USA v. Juan Mina-Salazar

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10863
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS MINA-SALAZAR,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00055-SCB-SPF-4
____________________
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 1 of 10

-- 1 of 10 --

2 Opinion of the Court 21-10863
Before J ORDAN, NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
Juan Carlos Mina-Salazar was sentenced to 188 months’
imprisonment after he pleaded guilty to conspiracy to distribute
and to possess with intent to distribute cocaine,
methamphetamine, and marijuana under the Maritime Drug Law
Enforcement Act. He now appeals, arguing that the district court
imposed a substantively unreasonable sentence and that the
government breached his plea agreement by failing to recommend
a reduction in offense level for acceptance of responsibility. We
conclude that the plea agreement contains an enforceable sentence
appeal waiver that bars his substantive reasonableness challenge
and that the government did not clearly violate the agreement. We
therefore dismiss in part and affirm in part.
I.
The United States Coast Guard intercepted a stateless vessel
in international waters, about 155 nautical miles from Costa Rica.
On board the vessel were four crew members, Mina-Salazar and
his three codefendants. The captain of the vessel claimed Costa
Rican nationality for himself and the vessel, but Costa Rica neither
confirmed nor denied that claim. The Coast Guard treated the
vessel as one without nationality and subject to the jurisdiction of
the United States. After boarding the vessel and noticing packages
that resembled contraband on the deck, Coast Guard members
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 2 of 10

-- 2 of 10 --

21-10863 Opinion of the Court 3
asked the captain to explain the purpose of their voyage, and he
responded, “to get drugs.” A subsequent search of the vessel
uncovered approximately 355 kilograms of cocaine, 30 pounds of
marijuana, and one pound of methamphetamine.
The four men on board were jointly indicted on two counts.
The first count charged them with conspiring to distribute and to
possess with intent to distribute cocaine, methamphetamine, and
marijuana while on board a vessel subject to the jurisdiction of the
United States.
See 21 U.S.C. § 960(b); 46 U.S.C. §§ 70503(a),
70506(a)–(b). The second count charged them with aiding and
abetting each other in possessing with intent to distribute a
controlled substance.
See 18 U.S.C. § 2; 21 U.S.C. § 960(b); 46
U.S.C. §§ 70503(a), 70506(a). Mina-Salazar entered a plea
agreement with the government in which he agreed to plea guilty
to the first count, and the government agreed to seek dismissal of
the second.
Two other components of the plea agreement are especially
relevant to this appeal.
First, Mina-Salazar expressly waived “the
right to appeal defendant’s sentence on any ground, including the
ground that the Court erred in determining the applicable
guidelines range,” with three exceptions. He could appeal on the
ground that (a) “the sentence exceeds the defendant’s applicable
guidelines range,” (b) “the sentence exceeds the statutory
maximum penalty,” or (c) “the sentence violates the Eighth
Amendment.” In addition, he would be released from the waiver
and could challenge his sentence if the government appealed.
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 3 of 10

-- 3 of 10 --

4 Opinion of the Court 21-10863
Second, the government agreed that it “will not oppose the
defendant’s request to the Court that the defendant receive a
two-level downward adjustment for acceptance of responsibility”
under § 3E1.1(a) of the U.S. Sentencing Guidelines “in the event
that no adverse information is received suggesting such a
recommendation to be unwarranted.” And if his total offense level
was 16 or greater, the government agreed “to file a motion” for a
reduction of one additional level under § 3E1.1(b) so long as the
defendant complied with that guideline provision and all the terms
of his plea agreement.
The district court accepted Mina-Salazar’s guilty plea, and
the case proceeded to the sentencing stage. Before Mina-Salazar
received his sentence, however, law enforcement officials
discovered that he had been untruthful about the offense. He and
his codefendants had informed officials that their plan was to locate
drugs that had been discarded into the ocean and then to sell them.
But, as revealed by a codefendant’s confession and GPS evidence,
their voyage was actually a planned drug-smuggling expedition
from Colombia to Costa Rica. Because the truth only came to light
after two of the codefendants had already been sentenced, they
received significantly lighter sentences than they otherwise would
have if law enforcement officials had been aware of the actual
nature of the offense from the beginning.
For Mina-Salazar, this discovery led to a recalculation of his
recommended sentence. Although an earlier version of his
presentence investigation report included a three-level reduction
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 4 of 10

-- 4 of 10 --

21-10863 Opinion of the Court 5
for acceptance of responsibility under § 3E1.1(a) and (b), the
probation office revised the report to remove that reduction
because of his dishonesty. The report also included a two-level
enhancement for obstruction of justice under § 3C1.1. The
resulting Guidelines range was 188 to 235 months’ imprisonment.
With no objection from Mina-Salazar to the revised report, the
district court sentenced him at the bottom of that range to 188
months’ imprisonment, followed by a five-year term of supervised
release. Mina-Salazar now appeals.
II.
As a preliminary matter, we set out the arguments that
Mina-Salazar raises on appeal and address his pending motion for
leave to file a supplemental brief. His initial merits brief raises two
issues: whether his sentence was substantively unreasonable given
the disparity between his sentence and those that his codefendants
received, and whether the government breached the plea
agreement by failing to recommend a reduction for acceptance of
responsibility. After the government filed its response brief,
Mina-Salazar sought permission to file a supplemental brief to
address
United States v. Dávila-Reyes, a recent First Circuit case
holding that a provision of the Maritime Drug Law Enforcement
Act goes beyond Congress’s Article I powers by improperly
asserting jurisdiction over certain vessels.
See 23 F.4th 153, 157–58
(1st Cir. 2022); 46 U.S.C. § 70502(d)(1)(C).
Whatever bearing
Dávila-Reyes may have had if
Mina-Salazar properly raised an argument about the
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 5 of 10

-- 5 of 10 --

6 Opinion of the Court 21-10863
constitutionality of the Act in his initial brief, we decline to allow
him to raise that argument for the first time now. An appellant
may not raise an issue in a supplemental brief that he did not raise
in his opening brief.
See United States v. Durham, 795 F.3d 1329,
1330 (11th Cir. 2015) (en banc). Our Circuit has recognized a
narrow exception to this rule, which allows an appellant to raise a
new issue based on an intervening Supreme Court decision that
overrules binding precedent.
See id. at 1331. A non-binding
decision from a sister circuit does not fall within that exception.
We therefore deny Mina-Salazar’s motion for leave to file a
supplemental brief.
III.
Next, we decline to address Mina-Salazar’s argument that
his sentence is substantively unreasonable, due to the sentence
appeal waiver in his plea agreement. “We review the validity of a
sentence appeal waiver de novo.”
United States v. Johnson, 541
F.3d 1064, 1066 (11th Cir. 2008). To be valid and enforceable, a
sentence appeal waiver must have been made knowingly and
voluntarily.
Id. That standard is met if the government shows that
either (1) “the district court specifically questioned the defendant
about the waiver,” or (2) “the record makes clear that the
defendant otherwise understood the full significance of the
waiver.”
Id.
The government argues that Mina-Salazar’s waiver is valid
because the magistrate judge specifically addressed the waiver
during the Rule 11 colloquy. We agree. During that colloquy, the
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 6 of 10

-- 6 of 10 --

21-10863 Opinion of the Court 7
magistrate judge explained the scope of the appeal waiver and
confirmed that Mina-Salazar understood the waiver and agreed to
it voluntarily. Accordingly, we will enforce the appeal waiver.
The magistrate judge correctly explained to Mina-Salazar
that his waiver only allows him to appeal his sentence if it exceeds
the Guidelines range or the statutory maximum, if he argues that
it violates the Eighth Amendment, or if the government appeals.
Here, Mina-Salazar argues that his sentence is substantively
unreasonable because his codefendants received substantially
lighter sentences. But because his 188-month sentence does not
exceed either the Guidelines range or the statutory maximum, and
no other exception allowing appeal under the agreement applies,
his appeal waiver bars our review.
IV.
Mina-Salazar’s remaining argument is that the government
breached the plea agreement by failing to recommend a three-level
reduction for acceptance of responsibility under § 3E1.1 of the
Guidelines. Because he did not raise this issue before the district
court, we review for plain error.
United States v. Romano, 314
F.3d 1279, 1281 (11th Cir. 2002). The plain error standard is
satisfied if “(1) error occurred, and (2) the error is plain, (3) affects
the defendant’s substantial rights, and (4) seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.”
Id.
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 7 of 10

-- 7 of 10 --

8 Opinion of the Court 21-10863
To assess whether the government breached a plea
agreement, we must “determine the scope of the government’s
promises and ask whether the government’s actions were
inconsistent with what the defendant reasonably understood when
he entered his guilty plea.”
United States v. Sosa, 782 F.3d 630, 637
(11th Cir. 2015) (quotation and brackets omitted). For this
violation to constitute plain error, it must be “clear or obvious,
rather than subject to reasonable dispute.”
Id. (quotation omitted).
A breach of a plea agreement is not clear or obvious when “the
drafting of an agreement leaves the scope of the government’s
commitments open to doubt.”
Id.
To begin, we note that the government did not promise to
recommend a two-level reduction under § 3E1.1(a)—it promised
not to “oppose the defendant’s request to the Court” for the
reduction. But it did agree to “file a motion” for the additional
one-level reduction under § 3E1.1(b).
Even so, the government did not clearly violate the plea
agreement by failing to recommend a reduction. A defendant can
only qualify for a reduction under § 3E1.1 if he “clearly
demonstrates acceptance of responsibility for his offense.” U.S.
Sentencing Guidelines § 3E1.1 (Nov. 2018). Related to that
requirement, the plea agreement conditioned the government’s
obligations on criteria that were unsatisfied here. The government
was only bound by its obligation not to oppose Mina-Salazar’s
request for a two-level reduction under § 3E1.1(a) if no “adverse
information” surfaced that suggested the request to be
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 8 of 10

-- 8 of 10 --

21-10863 Opinion of the Court 9
unwarranted. And the government agreed to move for the
additional one-level reduction if it determined that Mina-Salazar
qualified, which required him to comply with § 3E1.1(b) and all
terms of his plea agreement.
Mina-Salazar concedes that he provided false information
about his involvement in the offense and only told the truth when
he was confronted with contrary evidence, which shows that a
reduction for acceptance of responsibility was likely undeserved.
The government, in turn, was not clearly obligated to recommend
any reduction even though Mina-Salazar eventually told the truth.
As the commentary to § 3E1.1 explains, conduct that results in an
enhancement for obstructing or impeding the administration of
justice under § 3C1.1 “ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct.”
Id. § 3E1.1
cmt. n.4.
Here, the district court applied an enhancement for
obstruction of justice because Mina-Salazar contributed to the
inappropriate sentencing of his codefendants by lying about the
offense. The same conduct supports the conclusion that a
reduction for acceptance of responsibility was unwarranted. The
plea agreement, therefore, did not clearly require the government
to recommend a reduction for acceptance of responsibility.
Because Mina-Salazar has not shown that the alleged breach plainly
occurred, we need not address the other prongs of the plain error
standard.
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 9 of 10

-- 9 of 10 --

10 Opinion of the Court 21-10863
V.
The sentence appeal waiver in Mina-Salazar’s plea
agreement bars his challenge to the substantive reasonableness of
his sentence, so we dismiss that aspect of his appeal. As to his
argument that the government breached the plea agreement, we
affirm, because no clear violation occurred.
DISMISSED IN PART AND AFFIRMED IN PART.
USCA11 Case: 21-10863 Date Filed: 04/19/2022 Page: 10 of 10

-- 10 of 10 --