United States of America v. Alberto Sostre-Cintrón

United States Court of Appeals
For the First Circuit
No. 17-1778
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERTO SOSTRE-CINTRÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Michael R. Hasse for appellant.
B. Kathryn Debrason, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
December 20, 2018

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KAYATTA, Circuit Judge. A federal jury convicted
Alberto Sostre-Cintrón of conspiring to defraud the United States
and stealing government property in violation of 18 U.S.C. §§ 371,
641 after finding that he falsely claimed eligibility for Social
Security benefits and received nearly $100,000 in disability
insurance disbursements to which he was not entitled. On appeal,
Sostre challenges the sufficiency of the evidence supporting his
convictions and the procedural reasonableness of his sentence.
Because we find that there was ample evidence from which a jury
could have reasonably determined that Sostre was a knowing and
willing participant in this fraudulent scheme and because we
discern no error in the district judge's sentencing rationale, we
affirm Sostre's convictions and sentence.
I. Background
We recount the facts pertinent to Sostre's appeal "in
the light most favorable to the verdict." United States v. Díaz-
Rosado, 857 F.3d 116, 121 (1st Cir. 2017).
A psychiatrist named Dr. Luis Escabí-Pérez became well
acquainted with the Social Security disability insurance benefits
("DIB") application process after working as a Social Security
Administration ("SSA") patient evaluator for over thirty years.
After retiring from the SSA, Escabí hatched a plan to coach
patients through the application process to guarantee the approval
of their applications. In return, Escabí's patients compensated

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him and agreed to give him a kickback in the form of a portion of
their back pay upon receipt of their first DIB check.
In order to qualify for DIB payments, an applicant must
demonstrate that "he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for
a continuous period of not less than twelve months." 42 U.S.C.
§ 1382c(a)(3)(A). To enable his "patients" to appear to satisfy
these requirements, Escabí back-dated documents, fabricated
records of appointments that never occurred, reported false
diagnoses and symptoms not experienced or reported by his patients,
and instructed them on how to deceive SSA personnel during
interviews.
Sostre met with Escabí for the first time on September 1,
2010, and visited his office on three subsequent occasions. At
Sostre's first appointment, the two agreed to falsely state in
Sostre's psychiatric medical report (to be submitted to the SSA as
part of Sostre's DIB application) that Sostre had seen Escabí for
medical treatment on a monthly basis since June 9, 2009. In the
same report, Escabí also attributed a number of symptoms to Sostre
that, according to Escabí, Sostre did not exhibit, including
depression, anxiety, low self-esteem, and bad memory. Escabí
provided a diagnosis of major depressive disorder though he did
not believe that Sostre was depressed. Escabí also reported that

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Sostre was homebound and had been unemployed since April 2009.
However, Sostre admitted in an unrelated bankruptcy proceeding to
working as a landscaper and gardener through at least 2011 and to
earning $1,000 per month in this role. Sostre paid Escabí $500
for completing his SSA-DIB application and agreed to pay him $4,000
more upon receiving his benefits back pay.
Sostre also signed papers that he submitted to the SSA
stating that he required assistance completing basic household
tasks, such as preparing food, bathing, and managing his finances,
and that he was unable to drive. And in a telephone interview
with an SSA-claims representative, Sostre reiterated that he had
been unable to work since April 2009 due to his depression and
muscular pain and that Escabí had been treating him since June
2009. Based upon Sostre's representations under penalty of perjury
and Escabí's report, the SSA awarded Sostre back pay in the amount
of $19,278 and monthly disability payments of $1,071. The SSA
also notified Sostre in writing of his obligation to report medical
improvements or a return to work. In total, Sostre received
$99,589 in disability benefits from 2011 through 2014.
In 2014, Officer Elliot Meléndez and SSA Agent Joel
Ferris investigated Sostre. Meléndez testified to observing
Sostre perform gardening services at another individual's
residence, drive his vehicle, run errands, and socialize in his
community. All the while, Sostre was supposedly homebound and

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unable to work or drive according to the representations he had
made to the SSA. In December 2014, the SSA stopped making payments
to Sostre based upon Meléndez's and Ferris's investigation.
Subsequently, a federal grand jury indicted Sostre for
conspiring to defraud the United States and theft of government
property. A jury found him guilty on both counts. The district
court sentenced Sostre to fifteen months' imprisonment with three
years of supervised release and ordered Sostre to pay the
government $99,589 in restitution. This appeal followed.
II.
On appeal, Sostre argues that the government produced
insufficient evidence to support his convictions and that his
sentence was procedurally unreasonable. We address each challenge
in turn and find both lacking.
A.
Section 371 makes it a crime for at least two persons
"to defraud the United States" so long as at least one conspirator
"do[es] any act to effect the object of the conspiracy." 18 U.S.C.
§ 371. And section 641 makes it a felony to "embezzle[], steal[],
purloin[], or knowingly convert[]" any "money" or "thing of value
of the United States." Id. § 641. Both crimes require a defendant
to have acted with intent: A conspiracy conviction requires that
the government prove that the defendant "had both the intent to
agree to commit a crime, and the intent that the crime be

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completed," United States v. Castro-Davis, 612 F.3d 53, 60 (1st
Cir. 2010), while a conviction under section 641 requires the
government to prove that the defendant "acted with the specific
intent to steal a thing of value from the United States," United
States v. González-Martínez, 825 F.3d 51, 55 (1st Cir. 2016).
Sostre argues that the government failed to garner
sufficient evidence to prove the intent elements of these crimes.
Whether Sostre preserved in the district court his present
challenge to the sufficiency of the evidence is unclear.
Nevertheless, because the evidence is plainly sufficient under any
standard of review, we will simply assume that Sostre fully
preserved his sufficiency objections. Escabí's testimony, which
we must assume the jury believed, painted Sostre as an informed
and willing participant, intent on securing disability benefits
based on falsehoods. Sostre's payment to Escabí for his submission
of the application easily substantiates the existence of their
agreement.
This was not a case in which the false statements known
to Sostre consisted only of medical or legal conclusions about
which Sostre could claim ignorance regarding their falsity. He
knew when and how many times he saw Escabí. He certainly knew --
and repeatedly falsified -- his employment history and symptoms.
Nor is it of any moment that the government did not affirmatively
prove Sostre's lack of depression when he sought treatment from

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Escabí. Indeed, Sostre's assertion that "there is no evidence of
record that [Escabí] ever tested [Sostre] in any way" undermines
his contention that he could have believed his application for
SSA-DIB benefits to be legitimate. Cumulatively, this evidence
was well beyond sufficient to show that Sostre was a witting
conspirator intent on obtaining SSA benefits through fraud.
B.
Sostre also takes issue with his sentence (especially
the three-year duration of his supervised-release term).
Specifically, Sostre argues that the district judge erred by giving
insufficient consideration to Sostre's personal characteristics
and to -- what he claims was -- his "limited role" in the conspiracy
in weighing the 18 U.S.C. § 3553(a) sentencing factors, by
inadequately explaining the rationale behind his incarceration
term, and by offering "no reason" for imposing a top-of-the-range
supervised-release term.
Notwithstanding the completion of Sostre's imprisonment
term, these challenges are not moot because his period of
supervised release continues. See United States v. Carter, 860
F.3d 39, 43 (1st Cir. 2017). And, unlike the challenge we deemed
moot in United States v. Suárez-Reyes, No. 17-1849, 2018 WL
6583865, at *2 (1st Cir. Dec. 14, 2018), the defendant in this
case does "profess to have suffered . . . collateral consequences
attributable to the [district court's] alleged sentencing errors":

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Sostre specifically argues that the purported inadequacies in the
district judge's sentencing rationale resulted in an "unreasonably
harsh" and "unexplained" supervised-release term. Accordingly,
Sostre's injury could still be redressed were he to prevail in
this appeal. See United States v. Serunjogi, 767 F.3d 132, 141–
42 (1st Cir. 2014).
Sostre did not object in the trial court to the sentence,
so our review is limited to plain error. United States v. Ruiz-
Huertas, 792 F.3d 223, 226 (1st Cir. 2015). The district judge
began by carefully reviewing Sostre's total offense level and
guideline imprisonment range using the United States Sentencing
Guidelines Manual. He acknowledged that the manual is advisory,
and Sostre does not maintain that the judge calculated his
guideline range incorrectly. Next, the district judge stated that
he had considered the "sentencing factors as set forth in 18 U.S.C.
3553(a)." "Such a statement 'is entitled to some weight.'" United
States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (quoting
United States v. Dávila-González, 595 F.3d 42, 49 (1st Cir. 2010)).
The court then recounted the personal characteristics
most salient to Sostre's case, including his family status,
education, employment, medical history, and lack of substance
abuse and a criminal record. Finally, the judge considered "the
elements of the offense, [Sostre's] participation in the same, the
need to promote respect for the law and protect the public from

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further crimes by the defendant, as well as . . . the issues of
deterrence and punishment." Factoring together all of these
considerations, the court determined that a fifteen-month
imprisonment and a three-year supervised-release term would be
"just and not greater than necessary."
We discern no error, plain or otherwise: The district
court's imposition of Sostre's sentence was procedurally sound.
The district judge considered all of the relevant section 3553
factors and, properly exercising his discretion, weighed them as
he saw appropriate. See United States v. Alejandro-Rosado, 878
F.3d 435, 439 (1st Cir. 2017) ("Though the district court's
consideration was unfavorable to the defendant, the fact that it
weighed some factors more heavily than others does not amount to
procedural error."). It is also of no significance that the
district judge did not separately explain his rationale in imposing
a relatively long supervised-release term. "'[N]o part of
§ 3553(c) requires the district court to bifurcate its
consideration, discussion, and evaluation of the § 3553(a)
sentencing factors' whenever the court chooses to impose a sentence
that includes both an imprisonment component and a supervised
release component." United States v. Domínguez-Figueroa, 866 F.3d
481, 486 (1st Cir. 2017) (quoting United States v. Bloch, 825 F.3d
862, 869 (7th Cir. 2016)). Considering Sostre's personal
circumstances, including his lack of criminal history and his role

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in the offense, the district judge deemed a bottom-of-the-
guidelines imprisonment term and a top-of-the-guidelines
supervised-release term to be appropriate. Far from being
arbitrary, this compromise ensured that Sostre spent as little
time in jail as was necessary while protecting the public from
possible future criminal activity. Therefore, we affirm the
district judge's sentence.
III.
For the foregoing reasons, we affirm Sostre's
convictions and the district court's sentence.

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