation marks omitted).
Under U.S.S.G. § 3A1.1, a two-level increase is applied where the defendant
knew, or should have known, that a victim of the offense was a vulnerable victim,
and an additional two-level increase is applied if the offense involved a large
number of vulnerable victims. U.S.S.G. § 3A1.1(b). A vulnerable victim is “a
person (A) who is a victim of the offense of conviction and any conduct for which
the defendant is accountable under §1B1.3 (Relevant Conduct); and (B) who is
unusually vulnerable due to age, physical or mental condition, or who is otherwise
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particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2. The
enhancement applies whenever a defendant selected his victim to take advantage of
that victim’s perceived susceptibility to the offense. United States v. Bradley, 644
F.3d 1213, 1288 (11th Cir. 2011), cert. denied, 132 S. Ct. 2375 (2012). Neither
bodily injury nor financial loss is required for an individual to qualify as a victim.
Id. at 1288 & n.128.
The patients here were vulnerable victims because they were forced to
participate in the scheme on account of their serious illnesses and disorders, and
they were not given proper treatment. Many of these patients had limited cognitive
ability and were unable to feed themselves, defecated on themselves, or were
unresponsive to group therapy. Doctors rarely saw these patients, except to fill out
paperwork, and Appellants frequently included false diagnoses in patient files to
maximize the amount of money they could extract from the patients’ suffering. In
other words, these were vulnerable victims of the most basic kind. And though
Appellants argue that the application of this enhancement double counts their
conduct, they identify no authority that demonstrates that the Sentencing
Commission did not intend for the guidelines to be applied in exactly this fashion.
See Dudley, 463 F.3d at 1227.
Additionally, we have previously rejected the argument that patients
involved in healthcare fraud were not victims because the government—not the
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patients—was the entity actually harmed by the fraud. See Bradley, 644 F.3d
at 1288 & n.128 (holding that patients who received faulty prescription drugs in a
Medicaid fraud scheme were victims for purposes of the vulnerable victim
enhancement). The damage to these patients—collateral or otherwise—was real.
Finally, there was more than sufficient evidence to find that a large number of
these particularly vulnerable individuals were the victims of Appellants’ scheme.
The district court did not clearly err in applying the four-level vulnerable victim
enhancement.
Duran and Valera also contend that the district court erred in applying an
enhancement for sophisticated laundering under § 2S1.1(b)(3) because the
enhancement was duplicative of the enhancements for money laundering
(§ 2S1.1(b)(2)(B)) and sophisticated means (§ 2B1.1(b)(9)(C)), but they are wrong.
Section 2S1.1(b)(3) of the guidelines provides for a two-level increase if the
money laundering enhancement of subsection (b)(2)(B) applies and the offense
involved sophisticated laundering. The commentary to the guidelines explains that
sophisticated laundering means complex or intricate offense conduct pertaining to
the execution or concealment of a § 1956 offense, and typically involves the use of
fictitious entities, shell corporations, or two or more layers of transactions.
U.S.S.G. § 2S1.1 cmt. n.5(A).
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In contrast, the money laundering enhancement under § 2S1.1(b)(2)(B) only
requires that the defendant was convicted under § 1956. See U.S.S.G.
§ 2S1.1(b)(2)(B). The sophisticated means enhancement under § 2B1.1(b)(9)(C),
for its part, provides for a two-level enhancement where the conduct involves
especially complex or intricate activity pertaining to the execution or concealment
of the offense, but does not limit the offense to money laundering. U.S.S.G.
§ 2B1.1 cmt. n.8(B). Instead, it is sufficient if the totality of the scheme is
sophisticated. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011),
cert. denied, 132 S. Ct. 1066 (2012).
In this case, Duran and Valera used shell corporations and sham transactions
to transfer the funds involved. See U.S.S.G. § 2S1.1 cmt. n.5(A). Though
Appellants contend that the enhancement is duplicative of the enhancements for
sophisticated means and money laundering, they identify no authority that
demonstrates that the Sentencing Commission did not intend for the guidelines to
be applied in this fashion. See Dudley, 463 F.3d at 1227 (explaining that, in the
absence of evidence to the contrary, we assume the Sentencing Commission
intended for enhancements to apply cumulatively). Further, the enhancements
have separate requirements and are based on separate conduct. For example,
though the sophisticated laundering enhancement refers only to the act of
laundering the proceeds of the fraud, the sophisticated means enhancement of
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§ 2B1.1(b)(9)(C) is directed more globally at the fraudulent scheme itself.
Accordingly, it was not clearly erroneous for the district court to apply the
sophisticated laundering enhancement on top of the enhancements for money
laundering and sophisticated means.
III.
Appellants next argue that the district court committed reversible error by
failing to verify whether each of them had personally received and reviewed a copy
of the presentence investigation report (PSR) prior to sentencing. They claim that
the district court only confirmed with their respective attorneys that the attorneys
had received and discussed the PSR with the Appellants, and that this is not
enough. We again disagree.
Federal Rule of Criminal Procedure 32 requires a sentencing court to “verify
that the defendant and the defendant’s attorney have read and discussed the [PSR]
and any addendum to” the PSR prior to sentencing. Fed. R. Crim. P. 32(i)(1)(A).
Here, the district court confirmed with the attorneys for Duran and Valera that they
had gone over the PSR with their clients. In the absence of some indication to the
contrary, a sentencing judge is permitted to rely on an attorney’s submission that
he has gone over the PSR with his client. The district judge therefore satisfied
Rule 32.
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IV.
Duran next argues that his plea colloquy violated the requirements of
Federal Rule of Criminal Procedure 11, which rendered his guilty pleas defective
and involuntary. He contends that the magistrate judge erred by failing to:
(1) obtain a waiver of his right to enter his plea before a district court; (2) explain
the nature of the offenses or ensure that Duran understood them; (3) explain the
applicable maximum penalties; (4) enter a factual basis for the plea; and
(5) explain that Duran could not enter guilty pleas while reserving the right to have
his loss amount determined at a trial. As to the last assertion, Duran specifically
states that he entered his guilty plea based on the condition that he would receive a
jury trial for the amount of loss issues.
Similarly, Valera argues that all of her sentencing enhancements were
improperly imposed because they violated the terms of her guilty plea. To that
end, she asserts that, as a condition to her guilty plea, she reserved her right to a
jury trial as to any fact used to enhance her sentence. All of Appellants’ arguments
in this regard lack merit.
Where a defendant did not move to withdraw his plea, we review any issues
regarding his plea colloquy for plain error. United States v. Moriarty, 429 F.3d
1012, 1019 & n.2 (11th Cir. 2005) (per curiam). Arguments raised for the first
time on appeal in a criminal case are reviewed for plain error. United States v.
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Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). “We will find plain error only
where (1) there is an error in the district court’s determination; (2) the error is plain
or obvious; (3) the error affects the defendant’s substantial rights in that it was
prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Clark, 274
F.3d 1325, 1326 (11th Cir. 2001) (per curiam). There can be no plain error where
there is no statute, rule, or binding precedent from the Supreme Court or from this
Court directly resolving the issue. United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003) (per curiam).
In accepting a defendant’s guilty plea, the district court must specifically
address the three core principles of Rule 11 by “ensuring that a defendant
(1) enters his guilty plea free from coercion, (2) understands the nature of the
charges, and (3) understands the consequences of his plea.” Moriarty, 429 F.3d
at 1019. The Supreme Court has ruled that a defendant who seeks to establish
plain error with regard to Rule 11 “must show a reasonable probability that, but for
the error, he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004).
Finally, “[w]e have also held that a district court may make additional
factual findings under a preponderance of the evidence standard,” and “may
enhance a sentence based upon judicial fact-finding provided that its findings do
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not increase the sentence beyond the statutory maximum authorized by facts
determined in a guilty plea or jury verdict.” United States v. Dean, 487 F.3d 840,
854 (11th Cir. 2007) (per curiam).
Turning to the facts at hand, Appellants have failed to carry their burden of
demonstrating that they would not have entered a guilty plea but for the alleged
errors in the court below. See Dominguez Benitez, 542 U.S. at 83, 124 S. Ct.
at 2340. Even were that not so, the core requirements of Rule 11 were satisfied
and none of the alleged defects in the pleas are supported by the record. The
district court acted within its discretion in making factual findings with regard to
Duran’s and Valera’s sentencing issues, and their pleas were entered without any
representations regarding a jury trial for sentencing issues. See Dean, 487 F.3d
at 854. And even if they could point to some error below, that error would not be
plain. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
Accordingly, the court did not err by accepting Appellants’ guilty pleas or by
denying their request for a jury trial as to the facts underlying their guidelines
calculations.
V.
Appellants next argue that their sentences were substantively unreasonable.
Specifically, Duran submits that his sentence is unreasonable because the district
court did not consider his individual circumstances, but instead aimed at
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formulating a sentence to address the overall culture of corruption and fraud in the
medical field. He emphasizes his good character and background, age, and the
nonviolent nature of his offenses as evidence that the district court’s 50-year
sentence was unreasonable. Valera, for her part, avers that her sentence is
substantively unreasonable because it did not consider her individual
circumstances, including her work ethic, her subordinate personal and professional
relationship with Duran, her cooperation with the government, and the nonviolent
nature of the offenses.
We review the substantive reasonableness of the sentence imposed by the
district court “under [the] deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). In determining whether a
sentence is substantively reasonable, we engage in a “deferential” assessment of
whether the sentence imposed is sufficient, but not greater than necessary, to
comply with the purposes of sentencing set forth in § 3553(a)(2). United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). We measure
reasonableness against the factors outlined in § 3553(a). United States v. Pugh,
515 F.3d 1179, 1188 (11th Cir. 2008); see also Talley, 431 F.3d at 788 (“We must
evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in [§] 3553(a).”). These factors include: (1) the
nature and circumstances of the offense and the history and characteristics of the
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defendant; (2) the need for the sentence to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the
need to deter criminal conduct; (4) the need to protect the public from further
crimes of the defendant; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences
available; (7) the guideline range; (8) policy statements of the United States
Sentencing Commission; (9) the need to avoid unintended sentencing disparities;
and (10) the need to provide restitution to victims. See 18 U.S.C. § 3553(a).
The party challenging a sentence “bears the burden of establishing that the
sentence is unreasonable in the light of both th[e] record and the factors in
[§] 3553(a).” Talley, 431 F.3d at 788. “In our evaluation of a sentence for
reasonableness, we recognize that there is a range of reasonable sentences from
which the district court may choose, and when the district court imposes a sentence
within the advisory [g]uidelines range, we ordinarily will expect that choice to be a
reasonable one.” Id. Thus, we will vacate and remand for a new sentencing “if,
but only if, we are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc) (internal quotation marks omitted); see also Pugh, 515 F.3d at 1194
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(observing that “a sentence may be unreasonable if it is grounded solely on one
factor, relies on impermissible factors, or ignores relevant factors”).
Duran and Valera wholly fail to carry their burdens of demonstrating that the
district court committed a clear error of judgment in weighing the § 3553(a)
factors. See Irey, 612 F.3d at 1190. The offenses in this case spanned nearly eight
years and involved Appellants paying ALFs and halfway houses to exploit
thousands of seriously impaired individuals for their Medicare benefits.
Appellants submitted over $200 million in bogus Medicare claims, received over
$87 million in fraudulent payments, and used shell corporations and sham
transactions to launder their ill-gotten gains. They did so at the expense of the
public fisc and thousands of individuals unable to effectively care for themselves.
In our view, crimes such as these stem from greed of the worst variety, and evince
a parasitism and disregard for societal norms that are anathema to civil society. It
is the very aim of sentencing to exorcise individuals such as these from the public
square. See 18 U.S.C. § 3553(a)(2) (providing that the purposes of sentencing
include providing just punishment for an offense, deterring future criminals, and
protecting the public from the defendant). The district court considered the
sentencing factors and sought to fashion total sentences that adequately punished
the Appellants, provided sufficient deterrence to would-be criminals, and promoted
respect for the law. These sentences do just that.
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Finally, and though Appellants raise various mitigating factors in their
defense, the weight to be given any particular factor is left to the sound discretion
of the district court, and we will not disturb the exercise of that discretion absent a
clear error in judgment. See Irey, 612 F.3d at 1190. What is more, the sentences
imposed actually constitute a significant downward variance from the guideline
sentence. Duran’s 50-year total sentence, for example, is well below his guideline
sentence of life imprisonment and his statutory maximum sentence of 435 years’
imprisonment, a fact that augurs strongly in favor of the reasonableness of his
sentence in light of the scope and nature of these offenses. See Gonzalez, 550 F.3d
at 1324 (noting, in upholding sentence as reasonable, that it was “well below the
maximum ten-year sentence”). Same goes for Valera, whose 35-year total
sentence is far shy of her guideline sentence of life imprisonment and her statutory
maximum sentence of 235 years. 1 See id. In sum, we think the sentences imposed
on Duran and Valera by the district judge in this case were not only reasonable, but
proper.
VI.
Duran next contends that the district court’s application of an upward
departure for significant disruption of a government function under U.S.S.G.
1
Though the guideline range was life imprisonment, the maximum guideline penalty
cannot exceed the statutory maximum penalty, see U.S.S.G. § 5G1.1(b), so Duran’s guideline
sentence was technically 435 years’ imprisonment and Valera’s guideline sentence was 235
years’ imprisonment.
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§ 5K2.7 was clear error because it was based on the same underlying conduct that
led to his convictions and there was no factual support for the court’s rationale that
the Medicare program was unduly burdened by the sheer volume of Duran’s
scheme. Like the others, this argument falls flat.
The sentencing guidelines authorize a district court to depart from a
defendant’s applicable guideline range “[i]f the defendant’s conduct resulted in a
significant disruption of a governmental function.” See U.S.S.G. § 5K2.7. We
have previously held that “the significant disruption of a governmental function is
not inherent in the offense of large-scale fraud involving an abuse of public trust.”
United States v. Gunby, 112 F.3d 1493, 1501 (11th Cir. 1997). And in holding that
the significant disruption departure was properly applied to a fraudulent billing
scheme where Medicare lost $15 million, we explained that “[e]very time [a
defendant defrauds] Medicare, the government los[es] funds that it otherwise could
have used to provide medical care to eligible Medicare patients.” United States v.
Regueiro, 240 F.3d 1321, 1324 (11th Cir. 2001) (per curiam). Just so here. It is no
great secret that the Medicare program is cash strapped, and that the amount of
money left in the pot for the legitimate care of our neediest citizens dwindles with
each dollar the program pays out to the criminals such as Duran who seek to
defraud it. We find the argument that Duran did not cause a significant disruption
to the government’s ability to administer the Medicare program when he diverted
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over $87 million in funds from the program through a concerted scheme of
fraudulent billing, appealing every claim denied, and concealment of the fraud to
be unpersuasive, if not verging on frivolity. The district court did not clearly err in
applying the § 5K2.7 departure.
VII.
Valera additionally argues that the district court deprived her of the right to
be present at all stages of sentencing. She states that the district court improperly
incorporated the proceedings from Duran’s sentencing and the trial of Judith
Negron, another codefendant in this case. She argues that it was error to consider
the evidence from these proceedings because she did not have an opportunity to be
presented with, or make challenges to, the evidence. Because this argument was
raised for the first time on appeal, we review it only for plain error. See Rodriguez,
398 F.3d at 1298. We find none.
A defendant has a constitutional right to be present at sentencing. United
States v. Portillo, 363 F.3d 1161, 1166 (11th Cir. 2004) (per curiam). However,
the defendant need not be afforded the same degree of due process protections at
sentencing as he is entitled to at trial. United States v. Satterfield, 743 F.2d 827,
840 (11th Cir. 1984). A district court may take judicial notice of its own records.
United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987).
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Valera has failed to establish that the district court was not permitted to
incorporate the proceedings of Valera’s codefendants. See id.; see also United
States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir. 1990) (explaining that a court
may consider evidence adduced at a codefendant’s proceeding, even if defendant
was not present at that sentencing, so long as the defendant has an opportunity to
challenge the evidence at her own sentencing). Where “the explicit language of
the statute or rule does not specifically resolve the issue, and there is no precedent
from this Court or the Supreme Court directly resolving it, there is no plain error.”
United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010). Valera points to no
rule or statute, nor anything from this Court or the Supreme Court, that would
render erroneous the district court’s consideration of the related proceedings of her
codefendant in this matter. Hence, she cannot show plain error. See Lejarde-
Rada, 319 F.3d at 1291.
VIII.
Valera also asserts for the first time on appeal that the district court erred by
imposing a general sentence rather than articulating individual sentences for each
of the counts she was convicted for. She contends that such a general sentence is
per se illegal. We reject Valera’s argument on this point, however, because her
sentence was not a general sentence in the first place.
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We review the legality of a sentence de novo. Moriarty, 429 F.3d at 1025.
A general sentence is per se illegal and requires a remand. Id. “A general sentence
is an undivided sentence for more than one count that does not exceed the
maximum possible aggregate sentence for all the counts but does exceed the
maximum allowable sentence on one of the counts.” Id. (internal quotation marks
omitted). Even where the sentencing court errs in sentencing a defendant, the court
may correct a sentence that resulted from clear error within 14 days after oral
pronouncement of the sentence. Fed. R. Crim. P. 35.
In the present case, the district court expressly stated at sentencing that it
was announcing the total sentence imposed, but that it would provide a written
order with the specific sentence as to each count in a written judgment. True to its
word, the court filed a written order the same day the sentence was orally
pronounced setting forth the specific breakdown of Valera’s sentence. See also
Fed. R. Crim. P. 35. There was no error.
IX.
Finally, Valera contends that the district court plainly erred in applying a
two-level enhancement under U.S.S.G. § 3B1.3 for abuse of trust because the
government was the sole victim of the offenses and Medicare providers do not
occupy positions of trust relative to the Medicare program. She also argues that
the enhancement is improper as applied to her relationship with the patients
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because the conduct used to justify the enhancement on that score would be
encompassed by her underlying convictions.
A defendant is subject to a two-level enhancement of his offense level if she
“abused a position of public or private trust, or used a special skill, in a manner
that significantly facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3. A position of trust is “characterized by professional or
managerial discretion,” and a person occupying a position of trust ordinarily
receives less supervision than an employee whose responsibilities are non-
discretionary in nature. U.S.S.G. § 3B1.3 cmt. n.1. In the fraud context, § 3B1.3
applies “where a fiduciary or personal trust relationship exists with other entities,
and the defendant takes advantage of the relationship to perpetrate or conceal the
offense.” United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998) (internal
quotation marks omitted); see United States v. Liss, 265 F.3d 1220, 1229–30 (11th
Cir. 2001) (holding that a physician who received kickbacks for patient referrals
abuses a position of trust for purposes of § 3B1.3 enhancement).
We discern no error here. Based on her position as a licensed mental health
counselor who knowingly submitted false claims to Medicare, Valera enjoyed a
position of trust and exploited that position of trust in executing her fraud. She has
failed to identify any controlling authority that establishes that the district court
erred in applying the enhancement in this case, especially in light of the fact that
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she used her positions as a licensed mental health counselor and the registered
agent and sole officer of ATC to perpetuate and conceal her fraud offenses. See
Lejarde-Rada, 319 F.3d at 1291 (explaining the stringent requirements of the plain
error standard). Even if she had identified an error, she has failed to demonstrate
that the “error affect[ed] [her] substantial rights in that it was prejudicial and not
harmless,” Clark, 274 F.3d at 1326, so her argument would fail in any event. Had
the abuse-of-trust enhancement not been applied, Valera’s offense level would
have been 45, which would yield the same guideline sentence (life imprisonment)
as would an offense level of 47. See U.S.S.G. Sentencing Table (providing for life
imprisonment for any offense level of 43 or above). Accordingly, Valera cannot
show plain error with respect to application of the abuse-of-trust enhancement.
For the foregoing reasons, we conclude that neither Duran nor Valera points
to any error sufficient to disturb the district court’s judgment in this case. The
sentences are harsh, but the offenses were grave. So goes the world of crime and
punishment.
AFFIRMED.
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