United States v. Delgado

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELIESER PEREIRA DELGADO, Defendant-Appellant.

No. 22-12315

United States Court of Appeals, Eleventh Circuit

October 27, 2023

[DO NOT PUBLISH]

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cr-20441-KMM-8 Before JORDAN, ROSENBAUM, Circuit Judges, and MANASCO, District Judge. ^[*]

PER CURIAM

Based on his participation in a fraudulent Medicare billing scheme run through several Florida pharmacies, Petitioner Elieser Pereira Delgado pled guilty to one count of conspiracy to commit wire and healthcare fraud in violation of 18 U.S.C § 1349. The district court sentenced Delgado to 108 months of incarceration followed by three years of supervised release and imposed a forfeiture money judgment of $2,200,779. On appeal, Delgado raises four^[1] issues about his sentence: (1) the denial of a Sentencing Guidelines reduction for acceptance of responsibility; (2) the increase of his Guidelines offense level for his use of sophisticated means in the scheme; (3) the amount of the forfeiture judgment that the court imposed against him; and (4) the district court's pronouncement of the conditions of his supervised release.

After careful consideration and with the benefit of oral argument we vacate and remand as to the forfeiture money judgment and conditions of supervised release but affirm in all other respects.

BACKGROUND

Delgado was charged in a 39-count superseding indictment with conspiracy to commit wire and healthcare fraud, in violation of 18 U.S.C. § 1349, and healthcare fraud, in violation of 18 U.S.C. § 1347. To accomplish the fraud, Delgado and his co-defendants submitted false and fraudulent Medicare reimbursement claims for nine Florida pharmacies. In the scheme, Delgado acted as a patient and prescription recruiter, getting paid for providing Medicare beneficiary information and prescriptions. In total, the nine pharmacies involved in the scheme submitted about $10,678,160 in fraudulent claims and received roughly $4,857,235 in Medicare payments.

Delgado agreed to plead guilty to one count of conspiracy to commit wire and healthcare fraud, in violation of 18 U.S.C. § 1349. In the plea agreement, the parties jointly recommended that the court find, among other things, that the offense level should be reduced by three levels based on Delgado's acceptance of responsibility. Specifically, the agreement recommended a two-level decrease under U.S.S.G § 3E1.1(a) based on Delgado's "recognition and affirmative and timely acceptance of personal responsibility" and a one-level reduction under U.S.S.G § 3E1.1(b) based on Delgado's timely notification of his intention to enter a guilty plea. But the plea agreement released the government from its obligation to recommend an acceptance-of-responsibility reduction if, among other events, Delgado "commit[ted] any misconduct after entering into this plea agreement, including but not limited to, committing a state or federal offense, [or] violating any term of release."

Following a plea colloquy, Delgado entered a guilty plea. In preparation for sentencing, the U.S. Probation Office submitted its Presentence Investigation Report ("PSI"). As relevant here, the PSI determined the following:

1. Delgado was accountable for an intended loss of $4,429,275 and an actual loss of $2,200,779, the billed and paid amounts for the four Miami pharmacies for which Delgado recruited.

2. A two-level increase in the base offense level applied because of Delgado's use of "sophisticated means."

3. An acceptance-of-responsibility adjustment was not recommended because Delgado tested positive for cocaine six times while on bond and did not attend mandatory drug treatment. So in the PSI's judgment, Delgado had not "voluntarily terminated or withdrawn from criminal conduct."

Delgado filed objections to the PSI, specifically to its recommended denial of an acceptance-of-responsibility reduction. Delgado argued that he should receive a sentence reduction despite his cocaine use because he had been diagnosed with substance addiction and had immediately notified the government of his intention to plead guilty. Delgado's proposed alternative sentencing recommendation, which he submitted with his objections, included a sophisticated-means enhancement. And in fact, Delgado did not object to the application of the sophisticated-means enhancement in his objections.

At the sentencing hearing, the district court denied Delgado's request for a downward variance. It reasoned that Delgado's cocaine use while on bond was "inconsistent with acceptance" of responsibility, and given the nature of the conspiracy, a downward variance was not warranted. Before that happened, the prosecutor stated he had "no objection if [Delgado] receives acceptance." But the court noted its "unique position to assess whether a defendant is entitled to an acceptance of responsibility" and denied the reduction anyway.

Ultimately, the district court sentenced Delgado to 108 months of incarceration followed by three years of supervised release and imposed a forfeiture money judgment of $2,200,779. Delgado appealed to this Court.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and jurisdiction over Delgado's challenges to his sentence under 18 U.S.C. § 3742(a). Delgado timely filed his appeal: the district court entered its final judgment and commitment order on July 8, 2022, and Delgado filed his notice of appeal on July 11, 2022.

STANDARD OF REVIEW

We review a defendant's sentence under "the deferential abuse-of-discretion standard, ensuring first that the district court committed no significant procedural error, such as improperly calculating the sentencing guidelines range." United States v. Wilson, 979 F.3d 889, 916 n.16 (11th Cir. 2020) (citing United States v. Almedina, 686 F.3d 1312, 1314-15 (11th Cir. 2012)). We review "the sentencing court's factual findings for clear error and its interpretation and application of the Sentencing Guidelines to those facts de novo." Id. (citing United States v. Maddox, 803 F.3d 1215, 1220 (11th Cir. 2015)).

When a party does not object to an enhancement or other issue at sentencing, we review for only plain error. United States v. Cingari, 952 F.3d 1301, 1305 (11th Cir. 2020) (citing United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009)). The party claiming error bears the burden of proving that (1) error occurred; (2) the error is plain or obvious; (3) it affects his substantial rights in that it was prejudicial and not harmless; and (4) it "seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Id. An error affects a defendant's substantial rights if it "'affect[s] the outcome of the district court proceedings,'" including the Guidelines range calculated and sentence imposed. United States v. Malone, 51 F.4th 1311, 1319 (11th Cir. 2022) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).

We review a district court's denial of an acceptance-of-responsibility reduction for clear error, and we will not set such a denial aside '"unless the facts in the record clearly establish that a defendant has accepted personal responsibility.'" United States v. Singh, 291 F.3d 756, 764 (11th Cir. 2002) (quoting United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.1999)).

We've also explained that the district court is in the best position to assess "a defendant's apparent sincerity," so we give "special deference" to district-court determinations on acceptance-of-responsibility reductions. United States v. Williams, 340 F.3d 1231, 1241 (11th Cir. 2003).

Finally, we've observed that a defendant lacks the chance at sentencing to object "to the discretionary conditions of supervised release because they [are] included for the first time in the written judgment." United States v. Rodriguez, 75 F.4th 1231, 1246 n.5 (11th Cir. 2023) (citing United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000)). So we review challenges to those conditions de novo. Id.

DISCUSSION

I. Acceptance-of-Responsibility Reduction

Delgado's first claim on appeal-and the only objection he raised below-is that his sentence was procedurally unreasonable because the district court did not grant an acceptance-of-responsibility reduction. He argues both that the district court erroneously believed it could not grant an acceptance-of-responsibility reduction and that the government breached its plea agreement by failing to recommend such a reduction. We conclude that the district court recognized and acted within its discretion. And as for Delgado's contention about the government's failure to uphold its bargain, even if that's technically true, we cannot say that any breach here changed the outcome of the sentencing proceedings.

The Sentencing Guidelines authorize a two-level reduction when "the defendant clearly demonstrates acceptance of responsibility for his offense" and an additional one-level reduction if the defendant "timely notif[ies] authorities of his intention to enter a plea of guilty." U.S.S.G. § 3E1.1. But the mere fact that a defendant pleads guilty does not entitle him under § 3E1.1 to a reduction for acceptance of responsibility. United States v. Mathews, 874 F.3d 698, 709 (11th Cir. 2017); see also U.S.S.G. § 3E1.1 cmts. n.3, 5. And we give "great deference" to a district court's determination about whether to grant the reduction. Id. So while we typically view a guilty plea as "significant evidence of acceptance of responsibility 'this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.'...