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                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-16520
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:11-cr-20321-PAS-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

LUIS FERNANDO BERTULUCCI CASTILLO,


                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (June 10, 2014)

Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Luis Fernando Bertulluci Castillo (“Castillo”) appeals his conviction for one

count of conspiracy to possess with intent to distribute five kilograms or more of
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cocaine while on board an aircraft registered in the United States and one count of

making a false statement of aircraft ownership to facilitate a controlled substance

offense.

      The government arrested Castillo in the Dominican Republic based on his

participation in a conspiracy to use an aircraft registered in the United States to

transport cocaine into the United States. Castillo agreed to cooperate with the

government and provide information relevant to ongoing drug trafficking

investigations. The government asked that the case be sealed based on these

ongoing investigations. Castillo pleaded guilty pursuant to a plea agreement in

which the government stated that it would consider whether Castillo’s cooperation

merited a motion for reduction of sentence under U.S.S.G. § 5K1.1 based on its

evaluation of Castillo’s assistance. The government also agreed to recommend

that Castillo receive a three-level reduction for acceptance of responsibility so long

as, among other things, he did not commit any misconduct after entering into the

agreement. After several continuations of his sentencing hearing, the government

terminated Castillo’s cooperation because he had allegedly told other detainees

details of his cooperation with the government and offered to sell his proposed

testimony against a Mexican drug trafficker. The government also requested that

the case be unsealed, and Castillo did not object. Prior to sentencing, the

government objected to the three-level reduction for acceptance of responsibility


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and declined to file a § 5K1.1 motion. In both a written pro se motion and orally at

sentencing through counsel, Castillo moved to withdraw his guilty plea based on

ineffective assistance of counsel. The district court denied both the written and

oral motions.

      On appeal, Castillo argues that the sentence appeal waiver in his plea

agreement is unenforceable because the government breached the plea agreement

and that the district court abused its discretion in denying his motion to withdraw

his guilty plea. He also argues that his conviction should be reversed based on

discovery violations. Finally, he argues that the indictment should be dismissed

because it fails to state an offense and because the district court lacked jurisdiction

due to the fact that the government arrested, detained, and abducted him in the

Dominican Republic.

                                            I.

      Whether the government breached the plea agreement is a question of law

that we review de novo. United States v. De Le Garza, 516 F.3d 1266, 1269 (11th

Cir. 2008). However, if the defendant did not object on this basis before the

district court, we review only for plain error. Puckett v. United States, 556 U.S.

129, 134-35, 143, 129 S.Ct. 1423, 1428-29, 1433, 173 L.Ed.2d 266 (2009). Under

the plain error standard, error is reversible if: “(1) an error occurred, (2) the error

was plain, (3) the error affected substantial rights in that it was prejudicial and not


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harmless, and (4) the error seriously affected the fairness, integrity, or public

reputation of a judicial proceeding.” United States v. Olano, 507 U.S 725, 734,

113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).

      “The government is bound by any material promises it makes to a defendant

as part of a plea agreement that induces the defendant to plead guilty.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996). Whether a plea agreement is

violated is determined according to the defendant’s reasonable understanding when

he entered the plea. United States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir.

2008).

      Under U.S.S.G. § 5K1.1, the district court may depart from the guidelines

“[u]pon motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of another person who has

committed an offense.” U.S.S.G. § 5K1.1. We do not evaluate the assistance

rendered by a defendant “unless and until the government makes a [§] 5K1.1

motion for downward departure based on substantial assistance.” United States v.

Forney, 9 F.3d 1492, 1501 (11th Cir. 1993). In this respect, “the courts are

precluded from intruding into prosecutorial discretion.” Id. An unkept promise

“to make” a § 5K1.1 motion, as opposed to consider making one, may breach the

plea agreement and allow withdrawal of the plea, but absent an agreement to file

such a motion, the government’s decision “to make or withhold a § 5K1.1 motion


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is a form of prosecutorial discretion that is not reviewable for arbitrariness or bad

faith.” Id. at 1502 n.5 (emphasis in original) (quotations omitted). Where the plea

agreement reserves to the government the sole discretion to make or withhold a

§ 5K1.1 motion, as opposed to a plea agreement that contains a specific contractual

agreement to file a § 5K1.1 motion, we limit our review “to those cases in which a

constitutionally impermissible motive has been alleged.” Id.

       A defendant may receive a two-level reduction under the sentencing

guidelines if he “clearly demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a). A defendant may qualify for an additional one-level

reduction for acceptance of responsibility if he assisted authorities by timely

providing information to the government about his own misconduct or by timely

notifying authorities of his intent to plead guilty and thereby permitting to

government to avoid preparing for trial and the district court to allocate resources

efficiently. See id. § 3E1.1(b). “Because the Government is in the best position to

determine whether the defendant has assisted authorities in a manner that avoids

preparation for trial, an adjustment under subsection (b) may only be granted upon

a formal motion by the Government at the time of sentencing.” Id. § 3E1.1,

comment. (n.6). Whether or not to grant the additional one-level reduction is a

matter of determining only whether the defendant timely provided information and

notified authorities of his intention to enter a plea of guilty. United States v.


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McPhee, 108 F.3d 287, 289-90 (11th Cir. 1997). A defendant’s obstructionist

conduct following a guilty plea is irrelevant to determining whether the defendant

is entitled to the one-level reduction for acceptance of responsibility. Id. at 290.

      Here, Castillo’s appeal waiver is enforceable because the government did

not breach the plea agreement. He argues that the government breached the plea

agreement by: (1) declining to file a § 5K1.1 motion; (2) unsealing the case and

thereby exposing him and his family to harm; and (3) objecting to him receiving a

reduction for acceptance of responsibility under § 3E1.1(a), (b). Castillo, at the

hearing and proceeding pro se with standby counsel, personally stated to the

district court that the government had not complied with its promise to file a

§ 5K1.1 motion, and that the government was using inadequate information to

avoid fulfilling its promises in the plea agreement. This statement adequately

preserved the breach of plea agreement claim as to the § 5K1.1 motion. However,

because Castillo did not challenge that the government breached the plea

agreement on the basis of § 3E1.1 or unsealing his case before the district court, we

review these claims only for plain error. See Puckett, 556 U.S. at 134-35, 143, 129

S.Ct. at 1428-29, 1433.

      First, the government did not breach the plea agreement by declining to file

a § 5K1.1 motion. Castillo’s plea agreement explicitly reserved to the government

the sole discretion to evaluate his assistance and determine whether or not to file a


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§ 5K1.1 motion. During his plea hearing, the district court specifically asked

Castillo if he was aware that, even if he cooperated to the best of his abilities, the

government might not feel that his cooperation rose to the level of substantial

assistance and that there would be nothing the district court could do to force the

government to file such a motion, and Castillo responded, “Yes, [y]our Honor, I

am aware.” From the record it is clear that Castillo reasonably understood, as any

reasonable defendant would have understood, that the government retained the sole

discretion to evaluate his assistance and determine whether it warranted a § 5K1.1

motion. See Horsfall, 552 F.3d at 1281. Therefore, absent an unconstitutional

motive, we will not review the government’s discretionary decision not to file the

motion. See Forney, 9 F.3d at 1502 n.5. Castillo has not alleged, before the

district court or on appeal, that the government had an unconstitutional motive in

declining to file a § 5K1.1 motion, and the government did not breach the plea

agreement by declining to file such a motion.

      Second, the government did not plainly breach the plea agreement by

unsealing Castillo’s case because the plea agreement did not contain any provision

in which the government promised to seal the record or to let it remain sealed. The

plea agreement contained no discussion whatsoever of sealing Castillo’s case.

Furthermore, Castillo did not object when the government, at his second

sentencing, informed the district court that it no longer needed the case sealed. His


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allegations on appeal regarding the government’s motivations for unsealing the

case, even if true, do not amount to a breach of the plea agreement because there is

no indication in either the plea agreement or the rest of the record on appeal that

the government made any promises or representations that Castillo’s case would be

sealed. See Taylor, 77 F.3d at 370. In the absence of any evidence indicating such

a promise from the government, Castillo cannot establish any error, much less

plain error, on this basis.

       Third, the government did not plainly breach the plea agreement by

declining to recommend Castillo receive a three-level reduction for acceptance of

responsibility. The plea agreement provided that the government would

recommend a three-level reduction for acceptance of responsibility, unless, among

other things, Castillo “commit[ted] any misconduct after entering into this plea

agreement, including but not limited to committing a state or federal offense,

violating any term of release, or making false statements or misrepresentations to

any governmental entity or official.” The plain language of the plea agreement

informed Castillo, and any reasonable defendant, that the government could alter

its recommendation based on post-plea misconduct. See Horsfall, 552 F.3d at

1281. Although Castillo may have been legally entitled to receive a three-level

reduction for acceptance of responsibility had the government moved for such a

reduction, see McPhee, 108 F.3d at 289-90, the government did not violate the plea


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agreement by failing to move for a reduction where the plea agreement specifically

stated that the government could alter its recommendation if Castillo committed

post-plea misconduct. Even if the government’s determination that Castillo’s

misconduct disqualified him from receiving a reduction for acceptance of

responsibility was error, Castillo fails to establish that it was plain error for the

government to rely on the express language of the plea agreement and decline to

make such a recommendation.

                                           II.

      We will ordinarily disturb the district court’s decision to deny a defendant’s

motion to withdraw a guilty plea only when it constitutes an abuse of discretion.

United States v. McCarty, 99 f.3d 383, 385 (11th Cir. 1996). However, where the

defendant does not present the argument that the guilty plea was invalid to the

district court, we review only for plain error. United States v. Moriarty, 429 F.3d

1012, 1018-19 (11th Cir. 2005). We decline to consider arguments raised for the

first time on appeal in a reply brief. United States v. Martinez, 83 F.3d 371, 377

n.6 (11th Cir. 1996).

      Because a plea of guilty waives several constitutional rights, the Due

Process Clause of the Fourteenth Amendment requires the plea to be both

voluntary and knowing. Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir. 1986).

Before the district court accepts a guilty plea, there must be an affirmative showing


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that the plea was intelligent and voluntary, and the waiver of constitutional rights

will not be presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 242-

43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Under Federal Rule of

Criminal Procedure 11, the district court must address the defendant personally in

open court and inform the defendant of, and determine that the defendant

understands, the nature of the plea being offered and the potential consequences of

that plea. United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997). Rule 11

requires the district court conduct a searching inquiry into the voluntariness of the

defendant’s guilty plea. United States v. Siegel, 102 F.3d 477, 481 (11th Cir.

1996). To determine whether the waiver is knowing and voluntary, a court

accepting a guilty plea must comply with the three “core concerns” of Rule 11 by

ensuring that: (1) the guilty plea is free from coercion; (2) the defendant

understands the nature of the charges; and (3) the defendant understands the direct

consequences of his plea. United States v. Jones, 143 F.3d 1417, 1418-19 (11th

Cir. 1998).

      After the district court accepts the guilty plea and before sentencing, the

defendant may withdraw the plea if (1) the district court rejects the plea agreement,

or (2) “the defendant can show a fair and just reason for requesting withdrawal.”

Fed.R.Crim.P. 11(d)(2)(A)-(B). Once the government and the defendant resolve a

matter through a knowing and voluntary plea of guilty, the defendant bears a heavy


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burden to show that the plea should be withdrawn. United States v. Buckles, 843

F.2d 469, 471 (11th Cir. 1988).

      “In determining whether the defendant has met his burden to show a ‘fair

and just reason,’ a district court may consider the totality of the circumstances

surrounding the plea.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006) (quotations omitted). We consider “(1) whether close assistance of counsel

was available; (2) whether the plea was knowing and voluntary; (3) whether

judicial resources would be conserved; and (4) whether the government would be

prejudiced if the defendant were allowed to withdraw his plea.” Id. (quotations

omitted). “The good faith, credibility and weight of a defendant’s assertions in

support of a motion to withdraw a guilty plea are issues for the trial court to

decide.” Id. (quotations and brackets omitted). “The longer the delay between the

entry of the plea and the motion to withdraw it, the more substantial the reasons

must be as to why the defendant seeks withdrawal.” Buckles, 843 F.2d at 473.

      On appeal, Castillo argues that the district court abused its discretion in

denying his motion to withdraw his guilty plea because the government violated

his plea agreement. In the district court, however, both orally through counsel and

in his written pro se motion, Castillo moved to withdraw his guilty plea on the

basis of ineffective assistance of counsel, not the government’s breach of the plea




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agreement. Accordingly, we review his claim raised on appeal only for plain error.

See Moriarty, 429 F.3d at 1018-19.

      Castillo fails to show that the district court plainly erred in not withdrawing

his guilty plea based on breach of the plea agreement. As discussed above, the

government did not plainly breach the plea agreement. Given that the government

did not plainly breach the plea agreement, Castillo cannot show that the district

court plainly erred in denying his motion to withdraw his guilty plea based on

breach of the plea agreement.

      Castillo fails to argue in his initial brief on appeal that his plea was not

knowing, intelligent, and voluntary, asserting only that he had shown a just reason

for withdrawal of the plea based on the government’s breach of the plea

agreement. Accordingly, we need not consider the argument that his plea was not

knowing, intelligent, and voluntary that he raises for the first time in his reply

brief. See Martinez, 83 F.3d at 377 n.6 (declining to consider arguments raised for

the first time in a reply brief). Nevertheless, the record shows that Castillo’s guilty

plea was knowing and voluntary. During the plea colloquy, Castillo told the

district court that he had not been threatened or coerced into pleading guilty and

that no one had promised him anything other than what was in the plea agreement

in exchange for his plea. The district court explained the elements of the charges

against Castillo, and Castillo stated that his attorney had explained the elements of


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the charges to him. He told the district court that he had read and understood the

factual proffer, which accurately described his conduct. The district court

explained, and Castillo told the district court that he had discussed with his

attorney and understood, the consequences of pleading guilty, including the waiver

of the right to appeal except in limited circumstances and the inability to withdraw

the plea at a later date. Castillo’s guilty plea complied with the three core concerns

of Rule 11 and was therefore knowing and voluntary. See Jones, 143 F.3d at 1418-

19.

                                         III.

      A defendant’s knowing and voluntary, unconditional guilty plea waives all

nonjurisdictional defects in the proceedings. United States v. Yunis, 723 F.2d 795,

796 (11th Cir. 1984). Jurisdictional defects are those implicating the courts’

subject matter jurisdiction, which “defines the court’s authority to hear a given

type of case.” United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 2773,

81 L.Ed.2d 680 (1984). We have held that a defect is jurisdictional where the

claim may be resolved on “the face of the indictment or the record at the time of

the plea without requiring further proceedings.” United States v. Tomeny, 144 F.3d

749, 751 (11th Cir. 1998). If a defendant waives the right to appeal by pleading

guilty, “only an attack on [the guilty plea’s] voluntary and knowing nature can be

sustained.” Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992).


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      Castillo’s knowing and voluntary, unconditional guilty plea waived his right

to challenge his conviction on the basis of discovery violations. As discussed

above, Castillo’s guilty plea was knowing and voluntary. Because the alleged

discovery violation is not the type of claim that can be resolved from the face of

the indictment or the record at the time of the plea without further proceedings,

Castillo’s guilty plea waived this nonjurisdictional argument. See Tomeny, 144

F.3d at 751.

                                         IV.

      Whether the indictment sufficiently alleges a statutorily proscribed offense is

a question of law that we review de novo. United States v. Steele, 178 F.3d 1230,

1233 (11th Cir. 1999). “A criminal conviction will not be upheld if the indictment

upon which it is based does not set forth the essential elements of the offense.”

United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). This rule “puts

the defendant on notice of the nature and cause of the accusation as required by the

Sixth Amendment of the Constitution . . . [and] it fulfills the Fifth Amendment’s

indictment requirement, ensuring that a grand jury only return an indictment when

it finds probable cause to support all the necessary elements of the crime.” Id. at

1325 (quotations omitted). A claim that the indictment fails to charge an offense is

a jurisdictional defect that is not waived by a guilty plea. United States v. Saac,

632 F.3d 1203, 1208 (11th Cir.), cert. denied 132 S.Ct. 139 (2011). Such a claim


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may be raised at any time while a case is pending. United States v. Sharpe, 438

F.3d 1257, 1258 (11th Cir. 2006).

      Under 21 U.S.C. § 959, it is unlawful for any person on board an aircraft

registered in the United States to “possess a controlled substance or listed chemical

with intent to distribute.” 21 U.S.C. § 959(b)(2). The penalty for a controlled

substance violation involving 5 or more kilograms of a mixture and substance

containing cocaine is 10 years to life imprisonment. 21 U.S.C. § 960(b)(1)(B).

Any person who conspires to commit a drug offense is subject to the same

penalties as those prescribed for the offense. 21 U.S.C. § 963. To sustain a

conviction for conspiracy to distribute narcotics the government must prove that

(1) “an agreement existed between two or more persons to distribute the drugs;”

(2) the defendant “knew of the conspiratorial goal;” and (3) the defendant

“knowingly joined or participated in the illegal venture.” United States v.

Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999).

      Under 49 U.S.C. § 46306, it is a crime to obtain a certificate of aircraft

registration by knowingly and willfully falsifying or concealing a material fact. 49

U.S.C. § 46306(b)(4). The penalty for such an offense is enhanced if the

registration violation is related to transporting a controlled substance by aircraft or

aiding or facilitating a controlled substance violation. Id. § 46306(c)(2).




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      To the extent that assignments of error calling for dismissal of an indictment

implicate the district court’s resolution of questions of law, we review de novo.

United States v. Noriega, 117 F.3d 1206, 1211 (11th Cir. 1997). An extradition

treaty constitutes one way in which a country may gain custody of a national of

another country for the purpose of prosecution, but it is not the only way. Id. at

1213. In United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119

L.Ed.2d 441 (1992), the Supreme Court considered “whether a criminal defendant,

abducted to the United States from a nation with which it has an extradition treaty,

thereby acquires a defense to the jurisdiction of this country’s courts.” 504 U.S. at

657, 112 S.Ct. at 2190. Where the extradition treaty did not expressly bar such

abductions, no such defense existed, and the defendant could “be tried in federal

district court for violations of the criminal law of the United States.” Id. The

extradition treaty between the United States and the Dominican Republic does not

expressly bar either nation from gaining custody over a foreign national through

means other than extradition. See generally Convention for the Mutual Extradition

of Fugitives from Justice, U.S.-Dom. Rep., June 19, 1909, 36 Stat. 2468.

      To the extent that Castillo argues the government could not have proved

various elements of the charges against him, such an argument is nonjurisdictional

and was waived by his unconditional, knowing and voluntary guilty plea.

However, his argument that the indictment failed to state an offense is a


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jurisdictional challenge that is not waived by his guilty plea. Similarly, his claim

regarding his arrest, detention, and removal that took place in the Dominican

Republic can arguably be construed as an allegation that the district court lacked

subject matter jurisdiction, and such a claim is also not waived by his guilty plea.

      The indictment did not fail to state an offense. We have not addressed the

elements of a conspiracy charge under 21 U.S.C. § 963 where the underlying

substantive offense is possession of narcotics with intent to distribute by a person

on board an aircraft under 21 U.S.C. § 959(b). However, extrapolating from the

elements of a general conspiracy to distribute narcotics, the indictment must allege

that: (1) an agreement existed between two or more persons for someone on board

an aircraft to possess narcotics with the intent to distribute; (2) Castillo knew of the

conspiratorial goal; and (3) Castillo knowingly joined or participated in the illegal

venture. See Matthews, 168 F.3d at 1245; 21 U.S.C. § 959(b)(2). Here, the

indictment alleged that Castillo knowingly and intentionally conspired with others

to possess with intent to distribute five kilograms or more of cocaine on board an

aircraft registered in the United States. This statement set forth that an agreement

existed between Castillo and others, Castillo knew of the goal of using an aircraft

to facilitate the possession of narcotics with the intent to distribute, and he

knowingly and intentionally joined the illegal venture. Accordingly, the

indictment adequately put Castillo on notice of the nature and cause of the action


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against him, and it included all of the necessary elements of the offense. See Fern,

155 F.3d at 1325.

       The indictment also alleged that Castillo intentionally obtained or caused to

be obtained an owner’s registration certificate by falsifying and concealing a

material fact concerning the true owner of an aircraft, in relation to the

transportation of a controlled substance by said aircraft and facilitating a controlled

substance offense, namely, possession with intent to distribute five kilograms or

more of cocaine. This statement set forth all of the elements of the offense under

49 U.S.C. § 46306(b)(4), (c)(2), and adequately notified Castillo of the nature and

cause of the action against him. See Fern, 155 F.3d at 1325.

       Finally, Castillo’s abduction from the Dominican Republic does not serve as

a bar to the jurisdiction of the district court. Although the United States and the

Dominican Republic have an extradition treaty, because the treaty does not

expressly bar such abductions, the manner of Castillo’s abduction does not prevent

him from being tried in the district court for crimes against the laws of the United

States. See Alvarez-Machain, 504 U.S. at 657, 112 S.Ct. at 2190. Accordingly,

neither of Castillo’s jurisdictional challenges requires dismissal of the indictment.

       Based on the above, we affirm. 1


       1
           Castillo’s motion to unseal a portion of his sentencing transcript is DENIED to the
extent it has not already been granted. His motion to seal is GRANTED in part and DENIED
in part. It is granted as to his reply brief because the reply brief discusses potentially sensitive
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       AFFIRMED.




information, and his request to seal it is limited and targeted. However, his motion to seal the
entire record on appeal is overly broad and fails to identify which portions of the record contain
potentially sensitive information. Thus, he fails to overcome the presumption in favor of public
access to judicial records.
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