                                                             [DO NOT PUBLISH]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
