Filed: Sep. 27, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT SEPT 27, 2010 No. 09-15680 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 09-20077-CR-JLK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAMON SANTOS, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 27, 2010) Before BLACK, PRYOR and KRAVITCH, Circuit Judges. PER CURIAM: Ramon Santos appe
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT SEPT 27, 2010 No. 09-15680 JOHN LEY Non-Argument Calendar CLERK _ D. C. Docket No. 09-20077-CR-JLK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAMON SANTOS, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 27, 2010) Before BLACK, PRYOR and KRAVITCH, Circuit Judges. PER CURIAM: Ramon Santos appea..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 27, 2010
No. 09-15680 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-20077-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON SANTOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 27, 2010)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ramon Santos appeals his convictions and the sentences imposed for
conspiracy to defraud Medicare and to commit health care fraud, health care fraud,
and obstruction of justice. After a thorough review of the record, we affirm the
convictions but vacate and remand for resentencing.
I. Background
Santos was charged by superseding indictment with conspiracy to commit
health care fraud, in violation of 18 U.S.C. § 1349 (Counts 1 and 13), health care
fraud, in violation of 18 U.S.C. § 1347 (Counts 2 through 12 and 14 through 23),
and obstruction of justice, in violation of 18 U.S.C. § 1503 (Count 24).
The evidence at trial established the following: Ana Fonseca and Felix Calas
opened Better Health Consulting Clinic Corporation in 2004. Through a friend,
Fonseca met Santos, who showed her a copy of his physician’s assistant (“PA”)
license and was hired as a PA at the clinic.1 In his role as PA, Santos altered
blood-work results so that the clinic could bill Medicare for treatments that had not
been performed.
As part of the scheme, patients would come to the clinic, provide their
Medicare information, and be seen by Santos. Santos gave the patients infusions
of vitamins B1, B6, and B12 but billed Medicare for more expensive treatments.
Monica Mulet, a medical assistant at Better Health, testified that Santos would tell
her what medicines to put in the infusion bags. When the medical director was not
1
A physician’s assistant is a health care professional licensed to practice medicine under
the supervision of a licensed physician.
2
there, Santos would see patients, complete paperwork, and write in the medical
files.
In 2005, Fonseca and Otto Hevia opened Mitto Health Center and hired
Santos and Carlos Madrigal as PAs. Santos conducted physical exams and
completed the billing paperwork. Santos and Madrigal provided infusions of
vitamins B1, B6, and B12 to patients. Madrigal observed Santos write in patient
charts and fill out billing paperwork, sometimes for medications the patients were
not given. Mitto’s medical director, De Quesada, had no doubt that Santos was a
PA and he believed he had seen Santos’s PA license.
In June 2006, federal agents served Better Health and Mitto with subpoenas
for patient records. Fonseca planned to close the clinic as a result, but Santos told
her he would get the records in order. Over the next few weeks, Santos replaced
pages in patient charts with fake test results. Santos also signed bills and forged
the medical directors’ signatures on patient charts. When interviewed by the FBI,
De Quesada confirmed that the claims made to Medicare included medications he
had not used or with which he was not familiar. When the FBI reviewed medical
records and patient files, they found charges for tests at Miami Technology
Diagnostic Center on dates after the center had closed. They also uncovered bills
for a patient who had died before the listed dates of treatment. The FBI also
3
confirmed that Santos had not received a license as a PA. The investigation
revealed that Better Health had spent $15,000 on medications, for which it billed
Medicare $11 million, and that Mitto had spent between $3,000 and $4,000 on
medications, for which it billed $1 million.
Santos testified in his own defense with the assistance of a translator. He
denied that he had held himself out to be a PA or that he had shown Fonseca or
De Quesada a PA license. He stated that he was hired to work as a medical
assistant.2 He admitted that he had given infusions while at Mitto but stated that he
had done so under the doctor’s direction. He denied falsifying documents or
participating in the fraud at either clinic.
The jury convicted Santos on one count of conspiracy to commit health care
fraud, five counts of health care fraud, and one count of obstruction of justice. He
was acquitted on the remaining counts. After determining that the sentencing
guideline range was 108 to 135 months’ imprisonment, the court sentenced Santos
to 108 months’ imprisonment.
On appeal, Santos argues that (1) he was denied a fair trial due to errors in
the translation and jury instructions; (2) the district court improperly calculated his
guideline range; (3) the district court improperly conducted the sentencing hearing
2
A medical assistant is a healthcare worker who performs administrative and clerical tasks
and who is not authorized to conduct physical exams or order tests.
4
and failed to permit him to allocute; and (4) his sentence is unreasonable in light of
the sentences his co-conspirators received. We address each in turn.
A. Fair Trial3
Generally, we review the legality of a jury instruction de novo, but we defer
to the district court on the specific phrasing of an instruction, absent an abuse of
discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). When
the defendant fails to object at trial, we review the claim for plain error. See
id. at
1271. Under the plain error standard, “there must be (1) an error, (2) that is plain,
and (3) that affects substantial rights.” United States v. Williams,
469 F.3d 963,
966 (11th Cir. 2006). If those conditions are met, we will “notice the error only if
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”
Id. (internal quotation omitted). “Before an error is subject to
correction under the plain error rule, it must be plain under controlling precedent or
in view of the unequivocally clear words of a statute or rule.” United States v. Lett,
483 F.3d 782, 790 (11th Cir. 2007). Regarding the third prong of the plain error
3
There is no merit to Santos’s claim that the government improperly bolstered its witnesses’
credibility. In rebuttal closing argument, the government responded to defense counsel’s attack on
the witnesses’ credibility. See United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984) (“The
prosecutor did not place the credibility of his office behind his own witnesses. At most he merely
attempted to rebut aspersions the defense had cast on those witnesses; he pointed out features of
their own testimony that supported their credibility. He did not express personal opinions about the
witnesses. Rather, he urged the jury to draw inferences and conclusions from the evidence produced
at trial.”). Such statements were not improper.
Id.
5
analysis, the defendant bears the burden of establishing that the error affected the
outcome of the proceedings below. United States v. Curtis,
400 F.3d 1334, 1336
(11th Cir. 2005).
1. Errors in the Translation
Under the Court Interpreters Act, the district court shall use an interpreter “if
the district court determines that the defendant [or a witness]: (1) speaks only or
primarily a language other than the English language; and (2) this fact inhibits their
comprehension of the proceedings or communication with counsel or the presiding
judicial officer.” United States v. Edouard, 485 F.3d 1324, 1337 (11th Cir. 2007)
(internal quotations omitted); see also 28 U.S.C. § 1827(d)(1). The Act further
provides, “If any interpreter is unable to communicate effectively with the
presiding judicial officer, the United States attorney, a party (including a defendant
in a criminal case), or a witness, the presiding judicial officer shall dismiss such
interpreter and obtain the services of another interpreter in accordance with this
section.” 28 U.S.C. § 1827(e)(1). In general, the appointment of an interpreter is a
matter left to the district court’s discretion.
Edouard, 485 F.3d at 1337.
“[T]he general standard for the adequate translation of trial proceedings
requires continuous word for word translation of everything relating to the
trial . . . .” United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990). Although
6
defendants have no constitutional “right” to flawless, word for word translations,
the goal is for interpreters to translate exactly what is said; courts should
discourage interpreters from “embellishing” or “summarizing” live testimony.
United States v. Gomez, 908 F.2d 809, 811 (11th Cir. 1990).
Here, during Santos’s testimony, the following colloquy occurred:
Q: And did you tell him [Dr. De Quesada] that you were a
physician’s assistant?
A: Medical assistant. I never told him physician’s assistant.
Q: You never showed him a license ever?
A: As a medical assistant.
....
Q: Sir, are you saying that you never showed him or Ana Maria
Fonseca a license that said you were a physician’s assistant, not
a medical assistant?
A: Medical Assistant.
Court: Did you ever show Ana Fonseca or Dr. De Quesada a piece of
paper saying you were a medical assistant?
A: Medical assistant.
....
Court: Did you ever take a piece of paper that said you were a licensed
or authorized medical assistant and show it to Ana Fonseca.
Did you ever do that?
A: No.
Court: Did you ever show such a piece of paper saying you were a
medical assistant to Dr. De Quesada?
A: I don’t understand what it means, medical assistant or
physician’s assistant. I have to be very clear on this.
Otherwise, I might get the wrong answer.
Court: Did you ever show a piece of paper saying you were a medical
assistant to Dr. De Quesada?
Counsel: The question is a physician’s assistant. That’s the question.
Court: No. I’m asking one and you are asking another.
....
7
Court: You’ve got to clarify it. As long as we are talking one thing
and he is talking something else, it’s not fair to him or to you
and the jury’s – it’s not fair to the jury.
Counsel: Okay.
Court: Did you show a document, piece of paper, saying you were a
licensed medical assistant to the doctor . . . .
A: No.
Court: Now, then, did you ever show to Ana Fonseca a document
saying you were a . . . physician’s assistant?
A: I am not a physician’s assistant. I am a medical assistant.
Court: Answer this question: Did you take a piece of paper that said
you were a physician’s assistant and show it to Ana Fonseca or
the doctor in order to get the job? Did you ever do that?
A: No.
Following this line of questioning, Santos called Ana Shore, the chief interpreter
for the Federal Public Defender’s Officer. The court questioned the purpose of the
testimony, and defense counsel explained that there was some confusion in the
translations of physician’s assistant and medical assistant during Santos’s
testimony.
The court excused the jury and asked the court translator, Guillermo Suquet,
to take the stand. Suquet testified that when the court said medical assistant, he
had translated it as physician assistant instead. The court concluded that the
interpreter had not interpreted the question properly and that Santos could be
confused by the questions. As a result, the parties stipulated that Santos had
testified that he had never held himself out to be a PA.
Santos now argues that his trial was fundamentally unfair due to a
8
mistranslation during his testimony and that this unfairness requires his conviction
be reversed. He contends that the district court erred when it did not permit him to
proffer testimony on the mistranslation under the Court Interpreters Act, 28 U.S.C.
§ 1827. According to Santos, after the district court denied his request for a
mistrial, the court failed to consider other corrective measures, leaving the jury
confused on a crucial elements of the government’s case. He disputes that the
stipulation submitted to the jury alleviated that confusion. Because the
government attached such significance to the question of whether Santos was a
physician’s assistant, Santos argues, the error in the translation could not have been
harmless.
Santos now contends that the translator could not effectively communicate
and that he should have been permitted to present evidence of the translator’s
mistake. Although the translator’s confusion and likely error is troubling, a review
of the record shows that the district court did not abuse its discretion by refusing to
permit another translator to testify about the error. The parties stipulated that
Santos denied holding himself out to be a physician’s assistant, and this stipulation
covered the purpose of the questions. Several witnesses testified that they knew
Santos to be a physician’s assistant. Santos denied this in his own testimony, and
9
the jury was free to determine which witnesses were more credible.4 United States
v. Flores, 572 F.3d 1254, 1263 (11th Cir.), cert. denied,
130 S. Ct. 561 (2009).
Even if the district court erred, the error was harmless. Santos’s status as a
physician’s assistant or medical assistant was not crucial to the government’s case.
Santos was charged with conspiring to commit health care fraud, committing
health care fraud, and obstructing justice. To convict Santos of conspiracy, the
government needed to prove an agreement to engage in unlawful activity and an
overt act committed in furtherance of that conspiracy. United States v. Perkins,
748 F.2d 1519, 1527 (11th Cir. 1984). To prove health care fraud, the government
needed to prove that Santos knowingly and willfully executed a scheme to defraud
a health-care benefit program in connection with delivery of or payment for health
care. 18 U.S.C. § 1347. To prove Santos obstructed justice, the government
needed to prove that Santos corruptly obstructed or impeded the due administration
of justice. 18 U.S.C. § 1503.
The evidence at trial established that Santos and Fonseca agreed to alter
blood work to bill Medicare for treatments not given to patients. Witnesses
observed Santos making notes on the medical charts. Others saw Santos filling out
4
Santos now argues that the translation could have affected the testimony of other Spanish-
speaking witnesses. He raises this argument for the first time on appeal, however, and cannot show
plain error because any error was harmless.
10
billing documents. In addition, Santos instructed others at the clinics what
medications to put in the infusions, and Santos submitted bills for medications the
clinic did not use. When the FBI began investigating the clinics, Santos arranged
to alter the medical records to cover up the scheme. This evidence was sufficient
to establish conspiracy, health care fraud, and obstruction.
None of these offenses depended on Santos’s status as a physician’s
assistant. As a physician’s assistant, Santos could be expected to see patients and
write entries in charts. As a medical assistant, his role would have been limited to
administrative and clerical work. Thus, if Santos had been a physician’s assistant
instead of a medical assistant, it simply would have made it easier for him to
commit the crimes because his involvement with patients and billing would be
expected. Because Santos’s status was not relevant to the elements of the offenses,
any error in the translation was harmless.
2. Jury Instructions
Santos next argues that the court committed multiple errors in instructing the
jury. He contends that because the evidence was not overwhelming or even
substantial, the cumulative effect of these errors requires that his convictions be
reversed.
a. Accomplice Instruction
11
Santos complains of the court’s failure to give the following pattern
instruction on accomplices and witnesses testifying under plea agreements:
The testimony of some witnesses must be considered with more
caution than the testimony of other witnesses. For example, . . . a
witness who hopes to gain more favorable treatment in his or her own
case, may have a reason to make a false statement because the witness
wants to strike a good bargain with the Government.
....
In this case the Government called as one of its witnesses a person
named as a co-Defendant in the indictment, with whom the
Government has entered into a plea agreement providing for the
possibility of a lesser sentence than the witness would otherwise be
exposed to. Such plea bargaining, as it’s called, has been approved as
lawful and proper, and is expressly provided for in the rules of this
Court. However, a witness who hopes to gain more favorable
treatment may have a reason to make a false statement because the
witness wants to strike a good bargain with the Government. So,
while a witness of that kind may be entirely truthful when testifying,
you should consider such testimony with more caution than the
testimony of other witnesses. And, of course, the fact that a witness
has pled guilty to the crime charged in the indictment is not evidence,
in and of itself, of the guilt of any other person.
See Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Special Instruction
1.1, 1.2 (2003).
Because Santos did not challenge the jury instructions on this ground, we
review for plain error. United States v. Wright, 392 F.3d 1269, 1277 (11th Cir.
2004). “Jury instructions will not be reversed for plain error unless the charge,
considered as a whole, is so clearly erroneous as to result in a likelihood of a grave
miscarriage of justice, or the error seriously affects the fairness, integrity, or public
12
reputation of judicial proceedings.” United States v. Starke, 62 F.3d 1374, 1380-81
(11th Cir. 1995) (internal quotations omitted).
District courts “have broad discretion in formulating jury instructions[,]
provided that the charge as a whole accurately reflects the law and the facts, and
we will not reverse a conviction on the basis of a jury charge unless the issues of
law were presented inaccurately, or the charge improperly guided the jury in such a
substantial way as to violate due process.” Prather, 205 F.3d at 1270 (quotations
omitted). District courts are not required to use the Eleventh Circuit Pattern Jury
Instructions, and this court has repeatedly approved jury instructions that do not
exactly track the language of the pattern instructions. United States v. Veltmann,
6
F.3d 1483, 1492 (11th Cir. 1993).
Here, there was no error in the district court’s failure to give the accomplice
instructions. The court instructed the jury that in deciding whether to believe a
witness, it should consider whether the witness had a particular reason not to tell
the truth or had a personal interest in the outcome of the case. As each co-
conspirator testified, defense counsel was able to cross-examine the witness with
respect to the plea agreement and possibility of a reduced sentence. During closing
argument, defense counsel argued that the witnesses testified with the hopes of
reducing their own sentences or with immunity from prosecution. Thus, the jury
13
was able to evaluate the credibility of the witnesses. And the instructions given by
the court, when considered as a whole, informed the jury that it must evaluate the
credibility of the witnesses and consider whether the witnesses stood to gain
anything from their testimony. Thus, Santos has not shown that he was prejudiced
by the failure to give these instructions or that the failure to give them seriously
affected the fairness of the judicial process.
b. Deliberate Ignorance
Santos contends that, given the lack of evidence of deliberate ignorance, the
court erred in giving the instruction.
Following closing argument, the court instructed the jury that
with respect to the issue of a defendant’s knowledge in this case, if
you find from all the evidence beyond a reasonable doubt that the
Defendant believed he was participating in the offenses charged . . .
and that he deliberately and consciously tried to avoid learning the
purpose of the acts was to commit health care fraud, such deliberate
avoidance of positive knowledge – you may treat such deliberate
avoidance of positive knowledge as the equivalent of knowledge.
A deliberate ignorance instruction is warranted “only when . . . the facts . . .
support the inference that the defendant was aware of a high probability of the
existence of the fact in question and purposely contrived to avoid learning all of
the facts in order to have a defense in the event of a subsequent prosecution.”
United States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991) (internal quotation
14
marks omitted). The district court should not “instruct the jury on ‘deliberate
ignorance’ when the relevant evidence points only to actual knowledge, rather than
deliberate avoidance.” Id. Instructing the jury on deliberate ignorance is harmless
error, however, where “the jury could have convicted on an alternative, sufficiently
supported theory of actual knowledge.” United States v. Kennard,
472 F.3d 851,
858 (11th Cir. 2006); United States v. Stone,
9 F.3d 934, 937-38 (11th Cir. 1993).
Here, we conclude that any error in the instruction was harmless. Because
the evidence was sufficient to prove Santos’s actual knowledge, we will assume
that the jury convicted on the basis of actual knowledge rather than deliberate
ignorance.
c. Unanimous Verdict
Santos argues that the district court erred by orally instructing the jury that it
was required to return a verdict, which may have led the jurors to believe they had
to compromise in reaching a verdict.5 Because Santos did not object to the
instructions on this ground, we review for plain error.
In this case, the court instructed,
Now the rest of you, the 12 of you have to unanimously agree on the
verdict. Whatever the verdict is, you have to unanimously agree . . . .
It is your duty as jurors to discuss the case with one another in an
effort to reach agreement, if you can do so. Each of you must decide
5
This error does not appear in the written instructions.
15
the case for yourself, but only after full consideration of the evidence
with the other members of the jury. . . . While you are discussing the
case, do not hesitate to reexamine your own opinion and change your
mind . . . . But do not give up your honest beliefs simply because
others think differently or merely to get the case over with.
We presume that the jury followed the instructions. United States v.
Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996). Nothing in the court’s charge
would have misled the jurors into thinking they should compromise their view of
the case. Therefore, Santos cannot show any error, plain or otherwise, in the
court’s instruction.6
B. Sentencing
In his objections to the calculation of the guideline range, Santos disputed
the factual findings in the presentence investigation report, objected to the
enhancement for his role in the offense, and requested a downward departure or a
variance in order to avoid disparity in sentencing.7
1. Guideline Enhancement
6
Santos also argues that the cumulative errors in his case require reversal. We disagree.
“In addressing a claim of cumulative error, we must examine the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” United States v. Calderon, 127 F.3d
1314, 1333 (11th Cir. 1997). Where, as here, there was only a single error in this case, there can be
no cumulative error. United States v. Waldon,
363 F.3d 1103, 1110 (11th Cir. 2004).
7
Ana Fonseca was sentenced to 100 months’ imprisonment and would likely receive a
reduction based on her cooperation and testimony against Santos. Felix Calas was sentenced to 57
months’ imprisonment, which was later reduced to 38 months. Otto Hevia was sentenced to 46
months’ imprisonment.
16
We review a sentencing court’s determination of a defendant’s role in the
crime for clear error. United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir.
2010). We review a district court’s application of the guidelines de novo. United
States v. Kinard,
472 F.3d 1294, 1297 n.3 (11th Cir. 2006).
In determining Santos’s guideline range, the probation officer
recommended, relevant to this appeal, a three-level enhancement based on Santos’s
managerial role, U.S.S.G. § 3B1.1(b). Under U.S.S.G. § 3B1.1, a defendant
receives a three-level increase in his offense level if “the defendant was a manager
or supervisor (but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). The
defendant must have been a manager or supervisor of “one or more other
participants.” Id. § 3B1.1(b), comment. (n.2). A “participant” is a “person who is
criminally responsible for the commission of the offense, but need not have been
convicted.”
Id. § 3B1.1(b), comment. (n.1); United States v. Rendon,
354 F.3d
1320, 1332 (11th Cir. 2003). To distinguish a leadership role from one of “mere
management or supervision,” the court should consider the following factors:
(a) the exercise of decision making authority, (b) the nature of
participation in the commission of the offense, (c) the recruitment of
accomplices, (d) the claimed right to a larger share of the fruits of the
crime, (e) the degree of participation in planning or organizing the
offense, (f) the nature and scope of the illegal activity, and (g) the
17
degree of control and authority exercised over others.
Jennings, 599 F.3d at 1253; U.S.S.G. § 3B1.1(b), comment. (n.4).
Here, the testimony at trial showed that Santos saw patients and completed
billing paperwork that was submitted to Medicare. He also performed infusions
and instructed other employees what medications to put in the infusion bags.
Under these facts, Santos played a large role in the fraud and exercised control or
authority over at least one other participant in the clinics. He also organized the
scheme to alter records once Fonseca learned that the FBI was investigating.
Moreover, the scheme included at least five participants: Fonseca, Casal, Hevia,
Madrigal, Mulet, and Santos. Thus, we conclude that the court properly applied
the enhancement.
2. Factual Issues
Federal Rule of Criminal Procedure 32(i)(3) requires a district court at
sentencing to make a determination as to a disputed fact in a PSI. Fed. R. Crim. P.
32(i)(3)(B). Our review of the record shows that, contrary to Santos’s claim, the
district court resolved the factual issues Santos raised at sentencing. Santos
repeatedly objected to the factual elements of his offense, and, as the district court
explained, these factual disputes were resolved by the jury at trial. The district
court’s statement was sufficient under Fed. R. Crim. P. 32(i)(3) to resolve the
18
disputed factual issue.
3. Allocution
Santos argues that the district court violated Fed. R. Crim. P. 32 when it
failed to provide him an opportunity to allocute at sentencing and that this error
requires reversal. “A sentencing issue not raised in the district court is reviewed
for plain error.” United States v. Dorman, 488 F.3d 936, 942 (11th Cir. 2007).
Under Rule 32, the sentencing court must “address the defendant personally
in order to permit the defendant to speak or present any information to mitigate the
sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). This requirement provides the
defendant with an opportunity to personally plead for leniency and “to have that
plea considered by the court in determining the appropriate sentence.” Dorman,
488 F.3d at 942 (citation omitted).
Here, although the court considered Santos’s arguments about his sentence,
at no time did it offer Santos the opportunity to address the court. Thus, as the
government concedes, the district court committed an error that is plain.
Moreover, the government states in its brief that “the error arguably affected
Santos’s substantial rights because there is the possibility (although surely not the
probability) that had he been offered the chance to speak, the court might have
imposed a below-Guidelines sentence.” The government cites United States v.
19
Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002), for this proposition. Although we
accept the concession made by the government that Santos satisfied the third prong
of plain error review, it is important to acknowledge one argument the government
did not make.
The government does not argue Santos failed to make a Jones objection
regarding his failure to allocute. See United States v. Jones, 899 F.2d 1097, 1103
(11th Cir. 1990), overruled on other grounds, United States v. Morrill,
984 F.2d
1136 (11th Cir. 1993) (en banc). In Jones, we held that “[w]here the district court
has offered the opportunity to object and a party is silent or fails to state the
grounds for objection, objections to the sentence will be waived for purposes of
appeal, and this court will not entertain an appeal based upon such objections
unless refusal to do so would result in manifest injustice.” Id.; see also United
States v. Rodriguez-Velasquez,
132 F.3d 698, 700 (11th Cir. 1998) (“Once a
defendant has waived his right to allocute by failing to raise it as a Jones objection,
this court will remand for re-sentencing only if manifest injustice would result
otherwise.”). At the sentencing hearing, the district court specifically asked
Santos’s counsel whether, “[u]nder U.S. v. Jones, other than the objections that
have already been made . . . is there anything further by way of objection under
U.S. v. Jones by the defense?” Santos’ counsel responded in the negative. The
20
government does not argue that Santos waived his objection to the lack of an
allocution and has forfeited its right to invoke this procedural rule. See United
States v. Lall, 607 F.3d 1277, 1290 (11th Cir. 2010) (refusing to declare challenge
to confession waived when the procedural rule was not invoked by the
government).
4. Reasonableness
Finally, Santos argues that the sentence imposed is unreasonable because the
court failed to consider the disparity with the sentences imposed on his co-
conspirators.
Because we conclude that remand is required to enable Santos to allocute,
we decline to address the reasonableness of the sentence at this time.
For the foregoing reasons, we AFFIRM Santos’s convictions and remand for
resentencing during which Santos is given the opportunity to allocute.
AFFIRMED in part; VACATED and REMANDED in part.
21
