            Case: 15-14636    Date Filed: 12/28/2016   Page: 1 of 4


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14636
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:14-cr-60299-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NESTOR OVIDIO LOPEZ,

                                                           Defendant-Appellant.

                       ________________________

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

                             (December 28, 2016)



Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Nestor Lopez appeals his 188-month sentence, imposed at the low end of the

guideline range, after pleading guilty to one count of unlawful distribution of 50

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Lopez

contends the district court clearly erred in applying a two-level guideline

enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Although

Lopez failed to appear at his initial sentencing hearing, he argues his severe abuse

of methamphetamine during the time period before the sentencing renders his

actions involuntary and thus not willful as required by the sentencing guideline for

an obstruction of justice enhancement. He contends the district court imposed a

procedurally unreasonable sentence based on clearly erroneous and insufficiently

specific facts by misapplying the obstruction of justice enhancement to his

sentence. After review, 1 we affirm Lopez’s sentence.

        “When reviewing for procedural reasonableness, we ensure that the district

court: (1) properly calculated the Guidelines range; (2) treated the Guidelines as

advisory; (3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a

sentence based on clearly erroneous facts; and (5) adequately explained the chosen

sentence.” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). The


       1
          In reviewing the district court’s imposition of an enhancement for obstruction of
justice, we review for clear error the district court’s factual findings and review de novo the
application of the factual findings to the sentencing guidelines. United States v. Doe, 661 F.3d
550, 565 (11th Cir. 2011). We will not disturb a district court’s factual findings under the clearly
erroneous standard unless we are left with the “definite and firm conviction that a mistake has
been made.” Doyal v. Marsh, 777 F.2d 1526, 1533 (11th Cir. 1985).
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party challenging the sentence bears the burden of establishing that the sentence is

unreasonable in light of the record. United States v. De La Cruz Suarez, 601 F.3d

1202, 1223 (11th Cir. 2010).

      Pursuant to U.S.S.G. § 3C1.1, a defendant’s offense level will be increased

by two levels if

      (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
      impede, the administration of justice with respect to the investigation,
      prosecution, or sentencing of the instant offense of conviction, and (2) the
      obstructive conduct related to (A) the defendant’s offense of conviction and
      any relevant conduct; or (B) a closely related offense.

U.S.S.G. § 3C1.1. Willfully failing to appear, as ordered, for a judicial proceeding

is included in a non-exhaustive list of examples of the types of conduct for which

this enhancement is warranted. Id. § 3C1.1 comment. (n.4(E)). “Willfully” “has

been interpreted to mean the defendant must consciously act with the purpose of

obstructing justice.” United States v. Revel, 971 F.2d 656, 661 (11th Cir. 1992)

(quotation omitted). A district court applying the § 3C1.1 obstruction of justice

enhancement should specifically state what the defendant did, why that conduct

warranted the enhancement, and, if applicable, how that conduct actually hindered

the investigation or prosecution of the offense. United States v. Alpert, 28 F.3d

1104, 1107-08 (11th Cir. 1994) (en banc).

      Lopez does not establish that his sentence was based on clearly erroneous

facts, or that the obstruction of justice enhancement was misapplied. The record


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reflects that Lopez was warned at his change of plea hearing about the

consequences of potential misbehavior and failure to appear. He then failed

multiple drug tests, fled the jurisdiction, and failed to appear at the sentencing

hearing. He did not return to court until after being arrested months later. The

district court found that Lopez’s failure to appear was willful despite his drug

abuse during that time. As its basis for the factual finding, the district court

reasoned that Lopez was aware that his sentence would likely increase based on his

bad behavior as the court had explained to him previously. This finding of fact has

support from the record and was not clearly erroneous. Although the district court

did not use the specific word “willful” in its ruling, the record taken as a whole

offers sufficient factual findings to allow for meaningful appellate review. Based

on the findings of fact, it was not error for the district court to then apply an

obstruction of justice enhancement, as willful failure to appear is explicitly

mentioned as an example of obstruction of justice in the commentary to the

Sentencing Guidelines. Accordingly, we affirm the sentence as reasonable.

      AFFIRMED.




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