Jason Edward Lopez pleaded guilty to multiple counts of healthcare fraud and conspiracy involving Medicare and the Small Business Administration. He defrauded the government of over $900,000 in actual losses, though the probation office calculated his guideline range based on an intended loss of roughly $2.7 million. The presentence report recommended a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. However, at the sentencing hearing, the government argued for only a two-level reduction, claiming Lopez had delayed the proceedings. The district court, believing it was bound by the government's recommendation, applied the two-level reduction, resulting in a guideline range of sixty-three to seventy-eight months. The court ultimately sentenced Lopez to forty-eight months, noting it might adjust for the government's failure to object to the three-level reduction in the presentence report.
The Eleventh Circuit addressed two issues: the calculation of loss and the acceptance-of-responsibility reduction. First, the court affirmed the district court's use of intended loss rather than actual loss. Citing United States v. Horn, the court held that the term 'loss' in U.S.S.G. § 2B1.1(b)(1) is unambiguous and means 'the greater of actual loss or intended loss.' Thus, the district court correctly calculated the loss amount. Second, the court focused on the acceptance-of-responsibility reduction. The record showed Lopez did not delay the hearing, and the government conceded it did not sufficiently justify withholding the three-level reduction. The court agreed that denying the third level was error. However, the critical legal question was whether this error was harmless. Under United States v. Barner and United States v. Focia, an error is harmless only if the government proves beyond a reasonable doubt that the district court would have imposed the same sentence regardless of the error. The court analyzed the district judge's statements, noting that phrases like 'may adjust' and 'considering' the government's failure to object were too indefinite to satisfy the 'Keene statement' requirement. Because the district court never clearly stated it would impose the same sentence even with the correct guideline range, the error was not harmless.
Lopez's sentence is vacated, and the case is remanded to the district court for resentencing. On remand, the district court must apply the correct three-level acceptance-of-responsibility reduction to recalculate the advisory guideline range. The district court must then determine a new sentence, ensuring it clearly states if it intends to impose the same sentence despite the guideline change to avoid future harmless-error challenges. The decision reinforces that indefinite statements regarding sentencing adjustments are insufficient to cure guideline calculation errors.