[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 15190 Non

- Argument Calendar

________________________ D.C. Docket No. 1:17

- cr - 20441

- KMM

- 6 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus ALEJANDRO MENA, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (August 9, 2018) Before MARCUS , WIL SON and JORDAN , Circuit Judges. PER CURIAM: Alejandro Mena appeals his 27

- month sentence , which reflected a two

- level sentencing enhancement and two

- level reduction, imposed after pleading guilty to one count of conspiracy to commit health care fraud and wire fraud, in violation of

Case: 17-15190 Date Filed: 08/09/2018 Page: 1 of 62 18 U.S.C. § 1349. Mena was sentenced at the same time as four other co

defendants, all of whom were involved in the same conspiracy to commit health care and wire fraud. 1 On appeal, Mena argues that : (1) the two

- level enhance ment for use of a sophisticated means was improperly applied because he acted at the direction of his codefendants and did not use sophisticated means ; and (2) a four

level role reduction should have applied for his minimal participation, rather than the t wo - level decrease he received for his minor participation. The government responds that we should affirm the sentence because the district court pronounced that it would have imposed the same sentence even without the enhancement and role reduction , and the sentence is reasonable. After thorough review, we affirm. We review a district court’s interpretation and application of the Sentencing Guidelines de novo and its underlying factual findings for clear error. United States v. Doe , 661 F.3d 550, 565 (11th Cir. 2011). However, w he n the district
court s ays that it would have imposed the same sentence despite any Guideline

calculation error, any error is harmless if the sentence would be reasonable even if the d istrict court’ s Guidelines calculation was erroneous. United States v. Keene , 470 F.3d 1347, 1349 (11th Cir. 2006). Under this approach, we calculate the advisory Guideline range as it would have been had the district court decided the

1 Today we also decide the companion case involving co

- defendant Alejandro Sierra, No. 17

- 15202. Case: 17-15190 Date Filed: 08/09/2018 Page: 2 of 63 Guidelines issues in the defendant’s favor and then asse ss the sentence’s reasonableness in light of this hypothetical Guideline range. Id . at 1349

– 50. We review the totality of the facts and circumstances to determine whether a sentence was substantively reasonable. United States v. Irey , 612 F.3d 1160, 11 89

- 90 (11th Cir. 2010) (en banc). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a). 2 The court must consider all of the § 3553(a) factors, but it may give gre ater weight to some factors over others

-- a decision that is within its sound discretion. United States v. Rosales

- Bruno , 789 F.3d 1249, 1254 (11th Cir. 2015). A sentence may be substantively unreasonable when a court unjustifiably relies on any single § 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the sentence on impermissible factors, or selects the sentence arbitrarily. United States

v. Pugh , 515 F.3d 1179, 1191

- 92 (11th Cir. 2008) . A sentence suffer ing from these symptoms is not per se unreasonable; rather, we examine the totality of the circumstances to assess its reasonableness. Id . at 1192. “[W]e will not second guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)]

2 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sen tence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need t o provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sen tencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

Case: 17-15190 Date Filed: 08/09/2018 Page: 3 of 64 factor . . . as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” United States v. Snipes , 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted). A sentence imposed well below the statutory max imum is an indicator of a reasonable sentence. United States v. Stanley , 739 F.3d 633, 656 (11th Cir. 2014). Here, we need not address Mena’s challenges to the enhancement and role reduction applied to his sentence because the district court pronounced th at it would have imposed the same sentence even without the se calculations

. See Keene , 470 F.3d at 1348. In relevant part, the district court said that if this Court, on appeal, were to determine that the district court’s application s of the sophisticated means enhancement or minimal role reduction were incorrect , “I would impose the same sentence in any event .” Thus, because the district court told us that the enhancement and reduction calculations made no difference to the sentence it imposed, our task is to ensure that the alternative sentence under 18 U.S.C. § 3553(a) is reasonable. Id . at 134 8

- 4 9. Under the Sentencing Guidelines calculated without this two

- level enhancement or the additional minimal role reduction, Mena’s advisory Guideline range would have been 15 to 21 months’ imprisonment. Mena received a 2 7

- month sentence. On the record before us , Mena’s 2 7

- month sentence was reasonable

. According to the presentence investigation report (“PSI”), Mena was involved in a

Case: 17-15190 Date Filed: 08/09/2018 Page: 4 of 65 conspiracy by l ending h is name as nominee owner listed for two pharmacies actually owned by co

- defendant Orlando Olver Bustabad, who had employed nominal owners to conceal his true ownership of companies engaged in health care fraud. Mena was the registered agent and pr esident of Maxi Pharmacy Discount Corp. , which su bmitted about $671,158 in Medicare claims and was paid approximately $258,823 b etween May 10, 2016, and August 3, 2016. During this time frame, Mena made 25 cash counter withdrawals totaling a bout $184,881. 39 from a Maxi bank account he owned and had sole signature authority over. Mena also was the registered agent and president of Mariposa Pharmacy & Discount Inc. from A ugust 29, 2 016, through November 1, 2016 , which submitted about $ 423,928 in Medicare claims and was paid about $ 327,405. Mena also endorsed checks payable to Mariposa. At Mena’s sentencing hearing, he and four of his co

- defendants

-- including Bustabad, Idilsis Manresa, Sara Fernandez

- Escobar, and Alejandro Sierr a -- received their r espective sentences. When sentencing Mena individually, the district court expressly detailed Mena’s involvement in the conspiracy, reviewed his argument on mitigation

-- including his age (19 years old)

-- and noted that it had consider ed the § 3553(a) f actors. The court explained that Mena contributed
to the conspiracy by providing h is name as the nominal owner listed for two different pharmac ies to shield the owners’ true identities and by conducting

Case: 17-15190 Date Filed: 08/09/2018 Page: 5 of 66 transactions from the two pharmac ies ’ bank account s for the conspiracy’s organizers. Th e court observed that his offense involved a significant sum of
money -- combining the fraud of both pharmacies, his ro le in the conspiracy targeted $ 972,020 in Medicare funds and the actual loss att ributed to Mena was $586,228

-- out of an overall fraud of about $10 million

. Considering the important role Mena played in facilitating, concealing and executing the conspiracy, and the significant amount of money involved, Men a has not met his burden of showing that his 2 7

- month sentence was unreasonable. While Mena’s 2 7

- month custodial sentence is above the hypothetical, alternative G uide lines range, it is well below the 20

- year statutory maximum sentence for violations of 18 U.S.C. § 1349. 3 Accordingly, even unde r the alternative sentence and G uidelines
range , the district court did not abuse its discretion by imposing a 2 7

- month sentence, and we affirm. AFFIRMED.

3 A conspiracy offense under § 1349 incorporates the statutory term of imprisonment from the underlying offense. 18 U.S.C. § 1349. The statutory maximum term o f imprisonment is 10 years for health care fraud and it is 20 years for wire fraud. 18 U.S.C. §§ 1343, 1347; see also United States v. Bergman , 852 F.3d 1046, 1077 n.8 (11th Cir. 2017).

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