United States v. Deyvis Borroto Gil

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12653

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEYVIS BORROTO GIL,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 4:22-cr-10002-JLK-1

____________________

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2 Opinion of the Court 22-12653

Before WILSON, LUCK, and TJOFLAT, Circuit Judges.

PER CURIAM:

Deyvis Borroto Gil appeals his conviction for conspiracy to

encourage and induce aliens to enter the United States, in violation

of 8 U.S.C. § 1324(a)(1)(A)(iv) & (a)(1)(A)(v)(I). He first argues that

the District Court plainly erred at sentencing by failing to address

him directly and provide him with an opportunity to allocute. Sec-

ond, he argues that the District Court erred by denying him a

three-level reduction to his base offense level, pursuant to U.S.S.G.

§ 2L1.1(b)(1), which requires the court to apply the reduction if the

defendant committed the immigration-smuggling offense other

than for profit. For the reasons that follow, we vacate Borroto Gil’s

sentence and remand to the District Court.

I.

On February 3, 2022, a federal grand jury in the Southern

District of Florida indicted Deyvis Borroto Gil with one count of

conspiracy to encourage and induce aliens to enter the United

States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & (a)(1)(A)(v)(I)

(“Count 1”). 1 Borroto Gil was also indicted on 20 counts of

1 According to 8 U.S.C. § 1324(a)(1)(A), “Any person who . . . (iv) encourages

or induces an alien to come to, enter, or reside in the United States, knowing

or in reckless disregard of the fact that such coming to, entry, or residence is

or will be in violation of law; or (v)(I) engages in any conspiracy to commit

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22-12653 Opinion of the Court 3

encouraging and inducing aliens to enter the United States, in vio-

lation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (a)(1)(A)(v)(II) (“Counts

2 through 21”). 2

Borroto Gil—without a written plea agreement—pleaded

guilty to Count 1. The government agreed to dismiss the remain-

ing counts at sentencing, provided that Borroto Gil make appropri-

ate disclosures to the probation officer during the preparation of

his presentence report (“PSR”). The government also agreed to

recommend a reduction in offense level for acceptance of respon-

sibility. The Magistrate Judge overseeing the change of plea hear-

ing recommended that Borroto Gil’s plea be accepted.

According to the PSR, Borroto Gil is a Cuban national. He

resided in Cuba until 2000, when he tried to immigrate to the

United States via the Texas border and was briefly taken into im-

migration custody before being deported back to Cuba. In 2015,

he made another attempt to immigrate to the United States via the

Texas border, and this time was successfully admitted. Since arriv-

ing in the United States, he has resided in Miami, Florida. A name

check with U.S. Immigration and Customs Enforcement (“ICE”)

revealed that Borroto Gil was issued a final order of removal on

any of the preceding acts . . . shall be punished as provided in subparagraph

(B).”

2 In addition to making it illegal to conspire to encourage or induce an alien

to come to the United States, 8 U.S.C. § 1324(a)(1)(A)(v)(II) makes it a crime

to “aid[] or abet[]” such encouragement and inducement.

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January 27, 2022, has an outstanding warrant of removal, is classi-

fied as a Level 1 violator, 3 and is amenable to arrest for immigra-

tion violations. According to the PSR, a review of the Bureau of

Prisons SENTRY database showed an Immigration Detainer

lodged on June 2, 2022. 4

With respect to the charges against Borroto Gil, the PSR re-

ported that on December 5, 2021, a Homeland Security aircraft ob-

served a vessel approximately 20 nautical miles west of Anguilla

Cay, Bahamas—an area known for alien smuggling. The vessel

was traveling northbound towards Islamorada, Florida. Coast

Guard officers boarded the vessel and observed Borroto Gil at the

helm. The officers also found 20 Cuban nationals onboard—none

of whom had visas or other authorization to enter the United

States. All 21 individuals were taken aboard a Coast Guard vessel.

3 A Level 1 violator is someone who has allegedly committed an offense ICE

classifies as “Level 1,” which includes serious state or federal crimes. When

ICE determines that an alien has been charged or convicted of a Level 1 of-

fense that could result in removal, or when an alien who is already subject to

removal is charged with a Level 1 offense, ICE will file an Immigration De-

tainer with the appropriate law enforcement agency. ICE, Secure Communi-

ties Standard Operating Procedures 5, https://www.ice.gov/doclib/foia/se-

cure_communities/securecommunitiesops93009.pdf.

4 An immigration detainer is a request lodged by ICE with another law en-

forcement agency, asking that agency to notify ICE before releasing a specific

prisoner—who ICE has probable cause to believe is a removable non-citizen—

from custody. ICE, Detainers 101 (Sept. 27, 2022) https://www.ice.gov/fea-

tures/detainers.

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Borroto Gil was arrested by the Coast Guard. Post-arrest,

he waived his Miranda rights, 5 and then explained to law enforce-

ment that he went to pick up his wife and daughter—as well as

others. Borroto Gil stated that he had not seen his daughter for

two years, and that a fisherman named “Chi chi” convinced him to

go pick up his wife and daughter. The registered owner of the ves-

sel organized the entire smuggling venture, along with other peo-

ple from Florida. Borroto Gil was not paid to smuggle the aliens

but was allowed to bring his wife and daughter from Cuba on the

vessel.

According to Borroto Gil, two men had placed the vessel

Borroto Gil captained in the water and prepared it with fuel. A

fishing vessel had taken the aliens from mainland Cuba to Cayo

Cristobal, an offshore island. When the aliens arrived, one of them

called Borroto Gil to let him know they were ready to be picked

up. When Borroto Gil arrived, the vessel was already in the water

with supplies on board.

The PSR shows that, pursuant to U.S.S.G. § 2L1.1, the base

level for a violation of 8 U.S.C. § 1324(a) is 12. Because the offense

involved the smuggling, transporting, or harboring between 6 and

23 unlawful aliens, the offense level was increased by three levels

under § 2L1.1(b)(2)(A). The PSR assessed two additional levels for

intentionally or recklessly creating a substantial risk of death or se-

rious bodily injury under § 2L1.1(b)(6), and another two levels

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

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because Borroto Gil used a special skill in a manner that signifi-

cantly facilitated the offense under § 3B1.3. Borroto Gil’s adjusted

offense level was 19. With a three-level reduction for acceptance

of responsibility under U.S.S.G. §§ 3E1.1(a) & (b), Borroto Gil’s

base offense level was reduced to 16. Borroto Gil had zero criminal

history points and a criminal history category of I. Under the

Guidelines, the imprisonment range for a total offense level of 16

and a criminal history category of I is 21 to 27 months.

Borroto Gil raised two substantive objections to the PSR,

one of which is before us on appeal.6 As relevant here, Borroto Gil

argued that he should receive a three-level reduction to his total

offense level pursuant to U.S.S.G. § 2L1.1(b)(1). 7 He argued that

his participation in the offense was motivated solely by his desire

to bring his wife and daughter to the United States and that his sole

compensation was being able to bring his family to the United

States at no cost.

The government responded that Borroto Gil’s motivation

does not negate that he received compensation for his services.

6 The other objection, not before us on appeal, was that there was no evidence

of use of a special skill in the commission of this offense, so the two-level en-

hancement pursuant to U.S.S.G. § 3B1.3 was not merited. The District Court

overruled this objection.

7 Section 2L1.1(b)(1) states that if “the offense was committed other than for

profit, or the offense involved the smuggling, transporting, or harboring only

of the defendant’s spouse or child (or both the defendant’s spouse and

child) . . . decrease by 3 levels.”

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According to the government, in exchange for transporting 18

other aliens to the United States, Borroto Gil was compensated by

being permitted to bring his wife and daughter along—such trans-

its to the United States have a monetary value in the thousands of

dollars and thus constitute financial gain. The government further

argued that § 2L1.1(b)(1) was not applicable, because it applies

when the offense involves only the smuggling of the defendant’s

spouse and/or child. Here, Borroto Gil smuggled 18 additional un-

lawful aliens. The Probation Officer agreed with the government

that § 2L1.1(b)(1) did not apply because “the quid pro quo agree-

ment between the defendant and the unindicted co-conspirator(s)

conveys that the defendant’s services were in exchange for some-

thing of value . . . thereby eradicating the assumption that there

was no gain or benefit for his services.” PSR Addendum, Doc. 23-

1 at 1–2.

At the sentencing hearing, the District Court overruled Bor-

roto Gil’s § 2L1.1(b)(1) objection. According to the Court, the rec-

ord was “devoid of any proof that [Borroto Gil] did it for money,”

Sent’g Tr. Doc. 37 at 20, but “there was a substantial advantage [to

Borroto Gil] . . . and therefore the three-level reduction should not

be awarded.” Id. at 24. After hearing sentence recommendations

from both Borroto Gil and the government, the District Court im-

posed its sentence. According to the Court, its sentence was based

on “the statements of all parties, the presentence report, the advi-

sory guidelines and the [18 U.S.C. § 3553(a)] factors.” Id. at 36. The

Court sentenced Borroto Gil to 21 months’ imprisonment,

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8 Opinion of the Court 22-12653

followed by one year of supervised release. The District Court

then dismissed the remaining charges, upon motion from the gov-

ernment.

Finally, the District Court asked if there was anything else to

be done in this case. The government said “I don’t know that the

court inquired of the defendant whether he wished to make a state-

ment to the court.” Id. at 39. The Court asked the government to

come closer so it could hear better, but instead the government

responded that it had nothing further, and the Court ended the pro-

ceedings. 8

Borroto Gil timely appealed. On appeal, he argues that (1)

the District Court erred as a matter of law when it failed to address

him at sentencing in order to allow him an opportunity for allocu-

tion and (2) the District Court imposed a procedurally unreasona-

ble sentence when it failed to reduce his offense level by three lev-

els under U.S.S.G. § 2L1.1(b)(1) because he did not commit the of-

fense for profit. We address each argument in turn.

II.

We review for plain error a district court’s failure to afford a

defendant the right to allocution if the defendant did not timely

object. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011).

8 The AUSA realized that the District Court failed to afford Borroto Gil his

right of allocution, as required by Federal Rule of Criminal Procedure

32(i)(A)(4)(ii). As such, she attempted to alert the District Court to its error.

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Plain error lies only where “(1) there is an error in the district

court’s determination; (2) the error is plain or obvious; (3) the error

affects the defendant’s substantial rights in that it was prejudicial

and not harmless; and (4) the error seriously affects the fairness, in-

tegrity, or public reputation of judicial proceedings.” United States

v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001).

Federal Rule of Criminal Procedure 32 says: “Before impos-

ing sentence, the court must . . . address the defendant personally

in order to permit the defendant to speak or to present any infor-

mation to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii)

(emphasis added). This is known as the defendant’s right of allocu-

tion. This right affords a defendant “an opportunity to plead per-

sonally to the court for leniency in his sentence by stating mitigat-

ing factors and to have that plea considered by the court in deter-

mining the appropriate sentence.” United States v. Tamayo, 80

F.3d 1514, 1518 (11th Cir. 1996). A defendant is generally “entitled

to a presumption that he was prejudiced by the district court’s fail-

ure to afford him his right of allocution, which will satisfy the plain

error rule’s third requirement, even if he received a sentence at the

low end of his advisory guideline range.” United States v. Doyle,

857 F.3d 1115, 1121 (11th Cir. 2017).

However, we “do not require the district courts to mechan-

ically follow a script.” Perez, 661 F.3d at 584 (citing United States

v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994) (“[W]e do not

attach talismanic significance to any particular string of

words. . . .”). The inquiry is whether “the district court’s colloquy

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with the defendant is the ‘functional equivalent’ of what Rule

32(i)(4)(A)(ii) prescribes.” Id. at 585 (quoting De Alba Pagan, 33

F.3d at 129).

Here, the District Court plainly erred at sentencing by failing

to directly address Borroto Gil and provide him with the oppor-

tunity to allocute. Nor was the functional equivalent of what Rule

32 requires afforded to Borroto Gil. This failure “constitutes plain

error and a manifest injustice, requiring the vacation of [Borroto

Gil’s sentence] and the remand of his case for resentencing.” Perez,

661 F.3d at 583.

III.

“[We] review[] de novo the district court’s interpretation of

the guidelines and its application of guidelines to the facts.” United

States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015). The district

court’s factual findings are reviewed for clear error. Id. The pro-

ponent of a sentencing adjustment bears the burden of proving its

applicability and establishing the facts necessary to support it by a

preponderance of the evidence. United States v. Perez-Oliveros,

479 F.3d 779, 783 (11th Cir. 2007). We review the procedural rea-

sonableness of a sentence under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). A sentence may be procedurally unreasonable if the district

court improperly calculates the guideline range, treats the Guide-

lines as mandatory, fails to consider the § 3553(a) factors, sentences

based on clearly erroneous facts, or fails to adequately explain its

chosen sentence. Id.

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22-12653 Opinion of the Court 11

We interpret the Sentencing Guidelines and accompanying

commentary by applying traditional rules of statutory construc-

tion. United States v. Gordillo, 920 F.3d 1292, 1297 (11th Cir. 2019).

Applying those rules, we first look to the plain language of the

Guidelines or accompanying commentary. Id. Additionally, we

may defer to the Guidelines’s commentary if uncertainty exists in

the guideline. United States v. Dupree, 57 F.4th 1269, 1275 (11th

Cir. 2023) (en banc).

Section 2L1.1(b)(1) of the United States Sentencing Guide-

lines provides as follows: “If (A) the offense was committed other

than for profit, or the offense involved the smuggling, transporting,

or harboring only of the defendant’s spouse or child (or both the

defendant’s spouse and child), and (B) the base offense level is de-

termined under subsection (a)(3), decrease by 3 levels.” U.S.S.G.

§ 2L1.1(b)(1) (emphasis in original).

Prior to 1997, Application Note 1 to § 2L1.1 read, in relevant

part: “‘For profit’ means for financial gain or commercial ad-

vantage, but this definition does not include a defendant who com-

mits the offense solely in return for his own entry or transporta-

tion.” Id. § 2L1.1, cmt. (n.1) (1995). The current version of Appli-

cation Note 1 to § 2L1.1 provides the following definition: “‘The

offense was committed other than for profit’ means that there was

no payment or expectation of payment for the smuggling, trans-

porting, or harboring of any of the unlawful aliens.” Id. § 2L1.1,

cmt. (n.1) (1997) (emphasis in original). According to the Sentenc-

ing Commission, the stated purpose of the amendment was, inter

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12 Opinion of the Court 22-12653

alia, “to narrow somewhat the class of cases that would qualify for

the reduced offense level under that provision.” U.S.S.G., Amend-

ment 561 (1997).

Black’s Law Dictionary defines “profit” as “[t]he excess of

revenues over expenditures in a business transaction.” Profit,

Black’s Law Dictionary (11th ed. 2019) (“Black’s”). It defines “pay-

ment” as “1. Performance of an obligation by the delivery of

money or some other valuable thing accepted in partial or full dis-

charge of the obligation. 2. The money or other valuable thing so

delivered in satisfaction of an obligation.” Payment, Black’s.

We have not yet directly addressed the issue of whether

§ 2L1.1(b)(1) may apply to a case in which the defendant received

a non-monetary form of payment. In applying § 2L1.1(b)(1), we

have generally considered whether there was evidence of a mone-

tary payment or expectation of payment. In United States v. Zal-

divar, the defendant argued that he should receive § 2L1.1(b)(1)’s

three-level reduction because he was involved in a smuggling op-

eration for the purpose of bringing his wife and children from Cuba

to the United States, and he never received any money for his in-

volvement in the conspiracy. 615 F.3d 1346, 1352 (11th Cir. 2010).

We affirmed the denial of the reduction because (1) some of the

Cubans who were picked up by the Coast Guard gave statements

that they expected to pay some amount of money for the trip to an

unknown person, and (2) Zaldivar’s wife and children were not on

the boat. Id.

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22-12653 Opinion of the Court 13

Here, the District Court erred when it found that Borroto

Gil did not qualify for a three-level reduction, pursuant to

§ 2L1.1(b)(1), on the basis that he received a substantial advantage

or gain by bringing his wife and daughter to the United States. 9

The District Court’s interpretation of § 2L1.1(b)(1)—that it looks at

whether Borroto Gil received a substantial benefit or gain—is in-

consistent with the guideline text, which instead asks the sentenc-

ing court to consider whether the offense was committed other

than for profit. Because the District Court applied an overly broad

interpretation of § 2L1.1(b)(1), we vacate and remand as to this is-

sue as well.

VACATED AND REMANDED.

9 Both parties to this appeal agree as to this point, but disagree as to what the

outcome of the appropriate inquiry should be.