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United States v. Plasencia

United States Court of Appeals, Eleventh Circuit

April 11, 2018


          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 4:16-cr-10004-JLK-1

          Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.

          PER CURIAM

         Maikel Suarez Plasencia ("Suarez") appeals his convictions and fifty-one-month concurrent sentences for encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (v)(II). He contends that his convictions were based on evidence obtained from an unconstitutional search of his global positioning system ("GPS"), which linked him to the illegal entry of Cuban migrants, and that his sentence reflects an obstruction-of-justice enhancement applied contrary to his due process rights and against the merits. See U.S.S.G. § 3C1.1. After careful review, we affirm Suarez's convictions and sentence.


         On the morning of September 6, 2015, twenty-eight Cuban migrants were found on Loggerhead Key, Florida. Later that day, Suarez's boat broke down on Garden Key, an island three miles east of Loggerhead Key and seventy miles west of Key West. A park ranger, David Fuellner, responded to a report of Suarez's beached boat and located Suarez and the boat.[1] Fuellner asked Suarez for permission to search his boat, and Suarez consented orally and by signing a consent form.[2] The signed form authorized Fuellner to perform a "complete" search of the vessel and to seize its contents for any "legitimate law enforcement purpose." Suarez then took a ferry to Key West to summon help with fixing his boat.

         Fuellner conducted the search the next day and found a GPS which, once plugged into the boat's power source and turned on, showed a waypoint indicating that the boat had been just off of Cuba's shore on September 5, 2015.[3] Fuellner then powered off the GPS, seized it, and entered it into evidence. Later analysis of the GPS, performed by a Coast Guard analyst, revealed that Suarez left Key West around 1:30am on September 5, arrived off the coast of Cuba at about 4:30pm that day, and then reached the vicinity of Loggerhead and Garden Keys in the early morning of September 6. The trip from Cuba to the United States took about ten hours. No warrant was obtained for Fuellner's search or for this analysis.

         Department of Homeland Security ("DHS") agents interviewed Suarez on September 8. Suarez claimed that he had taken his boat on a spear-fishing trip from Key West to the Dry Tortugas[4] and that he spent a night on the vessel. He denied knowledge of a migrant landing in the area. Months later, DHS agents again interviewed Suarez. When they confronted Suarez with the GPS evidence linking him to the Cuban shore, he claimed that the agents had mixed up his GPS with someone else's. However, Suarez admitted that his wife and two of his children were among the migrants who landed on September 6, 2015.

         On March 11, 2016, a federal grand jury sitting in the Southern District of Florida returned a twenty-eight-count indictment against Suarez, charging him with alien smuggling, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (v)(II). Suarez filed a motion on June 8, 2016 to suppress the GPS evidence. The District Court denied the motion on two grounds. First, it held that by consenting to a search of his vessel without limitation, Suarez consented to a search of his GPS found onboard. Next, and in the alternative, the Court held that Suarez had abandoned the boat and its contents by leaving it on a public shore for "three to four days" before returning to fix it.

         Suarez's case continued on to a jury trial, where Suarez presented as witnesses eight of the Cuban migrants found on September 6, 2015. The migrants testified generally that a "raft" with a single engine brought them from Cuba to the United States, that the trip took two nights and one day, that the raft was destroyed or lost, and that they waded to the United States shore from between fifteen and seventy-five feet out in the ocean. All of the migrant witnesses denied that Suarez assisted their journey in any way. The Government's witnesses testified that no raft, or debris from a destroyed raft, was found and that the ocean's depth even fifteen feet from the shore at which the migrants claimed to have landed would have made wading impossible. The Government also presented testimony that the migrants did not appear hungry, dehydrated, disheveled, or wet-conditions typical of migrants who come from Cuba to the United States by raft. The jury found Suarez guilty of all twenty-eight counts of alien smuggling.

         A presentence investigation report ("PSI") of Suarez was then issued. It set the Guidelines range of Suarez's sentence at thirty-three to forty-one months, which accounted for a two-point reckless-endangerment enhancement under U.S.S.G. § 2L1.1(b)(6). The PSI did not recommend a U.S.S.G. § 3C1.1 enhancement for obstruction of justice, stating, "The probation officer has no information indicating the defendant impeded or obstructed justice."

         The Government did not object to the PSI for failing to recommend a sentencing enhancement for obstruction of justice, but it filed notice of its intent to seek an upward variance in Suarez's sentence due in part to the "full day's worth of conflicting, sworn testimony" Suarez presented at trial. Suarez did not respond to the Government's notice, citing a lack of time to do so as the reason.

         At sentencing, the District Court applied U.S.S.G. § 2L1.1(b)(6)'s reckless-endangerment enhancement and then, sua sponte, added two more points to Suarez's total offense level under U.S.S.G. § 3C1.1 for knowingly suborning perjury at trial. The Court noted that Suarez knew from his counsel's opening statement that numerous witnesses would lie on his behalf but Suarez nonetheless allowed them to testify.[5] This obstruction-of-justice enhancement increased the Guidelines range of Suarez's sentence to forty-one to fifty-one months. After relaying its decision to impose the enhancement, the Court stated that it "assume[s] that [defense counsel] makes an objection to the Court's analysis." Defense counsel confirmed that he objected, and the Court stated,

So the record is clear. Defense counsel . . . has made a valid objection to all of this and objects to the Court's finding and he's fully protected to raise this on appeal. I think that protects the defendant. Do you have anything else? That's the finding.

         The Court then heard arguments from the Government and defense counsel about whether the Court should vary from the applicable Guidelines range. The Government requested that Suarez receive sixty months' imprisonment, citing the seriousness of Suarez's offenses and the disrespect to the court that he promoted by presenting false testimony from numerous witnesses. Defense counsel then argued that Suarez deserved only fifteen months' imprisonment because, namely, the migrants Suarez smuggled into the United States were his friends and family and he did not bring them over for profit. Defense counsel made no argument regarding Suarez's subornation of perjury. The Court then denied the Government's request for an upward variance and imposed a sentence of fifty-one months' imprisonment and three years' supervised release. Suarez appealed his convictions and sentence.

         On appeal, Suarez first argues that the District Court erred in denying his motion to suppress evidence recovered from the search of his GPS. He contends that the consent he provided to Fuellner did not include consent to search his GPS and that he did not abandon his boat.[6] Next, Suarez makes two challenges to the District Court's decision to apply U.S.S.G. § 3C1.1's two-point obstruction-of-justice enhancement. First, he asserts that the Court violated his due process rights by applying the enhancement sua sponte, without offering him prior notice or an opportunity to argue against the enhancement. Second, he claims ...

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