from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:15-cr-20576-JEM-1
HULL, JORDAN, and GILMAN, [*] Circuit Judges.
Enrique Martinez Mathews ("Martinez") appeals his
total 60-month sentence. After careful review of the briefs
and the record, and with the benefit of oral argument, we
affirm the district court's increases to Martinez's
offense level for (1) alteration and falsification of an
"especially probative record" under U.S.S.G. §
2J1.2(b)(3)(B), and (2) knowing that the victim of the
offense was vulnerable under § 3A1.1(b)(1). However, the
district court erroneously concluded that it lacked any legal
authority to grant an acceptance-of-responsibility reduction
under § 3E1.1. We thus vacate Martinez's sentence
and remand for the district court to decide only the
acceptance of responsibility issue and resentence Martinez.
following facts are not in dispute. Beginning in 2007, Martinez
was employed by the Miami Veterans Affairs Hospital (the
"Miami VA") as a nurse in the Surgical Intensive
Care Unit (the "SICU"). In August 2014, a
76-year-old veteran who was recovering from heart surgery was
in the SICU (the "Patient").
approximately 7:30 a.m. on September 2, 2014, the attending
physician reviewed the Patient's records and determined
that he was stable enough to be transferred to a
lower-level-care ward within the Miami VA. At 8:00 a.m. that
morning, Martinez was assigned to care for the Patient.
Martinez had no other patients assigned to him that day.
SICU, all patients are connected to machines that
automatically and continuously read and record vital signs,
which allows nurses and other medical providers to constantly
monitor the patients. Shortly after Martinez assumed
responsibility for the Patient's care, the Patient's
vital signs began to deteriorate- his blood oxygenation,
blood pressure, respiratory rate, and heart rate were all
fluctuating abnormally. There were also extended periods of
time when no vital signs were entered in the computer system,
meaning that either the system had been manually deactivated
or the cables had been unplugged.
remainder of the day on September 2, the Patient's vital
signs were either not recorded by the computer system or, if
recorded, showed serious degradation. Defendant Martinez did
not inform anyone of the Patient's deteriorating vital
signs. Instead, at approximately 5:00 p.m., Martinez
transferred the Patient to the lower-level-care ward in
accordance with the physician's morning transfer
instructions. Had the SICU attending physicians been aware of
the Patient's degrading health, they would not have
allowed this transfer. During the transfer, Martinez did not
inform the receiving unit of the Patient's wildly
fluctuating vital signs.
approximately 7:25 p.m. that evening, after Martinez returned
to the SICU from transferring the Patient, he logged into the
computer system used by the SICU to monitor and record
patients' vital signs. Using an "edit"
function, Martinez entered and altered data in the
Patient's record to make it appear as though the Patient
had been stable throughout the day. It is Miami VA policy
that any time a data point is entered or altered in the
computer system, the person entering that data must include a
note. There were no such notes in the Patient's record.
According to the computer system, all of the points entered
or altered on the Patient's record were done by Martinez.
that evening, after Martinez had left the Miami VA, the
Patient's condition worsened. Shortly before 3:00 a.m. on
September 3, about 10 hours after he was transferred out of
the SICU, the Patient died of heart failure.
returned to work on the morning of September 4. One of his
supervisors confronted him regarding the Patient's care.
Martinez knew that, per Miami VA regulations, there would be
an investigation into the Patient's death and the quality
of the Patient's care. Martinez then went back into the
Patient's record on September 4 and entered a number of
notations and comments relating to activities that had taken
place on September 2.
result of the Patient's death, the Miami VA opened a
medical case review, and Martinez was interviewed by
"criminal investigators." Martinez admitted to the
investigators that he falsified data in the Patient's
medical record both on September 2 and September 4 "in
an attempt to avoid responsibility for his misconduct, and
the poor quality of care he provided to the
Indictment and Guilty Plea
indictment charged Martinez with (1) intentionally causing
damage to a protected computer (the computer system of the
Department of Veterans' Affairs (the
"Department")) that resulted in the modification
and impairment of the medical care of an individual, in
violation of 18 U.S.C. § 1030(a)(5)(A) and (c)(4)(B)
(Count 1); and (2) knowingly altering, destroying,
concealing, covering up, falsifying, and making a false entry
in data stored within the Department's computer system
with the intent to impede, obstruct, and influence the
investigation and proper administration of a matter within
the Department's jurisdiction, in violation of 18 U.S.C.
§ 1519 (Count 2).
December 2015, Martinez pled guilty to both counts of the
indictment. At the change-of-plea hearing, Martinez stated
that, on September 2, 2014, he was in charge of the entire
SICU and "because of the many emergencies and situations
and because I was working and I was very busy, I did not
provide my patient with the direct care that he should have
presentence report ("PSR") assigned him a base
offense level of 14 and added the following offense-level
increases: (1) a two-level increase because the offense
"involved the destruction, alteration, or fabrication of
a substantial number of records, " under U.S.S.G. §
2J1.2(b)(3)(A); (2) a two-level increase because Martinez
knew or should have known that the victim was vulnerable,
under § 3A1.1(b)(1); and (3) a two-level increase for
abusing a position of public trust, under § 3B1.3. The
PSR also awarded a three-level reduction for acceptance of
responsibility pursuant to § 3E1.1(a) and (b).
total offense level of 17 and a criminal history category of
I, the PSR fixed Martinez's advisory guidelines range as
24 to 30 months' imprisonment. In addition,
Martinez's convictions carried statutory maximum terms of
10 and 20 years' imprisonment, respectively.
filed objections to the PSR contesting the
alteration-of-records and the vulnerable-victim increases,
arguing that: (1) he compromised only one record in this
case, not a "substantial number of records"; (2)
the United States, not the Patient, was the
"victim" of his criminal conduct; and (3) he had
not "targeted" the Patient as a victim.
government responded that Martinez did alter or falsify a
"substantial number of records" because he had
entered or altered at least 43 data points and/or written
comments in the Patient's medical chart (29 data points
on September 2 and an additional 14 written comments on
September 4). Furthermore, the government argued that even if
Martinez did not qualify for an offense-level increase under
subsection (A) of § 2J1.2(b)(3) by altering a
"substantial number" of records, he nonetheless
qualified under subsection (B) by altering or fabricating
"essential or especially probative" records because
the records that Martinez had altered would reveal whether
Martinez furnished an acceptable level of care to the
government also argued that the vulnerable-victim increase
was proper because Martinez harmed a real person-a
76-year-old critically ill veteran-by failing to provide
adequate care and then attempting to avoid responsibility for
that victim's death. Moreover, Martinez had necessarily
"targeted" the Patient when he failed to monitor
the Patient's condition during his shift.
sentencing hearing, the district court overruled
Martinez's objection to the alteration-of-records
increase, stating: "It would appear to me that he did
alter a substantial number of records. But even if he
didn't he altered essential and probative records."
The district court also overruled Martinez's
vulnerable-victim objection because Martinez was the nurse in