[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-15127

Non-Argument Calendar

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D.C. Docket No. 2:12-cr-14030-KMM-2

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

WALDO GONZALEZ, 

 Defendant-Appellant.

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No. 12-15128

Non-Argument Calendar

________________________

D.C. Docket No. 2:12-cr-14030-KMM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

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2

JORGE LUIS REYES, 

 Defendant-Appellant.

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Appeals from the United States District Court

for the Southern District of Florida

________________________

(July 31, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM: 

Waldo Gonzalez and Jorge Luis Reyes1 each appeal their total sentences of 

120 months’ imprisonment imposed after they pled guilty to conspiracy to pay 

health care kickbacks, in violation of 18 U.S.C. § 371, and payment of health care 

kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(2)(B). For the reasons set forth 

below, we affirm Gonzalez’s and Reyes’s sentences.

I.

Reyes and Gonzalez pled guilty to conspiracy to pay health care kickbacks 

and payment of health care kickbacks, pursuant to written plea agreements. Their

convictions arose out of their ownership of W & J Rehabilitation Center (“W &

J”). Third parties known as “recruiters” recruited HIV-positive Medicare Part B 

and Part C beneficiaries to visit W & J as patients. During their visits to W & J, 

 1

 Gonzalez’s appeal has been consolidated with Reyes’s appeal, and we address the 

issues that they raise in one opinion. 

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the purported patients signed papers attesting to the treatment purportedly provided 

to them. Reyes and Gonzalez made cash payments to recruiters each time their 

patients visited the clinic and made cash payments to the HIV-positive patients 

they purported to treat. Between 2005 and 2009, W & J submitted over $15 

million in claims to Medicare and Medicare plan sponsors for the “purported 

treatment of AIDS and related conditions.”

At sentencing, Enelys Ramos, who previously worked at W & J, testified 

that Reyes, in the presence of Gonzalez, spoke with Dr. Juan Julio Hernandez 

Pombo, a physician at W & J, about expanding the practice to include 

HIV-positive patients. Reyes indicated that they would provide infusion 

treatments to HIV-positive patients, but that they were not actually going to give 

the patients medications, despite billing Medicare for the treatments. After this 

conversation, individuals recruited HIV-positive patients and directed them to visit 

W & J. Ramos further testified that, at times, Dr. Pombo ordered her to give 

HIV-positive patients injections and infusions of prescription drugs. At Reyes’s 

direction, Ramos administered injections of Vitamin B-12 and infusions of saline 

solution, as opposed to prescription drugs. The clinic had prescription drugs in 

stock, but not enough to actually be administered as to all of the treatments ordered 

by Dr. Pombo. At Reyes’s direction, Ramos emptied the bottles of prescription 

medication and disposed of them. 

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Isaac Lloyd testified that he was HIV-positive, a Medicare beneficiary, and a 

former patient at W & J’s Miami, Florida location. Lloyd suggested to Reyes and 

Gonzalez that they also open a clinic in Fort Pierce, Florida because numerous 

HIV-positive individuals lived there. Lloyd found a building in Fort Pierce where 

the clinic could operate, and W & J began operating there. 

David Joel Nederhood, a pharmacology expert, testified that he had 

reviewed a sampling of W & J’s Medicare billing data. He did not find a single 

instance where the clinic administered a medication for the proper diagnosis, at the 

proper frequency, and in the proper dose, all at the same time. 

Gonzalez and Reyes made various factual objections to their presentence 

investigation reports (“PSIs”), and the court largely overruled their objections. 

Both Gonzalez and Reyes also argued that the court should not apply a 20-level 

increase to their offense levels under U.S.S.G. § 2B4.1(b)(1) because the loss 

amount involved in the offense did not exceed $7 million. The court noted that 

§ 2B4.1(b)(1) provided that “if the greater of the value of the bribe or the improper 

benefit to be conferred exceeded $5,000 increase[] by the number of levels from 

the table in [U.S.S.G. §] 2B1.1.” After examining the application notes to § 2B4.1 

and U.S.S.G. § 2C1.1, the court noted that, under § 2B1.1, comment. (n.3), if the 

defendant was convicted of a federal health care offense involving a government 

health care program, the aggregate dollar amount of fraudulent bills submitted to 

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the government health care program constituted prima facie evidence of the

amount of the intended loss. The court determined that it was undisputed that W & 

J billed Medicare in excess of $7 million, and thus, the loss amount exceeded $7 

million. 

The court also determined that Gonzalez’s and Reyes’s offense levels should 

not be reduced for acceptance of responsibility under U.S.S.G. § 3E1.1. Without 

acceptance-of-responsibility reductions, Gonzalez and Reyes each had a guideline 

range of 121 to 151 months’ imprisonment. However, as the statutory maximum 

was 5 years’ imprisonment as to each count to which Gonzalez and Reyes pled 

guilty, their guideline sentences each became 120 months’ imprisonment. 

Both Gonzalez and Reyes requested that the court vary downward from their 

applicable guideline range. The court determined that a downward variance was 

not warranted with respect to either defendant, and it sentenced Gonzalez and 

Reyes to total sentences of 120 months’ imprisonment. 

II.

On appeal, both Gonzalez and Reyes challenge the district court’s decision 

not to award them a three-level reduction in their offense levels for acceptance of 

responsibility, pursuant to § 3E1.1. We review the district court’s determination 

under § 3E1.1 for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 

(11th Cir. 2005). At sentencing, the district court’s credibility determinations with 

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respect to witness testimony are afforded substantial deference, and we will not 

question the district court’s credibility determinations absent some evidence to the 

contrary. United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006). Because 

the district court’s determination regarding a defendant’s acceptance of 

responsibility is entitled to great deference, we will not set aside the district court’s 

decision that a defendant is not entitled to a downward reduction for acceptance of 

responsibility unless the record clearly establishes that the defendant accepted 

responsibility. Moriarty, 429 F.3d at 1022-23. The defendant bears the burden of 

clearly demonstrating acceptance of responsibility. Id. at 1023. 

Under § 3E1.1(a), a defendant is entitled to a two-level reduction in his 

offense level where he clearly demonstrates his acceptance of responsibility. 

U.S.S.G. § 3E1.1(a). Although a guilty plea can constitute significant evidence of 

acceptance of responsibility, that evidence may be outweighed by conduct of the 

defendant that is inconsistent with an acceptance of responsibility. Moriarty, 429 

F.3d at 1023. The commentary to § 3E1.1 sets out a non-exclusive list of factors a 

court may consider in determining whether a reduction for a defendant’s 

acceptance of responsibility is warranted. U.S.S.G. § 3E1.1, comment. (n.1). 

These factors include, inter alia, whether the defendant truthfully admitted the 

conduct comprising the offense of conviction and truthfully admitted, as opposed 

to falsely denying, any additional relevant conduct. U.S.S.G. § 3E1.1, comment. 

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(n.1(A)). The commentary also provides that, where a defendant falsely denies or 

frivolously contests relevant conduct that the court determines to be true, the 

defendant has acted in a manner inconsistent with acceptance of responsibility. Id.

Relevant conduct includes all acts and omissions committed by the defendant that 

occur during the commission of the offense of conviction or in preparation for that 

offense. U.S.S.G. § 1B1.3(a)(1). Where a court reduces a defendant’s sentence for 

his acceptance of responsibility under § 3E1.1(a), the court may reduce the 

defendant’s sentence by one additional level under § 3E1.1(b), where the 

government first files a motion providing, inter alia, that the defendant has assisted 

authorities in the investigation or prosecution of his own misconduct. U.S.S.G.

§ 3E1.1(b).

A.

Gonzalez argues that the entry of his guilty plea and admission of all facts 

relevant to support his convictions constituted significant and substantial evidence 

of his acceptance of responsibility, and in light of this evidence, the district court 

erred in denying him an adjustment for his acceptance of responsibility. Gonzalez 

further argues that his objections at sentencing did not relate to the actual offenses 

of conviction. Gonzalez also asserts that the testimony at sentencing supported his 

objection that he did not agree with others to not provide treatment to patients at W 

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& J, as the testimony showed that Gonzalez was “not present or not an active 

participant” in the discussions concerning the agreement. 

The district court did not clearly err in declining to award Gonzalez a

two-level reduction in his offense level for acceptance of responsibility. Gonzalez 

objected to the PSI’s assertion that he was part of an agreement to not provide 

treatment to W & J’s patients. As the district court determined, Ramos credibly 

testified that Reyes and Dr. Pombo agreed to bill Medicare for treatment that W & 

J had not actually provided and that Gonzalez was present for at least some of 

these conversations. Further, Ramos testified that, at Reyes’s direction, she would 

administer infusions and injections that did not contain prescription medications, 

despite W & J billing the infusions and injections as if they did contain such 

medications. The district court did not clearly err in determining that Gonzalez 

was part of that agreement to commit Medicare fraud, as he was present during the 

conversation, was one of the owners of W & J, and benefited more than anyone 

due to the commission of the fraud, as he received over $1 million in proceeds. 

Thus, the district court was entitled to find that Gonzalez failed to truthfully admit 

his role in the Medicare scheme, and thereby denied his relevant conduct. See 

U.S.S.G. § 1B1.3(a)(1). Even if some of Gonzalez’s objections at sentencing 

were well-founded, the record does not clearly establish that he accepted 

responsibility. See Moriarty, 429 F.3d at 1022-23. Because the court did not 

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clearly err in denying Gonzalez a reduction under § 3E1.1(a), a further one-level 

reduction was not proper under § 3E1.1(b). See U.S.S.G. § 3E1.1(b). Therefore, 

the district court did not clearly err in determining that an adjustment in Gonzalez’s

offense level under § 3E1.1(a), (b) was not warranted.

B.

Reyes argues that the district court erred in not reducing his sentence for his

acceptance of responsibility because (1) the court failed to look at the factors set 

forth in § 3E1.1 and its application notes in determining that the reduction did not 

apply, and (2) the facts to which he objected were not relevant to the actual 

offenses to which he pled guilty. According to Reyes, Ramos’s testimony was not 

credible. Although Ramos testified at sentencing that Reyes agreed with Dr. 

Pombo that no treatment would be given, this testimony was inconsistent with 

statements she had previously made and with unidentified “testimony of other 

government witnesses.” 

The district court did not clearly err in determining that a reduction in 

Reyes’s offense level was not warranted for acceptance of responsibility. 

Although he pled guilty, the court could find that the evidence showing he 

accepted responsibility was outweighed by other conduct inconsistent with an 

acceptance of responsibility. See Moriarty, 429 F.3d at 1023. First, the court was 

entitled to find that, by objecting to statements in the PSI, Reyes falsely denied his 

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relevant conduct with respect to (1) his agreement to not provide treatment to 

HIV-positive patients, despite submitting claims to Medicare for treatment, and 

(2) his directing Ramos to not provide actual treatment to the patients. Ramos 

testified that Reyes agreed with others that no actual medications would be 

provided to the HIV-positive patients with respect to infusions and that Reyes 

directed Ramos not to provide prescription medications when she administered 

injections and infusions. Reyes did not show that Ramos’s testimony was 

inconsistent with previous statements that she had made at sentencing, as he never 

introduced into evidence any previous inconsistent statements. Further, Reyes has 

not shown that Ramos’s testimony was inconsistent with any other testimony at 

sentencing. Accordingly, we defer to the district court’s determination that 

Ramos’s testimony was credible. See Pham, 463 F.3d at 1244. Based on Ramos’s 

testimony, the district court could find that Reyes falsely denied his relevant 

conduct as to the agreement not to provide treatment and directing Ramos in that 

regard. 

The district court also was entitled to find that Reyes falsely denied his 

relevant conduct with respect to his role in the offense as compared to Lloyd’s role. 

Lloyd testified that Reyes and Gonzalez were the “bosses” of the clinic, Lloyd had 

no control over W & J’s bank account, and he had no authority over W & J’s 

employees. Reyes and Gonzalez were already engaging in criminal activity at W 

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& J’s Miami clinic when Lloyd suggested that W & J establish a clinic in Fort 

Pierce. Further, Reyes received almost $1 million in proceeds from the fraudulent 

scheme, and Reyes acknowledged that Lloyd did not receive “anywhere close to a 

million.” Based on this evidence, the district court did not clearly err in 

determining that, contrary to Reyes’s assertions, Lloyd was not the “mastermind” 

behind the offenses and had not enticed and manipulated Reyes into opening the 

Fort Pierce clinic. The district court therefore did not clearly err in finding that 

Reyes’s plea of guilty was outweighed by his false denials of his relevant conduct, 

such that a reduction in his sentence for his acceptance of responsibility under 

§ 3E1.1(a) was not warranted. Because the court did not clearly err in denying 

Reyes a reduction under § 3E1.1(a), a further reduction was not proper under 

§ 3E1.1(b). See U.S.S.G. § 3E1.1(b). Accordingly, we affirm the district court’s 

determination that Gonzalez and Reyes were not entitled to a three-level reduction 

in their offense levels, pursuant to § 3E1.1. 

III.

Both Gonzalez and Reyes challenge the district court’s application of a 

20-level increase to their offense levels, pursuant to § 2B4.1. Generally, we review 

the district court’s determination under § 2B4.1(b)(1) for clear error. United States 

v. Valladares, 544 F.3d 1257, 1266 (11th Cir. 2008). We review a district court’s 

interpretation of the Guidelines de novo. United States v. Daniels, 685 F.3d 1237, 

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1244 (11th Cir. 2012), cert. denied, 133 S.Ct. 1240 (2013). However, we will not 

correct an error the defendant failed to raise in the district court unless there is: 

(1) error, (2) that is plain, and (3) that affects substantial rights. United States v. 

Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010) (providing that plain error review 

applies to procedural-error arguments). Where these three criteria are met, we may 

reverse for plain error if the error seriously affects the fairness, integrity, or public 

reputation of the court proceedings. Id. “It is the law of this circuit that, at least 

where the explicit language of a statute or rule does not specifically resolve an 

issue, there can be no plain error where there is no precedent from the Supreme 

Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 

1288, 1291 (11th Cir. 2003). The plain error rule also applies when a defendant 

states an inaccurate objection, as opposed to no objection at all. United States v. 

Sorondo, 845 F.2d 945, 949 (11th Cir. 1988); see United States v. 

Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995) (“To preserve an issue for 

appeal, a general objection or an objection on other grounds will not suffice.”). 

Under § 2B4.1, a defendant’s base offense level is enhanced, pursuant to the 

table set forth in § 2B1.1, if the “greater of the value of the bribe or the improper 

benefit to be conferred” exceeds $5,000. See U.S.S.G. § 2B4.1(a), (b)(1)(B). 

Under § 2B1.1, where the amount at issue exceeds $7 million, but is not more than 

$20 million, a defendant’s offense level is increased by 20 levels. U.S.S.G. 

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§ 2B1.1(b)(1)(K). Where the amount at issue exceeds $2.5 million, but is not more 

than $7 million, a defendant’s offense level is increased by 18 levels. U.S.S.G. 

§ 2B1.1(b)(1)(J). 

The commentary to § 2B4.1 defines the “value of the improper benefit to be 

conferred” as the “value of the action to be taken or effected in return for the bribe” 

and cites generally to the commentary to § 2C1.1. U.S.S.G. § 2B4.1, comment. 

(n.2) (quotation omitted). Section 2C1.1, comment. (n.3) provides that the “loss to 

the government” under § 2C1.1(b)(2)—which applies to offenses involving bribery 

with respect to public officials—shall be determined in accordance with § 2B1.1, 

comment. (n.3). U.S.S.G. § 2C1.1, comment. (n.3). 

Section 2B1.1, comment. (n.3) defines “loss” as the greater of “actual” loss 

or “intended” loss. U.S.S.G. § 2B1.1, comment (n.3(A)). “Actual loss” is defined 

as the reasonably foreseeable pecuniary harm that resulted from the offense, and 

“intended loss” is defined as the pecuniary harm that was intended to result from 

the offense, including pecuniary harm that would have been impossible or unlikely 

to occur. Id. Where a defendant is convicted of a “Federal health care offense”2

involving a governmental health care program, a special rule applies to the 

loss-amount determination. U.S.S.G. § 2B1.1, comment. (n.3(F)(viii)) (quotation 

omitted). Specifically, “the aggregate dollar amount of fraudulent bills submitted 

 2

 A “Federal health care offense” includes a violation of § 1320a-7b. See U.S.S.G. 

§ 2B1.1, comment. (n.1); 18 U.S.C. § 24(a)(1). 

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to the Government health care program shall constitute prima facie evidence of the 

amount of the intended loss, i.e., is evidence sufficient to establish the amount of 

the intended loss, if not rebutted.” Id. In Valladares, a prosecution under several 

statutes, including §§ 371 and 1320a-7b, we determined that, through a scheme to 

submit fraudulent claims to Medicare, the defendant caused a $2.7 million loss to 

Medicare, and that amount was properly considered by the court in applying an 

18-level enhancement under § 2B4.1(b) because it was part of the defendant’s 

relevant conduct. 544 F.3d at 1261, 1266-67. 

A.

Gonzalez argues that the district court erred because it improperly used the 

fraud-loss-amount standard in increasing his offense level under § 2B4.1(b), rather 

than determining the “value of the kickback or the improper benefit from the 

kickback.” Gonzalez further argues that the loss amount is irrelevant to the 

Guidelines pertaining to offenses involving the payment of health care kickbacks, 

as the amount of loss involved in an offense is not mentioned as a specific offense 

characteristic under § 2B4.1(b). Gonzalez also argues that the plain language of 

§ 2B4.1 required the district court to determine the value of the bribe or the net 

value of the improper benefit. According to Gonzalez, because the court failed to 

calculate the proper value under § 2B4.1, his sentence should be vacated and his 

case remanded for resentencing. 

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Plain error review applies to Gonzalez’s argument on appeal. Gonzalez

never argued at sentencing that “loss” was irrelevant to the determination under 

§ 2B4.1 or that the court was applying an incorrect legal standard. Assuming, 

arguendo, that the district court erred in basing its determination under § 2B4.1(b) 

on the intended loss to Medicare and the Medicare plan sponsors, Gonzalez cannot 

show that the error was plain. Neither our Court nor the Supreme Court have 

explicitly addressed whether a district court may use the loss to the victim to 

determine the “value of the bribe or the improper benefit to be conferred,” at least 

where the loss is to the government. Thus, any error as to this issue cannot be 

plain. See Lejarde-Rada, 319 F.3d at 1291. Moreover, we previously have

affirmed a sentence in which the district court applied a § 2B4.1 increase based on 

a loss of $2.7 million to Medicare. See Valladares, 544 F.3d at 1261, 1266-67. 

Although we did not specifically address the question of whether a loss amount is 

the proper standard for a court’s sentencing calculation under § 2B4.1(b) in 

Valladares, our decision illustrates that any error that occurred in this case was not 

plain. See United States v. Gandy, 710 F.3d 1234, 1240 (11th Cir. 2013) 

(providing that a plain error is an error that is obvious and clear under current law). 

Thus, Gonzalez has not shown that the court plainly erred in applying a 20-level 

increase to his offense level under § 2B4.1(b).

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B.

Reyes argues that, to determine the loss amount under § 2B4.1(b), any 

treatment W & J actually provided should be deducted from the loss amount, but, 

here, the loss amount cannot be determined because the district court never 

determined the amount of treatment W & J actually provided. Reyes argues that W 

& J provided treatment of value because, although Ramos testified at sentencing 

that Reyes agreed with Dr. Pombo that no treatment would be given, this testimony 

was inconsistent with statements she had previously made and with other 

testimony at sentencing. 

The district court did not clearly err when it determined that the government 

proved that the loss to Medicare exceeded $7 million.3

 See U.S.S.G. 

§ 2B1.1(b)(1)(J), (b)(1)(K). Although Lloyd testified that he received antibiotics 

and prescriptions at W & J when he was ill or had an infection, this does not show 

that the court clearly erred with respect to its loss determination. Further, even 

assuming that Lloyd’s testimony establishes that W & J provided at least some 

actual treatment to its HIV-positive patients, his testimony does not show that the 

court clearly erred in finding that W & J submitted at least $7 million in fraudulent

claims. Ramos testified that W & J did not provide any actual treatment by way of 

 3

 Reyes does not challenge on appeal the district court’s use of a loss-amount standard to 

make the sentencing determination under § 2B4.1(b). Thus, we do not address this issue as it 

applies to Reyes. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) 

(finding that a defendant had abandoned an issue when he failed to raise the issue on appeal). In 

any event, no plain error occurred in this respect, as discussed above. 

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infusions and injections, and that that she emptied the bottles of prescription 

medication that W & J had in stock. As discussed above, we afford substantial 

deference to the court’s credibility finding with respect to Ramos’s testimony. 

Additionally, although Nederhood did not review all of the claims that W & J 

submitted, he did not find a single instance in the records he reviewed where W & 

J provided the appropriate drug for the diagnosis, administered the correct dosage, 

and administered the dosage at the correct frequency. Based on Ramos’s and 

Nederhood’s testimony, the district court could conclude that at least $7 million of 

the over $15 million in claims submitted to Medicare and the plan sponsors were 

fraudulent, even considering Lloyd’s testimony. See United States v. HoffmanVaile, 568 F.3d 1335, 1337, 1344 (11th Cir. 2009) (determining, in a Medicare 

fraud case, that any error in failing to offset loss amounts with actual surgeries 

performed was harmless where the evidence supported a finding of the required 

threshold amount even after accounting for any offsets). Thus, the district court 

did not clearly err in determining that the amount of fraudulent claims exceeded $7 

million, such that a 20-level increase applied to Reyes’s offense level, pursuant to 

§ 2B4.1(b)(1). Accordingly, we affirm the district court’s application of a 20-level 

increase to Gonzalez’s and Reyes’s offense levels under § 2B4.1(b). 

 

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IV.

Both Gonzalez and Reyes challenge the reasonableness of their sentences. 

We review the reasonableness of a sentence under a deferential abuse of discretion

standard. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 

L.Ed.2d 445 (2007). A district court’s sentence need not be the most appropriate 

one, but rather need only be a reasonable one. United States v. Irey, 612 F.3d 

1160, 1191 (11th Cir. 2010) (en banc). We may set aside a sentence only if we

determine, after giving a full measure of deference to the sentencing judge, that the 

sentence imposed truly is unreasonable. Id. The party challenging the sentence 

has the burden of establishing that the sentence was unreasonable based on the 

record and the factors set forth in 18 U.S.C. § 3553(a). United States v. Talley, 431 

F.3d 784, 788 (11th Cir. 2005). Further, we ordinarily expect a sentence imposed 

with the applicable guideline range to be reasonable. Id. 

In reviewing the reasonableness of a sentence, we first consider whether the 

district court committed a procedural error, such as improperly calculating the 

applicable guideline range. Gall, 552 U.S. at 51, 128 S.Ct. at 597. After we have

determined that a sentence is procedurally sound, we review a sentence’s 

substantive reasonableness by examining the totality of the circumstances, which 

includes an inquiry into whether the § 3553(a) factors support the sentence in 

question. United States v. Gonzales, 550 F.3d 1319, 1323-24 (11th Cir. 2008). 

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The district court must impose a sentence sufficient, but not greater than necessary, 

to comply with the purposes listed in § 3553(a)(2), including the need to reflect the 

seriousness of the offense, promote respect for the law, provide just punishment for 

the offense, deter criminal conduct, and protect the public from the defendant’s 

future criminal conduct. See 18 U.S.C. § 3553(a). In imposing a particular 

sentence, the court must also consider the nature and circumstances of the offense, 

the history and characteristics of the defendant, the kinds of sentences available, 

the applicable guideline range, the pertinent policy statements of the Sentencing 

Commission, the need to avoid unwarranted sentencing disparities, and the need to 

provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We do not 

substitute our own judgment for that of the district court in weighing the relevant 

sentencing factors absent a clear error of judgment. See United States v. Early, 686 

F.3d 1219, 1223 (11th Cir. 2012). 

A.

Gonzalez argues that the district court imposed an unreasonable sentence 

because it sentenced him to the statutory maximum, despite his lack of criminal 

history and the absence of any aggravating circumstances. According to Gonzalez, 

the court failed to acknowledge that he was a first-time offender and that he closed 

his clinic and ceased all of his illegal activity before being arrested or indicted. 

Gonzalez contends that the court lacked any valid reason for sentencing him to the 

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statutory maximum, and thus, it unreasonably weighed the § 3553(a) factors. He 

also argues that the court impermissibly considered his Cuban alienage and did not 

acknowledge the fact that he was a U.S. citizen at the time he was sentenced. 

Here, Gonzalez’s sentence is procedurally reasonable, as the court correctly 

calculated the guideline range, and he raises no other argument as to why his 

sentence is procedurally unreasonable. See Cunningham, 161 F.3d at 1344. Next, 

Gonzalez’s total sentence of 120 months’ imprisonment, which was also his 

guideline sentence and the statutory maximum, is substantively reasonable. As 

Gonzalez’s sentence is a guideline sentence, we expect this sentence to be 

reasonable. See Talley, 431 F.3d at 788. The record demonstrates that the district 

court considered the § 3553(a) factors in imposing the total sentence, and Gonzalez 

has not demonstrated that his sentence is unreasonable based on those factors. 

In considering Gonzalez’s history and characteristics, the court found it 

significant that he entered into the United States illegally and then proceeded to 

commit crimes against the U.S. government. Although Gonzalez argues that the 

court sentenced him based on his Cuban alienage, a review of the record shows 

that this is not the case. The court did not mention Gonzalez’s Cuban alienage, but 

rather Gonzalez’s attorney noted that Gonzalez entered into the United States 

illegally “with some kind of agreement with the Cuban Government.” Next, the 

court also stated that it considered the PSI, which provided that Gonzalez had no 

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criminal history and was a naturalized U.S. citizen. Cf. United States v. Ghertler, 

605 F.3d 1256, 1262 (11th Cir. 2010) (providing that a court is not required to 

articulate its consideration of each individual § 3553(a) factor). 

The district court also considered the seriousness of the offense, which 

occurred over an extended period of time and involved multiple individuals, 

millions of dollars, and “siphoning money from the [Medicare] program that could 

otherwise be going to the people that truly need it.” Although Gonzalez argues 

that he and Reyes closed W & J prior to being arrested and charged, they only 

closed W & J after being arrested on state charges related to the instant offense. 

Further, although Gonzalez argues that the statutory maximum sentence was not 

appropriate based on his history and characteristics, the court was permitted to find 

that other § 3553(a) factors, such as the seriousness of the offense and his “utter 

contempt for the law,” outweighed his lack of a criminal history. Based on the 

seriousness of the offense and the prevalence of fraud in South Florida, the court 

also found that “anything other” than the statutory maximum penalty would send 

the “wrong signal” to others who believed that they could commit similar offenses 

and not suffer a serious penalty. We do not substitute our own judgment for that of 

the district court in weighing the relevant sentencing factors absent a clear error of 

judgment, which Gonzalez had not shown here. See Early, 686 F.3d at 1223. 

Thus, Gonzalez has not shown that the district court’s decision to impose a total 

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sentence of 120 months’ imprisonment was unreasonable. 

B.

Reyes argues that the district court imposed a substantively unreasonable 

sentence because it impermissibly considered the fact that he entered into the 

United States illegally. Reyes further argues that the court, in sentencing him, 

(1) should not have considered that fraud frequently occurred in South Florida and 

other parts of the country and (2) did not consider his personal history, which was 

set forth in several character letters submitted to the court. Reyes contends that the 

court failed to properly consider the nature and circumstances of the offense 

because the court did not compare Reyes’s role in the offense to Lloyd’s greater 

role in the offense. Reyes also asserts that Ramos was given full immunity for her 

cooperation with the government. Reyes contends that the court found that 

Reyes’s actions resulted in others who needed Medicare funding not receiving such 

funding, but that the government never proved that Reyes’s actions had this result. 

Reyes argues that a sentence lower than his guideline sentence would have been 

sufficient to deter similar conduct and promote adequate respect for the law and

that his motion for a variance should have been granted.

Reyes’s sentence is reasonable regardless of whether his arguments concern 

substantive reasonableness only or both procedural and substantive reasonableness. 

In considering Reyes’s history and characteristics, the court found it significant 

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that Reyes entered into the United States illegally and then proceeded to commit 

crimes against the U.S. government. A district court judge “may not impose a 

more severe sentence than he would have otherwise based on unfounded 

assumptions regarding an individual’s immigration status or on his personal views 

of immigration policy.” United States v. Velasquez, 524 F.3d 1248, 1252-53 (11th 

Cir. 2008) (vacating sentence for supervised-release violation, on the ground that 

the sentence had been based “entirely” on improper considerations). Here, in 

considering Reyes’s history and characteristics, the district court judge properly 

considered—as one of many considerations—the fact that Reyes entered into the 

United States illegally and did not base Reyes’s sentence on unfounded 

assumptions regarding Reyes’s immigration status or on the judge’s personal views 

of immigration policy. 

Further, the district court also properly considered that fraud similar to the 

fraud Reyes committed occurred frequently in South Florida because individuals 

often believed that they could commit fraud without receiving punishment. The 

court’s comments illustrated that it was considering the need to promote respect for 

the law and deter others from committing similar acts of fraud in the future, as part 

of the court’s consideration of the § 3553(a) factors. See 18 U.S.C. 

§ 3553(a)(2)(A)-(B). The district court did not rely on an impermissible factor in 

this respect. 

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Next, Reyes’s total sentence of 120 months’ imprisonment, which was also 

his guideline sentence and the statutory maximum sentence, is substantively 

reasonable. Reyes’s sentence, like Gonzalez’s sentence, is a guideline sentence, 

and we expect this sentence to be reasonable. See Talley, 431 F.3d at 788. The 

record demonstrates that the district court considered the § 3553(a) factors in 

imposing the total sentence, and Reyes has not demonstrated that his total sentence 

is unreasonable based on those factors. As discussed above with respect to 

Gonzalez, the court properly considered the appellants’ history and characteristics

and the seriousness of the instant offense. By showing that Reyes committed fraud 

by submitting claims to Medicare for treatment that was not actually provided, the 

government proved that Medicare funds were not being used as intended. 

Next, the court also considered Reyes’s argument that a variance was 

warranted due to Lloyd’s role in the offense. As discussed above, the evidence 

supports the court’s determination that Reyes’s role in the offense was greater than 

Lloyd’s role. The court properly considered Reyes’s role in the offense as a leader 

who received significant proceeds from the offense. Further, Reyes has not shown 

any unwarranted disparity between himself and Lloyd and Ramos, as he is not 

similarly situated to Lloyd and Ramos. See 18 U.S.C. § 3553(a)(6). Lloyd and 

Ramos both cooperated with the government, had not been prosecuted or convicted 

of any conduct, and had not been sentenced. See United States v. Spoerke, 568 

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F.3d 1236, 1252 (11th Cir. 2009) (providing that defendant was not similarly 

situated to another individual because that individual was never prosecuted or 

convicted of any conduct and not sentenced). Thus, no unwarranted disparity 

exists in this case. 

Although Reyes submitted character letters to the court, the district court 

was not required to specifically articulate its consideration of those letters. Cf. 

Ghertler, 605 F.3d at 1262. To the extent Reyes argues that the court should have 

placed more weight on the mitigating value of the letters he submitted to the court, 

the court was permitted to find that other § 3553(a) factors, such as the seriousness 

of the offense and his “utter contempt for the law,” outweighed any mitigating 

value the letters may have had. We do not substitute our own judgment for that of 

the district court in weighing the relevant sentencing factors absent a clear error of 

judgment, which Reyes has not shown here. See Early, 686 F.3d at 1223. Thus, 

Reyes has not shown that the district court’s decision to impose a total sentence of 

120 months’ imprisonment was unreasonable. Accordingly, Gonzalez and Reyes 

have not shown that the court imposed unreasonable sentences. 

For the foregoing reasons, we affirm Gonzalez’s and Reyes’s sentences.

AFFIRMED.

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