          Case: 16-16946   Date Filed: 04/11/2018   Page: 1 of 18


                                                                     [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:
               Case: 16-16946       Date Filed: 04/11/2018       Page: 2 of 18


       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 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
                  Case: 16-16946      Date Filed: 04/11/2018     Page: 3 of 18


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
              Case: 16-16946     Date Filed: 04/11/2018   Page: 4 of 18


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


                                          4
              Case: 16-16946     Date Filed: 04/11/2018    Page: 5 of 18


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 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


                                           5
                 Case: 16-16946       Date Filed: 04/11/2018      Page: 6 of 18


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
               Case: 16-16946       Date Filed: 04/11/2018       Page: 7 of 18


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.

                                              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.
                                               7
             Case: 16-16946     Date Filed: 04/11/2018   Page: 8 of 18


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
              Case: 16-16946     Date Filed: 04/11/2018   Page: 9 of 18


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,


                                          9
             Case: 16-16946    Date Filed: 04/11/2018   Page: 10 of 18


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


                                         10
              Case: 16-16946     Date Filed: 04/11/2018    Page: 11 of 18


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).




                                           11
              Case: 16-16946     Date Filed: 04/11/2018     Page: 12 of 18


      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.
                                           12
               Case: 16-16946       Date Filed: 04/11/2018       Page: 13 of 18


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”).
                                               13
               Case: 16-16946        Date Filed: 04/11/2018        Page: 14 of 18


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)).
                                                14
               Case: 16-16946        Date Filed: 04/11/2018       Page: 15 of 18


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.”).
                                                15
               Case: 16-16946        Date Filed: 04/11/2018       Page: 16 of 18


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.
                                                16
             Case: 16-16946     Date Filed: 04/11/2018   Page: 17 of 18


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)


                                         17
             Case: 16-16946     Date Filed: 04/11/2018    Page: 18 of 18


(“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.




                                          18
