USA v. Raciel Leon

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11070
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20476-WJZ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RACIEL LEON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 19, 2018)
Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Raciel Leon appeals his sentence of 126 months of imprisonment for
conspiring to defraud Medicare and to commit wire fraud, 18 U.S.C. §§ 1349,
1347, 1343, and for conspiring to defraud the United States by paying and
receiving kickbacks connected to Medicare, id. § 371; 42 U.S.C. § 1320a-7b(b).
Leon challenges the substantive reasonableness of his within-guidelines sentence
and the enhancement of his sentence for obstruction of justice. We affirm.
The district court did not abuse its discretion when it sentenced Leon to 126
months of imprisonment. Leon’s presentence investigation report provided a
recommended sentencing range of 121 to 151 months for his role in a conspiracy
that caused health care agencies to submit fraudulent invoices and prescriptions to
Medicare for services that were medically unnecessary or were not provided and
that caused a loss of more than $2.5 million. Leon used his billing company to
distribute the unlawfully obtained proceeds between himself and his cohorts who
forged prescriptions and recruited patients, and he trained coconspirators how to
produce fraudulent invoices and to record kickbacks that they paid. Leon argues
there is an unwarranted disparity between his sentence and that of two
coconspirators who received sentences of 70 and 90 months, but Leon was not
similarly situated to his coconspirators who pleaded guilty and cooperated with the
government by testifying at Leon’s trial. See United States v. Docampo, 573 F.3d
1091, 1101 (11th Cir. 2009). Leon’s sentence, which is well below his statutory
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maximum penalty of 240 months of imprisonment, is reasonable. See United States
v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).
Leon argues, for the first time, that the reduction of his coconspirators’
sentences for their acceptance of responsibility violates his right against self-
incrimination under the Fifth Amendment and his right to a public trial under the
Sixth Amendment, but he is not entitled to relief under plain error review. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Leon cites no
precedent establishing that the guideline allowing a reduction for acceptance of
responsibility, United States Sentencing Guidelines Manual § 3E1.1 (Nov. 2016),
is unconstitutional. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003). Our precedent holds that the reduction for acceptance of responsibility
is not designed to induce defendants to plead guilty but instead grants leniency to
defendants who express genuine contrition for their crimes. See United States v.
Henry, 883 F.2d 1010, 1011–12 (11th Cir. 1989); United States v. Jones, 934 F.2d
1199, 1200 (11th Cir. 1991). Leon’s choice to go to trial did not result in an
increased penalty; instead, he was denied the benefit of having his sentence
reduced as a reward for accepting “responsibility for his wrongs,” Henry, 883 F.2d
at 1012.
Leon forfeited the opportunity to object to the enhancement of his sentence
for obstruction of justice, U.S.S.G. § 3C1.1, so we review that ruling for plain error
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only. See United States v. Olano, 507 U.S. 725, 733 (1993); United States v.
Beckles, 565 F.3d 832, 842 (11th Cir. 2009). An addendum to Leon’s presentence
report and the revised report stated that the government had objected to the original
report and requested an enhancement for obstruction based on Leon’s destruction
of evidence. Although Leon filed a written objection four days later, he failed to
address the addendum or the objection of the government. Leon also failed to
respond to a memorandum that the government filed before sentencing or to its
argument during the sentencing hearing to increase Leon’s sentence based on his
obstruction. At sentencing, when asked if he had “any additional objections” or if
he objected “to any of the findings of fact or conclusions of law,” Leon responded,
“No, sir.”
The district court did not plainly err by applying the enhancement for
obstruction of justice. Leon failed to object to, and is deemed to have admitted, the
facts in his revised presentence report that he “maintained a log book, which he
used to track illegal kickbacks” and “burned this kickback log” when he knew
“Medicare was suspicious of [one of the health care agencies] and had put it under
‘review’/audit” and while the government was investigating two of the agencies.
See Beckles, 565 F.3d at 844. A defendant is subject to a two-point increase in his
base offense level if he “willfully obstructed or impeded . . . the administration of
justice with respect to the investigation, prosecution, or sentencing of the instant
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offense of conviction.” U.S.S.G. § 3C1.1. And the record supports the finding of
the district court that “the testimony [of coconspirators] and evidence presented at
trial” established that Leon “destroyed the kickback log,” which “clearly
obstructed the government’s investigation of [him] and of the overall criminal
activity.”
We AFFIRM Leon’s sentence.
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