[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13340

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ROBERTO MURILLO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:19-cr-20436-PAS-2

____________________

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2 Opinion of the Court 20-13340

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Roberto Murillo appeals his 105-month total prison sentence 

for one count of conspiracy to commit healthcare fraud and wire 

fraud and seven counts of healthcare fraud. On appeal, Murillo 

contends that the district court erred in determining that his fraud 

offenses involved a loss amount of approximately $16.6 million for 

purposes of a 20-level enhancement under the United States Sentencing Guidelines. See U.S.S.G. § 2B1.1(b)(1)(K). Because the district court did not clearly err, we affirm Murillo’s sentence.

We review the district court’s determination of the amount 

of loss attributable to a defendant for clear error. United States v. 

Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). “For a factual finding 

to be clearly erroneous, we must be left with a definite and firm 

conviction that the court made a mistake.” United States v. 

Chalker, 966 F.3d 1177, 1194 (11th Cir. 2020) (quotation marks 

omitted). The district court “need only make a reasonable estimate 

of the loss,” which is entitled to deference because the court is in 

“a unique position to assess the evidence and estimate the loss 

based upon that evidence.” U.S.S.G. § 2B1.1, cmt. n.3(C). A loss 

finding based on a reasonable construction of the evidence is not 

clearly erroneous. United States v. Almedina, 686 F.3d 1312, 1315 

(11th Cir. 2012). 

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20-13340 Opinion of the Court 3

The guideline for fraud offenses, U.S.S.G. § 2B1.1, calls for 

an increase in the offense level of up to 30 levels based on the extent 

of loss. See U.S.S.G. § 2B1.1(b)(1). As relevant here, a 20-level increase applies if the offense involved a loss between $9.5 million 

and $25 million. Id. § 2B1.1(b)(1)(K). 

“Loss” for purposes of this guideline is the greater of “actual” 

loss or “intended” loss. Id. § 2B1.1, cmt. n.3(A). Actual loss is “the 

reasonably foreseeable pecuniary harm that resulted from the offense,” id., cmt. n.3(A)(i)—actual monetary loss, in other words. 

Intended loss is “pecuniary harm that the defendant purposely 

sought to inflict,” including “intended pecuniary harm that would 

have been impossible or unlikely to occur. (e.g., as in a government 

sting operation, or an insurance fraud in which the claim exceeded 

the insured value).” Id., cmt. n.3(A)(ii). 

Here, the district court did not clearly err in determining the 

loss amount for purposes of its guideline-range calculations. The 

trial evidence established that Murillo conspired with Pedro Ariel 

Cuni, an office manager of a medical clinic, to submit false and 

fraudulent claims to United Health Care Services, Inc. (“United”), 

which administered a self-funded healthcare benefits plan for 

AT&T. Murillo, who worked for AT&T, recruited other AT&T 

employees insured by the plan so their information could be used 

to submit false and fraudulent claims for therapy services and other 

treatments they did not want, need, or receive at the clinic. During 

the conspiracy, Murillo and Cuni submitted or caused to be 

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4 Opinion of the Court 20-13340

submitted $16,625,118 in false or fraudulent claims, for which 

United paid the clinic $2,346,201.

The parties agree that the total amount fraudulently billed 

to United—$16,625,118—is prima facie evidence of the intended 

loss, and we assume without deciding they are correct. Cf. 

U.S.S.G. § 2B1.1, cmt. n.3(F)(viii) (stating, with regard to government health care programs, that “the aggregate dollar amount of 

fraudulent bills submitted . . . shall constitute prima facie evidence 

of the amount of the intended loss”); see also United States v. 

Melgen, 967 F.3d 1250, 1265–66 (11th Cir. 2020) (applying this rule 

in a Medicare fraud case). In other words, that evidence is “sufficient to establish the amount of the intended loss, if not rebutted.”

U.S.S.G. § 2B1.1, cmt. n.3(F)(viii).

As rebuttal evidence, Murillo points to Cuni’s trial testimony that the conspiracy recruited AT&T employees because 

AT&T “would pay around $25,000 per patient.” This testimony, 

in Murillo’s view, establishes that the “true intended loss was 

$25,000 per patient” and that, because he recruited 50 patients for 

Cuni, the total intended loss was “far less” than $16.6 million. 

The district court did not err in concluding that Murillo 

failed to rebut the prima facie evidence of loss. Cuni’s comments 

about the conspiracy’s expected returns on a per patient basis do

not rebut the government’s evidence of intended loss. As the government states, “while a defendant may not expect to get everything that he fraudulently asks for, that does not mean that he does 

not intend to take as much as he can get.” See United States v. 

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20-13340 Opinion of the Court 5

Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (“[W]hen a sentencing court is determining the proper punishment for a defendant’s 

fraud, the court uses the reasonable mathematical limit of his 

scheme, rather than his concrete result.”); United States v. WaiKeung, 115 F.3d 874, 877 (11th Cir. 1997) (“It is not required that 

an intended loss be realistically possible.”). Cuni’s testimony does 

not show that he “intended for [the clinic] to receive only the 

amount paid by [United], rather than the amounts billed.” United 

States v. Moran, 778 F.3d 942, 975 (11th Cir. 2015). And Murillo 

did not offer any other evidence that the conspiracy intended to 

cause some lesser loss amount. 

On this record, we are not left with a definite and firm conviction that the district court made a mistake in basing its loss finding on the total amount fraudulently billed to United. See Chalker, 

966 F.3d at 1194; cf. U.S.S.G. § 2B1.1, cmt. n.3(F)(viii). The court’s 

finding was reasonable and supported by the record. See 

Almedina, 686 F.3d at 1315. Accordingly, we affirm Murillo’s sentence.

AFFIRMED.

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