           Case: 16-15941   Date Filed: 04/18/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15941
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:95-cr-00586-JLK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ROBERT ALLEN LOPEZ,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 18, 2017)

Before TJOFLAT, HULL, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Robert Allen Lopez appeals his 60-month sentence, imposed after he pled

guilty to conspiracy to commit Medicare fraud, an offense against the United

States, in violation of 18 U.S.C. § 371. Lopez initially failed to report to pretrial

services, an arrest warrant was issued, and the U.S. Marshal ultimately brought

Lopez back from Nicaragua to the Southern District of Florida. Lopez contends

that the district court procedurally erred by concluding that the conditions of his

confinement in a Nicaraguan jail for five months while he awaited extradition to

the United States were irrelevant to whether he received a downward variance or

departure. He also argues that the district court precluded him from describing the

conditions and duration of his confinement during sentencing.

      When reviewing a sentence, we ensure that the district court did not commit

a significant procedural error. Gall v. United States, 552 U.S. 38, 51 (2007). We

review de novo a claim that a district court erroneously believed it lacked the

authority to depart. United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir.

2003). When nothing in the record indicates otherwise, we assume that the district

court understood it had the authority to depart. United States v. Dudley, 463 F.3d

1221, 1228 (11th Cir. 2006). But if “the district court’s statements reflect an

ambiguity concerning its ability to depart,” we resolve the ambiguity in the

defendant’s favor. United States v. Ortega, 358 F.3d 1278, 1279 & n.3 (11th Cir.

2003).


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      If a district court does not find a basis for a sentencing variance, the court

must impose a sentence within the guidelines range “unless the court finds that

there exists an aggravating or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission in formulating

the guidelines that should result in a” different sentence. 18 U.S.C. § 3553(b)(1).

A “district court may reduce a sentence to account for the harsh conditions of

pretrial confinement.” United States v. Jayyousi, 657 F.3d 1085, 1118 (11th Cir.

2011); see also Pressley, 345 F.3d at 1218 (stating that harsh conditions of

confinement may provide a basis for a departure).

      Before imposing a sentence, a district 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). “The right of allocution

provides a defendant an opportunity to plead personally to the court for leniency in

his sentence by stating mitigating factors and to have that plea considered by the

court in determining the appropriate sentence.” United States v. Perez, 661 F.3d

568, 583 (11th Cir. 2011) (quotation omitted).

      Upon review of the record and consideration of the parties’ briefs, we

conclude that the district court committed no reversible error in sentencing Lopez.

      During the sentencing hearing, the district court permitted Lopez to describe

the conditions of his five months of confinement in the Nicaraguan jail. Lopez


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spoke about how long he was confined, the conditions in which he lived, and the

ways in which his confinement affected him. Lopez’s contention that the district

court precluded him from presenting mitigating information is without merit.

      We recognize that early on, the district court stated that the conditions of

Lopez’s confinement were “not relevant here.” But later on, the district court

indicated that Lopez’s confinement in the Nicaraguan jail could be considered and

“that’s a matter of judicial discretion” in sentencing. The district court also made

other statements that indicate it understood it had the authority to depart. The

district court also recognized the poor jail conditions in Nicaragua, stating:

“Apparently, it’s a terrible place.”

      The government, however, argued forcefully against a sentencing variance,

emphasizing that Lopez had stolen once $2 million in Medicare funds, that he tried

to steal over $4 million, and that he was in the Nicaraguan jail for only five

months. The government stressed that other cases with sentence reductions

involved harsh confinement that lasted for years, not a matter of months. See

Pressley, 345 F.3d at 1218 (defendant had spent five years in a 23-hour lockdown).

      Ultimately, the district court noted Lopez’s “poor choice” of fleeing to

Nicaragua, which turned out to be a “very, very bad place to end up in jail,” was

not outweighed by the seriousness of the substantial fraud Lopez committed and




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the need to protect the public and others. The court determined “in this case, the

advisory guidelines [sentence] . . . is appropriate.”

      Considering the record as a whole, we conclude that Lopez has not carried

his burden to show procedural error. Thus, we affirm Lopez’s 60-month sentence.

      AFFIRMED.




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