USA v. Rodriguez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 09, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11909
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20477-JAL-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
REINIER ACOSTA RODRIGUEZ,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 9, 2011)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
The United States Sentencing Guidelines provide for a 14-level increase in
the calculation of a base offense level if the loss amount from a fraud was more

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than $400,000.00. U.S.S.G. § 2B1.1(b)(1)(H). Reinier Acosta Rodriguez seeks to
avoid that enhancement on this appeal from his 24-month sentence, imposed after
he pled guilty to six counts of health care fraud, in violation of 18 U.S.C. § 1347.
Acosta Rodriguez was the president of Miami Springs Outpatient Services
(“MSOS”), a purported provider of durable medical equipment to Medicare
beneficiaries. He argues on appeal that the Guidelines enhancement should not
apply because there was insufficient evidence to conclude that he intended to
submit fraudulent Medicare claims on behalf of MSOS, and because the district
court’s calculation of loss was based on mere speculation.
We review a district court’s interpretation of the Sentencing Guidelines de
novo, and the amount of loss determination for clear error. United States v.
Medina, 485 F.3d 1291, 1297 (11th Cir. 2007).
Acosta Rodriguez argues that another MSOS employee was involved in the
fraud scheme and that there was no evidence presented at the sentencing hearing
that it was he who actually submitted the fraudulent Medicare claims. However,
the evidence presented at the sentencing hearing reflects that it was Acosta
Rodriguez who applied for MSOS’s medical enrollment, and the fraudulent billing
began almost immediately after he became president of the company. Acosta
Rodriguez withdrew funds deposited into MSOS’s account by Medicare after it
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was fraudulently billed. Acosta Rodriguez was a signatory on MSOS’s corporate
bank account during the time that the company submitted the claims. The
evidence showed that 77% of the patients for whom claims were submitted were
never seen by doctors, and thus, the claims made on their behalf were fraudulent.
Acosta Rodriguez states that the evidence showed that MSOS actually
received only $7,813.55 of the $606,579.00 in claims submitted. He further states
that law enforcement only verified that a certain percentage of claims, rather than
all of those submitted, was fraudulent. Our precedent, however, requires that the
district court make a reasonable estimate of the loss amount, which is the greater
of the actual loss or the intended loss. United States v. Hoffman-Vaile, 568 F.3d
1335, 1343 (11th Cir. 2009). The Guidelines define “intended loss” as “the
monetary harm that was intended to result from the offense.” Id. at 1344 (citing
U.S.S.G. § 2B1.1 cmt. n.3(A)(ii), (iii)). A district court’s valuation of the loss or
intended loss need not be made with precision—“although the district court must
not speculate concerning the existence of a fact which would permit a more severe
sentence under the guidelines, its reasonable estimate of the intended loss will be
upheld on appeal.” United States v. Dominguez, 109 F.3d 675, 676 (11th Cir.
1997) (citations and internal quotation marks omitted). We have held that an
intended loss need not be realistically possible, and we have expressly rejected the
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position, adopted by other circuits, “that an intended loss cannot exceed the loss
that a defendant in fact could have occasioned if his fraud had been successful.”
United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997) (per curiam)
(concerning U.S.S.G. § 2F1.1, which was deleted by consolidation with § 2B1.1 in
2001).
Based on the evidence presented at the sentencing hearing, the district
court’s determination of the loss attributable to Acosta Rodriguez was a
reasonable estimate of the loss. Acosta Rodriguez has not shown that the district
court engaged in speculation, or that the calculation was without factual support.
Therefore, we find no clear error by the district court in its determination that
Acosta Rodriguez was responsible for intended losses of over $400,000.00, and
thus, that the 14-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H) was
appropriate. Accordingly, we affirm Acosta Rodriguez’s sentence.
AFFIRMED.
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