USA v. Maikel Suarez Plasencia

Filing

Opinion issued by court as to Appellant Maikel Suarez Plasencia. Decision: Affirmed. Opinion type: Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16946
Non-Argument Calendar
________________________
D.C. Docket No. 4:16-cr-10004-JLK-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAIKEL SUAREZ PLASENCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 11, 2018)
Before TJOFLAT, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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Maikel Suarez Plasencia (“Suarez”) appeals his convictions and fifty-onemonth 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.
I.
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

1

According to the Government, the report relayed that “a Spanish-speaking man had told
a park supervisor that he had been camping and fishing for the previous two days, that he needed
fuel for his boat, and that he needed to get . . . to Key West to get somebody to come back and
bring him fuel.”
2

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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 Tortugas4 and that he spent a night on the vessel. He
denied knowledge of a migrant landing in the area. Months later, DHS agents

2

Fuellner spoke in Spanish, Suarez’s native language. Also, the consent form provided
to Suarez was written in Spanish.
3

Fuellner’s search yielded no camping equipment, operational fishing gear, extra
clothing, or bait.
4

Loggerhead Key and Garden Key are both within the Dry Tortugas.
3

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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
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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 recklessendangerment 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
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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

5

Specifically, in his opening statement defense counsel announced to the jury,

But what you’re not going to hear from the government is the migrants. You’re
gonna hear that from the defense. You’re gonna have the ability to look at the
migrants, in that chair, and judge, hear what they say, hear them say that they
didn’t encounter [Suarez] out at sea; that he did not render aid, assist, or help
them, in any way, get here to the United States.
6

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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-ofjustice 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 that the Court
erred on the merits because he did not knowingly present perjured testimony. We
start with the District Court’s denial of Suarez’s motion to suppress.
II.
When considering a district court’s ruling on a motion to suppress, we
review factual findings for clear error and application of law to the facts de novo.
United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994). Clear error lies only
6

Because we conclude that the scope of Suarez’s consent included the search and later
analysis of his GPS, we do not review the Court’s abandonment determination.
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where the record leaves us “with the definite and firm conviction that a mistake has
been committed.” United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003)
(internal quotation marks omitted). Moreover, we construe all facts in the light
most favorable to the party who prevailed below. United States v. Bervaldi, 226
F.3d 1256, 1262 (11th Cir. 2000).
“The Fourth Amendment protects the people against ‘unreasonable’ searches
and seizures. A consensual search is manifestly reasonable so long as it remains
within the scope of the consent.” United States v. Martinez, 949 F.2d 1117, 1119
(11th Cir. 1992). Whether limitations were placed on the scope of consent, and
whether the search conformed to those limitations, is a question of fact determined
by the totality of the circumstances. United States v. Blake, 888 F.2d 795, 798
(11th Cir. 1989). The Government bears the burden of showing that its search was
conducted within the scope of the consent received. Id. at 799–800. “When an
individual gives a general statement of consent without express limitations,” the
scope “is constrained by the bounds of reasonableness: what a [law enforcement]
officer could reasonably interpret the consent to encompass.” Martinez, 949 F.2d
at 1119.
Our decision in United States v. Street, a case analogous to Suarez’s, is
instructive. See 472 F.3d 1298 (11th Cir. 2006). There, the defendant consented to
a “complete search” of his residence and to seizure of “any items” related to a
8

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string of recent bank robberies. Id. at 1308. Law enforcement found a police radio
on a bedroom floor, turned it on, and noticed that it was tuned to a radio zone
covering where a robbery had occurred earlier. Id. at 1303. Because the radio was
in plain view and the defendant did not limit the search, we concluded that law
enforcement could reasonably believe that the radio was within the scope of the
consent provided. Id. at 1308–09.
Here, via signed consent form, Suarez consented to a “complete” search of
his boat and to seizure of its contents for any “legitimate law enforcement
purpose.” He did not limit the scope of his consent in any way. Cf. United States
v. Rich, 992 F.2d 502, 507 (5th Cir. 1993) (“[The defendant], knowing the contents
of [his] vehicle and its various containers at the time he gave his consent, had the
responsibility to limit the scope of the consent if he deemed it necessary to do
so.”). Fuellner found the GPS in one of the boat’s storage compartments, lying
beneath some other items. Suarez’s consent clearly covered the compartment
where the GPS was found, despite Suarez’s argument to the contrary. See United
States v. Strickland, 902 F.2d 937, 942 (11th Cir. 1990) (holding that an officer’s
search of a spare-tire compartment was within the scope of the defendant’s consent
to a search of his “entire vehicle”).
Suarez further argues that Fuellner exceeded the scope of Suarez’s consent
by powering up the GPS, which was off when Fuellner found it. Street, however,
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guides the other way. See 472 F.3d at 1308–09. Moreover, in determining the
scope of a search, we consider “what the parties knew at the time to be the object
of the search.” Martinez, 949 F.2d at 1119. Suarez’s boat was beached seventy
miles from Key West’s shore. A reasonable person would understand that giving
“complete” consent to a search of his boat, in this context, would include
consenting to the search of a GPS on board that could indicate where the boat had
been and shed light on why it is beached so far out in the ocean. This is especially
so given that the consent form indicated that law enforcement was looking
generally for items that could be used for any legitimate law enforcement purpose.
Conversely, an officer receiving unbounded consent in this situation could
reasonably believe that the consent covered a search of the GPS. Fuellner
therefore did not violate Suarez’s Fourth Amendment rights by searching the GPS.
And, for the same reasons, nor did the Coast Guard analyst in performing a
forensic analysis of the GPS. Accordingly, the District Court did not err in
denying Suarez’s motion to suppress.
III.
Suarez next argues that the District Court’s application of U.S.S.G.
§ 3C1.1’s two-point enhancement was both in violation of his due process rights
and incorrect on the merits. When reviewing a district court’s decision to apply an
enhancement under § 3C1.1, we review factual findings for clear error and the
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district court’s application of the Guidelines to those facts de novo. United States
v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006). In reviewing the district
court’s findings of fact, we provide “substantial deference” to the court’s
credibility determinations at sentencing. United States v. Clay, 483 F.3d 739, 744
(11th Cir. 2007).
A.
Suarez contends that the District Court violated his due process rights by
imposing the § 3C1.1 enhancement sua sponte, without providing him adequate
notice or an opportunity to be heard on the issue. We disagree.
Due process requires that a criminal defendant have adequate notice of, and
an opportunity to contest, the facts used to support his criminal penalty. United
States v. Jules, 595 F.3d 1239, 1243 (11th Cir. 2010). But “sentencing procedures
are not required to be as exacting as those at trial.” Id. The defendant’s primary
due process interest at sentencing is the “right not to be sentenced on the basis of
invalid premises or inaccurate information.” See id. Hence, the degree of due
process protection required at sentencing is only that which is necessary “to ensure
that the district court is sufficiently informed to enable it to exercise its sentencing
discretion in an enlightened manner.” United States v. Stephens, 699 F.2d 534,
537 (11th Cir. 1983).

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Federal Rule of Criminal Procedure 32 governs, inter alia, the issuance of
PSIs. Rule 32(d) requires that a PSI “identify all applicable guidelines” and “any
factor relevant to . . . the appropriate kind of sentence.” But district courts are not
bound by the facts and recommendations set forth in a PSI; they may choose not to
adopt the facts as recited in the report or not to apply the Guidelines in the
proposed manner. United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990),
overruled in part on other grounds, United States v. Morrill, 984 F.2d 1136 (11th
Cir. 1993) (en banc); see United States v. Aguilar-Ibarra, 740 F.3d 587, 591 (11th
Cir. 2014) (noting that district courts have an obligation independent of the PSI to
correctly calculate the defendant’s Guidelines range). It follows that, with proper
notice, a court may apply Guidelines enhancements not identified in the PSI.7
Here, defense counsel’s opening statement indicated that the migrant
witnesses would deny Suarez’s involvement in their illegal entry into the United
States. Then, Suarez sat idly as the witnesses told a similar story contradicting the
record. This put Suarez on notice that the witnesses’ apparently false testimony,
and his own inaction, might later be cited by the Government or the Court as a
reason for lengthening his sentence. Indeed, before Suarez’s sentencing hearing,
the Government provided notice that it intended to seek an upward variance in part

7

It also follows that the Government’s failure to object to the PSI for failing to
recommend an applicable enhancement—here, § 3C1.1—does not preclude a district court from
applying that enhancement.
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because of the witnesses’ perjured testimony. Suarez thus cannot claim that he
lacked adequate notice of the conduct underlying the Court’s sua sponte decision
to apply § 3C1.1’s obstruction-of-justice enhancement.
The Guidelines, moreover, “define specific and finite factors warranting the
application of an upward or downward adjustment to a defendant’s otherwise
applicable sentencing range.” United States v. Canada, 960 F.2d 263, 266 (1st Cir.
1992). Therefore, when, as here, the circumstances afford a defendant notice that
he engaged in conduct that may result in the application of a Guidelines
enhancement, the court need not provide additional notice of its intention to apply
the enhancement sua sponte—the Guidelines themselves provide adequate notice.8
Further supporting this conclusion are the Supreme Court’s decisions in
Burns v. United States, 501 U.S. 129, 111 S. Ct. 2182 (1991), and Irizarry v.
United States, 553 U.S. 708, 128 S. Ct. 2198 (2008). In Burns, the Court held that
8

See United States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006) (stating that the
defendant’s awareness of his own false testimony put him “on notice that [his testimony] could
result in a possible obstruction of justice enhancement”); United States v. Knight, 76 F.3d 86, 88
(5th Cir. 1996) (“[I]f the defendant has actual knowledge of the facts on which the district court
bases an enhancement or a denial of a reduction, the Sentencing Guidelines themselves provide
notice of the grounds relevant to the proceeding.”); United States v. Willis, 997 F.2d 407, 416–17
(8th Cir. 1993) (affirming a district court’s sua sponte imposition of an obstruction-of-justice
enhancement, despite the PSI stating that the probation officer had “no information” regarding
obstruction of justice, because the defendant was on notice that his perjured statements at trial
might result in the enhancement); Canada, 960 F.2d at 266–67 (noting that even where a PSI
states there is “no basis” for a particular sentencing enhancement, “the guidelines themselves
provide notice to the defendant” that “he may be called upon to comment” on the enhancement);
United States v. Rucker, 122 F.3d 1064 (4th Cir. 1997) (unpublished table decision) (holding that
a defendant is not entitled to “advance notice of sua sponte adjustments to the guideline
calculation, at least where the facts relevant to the adjustment are known to the defendant,
because the bases for adjustments are limited and are set out in the guidelines”).
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before a district court may issue an upward departure from the Guidelines, notice
must be given in the PSI, in a prehearing submission by the Government, or by the
district court itself. Burns, 501 U.S. at 138, 111 S. Ct. at 2187. Unlike with
enhancements, “the Guidelines place essentially no limit on the number of
potential factors that may warrant a departure.” Id. at 136, 111 S. Ct. at 2186.
Hence, notice is more important for defendants to prepare an argument against a
departure than to prepare one against an enhancement.
In Irizarry, the Court then abrogated its holding in Burns by deciding that
notice, although necessary for a court to issue an upward departure,9 is not
necessary for a court to issue an upward variance. 553 U.S. at 716, 128 S. Ct. at
2203. It noted that because United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), rendered the Guidelines advisory, there was no longer an “expectation
subject to due process protection . . . that a criminal defendant would receive a
sentence within the presumptively applicable Guidelines range.” Irizarry, 553
U.S. at 713, 128 S. Ct. at 2202. Given that defendants are not entitled to notice of
variances—and that Guidelines enhancements, unlike departures, are finite and

9

The Irizarry Court specified that “‘[d]eparture’ is a term of art under the Guidelines and
refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”
553 U.S. at 714, 128 S. Ct. at 2202. The only departures relevant in Burns “were those
authorized by 18 U.S.C. § 3553(b) (1988 ed.), which required ‘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 sentence different from that
described.’” Irizarry, 553 U.S. at 714, 128 S. Ct. at 2202 (quoting Burns, 501 U.S. at 141, 111
S. Ct. at 2189 (Souter, J., dissenting)).
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specific—Suarez, who had notice of § 3C1.1 and of his witnesses’ conduct at trial,
was not denied due process when the District Court applied § 3C1.1 sua sponte.
Suarez contends that a new sentencing hearing is nonetheless warranted
because the District Court failed to allow his counsel to comment on the § 3C1.1
enhancement. See United States v. Mylor, 971 F.2d 706, 707 (11th Cir. 1992)
(holding that the district court erred by refusing to hear argument by the defense
concerning a Guidelines enhancement).10 Although the District Court noticed a
defense objection to the § 3C1.1 enhancement counsel without explicitly stating
the basis of the objection, it did ask counsel whether there was “anything else”
regarding the enhancements it applied. The Court then heard further argument
from both parties regarding whether to deviate from the applicable Guidelines
range in imposing Suarez’s sentence. The Government argued for an upward
variance in part because of the defense witnesses’ false testimony—even stating
that the District Court “succinctly summed up” the basis for its argument when
imposing the § 3C1.1 enhancement. In his response, however, defense counsel did
not attempt to counter the Government’s argument or push back on the District
Court’s conclusion that Suarez suborned perjury. The Court did not refuse to hear

10

See also Fed. R. Crim. P. 32(i) (requiring courts to rule on any controverted matter at
sentencing and give defense counsel an opportunity to speak on the defendant’s behalf);
U.S.S.G. § 6A1.3(a) (“When any factor important to the sentencing determination is reasonably
in dispute, the parties shall be given an adequate opportunity to present information to the court
regarding that factor.”).
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argument from counsel related to Suarez obstructing justice; rather, counsel failed
to argue the point. A new sentencing hearing is therefore not warranted. 11
B.
Suarez also contends that the District Court clearly erred in concluding that
he suborned perjury and thus in applying § 3C1.1. We find no clear error.
Section 3C1.1 applies if “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.”
Covered conduct includes “committing, suborning, or attempting to suborn
perjury.” U.S.S.G. § 3C1.1 cmt. n.4(B). Under § 3C1.1, “the defendant is
accountable for the defendant’s own conduct and for conduct that the defendant
aided or abetted, counseled, commanded, induced, procured, or willfully caused.”
U.S.S.G. § 3C1.1 cmt. n.9; Bradberry, 466 F.3d at 1254.
Knowingly procuring another to commit perjury constitutes subornation of
perjury. Bradberry, 466 F.3d at 1254. Perjury, for purposes of § 3C1.1, is defined
as giving “false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
11

Courts should still strive to provide notice of their intention to impose previously
unnoticed enhancements and allow adequate opportunity for parties to debate relevant sentencing
issues. As the Irizarry Court stated, “Sound practice dictates that judges in all cases should make
sure that the [sentencing] information provided to the parties in advance of the hearing, and in
the hearing itself, has given them an adequate opportunity to confront and debate the relevant
issues.” 553 U.S. at 715, 128 S. Ct. at 2203.
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memory.” Id. (quoting United States v. Singh, 291 F.3d 756, 763 (11th Cir.
2002)). The Guidelines define material evidence as “evidence . . . that, if believed,
would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1
cmt. n.6. Thus § 3C1.1’s enhancement applies where a defendant knowingly calls
a witness to testify on his behalf to produce false testimony tending to influence or
affect the jury’s verdict. See Bradberry, 466 F.3d at 1254.
Suarez became aware of the migrant witnesses’ potential testimony no later
than during his counsel’s opening argument, when counsel stated that the witnesses
would deny that Suarez aided their entry into the United States in any way. Then,
spanning over more than a full day of trial, Suarez watched as each of the eight
witnesses relayed a similar story denying his involvement and contradicting
portions of the record. This testimony, moreover, served as Suarez’s primary
evidence of innocence. Under these circumstances, the District Court, which
receives wide latitude in determining the credibility of evidence, Clay, 483 F.3d at
744, did not clearly err in concluding that Suarez knowingly suborned perjury, cf.
Bradberry, 466 F.3d at 1254.
Finally, Suarez argues that because the Court applied § 3C1.1 sua sponte
and without hearing from the Government, the Government could not have met its
burden of proving the enhancement’s applicability by a preponderance of the
evidence. See United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006)
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(“The Government has the burden of proving the applicability of Guidelines that
enhance a defendant’s offense level.”) But a “district court’s factual findings for
purposes of sentencing may be based on, among other things, evidence heard
during trial.” Id. (quoting United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.
2004)). The Government presented testimony and other evidence at trial exposing
the defense witnesses’ perjury, and the District Court did not clearly err in
crediting this evidence and determining that § 3C1.1 applied. See Clay, 483 F.3d
at 744.
IV.
For the reasons discussed above, we affirm Suarez’s convictions and
sentence.
AFFIRMED.

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