USA v. Roberto Murillo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13340
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MURILLO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20436-PAS-2
____________________
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2 Opinion of the Court 20-13340
Before R OSENBAUM , JILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Roberto Murillo appeals his 105-month total prison sentence
for one count of conspiracy to commit healthcare fraud and wire
fraud and seven counts of healthcare fraud. On appeal, Murillo
contends that the district court erred in determining that his fraud
offenses involved a loss amount of approximately $16.6 million for
purposes of a 20-level enhancement under the United States Sen-
tencing Guidelines.
See U.S.S.G. § 2B1.1(b)(1)(K). Because the dis-
trict court did not clearly err, we affirm Murillo’s sentence.
We review the district court’s determination of the amount
of loss attributable to a defendant for clear error.
United States v.
Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). “For a factual finding
to be clearly erroneous, we must be left with a definite and firm
conviction that the court made a mistake.”
United States v.
Chalker, 966 F.3d 1177, 1194 (11th Cir. 2020) (quotation marks
omitted). The district court “need only make a reasonable estimate
of the loss,” which is entitled to deference because the court is in
“a unique position to assess the evidence and estimate the loss
based upon that evidence.” U.S.S.G. § 2B1.1, cmt. n.3(C). A loss
finding based on a reasonable construction of the evidence is not
clearly erroneous.
United States v. Almedina, 686 F.3d 1312, 1315
(11th Cir. 2012).
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20-13340 Opinion of the Court 3
The guideline for fraud offenses, U.S.S.G. § 2B1.1, calls for
an increase in the offense level of up to 30 levels based on the extent
of loss.
See U.S.S.G. § 2B1.1(b)(1). As relevant here, a 20-level in-
crease applies if the offense involved a loss between $9.5 million
and $25 million.
Id. § 2B1.1(b)(1)(K).
“Loss” for purposes of this guideline is the greater of “actual”
loss or “intended” loss.
Id. § 2B1.1, cmt. n.3(A). Actual loss is “the
reasonably foreseeable pecuniary harm that resulted from the of-
fense,”
id., cmt. n.3(A)(i)—actual monetary loss, in other words.
Intended loss is “pecuniary harm that the defendant purposely
sought to inflict,” including “intended pecuniary harm that would
have been impossible or unlikely to occur. (
e.g., as in a government
sting operation, or an insurance fraud in which the claim exceeded
the insured value).”
Id., cmt. n.3(A)(ii).
Here, the district court did not clearly err in determining the
loss amount for purposes of its guideline-range calculations. The
trial evidence established that Murillo conspired with Pedro Ariel
Cuni, an office manager of a medical clinic, to submit false and
fraudulent claims to United Health Care Services, Inc. (“United”),
which administered a self-funded healthcare benefits plan for
AT&T. Murillo, who worked for AT&T, recruited other AT&T
employees insured by the plan so their information could be used
to submit false and fraudulent claims for therapy services and other
treatments they did not want, need, or receive at the clinic. During
the conspiracy, Murillo and Cuni submitted or caused to be
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4 Opinion of the Court 20-13340
submitted $16,625,118 in false or fraudulent claims, for which
United paid the clinic $2,346,201.
The parties agree that the total amount fraudulently billed
to United—$16,625,118—is
prima facie evidence of the intended
loss, and we assume without deciding they are correct.
Cf.
U.S.S.G. § 2B1.1, cmt. n.3(F)(viii) (stating, with regard to govern-
ment health care programs, that “the aggregate dollar amount of
fraudulent bills submitted . . . shall constitute prima facie evidence
of the amount of the intended loss”);
see also United States v.
Melgen, 967 F.3d 1250, 1265–66 (11th Cir. 2020) (applying this rule
in a Medicare fraud case). In other words, that evidence is “suffi-
cient to establish the amount of the intended loss, if not rebutted.”
U.S.S.G. § 2B1.1, cmt. n.3(F)(viii).
As rebuttal evidence, Murillo points to Cuni’s trial testi-
mony that the conspiracy recruited AT&T employees because
AT&T “would pay around $25,000 per patient.” This testimony,
in Murillo’s view, establishes that the “true intended loss was
$25,000 per patient” and that, because he recruited 50 patients for
Cuni, the total intended loss was “far less” than $16.6 million.
The district court did not err in concluding that Murillo
failed to rebut the prima facie evidence of loss. Cuni’s comments
about the conspiracy’s expected returns on a per patient basis do
not rebut the government’s evidence of intended loss. As the gov-
ernment states, “while a defendant may not expect to get every-
thing that he fraudulently asks for, that does not mean that he does
not intend to take as much as he can get.”
See United States v.
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20-13340 Opinion of the Court 5
Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (“[W]hen a sentenc-
ing court is determining the proper punishment for a defendant’s
fraud, the court uses the reasonable mathematical limit of his
scheme, rather than his concrete result.”);
United States v. Wai-
Keung, 115 F.3d 874, 877 (11th Cir. 1997) (“It is not required that
an intended loss be realistically possible.”). Cuni’s testimony does
not show that he “intended for [the clinic] to receive only the
amount paid by [United], rather than the amounts billed.”
United
States v. Moran, 778 F.3d 942, 975 (11th Cir. 2015). And Murillo
did not offer any other evidence that the conspiracy intended to
cause some lesser loss amount.
On this record, we are not left with a definite and firm con-
viction that the district court made a mistake in basing its loss find-
ing on the total amount fraudulently billed to United.
See Chalker,
966 F.3d at 1194;
cf. U.S.S.G. § 2B1.1, cmt. n.3(F)(viii). The court’s
finding was reasonable and supported by the record.
See
Almedina, 686 F.3d at 1315. Accordingly, we affirm Murillo’s sen-
tence.
AFFIRMED.
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