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United States v. Sosa

United States Court of Appeals, Eleventh Circuit

April 3, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
YOLANDA SOSA, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ADRIAN VELAZQUEZ, Defendant-Appellant

Page 631

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13-cr-20231-UU-1. D.C. Docket No. 1:13-cr-20231-UU-2.

For United States of America, Plaintiff - Appellee: Timothy J. Abraham, Carol Herman, Nicole D. Mariani, Kathleen Mary Salyer, Wifredo A. Ferrer, John Gonsoulin, Madeleine R. Shirley, U.S. Attorney's Office, Miami, FL.

For Yolanda Sosa, Defendant - Appellant: Zeljka Bozanic, Bozanic & Associates, PA, Miami, FL.

Before HULL, BLACK, and MELLOY,[*] Circuit Judges.

OPINION

Page 632

PER CURIAM:

Pursuant to written plea agreements, Yolanda Sosa and Adrian Velazquez (collectively,

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" Defendants" ) pled guilty to conspiracy to commit healthcare fraud. Defendants appeal two forfeiture orders entered by the district court after it imposed joint-and-several restitution against Defendants in the amount of $753,430. These consolidated appeals involve the restitution amount and the forfeiture of two cars. After careful review of the record and the parties' briefs, and with the benefit of oral argument, we affirm.

I. BACKGROUND

A. 2011 Medicare Fraud

The factual proffers accompanying Defendants' plea agreements set forth the offense conduct as follows. Between June 15, 2011, and October 7, 2011, Defendants met with a " cooperating doctor" and paid the doctor for prescriptions that Defendants could use to fraudulently bill Medicare. Specifically, Defendants provided the cooperating doctor with Medicare beneficiary information and paid the doctor thousands of dollars to write prescriptions for expensive medications that were not actually given to any patients. The doctor never saw or evaluated the patients, and instead wrote the prescriptions for whatever medications Defendants requested. Defendants gave the fraudulent prescriptions to various pharmacies, which submitted false claims to Medicare based on the prescriptions.

As a result, Medicare paid the pharmacies approximately $753,430 based on the false claims. The pharmacies paid Defendants over $60,000 for obtaining the fraudulent prescriptions. Thus, Defendants' conduct resulted in a total fraud loss amount of $753,430.

B. Plea Agreements

On April 9, 2013, Defendants were charged in an 18-count indictment with various offenses arising out of the Medicare fraud scheme. On June 26, 2013, Defendants executed substantially identical plea agreements, in which they agreed to plead guilty to one count of conspiracy to commit healthcare fraud, in violation of 18 U.S.C. § 1349. In return, the government agreed to dismiss the remaining counts.

Under the express terms of their plea agreements, Defendants " agree[d] to entry of a personal money judgment in favor of the United States in the amount of $753,430, which represents the gross proceeds of the offense of conviction, pursuant to [18 U.S.C. § 982]." To this end, Defendants " voluntarily agree[d] to forfeit all of [their] right, title, and interest in [two real properties located at 8550 N.W. 30th Avenue and 2500 N.W. 99th Street in Miami, Florida,] to the United States as substitute assets to satisfy the personal money judgment."

In the plea agreements, Defendants agreed knowingly and voluntarily to waive the following: any claim or defense under the Eighth Amendment--including any claim of excessive fine or penalty--with respect to the forfeiture; any right to a jury trial on the forfeiture; any statute of limitations with respect to the forfeiture; any notice of forfeiture proceedings; and " any right to appeal any order of forfeiture entered by the Court pursuant to the plea agreement." The plea agreements also stated that Defendants were " aware that [their] sentence[s] had not yet been determined by the Court."

C. Plea Hearing

During the joint plea hearing, Defendants confirmed that they had reviewed their plea agreements with counsel and understood each and every term of the agreements. The district court reviewed the plea agreements' restitution and forfeiture

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provisions in detail. With regard to the forfeiture provisions, the government stated that defense counsel had suggested paying the money judgment with a " substantial cash payment or some other payment plan" instead of forfeiting the two houses, and that the government, while not promising to agree to that proposal, would at least consider it going forward.

The district court confirmed Defendants' understanding that they were liable for repaying $753,430 to the government, and that they could not object to " any source to forfeiture" or otherwise challenge any forfeiture ordered against them. In response to the district court's inquiry, Defendants stated that no one forced or ...


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