United States v. Maikel Suarez Plasencia
Opinion
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
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 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 *1340 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
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 *1341 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 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.
*1342 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
,
"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
,
Our decision in
United States v. Street
, a case analogous to Suarez's, is instructive.
See
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
,
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, guides the other way.
See
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 district court's application of the Guidelines to those facts
de novo
.
United States v. Bradberry
,
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
,
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
,
*1344 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 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
,
Further supporting this conclusion are the Supreme Court's decisions in
Burns v. United States
,
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
*1345
for a court to issue an upward
variance
.
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
,
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,
*1346
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
,
Knowingly procuring another to commit perjury constitutes subornation of perjury.
Bradberry
,
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
,
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
,
IV.
For the reasons discussed above, we affirm Suarez's convictions and sentence.
AFFIRMED.
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."
Fuellner spoke in Spanish, Suarez's native language. Also, the consent form provided to Suarez was written in Spanish.
Fuellner's search yielded no camping equipment, operational fishing gear, extra clothing, or bait.
Loggerhead Key and Garden Key are both within the Dry Tortugas.
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.
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.
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.
See
United States v. Sharp
,
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."
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.").
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."
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Maikel Suarez PLASENCIA, Defendant-Appellant.
- Cited By
- 26 cases
- Status
- Published