IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20157

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DANIELA GOZES-WAGNER, also known as Daniela Wagner, also known as 

Daniela Mayer Gozes, also known as Daniela Gozes, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A jury convicted Daniela Gozes-Wagner of conspiracy to commit health 

care fraud and conspiracy to commit money laundering. The district court 

sentenced her to 120 months (10 years) imprisonment on each count, with the 

sentences running consecutively, for a total of 240 months (20 years). The court 

also ordered her to pay more than $15 million in restitution. 

On appeal, Gozes-Wagner argues that her sentence should be vacated 

because it was the result of an unconstitutional “trial penalty”—a punishment 

for choosing to exercise her right to stand trial instead of pleading guilty. She 

also argues that her sentence should be vacated because it was both 

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2020

Lyle W. Cayce

Clerk

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procedurally and substantively unreasonable. Finally, she seeks vacatur of the 

restitution award on several grounds. Finding no reversible error, we affirm.

I. Background

A. The Conspiracy

Daniela Gozes-Wagner worked as a mid-level manager for a Russian-led 

conglomerate that stole millions from Medicare and Medicaid. Her role in the 

conspiracy included, among other things: recruiting doctors to approve

unnecessary medical tests, hiring “seat warmers” to sit in empty offices 

designated as fronts for shell companies that she helped manage to cover up 

the scheme, and overseeing payroll operations for “testing facilities” in the 

Houston area. Other members of the conspiracy relevant to this appeal include: 

Aliksander Beketav, Mikhail Shiforenko, Alexsandr Voronov, and Boris Robert

Brodsky.

In 2014, a grand jury returned a two-count indictment against Beketav, 

Shiforenko, Voronov, and Gozes-Wagner. All four were charged with one count 

of conspiracy to commit health care fraud. The Russians—but not GozesWagner—also were charged with one count of conspiracy to commit money 

laundering. Later on, Brodsky was charged in a single-count superseding 

information with conspiracy to commit health care fraud. Initially, then, 

Gozes-Wagner and Brodsky each faced only a conspiracy to commit health care 

fraud charge, while Beketav, Shiforenko, and Voronov each faced both a 

conspiracy to commit health care fraud charge and a conspiracy to commit 

money laundering charge.

Slowly but surely, circumstances changed. Soon after being arrested in 

2015, Beketav attempted to hang himself and became incapacitated. In July 

2016, Voronov pleaded guilty without a plea agreement to a superseding 

information charging him with a single count of conspiracy to commit health 

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care fraud. The conviction carried a maximum sentence of 60 months in prison. 

Meanwhile, Shiforenko had been cooperating with the Government. In 

December 2016, he agreed to plead guilty to the conspiracy to commit health 

care fraud charge in exchange for the Government agreeing to dismiss the 

conspiracy to commit money laundering charge. This meant that he now faced 

a statutory maximum sentence of 120 months. At this point, of the originally 

indicted conspirators, Gozes-Wagner was the only one who might go to trial.

In March 2017, a grand jury returned a superseding two-count 

indictment against Gozes-Wagner. This time, she was charged with two 

counts: conspiracy to commit health care fraud charge and conspiracy to 

commit money laundering. Shortly thereafter, the district court granted the 

Government’s request to dismiss the charges against Beketav because of his 

incapacitation. And in August 2017, Brodsky pleaded guilty to the single count 

of conspiracy to commit health care fraud that he faced. Brodsky’s conviction

carried a statutory maximum sentence of 60 months. 

It was then the case that none of Gozes-Wagner’s co-conspirators would 

be sentenced to more than 120 months in prison. Gozes-Wagner, meanwhile,

faced a combined statutory maximum of 360 months imprisonment: 120 

months for a conviction of conspiracy to commit health fraud under 18 U.S.C. 

§ 1347, and 240 months for a conviction of conspiracy to commit money 

laundering under 18 U.S.C. § 1956(a)(1). This 360-month maximum sentence 

was three times Shiforenko’s 120-month maximum sentence and six times 

Voronov and Brodsky’s 60-month maximum sentences.

It bears mentioning here that Judge Melissa Harmon had presided over

the conspirators’ cases until this point and had taken the guilty pleas of 

Brodsky, Voronov, and Shiforenko. But just days before Gozes-Wagner’s trial 

was set to begin, her case was transferred to Judge David Hittner. Trial began 

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before Judge Hittner on September 25, 2017. It ended several days later when 

the jury convicted Gozes-Wagner on both counts she faced. 

In July 2018, before anyone in the conspiracy had been sentenced, the 

conspirators’ cases were reassigned to Judge Andrew Hanen. A few months 

later, in October 2018, Gozes-Wagner’s case was transferred back to Judge 

Hittner for sentencing. Shiforenko’s, Voronov’s, and Brodsky’s cases remained 

before Judge Hanen. Our references to “the district court” throughout this 

opinion are to Judge Hittner.

Gozes-Wagner was the first conspirator to be sentenced. Her sentencing 

hearing was held on March 6, 2019. The table below illustrates the relative 

positions of the co-conspirators at the time Gozes-Wagner was sentenced.

Conspirator Role Counts

Disposition of 

charges

Max 

Sentence

Beketav Leader HCF1 & ML2 Dismissed N/A

Shiforenko

Chief 

assistant

HCF3 Plea agmt 10 yrs

Voronov Manager HCF Plea (no agmt) 5 yrs

1 “HCF” is short for conspiracy to commit health care fraud. Even though Voronov 

initially was charged under 18 U.S.C. § 1347, which carries a 10-year statutory maximum 

sentence, the charge he pleaded to in the superseding information was under 18 U.S.C. § 371, 

which carries a 5-year statutory maximum sentence. Brodsky was initially charged under 

§ 371, and he pleaded guilty under that statute. Shiforenko, meanwhile, pleaded to the more 

serious charge in the initial indictment under § 1347, and Gozes-Wagner was convicted under 

§ 1347, too. This explains why Voronov and Brodsky faced 5-year statutory maximum 

sentences for conspiracy to commit health care fraud while Shiforenko and Gozes-Wagner 

faced 10-year statutory maximum sentences for similar, but distinct, convictions.

2 “ML” is short for conspiracy to commit money laundering.

3 Although Shiforenko was initially charged with conspiracy to commit health care 

fraud and conspiracy to commit money laundering, the table only includes the conspiracy to 

commit health care fraud charge because that’s the only one upon which he was convicted. 

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Brodsky Manager HCF Plea agmt 5 yrs

Gozes-Wagner Manager HCF & ML Convicted by jury 30 yrs

The PSR calculated Gozes-Wagner’s Guidelines range as 324 to 360 

months (27 to 30 years).4 Probation recommended a sentence of 324 months, 

the low end of the Guidelines. Gozes-Wagner sought a significant downward 

variance. The Government’s position was unclear. The prosecutor first 

requested that she be sentenced at “the low end of the guidelines.” When 

reminded by Judge Hittner that such a sentence would amount to at least 27 

years, the prosecutor said, apparently in error, that such a sentence “would be 

above the sentencing max.” As such, he asked “for 240 months [20 years],” 

which he said amounted to “the sentencing max . . . under the guidelines.”

Gozes-Wagner emphasized that she faced a much lengthier sentence 

than her pleading co-conspirators. She argued that because Shiforenko faced 

only a 120-month maximum sentence and Voronov and Brodsky faced only 60-

month maximum sentences, it would be unfair and illegal to sentence her, as 

she is arguably not as culpable as them, to anything close to the Guidelines 

range of 324 to 360 months.

The district court listened to Gozes-Wagner’s arguments and then 

pronounced its sentence. Consistent with the Government’s final request, it

sentenced her to 240 total months imprisonment: 120 months on each count of 

conviction, to run consecutively. The 20-year sentence amounted to a 7-year 

downward variance from the low end of her Guidelines range. Gozes-Wagner 

also was ordered to pay $15,283,985 in restitution.

But it is how the court reached its sentence that is primarily at issue in 

this appeal. To more fully appreciate the context in which the sentencing 

4 Although Gozes-Wagner challenged the calculation of the Guidelines range in the 

district court, she does not do so on appeal. 

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occurred, we will begin by examining what transpired during trial. We will 

then closely inspect the sentencing hearing itself.

B. The Trial

The Government presented its case-in-chief through the testimony of 

fourteen witnesses over three days. Its first witness was Agent William 

Marlowe, a task force officer with the FBI in Houston. Agent Marlowe testified 

that the investigation into the Beketav Group began in 2009 with “notice that 

patients were receiving monies in return for medical services.” Suspicious 

findings appeared almost immediately. Although billing records described 

patients as being seen at specific offices, follow-up interviews with those same 

patients confirmed that they had in fact been seen at their houses. Then there 

was the “cyclical billing,” where a patient would receive “a battery of diagnostic 

tests” one month followed by the same tests several months later. The 

investigative trail led agents to the Beketav Group, Agent Marlowe testified.

Agent Marlowe explained that Gozes-Wagner’s initial role in the 

conspiracy was as “a marketer or recruiter,” but her duties grew. On more than 

one occasion, when he visited locations believed to be operated by the group, 

she was the person who appeared to be in charge.

The Government then called Sandra Garcia as its second witness. She 

told the jury that Gozes-Wagner hired her as a medical assistant in 2014. 

Garcia testified that Gozes-Wagner instructed her to review medical files and 

find patients who complained of neuropathy, or numbness, and then contact 

them after 30 or 60 days to see if they needed more tests. The practice made 

Garcia uncomfortable because it seemed to be designed to evade Medicare 

scrutiny, she testified. Garcia soon discovered what appeared to her to be 

outright fraud: reimbursements for MRI tests that could not have possibly been 

done because her employer did not have an MRI machine. When she confronted 

Gozes-Wagner about the issue, Gozes-Wagner told her it must have been an 

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accident. When Garcia raised the issue a second time, she was told she was 

being fired.

Then, to her surprise, she wasn’t fired. Instead, Gozes-Wagner told her 

that for $10 an hour all she had to do was sit in an empty office and, in Garcia’s 

words, “watch Netflix all day long.” Garcia’s primary duty was to wait for the 

phone to ring. If it was Medicare calling, she was instructed by Gozes-Wagner 

to say that “the doctor is not in the office at the moment” and that she’d call 

them back. In sum, Garcia testified that she took direction from Gozes-Wagner 

to help perpetuate what she believed to be a Medicare fraud scheme. A handful 

of other witnesses told stories similar to Garcia’s.

Three FBI special agents testified. Special Agent Kevin Lammons 

testified, among other things, that he found medical forms in some of the offices 

operated by the Beketav Group that had been signed by a doctor and had 

requested a specific test for a patient even though there were blank spaces on 

the forms where the patient’s name and information were supposed to appear. 

In other words, the forms were “pre-signed” before a patient had ever been 

seen. Special Agent Paul Nixon, who oversaw the execution of the search 

warrant in February 2015 at the office where Gozes-Wagner worked, also 

described finding pre-signed forms by at least half a dozen doctors. One 

particular document suggested it was Gozes-Wagner’s idea to defraud 

Medicare by over-billing for allergy tests, Nixon testified. Finally, Special 

Agent Tiffany Smith testified that she found keys to various offices while 

searching Gozes-Wagner’s desk, suggesting she had an important role in the 

Beketav Group. 

Also testifying for the Government were Monica Roberts and Kathleen 

Anderson. Roberts, a Special Agent with the Department of Health and Human 

Service’s Office of Inspector General, described documents seized from GozesWagner’s desk that implicated her in the fraud. Anderson, a forensic 

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accountant with the FBI, traced the illicit profits from the conspiracy to the 

bank accounts of the conspiracy’s main players, including Gozes-Wagner. In 

particular, Anderson’s testimony showed that Gozes-Wagner’s haul increased 

every year from 2010 through 2014, suggesting her value to the conspiracy 

grew with it.

The Government’s final two witnesses were Dr. Jack McCoy and Donna 

Large. Dr. McCoy, a certified fraud examiner, served as an FBI source in the 

agency’s investigation into the Beketav Group. Dr. McCoy testified that based 

on his experience at one clinic, it was evident that fraud was occurring. Large, 

a registered nurse who investigated the fraud for Medicare, agreed. She 

highlighted all of the red flags apparent from the billing practices employed by 

the Beketav Group. There were many. 

When the Government rested, Gozes-Wagner moved for acquittal. The 

district court denied her request. Gozes-Wagner then put on six witnesses of 

her own: her mother, her roommate, her rabbi, and several other friends of 

hers. Their testimony was materially indistinguishable: Gozes-Wagner had a 

reputation in the community for being honest, trustworthy, and a law-abiding 

citizen. When she rested her case, she again moved for acquittal, and the court 

again denied her request. 

The jury deliberated for about three hours. It found her guilty of both 

conspiracy to commit healthcare fraud and conspiracy to commit money 

laundering.

C. The Sentencing Hearing

About a year-and-a-half passed between Gozes-Wagner’s conviction and 

her sentencing hearing. On March 6, 2019, the court began the hearing by 

stating, “All right. We’re here for sentencing in this case. The defendant, she 

was the only defendant to plead not guilty, I believe; is that correct, Counsel?”

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Wagner’s decision to go to trial during the hearing. These references lie at the 

core of the constitutional, procedural, and substantive challenges to GozesWagner’s sentence.

The district court then began to discuss Gozes-Wagner’s numerous 

objections to the PSR. After addressing the first three, the following exchange 

occurred between the court and the prosecutor:

[THE COURT:] Now, my understanding is the other 

defendants pled guilty; is that correct, Counsel?

MR. CHU [the prosecutor]: Yes, Your Honor.

THE COURT: They are before another judge, correct?

MR. CHU: Yes, Your Honor.

THE COURT: And the cap on that is ten years, right?

MR. CHU: Yes, Your Honor.[5]

THE COURT: Even the guidelines might be extremely 

high, even higher than this defendant, correct?

MR. CHU: Yes, Your Honor.

THE COURT: They are capped the max because they

pled to one count. And here there are two counts. By 

the way, I want the record to reflect any defendant has 

an absolute right to plead not guilty in federal or state 

court. It’s an absolute right. It’s not meant as any kind 

of a criticism either to the government or to the

system.

This marked the second time that the district court noted Gozes-Wagner’s 

decision to go to trial during the sentencing hearing.

The court then discussed the many remaining objections, granting some 

and overruling others. Shortly thereafter, the court noted during a discussion

about Gozes-Wagner’s attempt to cooperate with the Government: “I mean, the 

5 The prosecutor’s response was incorrect. Although Shiforenko’s maximum sentence 

was ten years (120 months), Voronov’s and Brodsky’s maximum sentences were five years 

(60 months).

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government didn’t file a downward departure because she — you know, your 

client pled not guilty, which was her absolute right.” This was the third time 

the court referenced Gozes-Wagner’s decision to go to trial.

Just before the court allowed Gozes-Wagner’s counsel to begin arguing 

for a below-Guidelines sentence, the court commented on the dozens of 

character letters it received on behalf of the defendant. The court stated:

THE COURT: I have read all of this. I will say, as far 

as the letters go, they were correctly drafted, every 

single one. I read 81 of them.[6] All of them just went 

to your client’s background, not that she was actually 

not guilty or didn’t mean to do it or whatever. And 

that’s unusual. I mean, they were carefully crafted. I 

don’t mean that as a negative. I mean that as a

positive. I read them all.

Finally, the hearing proceeded to arguments. Gozes-Wagner’s counsel 

began by recognizing that Gozes-Wagner faced a possible sentence that was 

“humbling, if not outright frightening.” The court responded by accurately 

describing the Guidelines range and commenting that it was “a high-end case.” 

A little while later, Gozes-Wagner’s counsel argued that his client was “not a 

bad human being” and that he “really believe[d]” that she was “not somebody 

we should be afraid of.” To this, the court responded: “What about the havoc, 

the havoc that is wreaked by operations like this on our healthcare system, on 

Medicare, and Medicaid . . . .”

After discussing a few more issues, Gozes-Wagner’s counsel moved on to 

his “sentencing disparity” argument. This led to the following exchange:

MR. DUPONT [Gozes-Wagner’s trial counsel]: I 

supplied the Court with [the co-conspirators’]

sentencing situations. Mr. Shiforenko is facing a ten6 Gozes-Wagner’s counsel later noted that eighty-seven, not eighty-one, letters were 

filed on her behalf. The court responded: “Well, I’m just saying I read them all.”

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year cap, and the Court acknowledged that. But Mr. 

Brodsky and Mr. Voronov are facing five-year caps.

THE COURT: That’s what they pled to, right? They 

pled guilty, correct?

MR. DUPONT: Well, with help from the government.

THE COURT: I’m just saying they pled guilty. That 

was their option. Once again, all I want to do is try 

cases. So I’m not saying anyone has waxed the right to 

a jury trial because I’ll give them a jury trial. But that 

was their option. They pled guilty, and they accepted 

because their guidelines may be higher than this, 

which the guidelines in this case is up to 30 years with 

no parole. So, yeah. So they must have pled, what, to 

two five-year counts and another one to a ten-year 

count.

MR. DUPONT: One pled to a new complaint, and the 

other pled to a plea agreement.

THE COURT: Well, we are not — I’m not the charging 

authority.

MR. DUPONT: I understand. I say that to say, Your 

Honor, sentencing disparity is going to be one of the 

main themes I’m coming to Your Honor with today.

THE COURT: Well, with sentencing disparities —

because I hear this a lot. Sentencing disparities, that 

basically means everybody on the same footing, 

correct, and it doesn’t take into account, I don’t believe, 

guilty pleas with a plea agreement with the 

government.

This was the fourth time the district court referenced Gozes-Wagner’s decision 

to go to trial compared to her co-conspirators’ decisions to plead guilty. But it 

was the first time the court made such a reference when directly responding to 

the sentencing disparity argument raised by Gozes-Wagner’s counsel.

Shortly thereafter, when Gozes-Wagner’s counsel referred to her as a 

“marginal participant[]” in the conspiracy, the court interrupted and stated: 

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“But she didn’t get a marginal role.” After a short back-and-forth, GozesWagner’s counsel continued:

MR. DUPONT: Okay, Your Honor. I say that to say if 

we’re going to put it up on a chalkboard to understand

it, Shiforenko, who gained $1.19 million, is looking at

ten years. Voronov, who got $973,000, is looking at five

years. Brodsky, $1.4 million, he is looking at five years. 

And it’s undisputed the evidence that was introduced 

before you in trial, Your Honor, she made $385,000 

over five years. If we break that down to averages, 

Your Honor, that means about $5,000 a month, $1,300 

a week, and maybe $32 an hour.

THE COURT: But again, bottom line, Counsel, she

exercised the constitutional rights that she has in the

United States to plead not guilty.

This marked the fifth and final time the district court referenced GozesWagner’s decision to go to trial during the sentencing hearing. 

After a discussion about the proper amount of restitution, GozesWagner’s counsel argued that there were “legitimate personal reasons and 

reasons about this young lady’s life” that warranted a downward variance. The 

court identified the “reasons” as “children’s concerns and health concerns.” 

The “children’s concerns” were a reference to the fact that Gozes-Wagner 

was, prior to her arrest, the primary caretaker of her two minor children, a son 

and a daughter. At the time of her sentencing, her son was a teenager, and her 

daughter was eleven years old. The “health concerns” were, among other 

things: vitiligo, described in the record as “a long-term skin condition 

characterized by patches of skin losing its pigment;” a lymph node cyst; the 

fact that she only had one kidney “due to a genetic condition that 

simultaneously affects her heart and joints (similar to Marfan’s syndrome);” 

hypothyroidism; a Vitamin D deficiency; and poor eyesight.

After Gozes-Wagner’s counsel read aloud to the court a letter written by 

her daughter, he asked that she be sentenced to time served. In the alternative, 

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he asked for a sentence between thirty-one and forty-four months. Finally, if 

those two options were rejected, he requested that she be sentenced to sixty

months, in line with the statutory maximums faced by Voronov and Brodsky. 

When it came time for the prosecutor to speak, he described how health 

care fraud is “sucking away money from the people that need it.” He also noted 

that it was misleading to compare Gozes-Wagner to Brodsky because his 

participation in the conspiracy ended in 2012, whereas hers continued until 

her arrest in 2015. The prosecutor did not mention Shiforenko or Voronov. He 

concluded by asking for the 240-month sentence that was erroneously 

described as the “sentencing maximum.”

Having heard arguments from counsel, the court proceeded to pronounce 

its sentence. 

THE COURT: I do want to state that I have read this 

entire file and that right now the defendant could be 

facing up to 360 months. There is no parole in federal 

court. Parole was done away with at the — in 1987. 

We don’t even have a parole commission. So nobody 

gets out on parole. The most they can get is 54 days a 

year good time after the first year.

I will say this, whether I agree with the 

defendant or not, I’m going to read from my own notes. 

I don’t lean off what the government says. I don’t lean 

off what the government says or the defense says. But 

if I read, I’m reading from the notes I have, and it 

sounds — if it sounds somewhat familiar to either one, 

I can assure everybody here I’m not leaning, taking the 

government’s word for it or the defendant’s word for it. 

It is what I thought on my own.

Under the guidelines — and a judge needs to 

stay within the guidelines, unless under a Supreme 

Court decision, which came out about eight years ago 

called the Booker case, the Judge has some flexibility 

to either issue an upward or downward departure or, 

what is it, an upward or downward variance on the 

judge’s his or her own volition, giving some reasons. 

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But the guidelines is generally where it’s holding right 

now at 324 to 360 months under the guidelines.

I do want to state some notes that I have here. I 

think most of them I have covered. Again, I have read 

the full study from Rabbi Bryski. I have read letters 

from Rabbi Blacher, the Executive Director of the 

Chabad at The Woodlands; and Rabbi Fygenson the —

no. One is — hold it a second. I want to get this 

straight because I appreciate all this coming in. And I 

know right where to go to the letters. Right. Rabbi 

Fygenson is a director of Chabad at Sugar Land. So I 

appreciate everybody taking the time to be here.

And you can remain — everybody can remain 

seated at this point.

After considering the factors under 18 United 

States Code Section 3553(a), I will issue a variance in 

this case, which I believe serves the underlying 

requirements of the factors of this particular statute.

It is the order of the Court that the defendant is 

hereby committed to the custody of the Bureau of the 

Prisons — and this is how I had it broken down in my 

notes — for a term of 120 months as to Count 1S [the 

conspiracy to commit health fraud count]. And instead 

of 204 months, 120 months as to Count 2S [the 

conspiracy to commit money laundering count] to run 

consecutively, one after the other, for a total of 240 

months.

After pronouncing the restitution order, the court asked Gozes-Wagner’s 

counsel if he had anything else to add. He stated: “We object to the sentence 

just to preserve the objection.”

Gozes-Wagner’s sentence is by far the lengthiest among her coconspirators. Shiforenko was sentenced to 72 months (six years). Voronov was 

sentenced to the statutory maximum 60 months (five years). And Brodsky has 

not been sentenced yet. But given that he faces a 60-month statutory cap, his 

sentence will be significantly shorter than Gozes-Wagner’s.

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II. Discussion

Gozes-Wagner’s primary argument on appeal is that the district court 

violated her constitutional rights by improperly sentencing her more severely 

than her “more culpable” co-conspirators simply because she exercised her 

right to go to trial and they did not. She contends that this amounted to an 

unconstitutional “trial penalty.” Gozes-Wagner also argues that her sentence 

is infected with procedural and substantive error. For these reasons, she asks 

us to vacate her sentence and remand her case for re-sentencing before a 

different judge. Gozes-Wagner also challenges several aspects of the order of

restitution. We address each argument in turn.

A. Trial Penalty

The Sixth Amendment gives criminal defendants “the right to a speedy 

and public trial.” U.S. CONST. amend. VI. And the Supreme Court has stated 

that “[t]o punish a person because he has done what the law plainly allows him 

to do is a due process violation of the most basic sort.” Bordenkircher v. Hayes,

434 U.S. 357, 363 (1978). Thus, “a defendant cannot be punished by a more 

severe sentence because he unsuccessfully exercises his constitutional right to 

stand trial.” United States v. Devine, 934 F.2d 1325, 1338 (5th Cir. 1991).7

7 We pause here to note that the Government asks us to review this claim for plain 

error, while Gozes-Wagner insists that de novo review should apply. A panel of this court in 

an unpublished opinion applied plain error review to a claim similar to Gozes-Wagner’s that 

was not raised before the district court. United States v. Guy, 633 F. App’x 851, 855 (5th Cir. 

2015) (per curiam). Here, even though Gozes-Wagner’s counsel did not use the “trial penalty” 

phrase at the sentencing hearing, nor did he expressly frame his argument in constitutional 

terms, he did zealously argue that it was unfair to sentence Gozes-Wagner more harshly than 

her pleading co-conspirators even though they pled guilty and she went to trial. Arguably, 

defense counsel’s complaint about Gozes-Wagner’s sentence was sufficient to trigger the more 

lenient review standard applicable to preserved errors. In any event, we need not decide this 

issue, because Gozes-Wagner’s claim fails even under de novo review.

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These broad principles guide our inquiry. And yet, in this particular case, 

we have little guidance from either the Supreme Court or prior panels of this 

court. The Supreme Court has never addressed a “trial penalty” claim like 

Gozes-Wagner’s. But cf. Alabama v. Smith, 490 U.S. 794, 795 (1989)

(considering whether a “presumption of vindictiveness” applies when a 

defendant receives one sentence after pleading guilty and then a harsher 

sentence following a trial that arose after the guilty plea was vacated on 

appeal); Bordenkircher, 434 U.S. at 358 (“The question . . . is whether the Due 

Process Clause . . . is violated when a state prosecutor carries out a threat made 

during plea negotiations to reindict the accused on more serious charges if he 

does not plead guilty to the offense with which he was originally charged.”); 

North Carolina v. Pearce, 395 U.S. 711, 713 (1969) (“When at the behest of the 

defendant a criminal conviction has been set aside and a new trial ordered, to 

what extent does the Constitution limit the imposition of a harsher sentence 

after conviction upon retrial?”), overruled in part by Smith, 490 U.S. at 795.

In fact, the phrase “trial penalty” has never been used by either the 

Supreme Court or this court to describe a claim like Gozes-Wagner’s. It is 

unsurprising, then, that most of the in-circuit caselaw cited by her for support

is not directly on point. E.g., Thomas v. United States, 368 F.2d 941, 942 (5th 

Cir. 1966) (vacating sentence where district court sentenced the defendant to 

“the maximum term permitted by law” after the defendant chose to go to trial 

after being advised by the court that it had “no doubt whatsoever as to his 

guilt” and “if he persisted in his denial that he participated in the crime, the 

court would . . . take that into account” at sentencing); United States v. Rogers, 

504 F.2d 1079, 1085 (5th Cir. 1974) (vacating sentence where the district court 

told the defendant, who had been convicted as part of a marijuana conspiracy, 

that it “would not consider a lesser sentence” until he cooperated with the 

Government to bring “others involved in the conspiracy to justice.”).

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The Government, meanwhile, points us to in-circuit precedents directing 

us not to compare Gozes-Wagner with her cooperating co-conspirators when 

assessing her trial penalty claim. United States v. Johnson, 679 F.2d 54 (5th 

Cir. 1982) (“The government is permitted to encourage guilty pleas by offering 

substantial benefits to a defendant, and Johnson, having rejected the offer of a 

plea bargain, cannot complain that his codefendants received the benefit of a 

lighter sentence.”); United States v. Devine, 934 F.2d 1325 (5th Cir. 1991)

(refusing to compare the defendants’ sentences to their co-conspirators who 

pleaded guilty and cooperated with the Government because the cooperators’ 

“sentences [were] obviously the result of leniency and are not relevant to the 

present constitutional inquiry.”); United States v. Guy, 633 F. App’x 851, 855 

(5th Cir. 2015) (per curiam) (unpublished) (rejecting a due process challenge to 

a sentence imposed that was harsher than those imposed on the defendant’s 

co-conspirators because they “received leniency from the government based on 

their agreement to cooperate”).

Thus, to the extent Gozes-Wagner’s claim depends on a comparison with 

her co-conspirators, only Voronov is relevant, because he did not cooperate, he 

pled guilty, and he received a sentence substantially lower than Gozes-Wagner 

even though his participation in the conspiracy was similar to hers.8

Given the scarcity of Fifth Circuit cases germane to Gozes-Wagner’s 

claim, she understandably seeks support from our sister circuits. See United 

States v. Mazzaferro, 865 F.2d 450 (1st Cir. 1989); Government of the Virgin 

Islands v. Walker, 261 F.3d 370 (3d Cir. 2001); United States v. Hernandez, 894 

F.3d 1104 (9th Cir. 2018). But these decisions are readily distinguishable.

8 Like Gozes-Wagner, Voronov helped oversee the fraudulent scheme by assisting with 

the operation of testing facilities. He recruited doctors and other medical professionals to 

further the conspiracy. He supervised “seat warmers.” He helped hide the fraudulent nature 

of the scheme through the use of numerous bank accounts. The record shows that GozesWagner “took over” for Voronov when he left the conspiracy in 2014. 

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Walker involved a district court that improperly inserted itself into the plea 

negotiation process by refusing to accept guilty pleas from both Walker and his 

co-defendant, sentencing Walker to the statutory maximum after he was 

convicted at trial. 261 F.3d at 374–76. And in Hernandez, unlike here, the 

Ninth Circuit emphasized that the district court’s comments about the 

defendant’s decision to go to trial “comprised virtually the entirety of the 

explanation for the sentence.” 894 F.3d at 1111. “Indeed, the court did not 

reference any particular ‘facts of this case’ or ‘particular record’ beyond 

Hernandez’s exercise of his constitutional rights.” Id. (emphasis added).

Finally, Mazzaferro involved three defendants all charged with the same 

offense. Here, however, Gozes-Wagner and Voronov were ultimately charged 

with different crimes that carried different statutory maximum sentences. 

Although they may have participated similarly in the conspiracy, our job is not 

to look at their two sentences and decide whether we think Voronov and GozesWagner should have been punished more equally based on their conduct.9

Instead, our duty is to determine whether the district court sentenced GozesWagner more harshly than it otherwise would have because she went to trial 

instead of pleading guilty. And on this record, we cannot say that it did.10

9 In fact, we question whether it is appropriate on appellate review to weigh, as GozesWagner requests, the ultimate sentences of each defendant when, at the time of sentencing, 

the district court only had the guilty pleas—not the ultimate sentences received by the 

others—to consider. Because our decision does not turn on the ultimate sentences received 

by each defendant but instead on the facts presented before the district court at the time of 

sentencing, we need not decide whether, in comparing co-defendants in a trial penalty claim, 

it is improper to consider sentencing outcomes that the district court did not have the benefit 

of considering.

10 To the extent the scope of co-defendants participation in criminal activity is relevant 

to determining whether the district court improperly punished a defendant for going to trial, 

Mazzaferro is further distinguishable on the ground that the defendant there received a 

“sentence twice as long as that of” his co-defendant even though the defendant “had a much 

more limited role in the drug operation.” 865 F.2d 450, 457–58. Yet, as discussed, the record 

indicates Gozes-Wagner and Voronov’s participation in the fraudulent scheme was similar.

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We cannot compare apples to oranges when deciding whether a sentence 

is “more severe” for trial penalty purposes. Nevertheless, a comparison of any

kind is not strictly necessary to make out a trial penalty claim. For example, if 

the district court plainly stated that it was punishing the defendant more 

severely than it otherwise would because she went to trial, that would clearly

amount to a constitutional violation even absent a comparison to others 

similarly situated to the defendant. See Thomas, 368 F.2d at 942. But that did 

not happen here. 

We recognize that most—if not all—cases will not be so cut-and-dried, 

and that a defendant’s constitutional rights may be violated even absent such 

an explicit statement. In those cases, it is the comparison to others that 

necessarily sheds light on whether a constitutional violation occurred. If the 

only meaningful difference between defendants was that one went to trial and 

the others did not, and the trial-standing defendant received a much more 

severe sentence than the pleading defendants, it could very well be the case 

that vacatur of the sentence will be required on trial penalty grounds. But a 

defendant who cooperates with the Government is not similarly situated to one 

who refuses to do so. Devine, 934 F.2d at 1338–39. Nor are defendants similarly 

situated when they are convicted under different statutes that carry different 

maximum sentences. If the case were otherwise, we would be holding that the 

Constitution mandates that defendants convicted of committing different 

crimes be sentenced similarly if the conduct underling those convictions is 

similar. We see no such mandate in the Constitution or in the Due Process 

caselaw addressing claims like Gozes-Wagner’s. 

We are aware that the district court judge in this case presided over a 

four-day jury trial before sentencing the defendant. This gave the court a full 

appreciation of Gozes-Wagner and the conduct that led to her conviction. See

Alabama, 490 U.S. at 801 (“[I]n the course of the proof at trial the judge may 

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gather a fuller appreciation of the nature and extent of the crimes charged. The 

defendant’s conduct during trial may give the judge insights into his moral 

character and suitability for rehabilitation.”). We recognize that this very 

fact—that the district court presided over the defendant’s trial—also serves as 

the primary ammunition for Gozes-Wagner’s claim. But we cannot help but 

observe the tension created by the fact that the court here was much more 

informed than most sentencing courts, which usually lack the benefit of a fullfledged trial before sentencing. See Lafler v. Cooper, 566 U.S. 156, 170 (2012)

(“[C]riminal justice today is for the most part a system of pleas, not a system 

of trials.”). We do not mean to suggest that a trial penalty claim is never 

tenable because the district court was highly informed at sentencing. Instead, 

we simply note the challenge both for defendants presenting such claims and 

for reviewing courts analyzing them. In the end, on this record, Gozes-Wagner 

has failed to show that the district court imposed an unconstitutional trial 

penalty on her at sentencing.11

B. Procedural Unreasonableness

“In assessing reasonableness [of a sentence] on appeal, the court first 

must find no significant procedural error by the district court.” United States 

v. Lavalais, No. 19-30161, 2020 WL 2609858, at *5 (5th Cir. May 22, 2020). “If 

there is no procedural error, the court may then review the substantive 

reasonableness of the sentence.” Id. We therefore address Gozes-Wagner’s 

procedural arguments before turning to her substantive argument.

11 This conclusion is reinforced by the context in which the district court juxtaposed 

Gozes-Wagner’s decision to go to trial with her co-conspirators’ decisions to plead guilty. 

Although the district court referenced that decision several times during the sentencing 

hearing, the court did so prior to imposing its sentence. We infer that the district court’s 

remarks regarding Gozes-Wagner’s decision not to accept a plea were designed to explain 

why someone in her position could receive a heavier sentence, not that she should receive a 

lengthier sentence for exercising her right to a trial. 

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Gozes-Wagner’s position is that the district court made three procedural 

errors when sentencing her: first, it misunderstood the discretionary nature of 

the Guidelines and improperly treated them as presumptively reasonable;

second, it improperly failed to respond to her sentencing disparity argument 

with anything other than comments about her decision to go to trial compared 

to her co-conspirators’ decisions to plead guilty; and third, it erred when it did 

not explain its decision to run her sentences consecutively. We address each 

argument separately.

1. Discretionary Nature of the Guidelines

Just before the district court pronounced Gozes-Wagner’s sentence, it 

made the following comment:

Under the guidelines — and a judge needs to stay 

within the guidelines, unless under a Supreme Court 

decision, which came out about eight years ago called 

the Booker case, the Judge has some flexibility to 

either issue an upward or downward departure or, 

what is it, an upward or downward variance on the 

judge’s his or her own volition, giving some reasons. 

But the guidelines is generally where it’s holding right 

now at 324 to 360 months under the guidelines.

Focusing on the “a judge needs to stay within the guidelines” language, GozesWagner contends that the district court procedurally erred by failing to fully 

appreciate the discretionary nature of the Guidelines. Even though the court 

ultimately granted her a downward variance, Gozes-Wagner argues that her 

sentence was so affected by a presumption that her Guidelines range was 

reasonable that her sentence must be vacated.

The parties dispute the standard of review. Gozes-Wagner argues that 

she preserved the error, so abuse of discretion review should apply. See Gall v. 

United States, 552 U.S. 38, 51 (2007) (explaining that preserved procedural 

errors, e.g., “treating the Guidelines as mandatory,” should be reviewed “under 

an abuse-of-discretion standard”). The Government responds that plain error 

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review should apply because Gozes-Wagner failed to raise this precise objection

after the district court made the comment about “need[ing]“ to stay within the 

Guidelines.

Federal Rule of Criminal Procedure 51(b) provides: “A party may 

preserve a claim of error by informing the court—when the court ruling or 

order is made or sought—of the action the party wishes the court to take, or 

the party’s objection to the court’s action and the grounds for that objection.” 

FED R. CRIM. P. 51(b) (emphasis added). In arguing for a downward variance 

in her pre-sentencing memorandum, Gozes-Wagner noted:

In United States v. Booker, 543 U.S. 220 (2005), the 

Supreme Court declared that the federal guidelines 

should be advisory, and excised the limitations 

contained in 18 U.S.C. § 3553(b). 543 U.S. at 245, 259–

60. The sentencing court’s discretion is now 

significantly broadened and the court must make an 

individualized assessment of the facts of each case. 

Gall v. United States, 552 U.S. 38, 46 (2007).

At the sentencing hearing, and before the court pronounced its sentence, 

Gozes-Wagner’s counsel reminded the court that there were “legal mechanisms 

via departures or variances” that the court could use to sentence Gozes-Wagner 

well below her Guidelines range. In our view, these actions were sufficient to 

preserve this error for appeal. Accordingly, we review for abuse of discretion.

A district court commits procedural error when it fails to recognize its 

discretion to vary from the Guidelines. United States v. Clay, 787 F.3d 328, 332 

(5th Cir. 2015). As the Supreme Court has explained, “[t]he Guidelines are not 

only not mandatory on sentencing courts; they are also not to be presumed

reasonable.” Nelson v. United States, 555 U.S. 350, 352 (2009) (per curiam).

The district court’s comments during the sentencing hearing reflect that 

it has a healthy respect for the Guidelines. As it should. Under 

18 U.S.C. § 3553(a)(4), district courts are bound to consider a defendant’s 

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applicable Guidelines range when determining a defendant’s sentence. See 

Pepper v. United States, 562 U.S. 476, 490 (2011) (“[A] sentencing court must 

‘give respectful consideration to the Guidelines[.]’”) (quoting Kimbrough v. 

United States, 552 U.S. 85, 101 (2007)). Failure to do so may constitute both 

procedural and substantive error.

There is obvious tension between statutory law requiring district courts 

to consider applicable Guidelines ranges and caselaw prohibiting the same 

judges from presuming such ranges to be reasonable. But caselaw helps 

illuminate the window of acceptable conduct that involves considering the 

applicable Guidelines range but refusing to presume that it is reasonable for a 

particular defendant.

For example, in Nelson, the district court expressly stated that “the 

Guidelines are considered presumptively reasonable,” so “unless there’s a good 

reason in the [statutory sentencing] factors . . . , the Guideline sentence is the 

reasonable sentence.” 555 U.S. at 350–51 (internal quotation marks omitted).

The Court held that this was procedural error. Id. at 352. It thus vacated the 

district court’s “bottom of the range” sentence. Id. at 350, 352. Similarly, the 

Seventh Circuit vacated a within-Guidelines sentence even where the district 

court “obviously knew that the Guidelines [were] advisory” because the court 

noted that the defendant’s attorney “had to deal with the statutory scheme that 

is presumptively reasonable. . . . So, that is where we start; and, in this case, 

that is where we end.” United States v. Panice, 598 F.3d 426, 441 (7th Cir. 

2010). The district court in Panice also expressed discomfort in sentencing the 

defendant within the Guidelines, saying “I guess I just keep talking because I 

do not want to get to where I have to go here, but I have to go there. I have to.”

Id. Taken together, the Seventh Circuit held that these comments, among 

others, left “too much doubt about whether the judge impermissibly” presumed 

the Guidelines range to be reasonable. Id. at 444. Other circuits have reached 

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the same result when considering equally problematic comments by district 

courts at sentencing. United States v. Marrero, 313 F. App’x 557, 558–59 (3d 

Cir. 2009) (unpublished) (vacating within-Guidelines sentence when court 

stated, among other things, “I take no pleasure, but I am going to follow the 

guideline range here”); United States v. Raby, 575 F.3d 376, 378 (4th Cir. 2009)

(vacating a within-Guidelines sentence when the district court stated, among 

other things, that it understood a precedential opinion to hold that “the 

guidelines [were] presumptively correct” and that it seemed to think it was 

required to “completely ignore . . . the advisory nature of the guidelines”).

The district court’s statement here that “a judge needs to stay within the 

guidelines” comes close to creating ambiguity about whether the district court 

presumed the Guidelines range to be reasonable. But in context, the record 

shows that the district court neither failed to appreciate the discretionary 

nature of the Guidelines nor improperly presumed them to be reasonable.12

For starters, the court ultimately varied downward seven years from the 

bottom of Gozes-Wagner’s Guidelines range. It also cited Booker immediately 

after making the comment-in-question. As stated by the Seventh Circuit in 

Panice, the district court “obviously knew that the Guidelines are advisory.” 

See 598 F.3d at 441. Unlike in Panice, however, the record here shows that the 

court did not improperly presume the Guidelines range to be reasonable. 

Two points during the sentencing hearing warrant emphasis. First, 

when Gozes-Wagner’s counsel described her Guidelines range as “humbling, if 

not outright frightening,” the court responded:

Well, we know there are federal sentencing guidelines. 

The guidelines itself, the guidelines in this case start 

12 We emphasize that although a district court’s comments at sentencing are an 

important factor of our review, we must consider them in the context of the entire hearing. 

One stray comment does not create error when it can be understood in the context of a lengthy 

sentencing hearing.

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— start at 324 months. All right. 324 months. That’s 

27 years in the federal penitentiary with no parole, up 

to a maximum of 360 months, which is 30 years in the 

penitentiary with no parole. That’s the guidelines 

themselves. So, yeah, it’s a high-end case.

We think these comments reflect the district court’s opinion that GozesWagner’s applicable Guidelines range was not reasonable but instead was

unreasonably long. Second, even more reflective of the court’s belief about the 

Guidelines range was its response to the Government’s request that GozesWagner be sentenced at the low end of the range. It was then that the court 

responded: “Low end of the guidelines? What? 324 months? That’s 27 years.” 

Of course, perhaps nothing is more probative of the district court’s 

thoughts on the Guidelines range than its decision to impose a significant 

downward variance. Considering the ultimate sentence imposed and the 

aforementioned comments by the court, we are convinced that the court did not 

improperly presume the Guidelines range to be reasonable. Thus, the district 

court did not abuse its discretion.13

2. Responsiveness to Sentencing Disparity Argument

Gozes-Wagner next argues that the district court procedurally erred by 

responding to her sentencing disparity arguments with nothing more than 

references to the fact that she went to trial and her co-conspirators pled guilty. 

Because she preserved this error, we review for abuse of discretion.14

13 We note that even if the district court’s “needs to stay within the guidelines” 

comment was sufficient to constitute procedural error, we believe the comment was harmless 

in light of the significant downward variance it ultimately imposed. There is no indication 

that the court’s comment affected the below-Guidelines sentence it ultimately rendered. See 

Clay, 787 F.3d at 332 (noting that “the court may affirm the sentence in spite of a procedural 

error if that error is harmless” and that “[t]he proponent of the sentence has the burden of 

establishing that the error was harmless.”) (quoting United States v. Robinson, 741 F.3d 588, 

601 (5th Cir. 2014)). 

14 Again, the Government argues that Gozes-Wagner failed to preserve this error. We 

disagree. Her counsel focused on this issue to the exclusion of most others at the sentencing 

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At sentencing, the district court must “state in open court the reasons for 

its imposition of the particular sentence.” 18 U.S.C. § 3553(c). When the 

sentence imposed falls outside of the applicable Guidelines range, the court 

must go further, stating “the specific reason” for imposition of a non-Guidelines 

sentence. Id. § (c)(2). Additionally, when fashioning a defendant’s sentence, the 

court must consider certain enumerated factors. Id. § 3553(a). Among them is 

“the need to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct.” Id. § 3553(a)(6). 

In United States v. Mondragon-Santiago, this court held that the district 

court procedurally erred when it “did not give any reasons for its sentence 

beyond a bare recitation of the Guideline’s calculation. This despite the fact 

that Mondragon-Santiago raised arguments before the district court 

concerning his family, his work history, and his prior convictions, all of which 

are relevant considerations under § 3553(a).” 564 F.3d 357, 363 (5th Cir. 2009). 

Of particular concern was the district court’s failure to even “mention” the 

defendant’s § 3553(a) arguments. Id.

Gozes-Wagner argues that the district court here erred in the same 

respect as the district court in Mondragon-Santiago. We disagree. The record 

shows that the court entertained and responded to Gozes-Wagner’s sentencing 

disparity arguments at the sentencing hearing. In particular, when told by 

Gozes-Wagner’s counsel that “sentencing disparity is going to be one of the 

main themes I’m coming to Your Honor with today,” the court responded: 

“Well, with sentencing disparities — because I hear this a lot. Sentencing 

disparities, that basically means everybody on the same footing, correct, and it 

hearing. Gozes-Wagner did not need to request an explanation for the sentencing disparity 

after her sentence had been pronounced to preserve this error. It was enough that she 

informed the court of the action she wished it to take and it rejected her invitation. See FED.

R. CRIM. P. 51(b).

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doesn’t take into account, I don’t believe, guilty pleas with a plea agreement 

with the government.” This was after the court had already determined that 

Gozes-Wagner was not on the same footing as her co-conspirators. Earlier in 

the hearing, the court emphasized that Gozes-Wagner was convicted on two 

counts carrying a maximum combined sentence of thirty years, while none of 

her co-conspirators were convicted of more than one count, and none faced a 

maximum sentence higher than ten years. The court also highlighted the fact 

that some of the co-conspirators—namely, Shiforenko and Brodsky—

cooperated with the Government, while Gozes-Wagner did not. This was yet 

another reason that she was not on the same footing as them for sentencing 

disparity purposes. United States v. Cisneros-Gutierrez, 517 F.3d 751, 767 (5th 

Cir. 2008) (holding that a district court did not abuse its discretion in 

considering a sentencing disparity argument even though the appellant’s codefendant was “more deeply involved in the conspiracy” and “received a 

sentence ten years less than his” because the co-defendant “pled guilty, 

provided information to law enforcement authorities, and did not flee before 

trial,” making the two not “similarly situated”); United States v. Ivory, 783 F. 

App’x 325, 330 (5th Cir. 2019) (per curiam) (unpublished) (holding that “the 

court did not abuse its discretion by failing to consider disparities in the 

sentences of similarly-situated offenders” because the defendant did not 

demonstrate that “he and his co-conspirator were similarly situated”).

For these reasons, this case also is distinguishable from the out-of-circuit 

authority relied on by Gozes-Wagner. See United States v. Robles-Alvarez, 874 

F.3d 46, 52 (1st Cir. 2017) (“The court ultimately sentenced the appellant to 

life imprisonment without so much as mentioning the disparity issue.”); United 

States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (“Nowhere in the 

sentencing hearing did the district judge discuss why sentencing Wallace to 

twice as long as White-Baber was appropriate.”); United States v. Smith, 541 

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F. App’x 306, 308 (4th Cir. 2013) (per curiam) (unpublished) (holding that 

district court’s explanation for its sentence resulted in procedural error where 

the court “provided only a brief response to Smith’s argument that his limited 

criminal history warranted a downward variance sentence, and it did not 

specifically address Smith’s assertion that his criminal history score was 

exaggerated”).

As the Supreme Court has said, “it is perfectly clear that the District 

Judge considered the need to avoid unwarranted disparities, but also 

considered the need to avoid unwarranted similarities among other coconspirators who were not similarly situated.” Gall, 552 U.S. at 55. The district 

court therefore did not abuse its discretion.

3. Lack of Explanation for Consecutively Run Sentences

When the district court pronounced Gozes-Wagner’s sentence, it did not 

explain its decision to run the two 120-month (10-year) sentences, one for each 

count of conviction, consecutively, for a total of 240 months (20 years) in prison. 

In fact, it did not provide any reason for the sentence after it was pronounced. 

Gozes-Wagner argues that this was procedural error. Because she did not raise 

this argument below, we review for plain error. FED. R. CRIM. P. 52 (b) (“A plain 

error that affects substantial rights may be considered even though it was not 

brought to the court's attention.”); Molina-Martinez v. United States, 136 S. Ct. 

1338, 1344, 1346–47 (2016) (applying plain error review to an unpreserved 

procedural sentencing argument). To succeed on plain error review, GozesWagner must show: (1) error occurred; (2) it was plain, i.e., clear or obvious; (3) 

the error affected her substantial rights, i.e., she must show a reasonable 

probability that but for the error her sentence would have been different; and 

(4) that this court should exercise its discretion to correct the forfeited error 

because it seriously affected the fairness, integrity, or public reputation of the 

proceedings. United States v. Randall, 924 F.3d 790, 795–96 (5th Cir. 2019).

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The Supreme Court has held that district courts should “adequately 

explain the chosen sentence to allow for meaningful appellate review and to 

promote the perception of fair sentencing.” Gall, 552 U.S. at 50. This helps 

ensure compliance with 18 U.S.C. § 3553(c), which requires district courts to 

state in open court the reasons for imposing particular sentences. But neither 

the Supreme Court nor this court has ever held that a district court’s failure to 

explain its rationale for imposing consecutive sentences constitutes procedural 

error.15 Assuming, without deciding, that the district court did plainly err in 

failing to explain why it chose to sentence Gozes-Wagner to two consecutive 

sentences, such an error would not warrant vacatur of Gozes-Wagner’s 

sentence. This is because she has failed to show “a reasonable probability that 

but for the error her sentence would have been different.” See Randall, 924 

F.3d at 796. The district court sentenced Gozes-Wagner to a total of 240 

months in prison. It got there by sentencing her to 120 months on both the 

conspiracy to commit health care fraud and the conspiracy to commit money 

laundering counts. The conspiracy to commit money laundering conviction 

carried the higher statutory maximum—240 months (20 years)—as opposed to 

120 months (10 years) for the conspiracy to commit health care fraud 

conviction. 

Under U.S.S.G. § 5G1.2(d), “[i]f the sentence imposed on the count 

carrying the highest statutory maximum is less than the total punishment, 

then the sentence imposed on one or more of the other counts shall run 

consecutively, but only to the extent necessary to produce a combined sentence 

15 Several of our sister circuits have, however. See, e.g., United States v. Cochrane, 702 

F.3d 334, 346 (6th Cir. 2012) (“When deciding to impose consecutive sentences, . . . a district 

court must indicate on the record its rationale, either expressly or by reference to a discussion 

of relevant considerations contained elsewhere. Otherwise, meaningful appellate review 

becomes impossible.”); United States v. Conkins, 9 F.3d 1377, 1385 (9th Cir. 1993) (same); 

United States v. Rose, 185 F.3d 1108, 1112 (10th Cir. 1999) (same).

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equal to the total punishment.” The PSR, which was adopted by the court at 

the sentencing hearing except to the extent it explicitly granted GozesWagner’s objections to it, noted this instruction. Thus, when the court chose to 

sentence Gozes-Wagner to 240 months total, but only 120 months on the count 

carrying the highest statutory maximum, the Guidelines directed it to impose 

the two sentences consecutively. Gozes-Wagner therefore has failed to show a 

reasonable probability that an explanation by the district court for running the 

sentences consecutively would have changed her total punishment. For that 

reason, she cannot overcome plain error review on this claim of error.

C. Substantive Unreasonableness

Finding no reversible procedural error, we turn now to Gozes-Wagner’s 

argument that her 240-month sentence is substantively unreasonable. “We 

review the substantive reasonableness of the sentence under an abuse-ofdiscretion standard.” United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 

2015). Our review is “highly deferential” to the sentencing judge. Id. (quoting 

United States v. Campos–Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per 

curiam)). “The fact that we might reasonably conclude ‘that a different 

sentence was appropriate is insufficient to justify reversal of the district 

court.’” Id. (quoting Gall, 522 U.S. at 51).

We presume that below-Guidelines sentences are substantively 

reasonable. Id. Nevertheless, a defendant can rebut this presumption by 

showing that her sentence: “(1) does not account for a [18 U.S.C. § 3553(a)]

factor that should have received significant weight, (2) gives significant weight 

to an irrelevant or improper factor, or (3) represents a clear error of judgment 

in balancing the sentencing factors.” Id. at 558 (quoting United States v. 

Warren, 720 F.3d 321, 332 (5th Cir. 2013)).

Gozes-Wagner argues that her sentence is substantively unreasonable 

because the district court did not account for a factor that should have received 

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significant weight. More specifically, she argues that the court did not 

sufficiently account for “the need to avoid unwarranted sentence disparities 

among defendants with similar records who have been found guilty of similar 

conduct” under 18 U.S.C. § 3553(a)(6). But we have already held that, for 

§ 3553(a)(6) purposes, none of her co-conspirators were similarly situated to 

her. In any event, this court has held that when a defendant is sentenced below 

her applicable Guidelines range, the unwarranted disparity factor “is not 

afforded significant weight.” United States v. Waguespack, 935 F.3d 322, 337 

(5th Cir. 2019). 

As this court has made clear, “an argument premised primarily on 

sentencing disparity is insufficient to render a sentence substantively 

unreasonable.” United States v. Hernandez, 633 F.3d 370, 379 (5th Cir. 2011) 

(citing United States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010)). GozesWagner’s reliance on distinguishable in-circuit and out-of-circuit health care 

fraud cases in which defendants received shorter sentences than hers is 

unpersuasive in this context. She has thus failed to show that her sentence 

was substantively unreasonable. See United States v. Emordi, No. 19-10400,

2020 WL 2488181, at *7 (5th Cir. May 14, 2020) (holding that the defendant 

failed to rebut the presumption that her below-Guidelines sentence was 

substantively unreasonable even though an allegedly “more culpable” 

defendant received a sentence just twelve months longer than her 85-month 

sentence).

Amici curiae, the Aleph Institute and other legal scholars, raise 

additional arguments not specifically espoused by Gozes-Wagner to support 

the claim that her sentence is substantively unreasonable. They first argue 

that the district court failed to properly consider “the nature and circumstances 

of the offense and the history and characteristics of the defendant” under 

§ 3553(a)(1). But the record shows that the district court had a firm grasp of 

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both the nature and circumstances of Gozes-Wagner’s offense and her history 

and characteristics. The court noted that Gozes-Wagner did not play merely “a 

marginal role” in the conspiracy, expressing particular distaste for health care 

fraud operations “like this one” that wreak “havoc” on Medicare and Medicaid. 

And having presided over the trial, read and adopted the PSR that described 

in detail the nature of the offense and her personal history, and read more than 

80 character letters submitted on Gozes-Wagner’s behalf, discussing several at 

length during the sentencing hearing, the district judge no doubt understood 

and considered her history and characteristics when imposing her sentence.16

Amici also argue that the court failed to consider “the kinds of sentences 

available” under § 3553(a)(3), explaining that neither of the statutes under 

which Gozes-Wagner was convicted mandate prison time. But we think the 

record shows that the district court spent considerable time fashioning GozesWagner’s sentence and considering alternatives. In addition to expressly 

stating—albeit summarily—that it had considered all the § 3553(a) factors, it 

also noted that at the outset of its pronouncement that “I do want to state that 

I have read this entire file and that right now the defendant could be facing up 

to 360 months.” When explaining how it reached its sentencing decision, the 

court noted that the product was a result of “what I thought on my own.” The 

court’s failure to explicitly state that it had considered a sentence of no prison 

time at all does not constitute substantive unreasonableness under these 

circumstances.

Finally, amici argue that Gozes-Wagner’s sentence is substantively 

unreasonable because the district court improperly focused on her decision to 

go to trial—an “improper factor” to consider—and, overall, the combination of 

16 The district court did note before pronouncing its sentence that it had considered 

the § 3553(a) factors.

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these errors reflects “a clear error of judgment in balancing the sentencing 

factors.” See Simpson 796 F.3d at 558. We do not find these arguments 

persuasive. Nothing in the record suggests that the court went out of its way 

to punish Gozes-Wagner for going to trial. To the contrary, when presented 

with arguments that she was similarly situated to her co-defendants, the 

district court correctly pointed out that for various reasons, including the fact 

that her co-conspirators pleaded guilty to charges carrying lower maximum 

sentences, she was not similarly situated to them at sentencing. The record 

does not reflect a clear error of judgment in the district court’s balancing of the 

§ 3553(a) factors. Accordingly, amici’s additional arguments, which we 

consider in our broad discretion, do not persuade us that Gozes-Wagner’s 

sentence is substantively unreasonable.

D. Restitution: Procedural Claims

The PSR calculated the restitution Gozes-Wagner should owe based on 

“the bills Medicare paid within the limits in her count of conviction,” i.e., 

between January 2010 and February 2015, the time period for which GozesWagner was charged in the superseding indictment with participating in the 

conspiracy. Because “the Medicaid losses [were] undetermined,” the Medicare 

losses constituted the full amount for restitution calculation purposes at the 

sentencing hearing. For Gozes-Wagner, according to the PSR, that amounted 

to $19,808,841.87. The PSR recommended that she be held accountable “jointly 

and severally” with her convicted co-conspirators in varying amounts.

At the sentencing hearing, the district court noted Gozes-Wagner’s 

objections to both the “responsibility” of restitution and the amount. At one 

point, the prosecutor explained that there was “one thing [he] wanted to raise.” 

He asked the court to consider awarding restitution in the amount of 

$15,283,985 instead of $19,808,841.87. The court carefully noted the request, 

and Gozes-Wagner’s counsel objected “to the calculations as modified.”

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After pronouncing her sentence, the district court turned to the matter 

of restitution. It stated:

The defendant is being held responsible for

restitution to the United States Medicare system in 

the total amount of $15,283,985 jointly and severally 

with Mikhail Shiforenko, S-h-i-f-o-r-e-n-k-o, up to an 

amount of $21,800,000; Alexandr Voronov, V-o-r-o-no-v, up to $18 million; and Boris Brodsky up to the 

amount of $6 million.

It’s further ordered the defendant pay to the 

United States a special assessment set up by the U.S. 

Congress for $100 per count of conviction. So that’s 

$200. I find she does not have the ability to pay a fine, 

and I’ll waive a fine in this case.

And that — now, it sounds completely 

unrealistic, but I need to set a budget of some sort for 

repayment. It sounds completely unrealistic because 

it’s subject to probation altering it later on. With that 

as a background, having assessed her ability to pay, 

pay in lump sum the amount of $200 due immediately. 

The balance due in 50 percent of any wages earned 

while in prison in accordance with the Bureau of the 

Prisons inmate financial responsibility program. Any 

balance remaining after release from imprisonment 

shall be due in monthly installments of $400 to 

commence 60 days after release from imprisonment to 

a term of supervision. Payment is to be made through 

the United States District Clerk, Southern District of 

Texas.

No further reference was made to restitution at the sentencing hearing.

On appeal, Gozes-Wagner raises three “procedural” challenges to the 

order of restitution. We address each before turning to her constitutional 

argument on the matter. 

The first procedural claim is that the district court was under the false 

impression that it was obligated by law to hold Gozes-Wagner jointly and 

severally liable with her co-conspirators for various portions of the restitution 

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award. The second is that the court imposed an improper payment schedule by 

conceding that it was “completely unrealistic.” And third, the court illegally 

included within the order loss attributable to conduct that occurred in 2010 

and 2011 even though a prosecutor during closing argument conceded that 

Gozes-Wagner may not have been fully aware of the scope of the conspiracy 

during those years.

1. Joint and Several Liability with Co-Conspirators

Gozes-Wagner argues that the district court erred by relying on language 

in the PSR suggesting that she had to be held jointly and severally liable for 

the full amount of the loss to Medicaid during her participation in the 

conspiracy. Because Gozes-Wagner did not raise this error below, we review 

for plain error. See United States v. Sheets, 814 F.3d 256, 259 (5th Cir. 2016)

(recognizing that plain error review applies to alleged restitution order errors 

that were not raised below and thus “den[ied] the court the opportunity to 

identify and correct any errors”).

There is no dispute that Gozes-Wagner owes some amount of restitution. 

Because her conviction involved “fraud or deceit,” the Mandatory Victims 

Restitution Act applies. 18 U.S.C. § 3663A(c)(1)(A)(ii). Further, under 18 

U.S.C. § 3664(h),

If the court finds that more than 1 defendant has 

contributed to the loss of a victim, the court may make 

each defendant liable for payment of the full amount 

of restitution or may apportion liability among the 

defendants to reflect the level of contribution to the 

victim’s loss and economic circumstances of each 

defendant.

Thus, not only was the court bound to render a restitution award against 

Gozes-Wagner, there is no doubt that it had the authority to hold her jointly 

and severally liable for the full loss to Medicaid that occurred during her 

participation in the conspiracy. Nevertheless, Gozes-Wagner asks us to 

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interpret the PSR’s statement that she “is accountable for restitution to 

Medicare . . . jointly and severally with” her convicted co-conspirators and the 

district court’s subsequent adoption of the PSR as an illegal determination by 

the district court that the law required it to hold her jointly and severally liable 

with her co-conspirators. We decline to do so. Thus, Gozes-Wagner has failed 

to show plain error.

2. “Completely Unrealistic” Payment Schedule

Next, Gozes-Wagner contends that it was error for the district court to 

impose a “completely unrealistic” payment schedule upon her. This is 

especially true in light of the fact that, at the time of sentencing, she possessed 

only $45,000 in assets and had low post-prison income-earning prospects. 

Because Gozes-Wagner failed to raise this argument below, we review for plain 

error. United States v. Arledge, 553 F.3d 881, 900 (5th Cir. 2008) (“Because 

Arledge failed to object to the district court’s setting of the payment schedule, 

we review for plain error.”).

Under 18 U.S.C. § 3664(f)(2), the district court was obligated to set a 

payment schedule for Gozes-Wagner’s restitution award, despite the long odds 

that she will repay the full amount in her lifetime. It did the best it could. The 

PSR assessed Gozes-Wagner’s ability to pay, and the court adopted its findings. 

Then it ordered her to pay $200 immediately, 50 percent of her prison wages 

during her incarceration, and $400 a month shortly after her release. Under 

the circumstances, this payment schedule did not constitute plain error.

3. Losses Attributed from 2010 and 2011

In the final minutes of his closing argument, a prosecutor made the 

following remark:

And so let’s give Ms. Wagner the benefit of the doubt. 

She is not a doctor. When she walks in, it may have 

taken her a bit longer, maybe all of 2010, maybe all of 

2011. But come on, even somebody without medical 

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training, by 2012, 2013, 2014 and part of 2015 is now 

receiving hundreds of thousands of dollars from 

Russians can’t find any patients [sic], doesn’t know 

what the clinics are doing, that’s taking your leave a 

little slow. At that point in time she knew what was 

going on, she had knowledge or she intentionally 

ignored it.

Gozes-Wagner calls this a concession from the Government that Gozes-Wagner 

may not have known about the fraud involved in the conspiracy in 2010 and 

2011. The Government responds that this off-handed “benefit of the doubt” 

comment did not amount to a concession; instead, loss from those years was 

properly included within her restitution award because she was convicted of 

defrauding Medicaid during those years. Gozes-Wagner did not raise this claim 

below, so we review for plain error. See Sheets, 814 F.3d at 259–60.

We cannot say that the district court plainly erred by attributing loss 

amounts in the restitution order for losses that indisputably occurred during 

the time period for which Gozes-Wagner was convicted. To say the Government 

made an evidentiary concession during the final moments of its closing 

argument is, at best, a stretch. We find no plain error.

E. Restitution: Eighth Amendment’s Excessive Fines Clause

Gozes-Wagner argues for the first time on appeal that the district court’s 

restitution order violates the Excessive Fines Clause of the Eighth 

Amendment. We therefore review for plain error. See United States v. 

$78,882.00 In U.S. Currency, 464 F. App’x 382, 383 (5th Cir. 2012) (per curiam)

(unpublished) (“Because the Salgados raise their Excessive Fines Clause 

theory for the first time on appeal, we review the district court’s order of 

forfeiture for plain error.”)

The Eighth Amendment prohibits the Government from saddling 

defendants with “excessive fines.” U.S. CONST. amend. VIII (“Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel and unusual 

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punishments inflicted.”). But the Supreme Court has never held that the 

Excessive Fines Clause applies to restitution awards. See Paroline v. United 

States, 572 U.S. 434, 455–56 (2014) (“To be sure, this Court has said that ‘the 

Excessive Fines Clause was intended to limit only those fines directly imposed 

by, and payable to, the government.’”) (quoting Browning–Ferris Industries of 

Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268 (1989)). “As we ordinarily do 

not find plain error where there is an absence of authority on point, we decline 

to conclude that any error by the district court . . . was clear or obvious.” See

United States v. Rubio-Sorto, 760 F. App’x 258, 260 (5th Cir. 2019) (per curiam) 

(unpublished).17 Hence, we once again find no plain error. 

III. Conclusion

For the foregoing reasons, we hold that Gozes-Wagner has failed to show 

that the district court reversibly erred. We therefore AFFIRM.

17 We note that the only other circuit court to consider whether a restitution award 

could violate the Excessive Fines Clause squarely rejected it. See United States v. Green, 954 

F.3d 1119, 1125 (8th Cir. 2020) (“As the Supreme Court pointed out in Paroline, mandatory 

restitution under § 2259 — when properly interpreted — does not violate the Eighth 

Amendment’s excessive-fines clause.”) (citing Paroline, 572 U.S. at 455–56). We leave for 

another day, however, the discussion of whether a restitution order could ever violate the 

Excessive Fines Clause.

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