FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 27, 2010

JOHN LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13124

Non-Argument Calendar

________________________

D. C. Docket No. 09-20138-CR-PCH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXIS CARRAZANA,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 27, 2010)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
Alexis Carrazana appeals his 72-month sentence for conspiracy to commit

health care fraud. He argues that the district court erred in (1) calculating the loss

amount for which he was responsible, (2) applying a two-level enhancement based

on its finding that the offense involved the use of “sophisticated means,” (3) failing

to grant a minor role reduction, (4) imposing a procedurally and substantively

unreasonable sentence, and (5) enhancing his sentence based on facts that were not

admitted or found by a jury beyond a reasonable doubt. For the reasons set forth

below, we affirm.

I.

Carrazana, a former medical assistant for Midway Medical, Inc.

(“Midway”), was charged with conspiracy to commit health care fraud, in violation

of 18 U.S.C. §§ 1347 and 1349. The indictment alleged that owners, doctors, and

employees of Midway, a medical clinic that provided injection and infusion

treatments to patients with human immunodeficiency virus (“HIV”), conspired to

submit fraudulent Medicare claims. It charged that Carrazana administered

medically unnecessary injection and infusion treatments and fabricated and signed

medical records to reflect that Midway patients had received injections or infusions

when, in fact, they had not. The indictment also alleged that chemists artificially

manipulated patient blood samples so that subsequent lab testing would make it

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appear that injections and infusion treatments billed by Midway were medically

necessary.

Carrazana pled guilty. At the change-of-plea hearing, Carrazana admitted

that he altered medical records, knew that his co-conspirators billed Medicare for

medically unnecessary procedures and procedures that were never provided, and

knew that chemists manipulated blood samples taken from Midway patients.

The presentence investigation report (“PSI”) stated that Carrazana worked at

Midway from September 2002 until March 2004 and was responsible for an

intended loss of $8,469,920. The PSI set Carrazana’s base offense level at 6,

pursuant to U.S.S.G. § 2B1.1(a)(2). Carrazana’s offense level was increased by 20

levels, pursuant to § 2B1.1(b)(1)(K), because the offense involved a loss of more

than $7,000,000, but not more than $20,000,000. Carrazana also received a

two-level enhancement under § 2B1.1(b)(9)(C), because the offense involved

sophisticated means; a two-level enhancement under § 2B1.1(b)(13)(A), because

the offense “involved the conscious reckless risk of death or bodily injury;” and a

two-level enhancement under § 3B1.3, for use of a special skill in connection with

the offense. Carrazana received a three-level reduction, pursuant to §§ 3E1.1(a),

(b), for acceptance of responsibility, resulting in a total offense level of 29.

Carrazana’s offense level of 29 combined with criminal history category I to yield

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a guideline imprisonment range of 87 to 108 months.

Carrazana filed objections to the PSI, arguing that (1) his intended loss

should be calculated as less than $7,000,000, because he effectively withdrew from

the conspiracy by terminating his employment with Midway in March 2004; (2) he

should have received a minor role reduction; (3) the conspiracy did not involve

sophisticated means; (4) and the offense did not involve the conscious or reckless

risk of death or serious bodily injury. Carrazana also pointed to several factors that

he argued supported a sentence below the guideline range.

At the sentencing hearing, the court sustained Carrazana’s objection to the

§ 2B1.1(b)(13)(A) enhancement for conscious or reckless disregard of the risk of

death or serious injury. It noted, however, that it would consider that the

conspiracy involved administering unnecessary medication, when considering the

factors under 18 U.S.C. § 3553(a). The court then determined that Carrazana was

subject to a total offense level of 27, criminal history category I, and a guideline

imprisonment range of 70 to 87 months. The court overruled Carrazana’s

objection to the fraud-loss amount, determining that Carrazana did not effectively

withdraw from the conspiracy by merely quitting his job in March 2004, because

withdrawal from a conspiracy requires “more than just terminating one’s act of

participation in the conspiracy.” The court also declined to grant Carrazana a

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minor role reduction, finding that, although Carrazana was less culpable than some

of his co-conspirators, he still played “an integral role” in the offense. The court

denied Carrazana’s objection to the two-level sophisticated means enhancement,

stating that “certainly the conspiracy clearly qualifies.” It also denied Carrazana’s

request for a below-range sentence, noting that Carrazana’s actions “show[ed] a

total disregard for everyone else other than [himself].” The court pointed out that

Carrazana made a conscious decision every day that he went to work to inject

patients with unnecessary medication and noted that Carrazana “obviously wanted

to harm society because of his activities over a year and a half where he stole

money from a very important Medicare program.” The court sentenced Carrazana

to 72 months’ imprisonment, followed by 3 years of supervised release. It also

ordered Carrazana to pay $3,687,893 in restitution.

II.

Loss Amount

We review “the district court’s loss determination for clear error.” United

States v. Woodard, 459 F.3d 1078, 1087 (11th Cir. 2006). The applicable

guideline provision provides for an 18-level increase in a defendant’s base offense

level if the offense involved a loss of more than $2,500,000 and an increase of 20

levels if the offense resulted in a loss of more than $7,000,000. U.S.S.G.

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§ 2B1.1(b)(1). The commentary provides that the proper loss amount for purposes

of calculating the enhancement is “the greater of actual loss or intended loss.”

U.S.S.G. § 2B1.1, comment. (n.3(A)).

“[T]he district court may hold all participants in a conspiracy responsible for

the losses resulting from the reasonably foreseeable acts of co-conspirators in

furtherance of the conspiracy.” United States v. Dabbs, 134 F.3d 1071, 1082 (11th

Cir. 1998). If a defendant withdraws from a conspiracy, he is not responsible at

sentencing for actions taken by co-conspirators after his withdrawal. Id. at 1083.

In order to prove withdrawal from a conspiracy, the defendant must show “(1) that

he has taken affirmative steps, inconsistent with the objectives of the conspiracy, to

disavow or to defeat the objectives of the conspiracy; and (2) that he made a

reasonable effort to communicate those acts to his co-conspirators or that he

disclosed the scheme to law enforcement authorities.” United States v. Starrett, 55

F.3d 1525, 1550 (11th Cir. 1995). “A mere cessation of participation in the

conspiracy is insufficient to prove withdrawal.” Dabbs, 134 F.3d at 1083; see

United States v. Young, 39 F.3d 1561, 1571 (11th Cir. 1994) (providing that

withdrawal from a conspiracy requires evidence of “an effort to thwart the

objectives of the conspiracy”). We have held that a defendant did not take

affirmative acts inconsistent with a conspiracy to burn a church where she “did not

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put the original fire out; she did not convince the [other coconspirators] to leave

[the church]; and she did not announce to the others that she had changed her mind

about the original plan.” United States v. Odom, 252 F.3d 1289, 1299 (11th Cir.

2001); see also Dabbs, 134 F.3d at 1083 (holding that a defendant’s mere

“physical distance from, rather than his repudiation of, the action of his

co-conspirators” did not constitute withdrawal).

Carrazana’s argument regarding the fraud loss amount is based solely on his

contention that he withdrew from the conspiracy by leaving his employment at

Midway in March 2004. However, there is no evidence that Carrazana took any

action to thwart or disrupt the objectives of the conspiracy. See Young, 39 F.3d at

1571; Odom, 252 F.3d at 1299. Instead, he merely removed himself from the

situation and ceased participation. Furthermore, Carrazana presented no evidence

that he communicated to his co-conspirators that he was leaving his employment

because he wished to terminate his involvement in the conspiracy. Starrett, 55

F.3d 1525, 1550; Odom, 252 F.3d at 1299 (noting that the defendant did not

inform her co-conspirators that she had “changed her mind about the original

plan”). Accordingly, the district court did not clearly err in finding that Carrazana

was responsible for losses that accrued after March 2004 because he did not

withdraw from the conspiracy by terminating his employment with Midway.

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U.S.S.G. § 2B1.1(b)(9)(C) – Sophisticated Means Enhancement

“For sentencing issues, [we] review[] a district court’s factual findings for

clear error and its application of the guidelines de novo.” See United States v.

Auguste, 392 F.3d 1266, 1267 (11th Cir. 2004).

The Sentencing Guidelines provide for an enhancement of two levels if “the

offense otherwise involved sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C).

Application note 8(B) to that Guideline defines “sophisticated means” as:

especially complex or especially intricate offense conduct

pertaining to the execution or concealment of an offense.

For example, in a telemarketing scheme, locating the

main office of the scheme in one jurisdiction but locating

soliciting operations in another jurisdiction ordinarily

indicates sophisticated means. Conduct such as hiding

assets or transactions, or both, through the use of

fictitious entities, corporate shells, or offshore financial

accounts also ordinarily indicates sophisticated means.

U.S.S.G. § 2B1.1, comment. (n.8(B)).

The plain language of § 2B1.1(b)(9)(C) provides that the enhancement

applies if “the offense involved sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C)

(emphasis added). Because the relevant offense is the conspiracy, the district court

was permitted to consider the reasonably foreseeable actions of Carrazana’s

co-conspirators when determining whether the enhancement applies. See U.S.S.G.

§ 1B1.13(a)(1)(B) (providing that, in the case of a criminal conspiracy, guideline

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calculations shall be based on “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity”). Carrazana

acknowledged at the plea hearing that he knew that chemists manipulated patients’

blood samples before sending to samples to the lab. The PSI also stated that

Carrazana was aware of the manipulation of patients’ blood samples, and

Carrazana failed to object to this factual finding. See United States v. Shelton, 400

F.3d 1325, 1330 (11th Cir. 2005) (holding that factual findings set forth in a PSI

not objected to by a defendant are deemed admitted). Because the manipulation of

patients’ blood samples constitutes “especially complex . . . conduct pertaining to

the . . . concealment of the offense,” and because Carrazana admitted that he was

aware that this activity was taking place, the district court did not clearly err in

applying the two-level “sophisticated means” enhancement. See U.S.S.G.

§ 2B1.1(b)(9)(C) and comment. (n.8(B)).

U.S.S.G. § 3B1.2(b) – Minor Role Reduction

A district court’s determination of a defendant’s role in an offense

constitutes a factual finding to be reviewed only for clear error. United States v.

Rodriguez DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant

bears the burden of proving beyond a preponderance of the evidence that he is

entitled to a mitigating role reduction. Id. at 939.

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The Sentencing Guidelines provide for a two-level reduction for a minor

participant, defined as an individual “who is less culpable than most other

participants, but whose role could not be described as minimal.” U.S.S.G.

§ 3B1.2(b) and comment. (n.5). In determining whether a defendant was a minor

participant, the court “must assess whether the defendant is a minor or minimal

participant in relation to the relevant conduct attributed to the defendant in

calculating h[is] base offense level.” DeVaron, 175 F.3d at 941. The district court

“may also measure the defendant’s culpability in comparison to that of other

participants in the relevant conduct.” Id. at 944. “The fact that a defendant’s role

may be less than that of other participants engaged in the relevant conduct may not

be dispositive of role in the offense, since it is possible that none are minor or

minimal participants.” Id. “In making the ultimate determination of the

defendant’s role in the offense, the sentencing judge has no duty to make any

specific subsidiary factual findings.” Id. at 939.

Although Carrazana may have been less culpable than the Midway doctors

who supervised the conspiracy and were engaged in fraudulent billing, the district

court did not commit clear error in finding that Carrazana did not play a minor role

in the conspiracy. In fact, Carrazana’s relevant conduct involved actions that were

instrumental in avoiding detection of the conspiracy. Before imposing sentence,

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the district court noted that Carrazana played a “very significant role” in the

offense, because his relevant conduct involved injecting patients with unnecessary

medication every day that he went to work, over a one-and-a-half year period.

These actions were clearly instrumental in the success of the conspiracy, because,

if Carrazana had not administered these injections and falsified patients’ medical

records, Midway would not have received the fraudulent Medicare payments.

Furthermore, although the district court had no duty to make any specific

subsidiary factual findings regarding the appropriateness of a minor role reduction,

the court specifically found that Carrazana played a greater role in the conspiracy

than other participants, namely, Midway’s patients, and that Carrazana

“perform[ed] a very substantial part of this conspiracy.” Accordingly, the district

court did not clearly err in denying the minor role reduction.

Reasonableness of the Sentence

We review the final sentence imposed by the district court for

reasonableness. United States v. Booker, 543 U.S. 220, 262-64, 125 S.Ct. 738,

766-67, 160 L.Ed.2d 621 (2005). Specifically, the district court must impose a

sentence that is both procedurally and substantively reasonable. Gall v. United

States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). After

Booker, we established a two-step process for district courts to use in sentencing:

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first, the district court must consult the Sentencing Guidelines and correctly

calculate the sentencing range; second, the district court must consider the factors

listed in 18 U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005).

A sentence may be procedurally unreasonable if the district court improperly

calculates the guideline range, treats the Sentencing Guidelines as mandatory

rather than advisory, fails to consider the appropriate statutory factors, selects a

sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. In its consideration of the

§ 3553(a) factors, the district court does not need to discuss or state on the record

each factor explicitly. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005). Instead, an acknowledgment by the district court that it has considered the

defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1329-30.

Pursuant to § 3553(a), the sentencing court “shall impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection,” namely, to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from future crimes of the defendant, and provide the

defendant with needed educational or vocational training or medical care. See 18

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U.S.C. § 3553(a). The sentencing court must also consider the following factors in

determining a particular sentence: the nature and circumstances of the offense and

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

the 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. See U.S.S.G. § 3553(a)(1), (3)-(7).

After an appellate court has determined that a sentence is procedurally

sound, Gall directs the appellate court to review the substantive reasonableness of

a sentence under an abuse-of-discretion standard. Gall, 552 U.S. at 51, 128 S.Ct.

at 597. The review for substantive reasonableness involves examining the totality

of the circumstances, including an inquiry into whether the § 3553(a) factors

support the sentence in question. Id. This Court ordinarily expects a sentence

within the guideline range to be reasonable, and the appellant has the burden of

establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors. Talley, 431 F.3d at 788.

Carrazana’s sentence was procedurally reasonable, because the district court

specifically stated that it had considered the § 3553(a) sentencing factors and the

parties’ arguments, and adequately explained its reasons for imposing a 72-month

sentence. See Scott, 426 F.3d at 1329 (noting that a district court does not need to

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explicitly state or discuss each § 3553(a) sentencing factors on the record). The

court also stated that it had considered the following factors: (1) the conspiracy

involved the administration of unneeded medication, (2) Carrazana already

benefitted from the court’s decision not to impose the two-level enhancement for

risk of death or serious bodily harm, (3) Carrazana injected patients with modified

blood, thereby showing a “total disregard” for others, (4) Carrazana played a

significant role in the offense and injected patients with unnecessary medications

on a daily basis, and (5) the harm Carrazana caused to society by stealing money

from Medicare for over a year and a half. These facts relate to the following

§ 3553(a) sentencing factors: the seriousness of the offense, the need to promote

respect for the law, the need to deter criminal conduct, and the need to protect the

public from future crimes. See 18 U.S.C. § 3553(a). Thus, Carrazana’s argument

that the district court failed to consider the § 3553(a) factors and failed to explain

its reasons for imposing the 72-month sentence are meritless.

Carrazana’s sentence was also substantively reasonable. The district court

correctly found that a sentence at the low end of the guideline range was warranted

by the seriousness of the offense and the need for deterrence. For a year and a half,

Carrazana routinely injected patients with unnecessary medications and falsified

medical records. As the court noted, Carrazana’s actions affected not only the

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patients, but also taxpayers who fund the Medicare program and citizens who

receive Medicare benefits. The 72-month sentence is also supported by the need to

deter medical professionals from committing Medicare fraud. Although Carrazana

argues that the district court failed to consider certain mitigating factors, Carrazana

listed these mitigating factors in his sentencing memorandum and the district court

stated that it had considered the parties’ arguments in deciding on a reasonable

sentence. Accordingly, Carrazana’s sentence was both procedurally and

substantively reasonable.

Enhancements Based On Court-Found Facts

Where a defendant fails to raise a constitutional sentencing argument before

the district court, we review for plain error. United States v.Candelario, 240 F.3d

1300, 1308 (11th Cir. 2001). “To establish plain error, a defendant must show

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

States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). We may correct a plain

error “only if the error seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. (quotations omitted).

Post-Booker, “the use of extra-verdict enhancements in an advisory

guidelines system is not unconstitutional.” United States v. Chau, 426 F.3d 1318,

1323 (11th Cir. 2005). Thus, the district court may enhance a sentence based on

15
judge-found facts under a preponderance standard so long as the sentence does not

exceed the statutory maximum under the United States Code. United States v.

Dean, 487 F.3d 840, 854 (11th Cir. 2007), cert. denied, 128 S.Ct. 1444 (2008).

Under 18 U.S.C. § 1347, the statutory maximum term of imprisonment for an

individual who commits health care fraud is 10 years’ imprisonment. 18 U.S.C.

§ 1347.

Carrazana has failed to show that the district court plainly erred by

enhancing his sentence based on facts found by the court by a preponderance of the

evidence. We have held that a district court may enhance a sentence based on

judge-found facts, as long as the defendant is sentenced under an advisory

guidelines system and the sentence does not exceed the statutory maximum. See

Chau, 426 F.3d at 1323; Dean, 487 F.3d at 854. Here, the statutory maximum was

10 years’ imprisonment. See 18 U.S.C. § 1347. Carrazana’s 72-month sentence

was well below this limit. Carrazana was also sentenced post-Booker, under an

advisory guideline scheme. Accordingly, we affirm Carrazana’s 72-month

sentence.

AFFIRMED.

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