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                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________
                             No. 18-15204
                       ________________________


                  D.C. Docket No. 1:17-cr-20013-JEM-4


UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,


                                  versus


FREDIS VALENCIA PALACIOS,
                                                      Defendant-Appellant.
                       ________________________
                Appeal from the United States District Court
                    for the Southern District of Florida
                       ________________________

                              (April 21, 2020)

Before ED CARNES, Chief Judge, LUCK, and MARCUS, Circuit Judges.

PER CURIAM:
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       Fredis Valencia Palacios arranged for a boat captain to take three Cuban

nationals from Colombia to Panama on what was meant to be one leg of an illegal

journey to and into the United States. What was meant to be did not come to pass.

Instead, the boat captain and another man robbed the three passengers, sexually

assaulted one of them, murdered two and attempted to murder the third.

       Palacios was not personally involved in the violence. He was charged with

and pleaded guilty to one count of conspiracy to encourage and induce aliens to

enter the United States resulting in death, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), and three counts of encouraging and inducing aliens to enter

the United States resulting in death, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv).

He was sentenced to 180 months in prison, and he challenges that sentence on

several grounds.

                   I.     FACTS AND PROCEDURAL HISTORY 1

       In July 2016, two Cuban nationals identified in the record of this case by

their initials, E.M.A. and L.S.C., flew from Cuba to Guyana. From there, they

crossed illegally into Brazil, and then into Venezuela, and then into Colombia.




       1
         A factual proffer was signed by Palacios, his attorney, and the government. Counsel for
the government read the proffer aloud at Palacios’ plea hearing, and Palacios agreed that it was
accurate and true, that he had signed it, and that he understood it. The facts set forth in this
opinion come from that factual proffer and Palacios’ sentence proceedings.


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They arrived in Colombia in August 2016 and sought transportation to Panama.

They intended to go from Panama to Mexico and then into the United States.

        In a hotel in Colombia, they were approached by Fernando Rivera Weir

(Weir),2 who offered to take them to the Panamanian border and told them that he

had successfully smuggled aliens into the United States. He showed them

Facebook photos of people he claimed to have smuggled, some of whom E.M.A.

and L.S.C. recognized from Cuba.

        One of E.M.A.’s family members in Miami wired $500 to Weir as a

smuggling down payment, and later wired an additional $1,400 to someone

designated by Weir. Weir introduced E.M.A. and L.S.C. to one of his “associates,”

Palacios, who is the defendant in this case. Palacios had worked as a boat captain

for Weir in past alien smuggling operations. He informed Weir that he could not

transport these migrants to Panama because he no longer had a boat, but he offered

to introduce the migrants to Carlos Ibarguen Palacios (Ibarguen), who did have a

boat and who had also worked as a boat captain for Weir in the past. Ibarguen had

a relationship with Palacios’ sister, and Palacios referred to him as his “brother-in-

law.”




        2
        The parties refer to some of the conspirators by their first surname and some by their
second surname. We will use the same short form of the names that the parties use.

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      At a hotel, Weir met with E.M.A. and L.S.C. along with Ibarguen and

Palacios, and they discussed the route to transport the migrants by boat to Panama.

Later, another Cuban national, D.E.L.S., arrived at the hotel and joined the

meeting; he had also arranged with Weir to be smuggled into the United States.

L.S.C. later testified at Palacios’ sentence hearing that Palacios had attended two

meetings where he and Weir discussed how they would “cross over” in a boat, and

Palacios assured them that “everything would be safe.” That assurance could not

have been more wrong.

      On September 6, 2016, Weir took E.M.A., L.S.C., and D.E.L.S. to meet with

Palacios, and Palacios took them to a boat captained by Ibarguen to begin their trip

to Panama. Palacios did not get on the boat with them. Instead, Ibarguen launched

the boat himself with just he and the three migrants in it. After the boat started

taking on water, however, Ibarguen returned to shore and took the migrants to his

home to spend the night.

      The next day, Ibarguen and Jhoan Stiven Carreazo Asprilla (Carreazo) took

the three Cuban nationals on a different boat from Colombia headed toward

Panama. Palacios was there when the three victims departed in the boat with

Ibarguen and Carreazo, but he did not leave with them.

      During that trip, Carreazo brandished a firearm and Ibarguen pulled a knife

on the migrants in the small wooden boat. See Appendix 1 (Doc. 117-1, Ex. 1).


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Ibarguen tied the wrists of L.S.C. and D.E.L.S., threw them overboard, then pulled

them up with their heads just above the water and anchored them with a rope to the

outside of the boat. From where he was in the water, L.S.C. could not see what

was happening to the other two, but he heard Ibarguen and Carreazo sexually

assaulting E.M.A. before they cut her throat and murdered her. L.S.C. then heard

the killers cut D.E.L.S.’ throat and murder him. L.S.C. managed to free himself

from the ropes, swim away, and hide in the mangroves. The murderers searched

for him a while but eventually gave up and left.

      The next day, a local fisherman found L.S.C., and the Colombian Navy

rescued him. L.S.C. told Colombian authorities where the murders had been

committed, and the authorities found the bodies of E.M.A. and D.E.L.S. Ibarguen

and Carreazo had cut open “their throats and bellies,” tied the two bodies together,

and submerged them in the water.

      L.S.C. later identified photographs of Weir, Ibarguen, Carreazo, and

Palacios as the men who had agreed to smuggle the group. He identified Ibarguen

and Carreazo as the men who had committed the sexual assault and the two

murders and had tried to murder him. Ibarguen and Carreazo were arrested in a

Colombian hotel. Some of the victims’ personal property was recovered from the

murderers’ hotel rooms, and more of it was recovered from Ibarguen’s house along




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with the firearm that Carreazo had brandished on the boat. There is no indication

that any of the victims’ property was in Palacios’ possession.

      One of E.M.A.’s family members in Miami reported to law enforcement that

E.M.A. had contacted her from Colombia and had asked for money for smuggling

fees. That family member had wired $500 and $1,400 from Miami to Colombia to

pay the fees. Another family member in Miami told law enforcement that he

“spoke constantly with E.M.A. throughout her journey” and that E.M.A. said she

had paid a smuggler named “Fernando” 3 $1,000 to take L.S.C. and her from

Colombia to Panama. E.M.A. sent that family member a photograph of Weir and a

phone number that was linked to his social media account. Business records and

social media accounts corroborated what E.M.A.’s family members had told law

enforcement. Additional information obtained from Weir’s social media accounts

showed that he and his criminal organization had successfully smuggled Cuban

nationals into the United States, and some of those people had been transported

from Colombia to Panama as part of the journey.

      Palacios was charged with one count of conspiracy to encourage and induce

aliens to enter the United States resulting in death, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(v)(I), and three counts of encouraging and inducing aliens to enter



      3
          Weir’s full name is Jorge Fernando Rivera Weir.


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the United States resulting in death, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv).

He was arrested in Colombia and extradited to the United States. He pleaded

guilty to those charges without a written plea agreement.4

       Palacios’ Presentence Investigation Report recounted the offense conduct as

set forth in the factual proffer and in Palacios’ post-arrest statement.5 The PSR

also mentioned some details from Palacios’ post-arrest statement, including his

admission that he had worked with Weir and other smugglers in the past as a boat

captain and was paid $150 to $200 per person. The PSR noted that in his post-

arrest statement Palacios said that Weir had asked him to captain the boat, but

Palacios did not have a boat, so he introduced Weir to Ibarguen. Palacios said

Weir was supposed to pay him 100,000 pesos per person for his assistance and

would pay Ibarguen 200,000 pesos per person for the trip. Palacios stated that

because the victims were killed he never received any money.


       4
         Ibarguen and Carreazo were charged in Colombia with murder, rape, and aggravated
robbery. They pleaded guilty and were sentenced to 43.5 years in prison. They were later
extradited to the United States and pleaded guilty to the same offenses with which Palacios was
charged. Carreazo was sentenced to 600 months imprisonment, and he has appealed, challenging
his sentence. See United States v. Carreazo Asprillo, No. 19-10677. Ibarguen was sentenced to
540 months imprisonment, and his appeal of his sentence is also pending. See United States v.
Ibarguen Palacios, No. 19-10734. Neither of them challenges his conviction. Weir is a fugitive.
Palacios was not charged with a crime in Colombia, but he was held in prison there while
awaiting extradition.
       5
         There are three PSRs in the record: the first one is dated November 5, 2018; the second
is dated November 29, 2018 (an amended PSR with an addendum); and the third one is dated
December 11, 2018 (prepared after sentencing). All three recite the facts drawn from the plea
hearing factual proffer and Palacios’ post-arrest statement.


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       Also in his post-arrest statement, Palacios admitted that he knew Ibarguen

had robbed other Cuban nationals of their cell phones. He said this about

Ibarguen:

       If he went out on the street, and he would go — and, well, he would
       rob them. Like, for example, you are walking there on the street. Do
       you understand what I’m saying? . . . And you would have a phone in
       your hand, and he would take it from you. And he would take off
       running, and he would take it. . . . Yes, he would take it from them,
       the phones, from the Cubans, every now and then.

Doc. 117-2 at 216–17.

       Palacios said that he was not friends with Carreazo but had seen him with

Ibarguen and knew that Carreazo was a member of the paramilitary and that he had

“bad ideology.”6 The PSR described Palacios’ role in the conspiracy as

“assist[ing] in smuggling the aliens by finding [Weir] a pilot of the vessel, such as

Ibarguen to ferry the aliens.” Palacios insisted that the plan was only to take the

victims to the Panamanian border, and he did not know that Ibarguen and Carreazo

intended to rob and kill them.

       Palacios’ PSR also noted that in a post-arrest statement, Carreazo said that

Ibarguen had recruited him to help with the smuggling trip. Carreazo admitted that



       6
         Palacios asserted before the district court, and asserts before us, that he did not know
about Carreazo’s paramilitary connection or his “bad ideology” before the boat trip; instead, he
learned about that while they were imprisoned together and awaiting extradition in Colombia.
His post-arrest statement does not indicate one way or the other when he learned about
Carreazo’s ideology.


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he and Ibarguen planned to rob the victims because they were told by someone else

(an unindicted co-conspirator) that the victims had a lot of money. He admitted to

participating in the sexual assault of E.M.A. and the murder of E.M.A. and

D.E.L.S.

      The first PSR assigned Palacios a base offense level of 38 under U.S.S.G.

§ 2A1.2(a), which is the guideline for second degree murder. There was a 2-level

reduction for acceptance of responsibility and another one- level reduction for

assisting law enforcement in the investigation of his own conduct under § 3E1.1.

That resulted in a total offense level of 35. With a criminal history category of I,

his guidelines range was 168 to 210 months in prison. The statutory maximum for

each count was life.

      In his objections to the PSR, Palacios argued, among other things, for the

application of § 2L1.1 (the smuggling, transporting, or harboring an unlawful alien

guideline with a base offense level of 12) instead of § 2A1.2 (the second degree

murder guideline with a base offense level of 38). That request was not without

cost to Palacios, though. As he recognized, the alien smuggling guideline opened

the door to several new enhancements.

      First, if the alien smuggling guideline applied, Palacios would be subject to a

10-level enhancement under § 2L1.1(b)(7)(D) because his offense resulted in

death. In his objections to the PSR, Palacios did not contest that enhancement, but


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he did contest two others. He argued that a 4-level brandishing a dangerous

weapon enhancement under § 2L1.1(b)(5)(B) should not apply because it was

Ibarguen and Carreazo who brandished weapons, not him, and their brandishing

could not be attributed to him under the guidelines. He also argued against a 2-

level enhancement under § 2L1.1(b)(6) for intentionally or recklessly creating a

substantial risk of death or serious bodily injury. Again, he asserted that it was

Ibarguen’s and Carreazo’s actions that created the substantial risk, and he could not

be held accountable for those actions under the guidelines.

      According to Palacios’ calculations, his base offense level should have been

12, plus ten because the offense resulted in death, minus three for acceptance of

responsibility, resulting in a total offense level of 19. He also argued for a minor

role reduction. The probation office did not agree with Palacios’ objections,

including the one about application of the second degree murder guideline.

      In its objections to the PSR, the government argued that the second degree

murder base offense level guideline did apply, and two points should be added

under § 3A1.3 for restraint of a victim. The probation office agreed, and adding

those two points raised Palacios’ total offense level to 37. As a result, his

recommended guidelines range went from 168–210 months to 210–262 months.

      The district court held a sentence hearing that spanned two days. On the

first day, the parties argued mainly about whether the second degree murder base


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offense guideline should apply. The court agreed with Palacios that the alien

smuggling guideline should apply instead. The court found that even if Palacios

did know Ibarguen and was present when Ibarguen and Carreazo brought the

second boat to transport the migrants, “[t]hat still doesn’t prove that [Palacios]

knew that these people [Ibarguen and Carreazo] were going to murder and rape

people.”

      The court decided to instruct the probation office to calculate the guidelines

range using the alien smuggling base offense level. And the court asked the

Assistant United States Attorney: “Do you have any evidence that shows that

[Palacios] knew that [Ibarguen and Carreazo] had murdered people in the past or

that they intended to murder these people?” She responded, “Not before the Court,

Your Honor, no.” To which the court replied: “I didn’t think so. That is what my

hang up is.”

      The next day, after the court had determined that the alien smuggling

guideline would apply, the sentence hearing continued. Palacios conceded that the

§ 2L1.1(b)(7)(D) ten-level enhancement applied because a death resulted from the

offense. But he argued against the government’s attempt to apply the

enhancements under § 2L1.1(b)(5)(B) for brandishing a dangerous weapon, under

§ 3A1.3 for restraining the victim, and under § 2L1.1(b)(6) for intentionally or

recklessly creating a substantial risk of death or serious bodily injury.


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       In opposition to all three of those enhancements, Palacios argued that it had

not been shown that Ibarguen and Carreazo’s conduct was reasonably foreseeable,

within the scope of the alien smuggling conspiracy, and in furtherance of that

conspiracy. For each of the enhancements, he argued, all three of those elements

had to be established or his co-conspirators’ actions could not be imputed to him.

He insisted that the government had not carried that burden as to any of the three

disputed enhancements.

       The government’s response focused on foreseeability and asserted that even

if Palacios could not have known that Ibarguen and Carreazo were going to murder

the victims, “[t]hey certainly had given him an indication that they were robbers

and he knew that.” To support that argument, the government pointed out that in

his post-arrest statement, Palacios had admitted this was not the first time he had

participated in smuggling aliens and that he knew Ibarguen had robbed Cuban

migrants of their cell phones on the street in Colombia.7 Based on the seriousness

and nature of the offense, the government argued for an upward variance and a

sentence of 262 months for purposes of deterrence. The government asserted that

Palacios was “not merely someone who found a boat, he is not merely somebody




       7
        As we have noted, in his post-arrest statement, Palacios said that on the street in
Colombia Ibarguen would sometimes go up to Cubans who had phones in their hand, take the
phone, and “take off running.”
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who found a boat driver. He is somebody who was involved in a smuggling

scheme.”

      Palacios pointed out that the government had already conceded that the

murders were not foreseeable. He argued that he was “a middle man, who

procured the boat Captain Carlos Ibar[g]uen and that he had no idea that this

superseding intervening crime was going to take place.”

      Focusing on foreseeability, the court concluded that each of the

enhancements applied, and it calculated a total offense level of 31 with a

guidelines range of 108 to 131 months imprisonment. Based on the 18 U.S.C. §

3553 factors, it stated that it would “impose a sentence above the advisory

guidelines range” and indicated that it would have done so even if the government

had not asked. The court went on to explain:

      I believe that this is a crime of [a] horrible nature. I believe that while
      the rape and murder may not have been foreseeable. . . . The violence
      and robbery [were] definitely foreseeable. He knew that these people
      had tendencies that they had — robbery, that they had robbed people.
      That they were violent people. And I think delivering these people into
      their hands is inexcusable and just terrible.

      So I will make a sentence that is above the — it is above the guideline
      range. Sentence will be imposed above the advisory guideline range
      which I think is necessary to provide sufficient punishment and
      deterrence.

The court imposed a sentence of concurrent terms of 180 months for all four

counts.


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      After the sentence hearing, the probation office prepared a final, post-

sentencing PSR, which reflected the district court’s findings. It set a base offense

level of 12 under the alien smuggling guideline and then increased that to 20

because of the firearm brandishing. See U.S.S.G. § 2L1.1(b)(5)(B) (“If a

dangerous weapon (including a firearm) was brandished or otherwise used,

increase by 4 levels, but if the resulting offense level is less than level 20, increase

to level 20.”). It added 2 levels because the offense involved intentionally or

recklessly creating a substantial risk of death or serious bodily injury to another

person. See id. § 2L1.1(b)(6). It added another 10 levels because a person died.

See id. § 2L1.1(b)(7)(D). It added 2 levels because a victim was restrained in the

course of the offense. See id. § 3A1.3. With 2 levels subtracted because of

acceptance of responsibility and one level for assisting the government in the

investigation of his own misconduct, Palacios’ total offense level was 31. His

guidelines range was 108 to 135 months. The statutory maximum on each count

was life.

                      II.   GUIDELINES ENHANCEMENTS

      Palacios contends that the district court erred by imposing all four of the

enhancements it did in calculating his guidelines range. We review de novo the

district court’s application of the sentencing guidelines and review its factfindings

only for clear error. United States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007).


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Factfindings are clearly erroneous when, on the record as a whole, we are “left

with the definite and firm conviction that a mistake has been committed.” United

States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011) (quotation marks

omitted).

              A. Brandishing a Dangerous Weapon and Restraint of Victims

      Palacios’ base offense level of 12 was increased to 20 because a dangerous

weapon was brandished. See U.S.S.G. § 2L1.1(b)(5)(B) (“If a dangerous weapon

(including a firearm) was brandished or otherwise used, increase by 4 levels, but if

the resulting offense level is less than level 20, increase to level 20.”). Another

two levels were added because a victim was restrained in the course of the offense.

See U.S.S.G. § 3A1.3 (“If a victim was physically restrained in the course of the

offense, increase by 2 levels.”). It is undisputed that during the course of the

offense, Ibarguen and Carreazo brandished dangerous weapons and restrained the

victims. But Palacios contends that his co-conspirators’ conduct cannot be

attributed to him for purposes of calculating his guidelines range.

      A co-conspirator’s conduct can be attributed to the defendant if it meets the

requirements set out in the “Relevant Conduct” guideline. That guideline provides

that “in the case of a jointly undertaken criminal activity,” all “acts and omissions

of others” will be attributed to the defendant if they were:

      (i) within the scope of the jointly undertaken criminal activity,
      (ii) in furtherance of that criminal activity, and
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      (iii) reasonably foreseeable in connection with that criminal activity.

U.S.S.G. § 1B1.3(a)(1)(B) (emphasis added).

      Jointly undertaken criminal activity is “a criminal plan . . . undertaken by the

defendant in concert with others, whether or not charged as a conspiracy.”

U.S.S.G. § 1B1.3 cmt. n.3(A). The undisputed facts establish that Palacios engaged

in the jointly undertaken criminal activity of alien smuggling with Ibarguen and

Carreazo. As a result, if Ibarguen and Carreazo’s brandishing of the firearm and

restraint of the victims were foreseeable, in the scope of, and in furtherance of the

alien smuggling conspiracy, it would be relevant conduct attributable to Palacios.

U.S.S.G. supp. to app. C, amend. 790, “Reason for Amendment,” available at

https://www.ussc.gov/guidelines/amendment/790 (last visited Apr. 20, 2020)

(explaining that the clarifying 2015 amendment “restructures the guideline and its

commentary to set out more clearly the three-step analysis the court applies in

determining whether a defendant is accountable for the conduct of others in a

jointly undertaken criminal activity under §1B1.3(a)(1)(B)”); see also U.S.S.G. §

1B1.3 cmt. n.3(A) (“[W]hen the conduct of others does not meet any one of the

criteria set forth in subdivisions (i) through (iii), the conduct is not relevant

conduct under this provision.”).

      Palacios contends that none of the three requirements has been met for

brandishing a dangerous weapon and restraining the victims. The government


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responds that all three relevant conduct requirements were met for both

enhancements.8

       As we have mentioned, the government conceded that the murders were not

foreseeable. The district court also focused on foreseeability, stating that “the rape

and murder may not have been foreseeable,” but “[t]he violence and robbery

[were] definitely foreseeable.” It found that Palacios “knew that these people had

tendencies that they had –– robbery, that they had robbed people.”

       The district court did not clearly err in finding that the robbery was a

foreseeable part of the alien smuggling conspiracy. Palacios admitted that he knew

Ibarguen had committed robberies in Colombia, robbing Cuban migrants of their

cell phones, which means he was aware of Ibarguen’s history of robbing

vulnerable people who were in unfamiliar surroundings. In light of that, it was not

clearly erroneous to find that it was foreseeable to Palacios that Ibarguen would

rob the migrants during the trip to the Panamanian border. And if robbery is




       8
          The victim restraint guideline, U.S.S.G. § 3A1.3, is a victim-related adjustment, and it is
written in the passive voice. It imposes a 2-level enhancement when a victim “was physically
restrained” in the course of an offense and says nothing about who restrained the victim. Id.
(emphasis added). An argument could be made that, as a result, the three relevant conduct
requirements do not apply to the § 3A1.3 enhancement, and it applies whenever a victim was
restrained regardless of those requirements. But the government has not made that argument,
either in the district court or in its brief to this Court. For that reason and for purposes of this
case only, we will assume without deciding that Ibarguen and Carreazo’s restraint of the victims
cannot be imputed to Palacios unless the scope, furtherance, and foreseeability requirements of
the relevant conduct provision have been met.


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foreseeable, brandishing a dangerous weapon and restraining the victim are also

foreseeable. The application note about the “reasonably foreseeable” requirement

is instructive about that:

      [T]wo defendants agree to commit a robbery and, during the course of
      that robbery, the first defendant assaults and injures a victim. The
      second defendant is accountable for the assault and injury to the victim
      (even if the second defendant had not agreed to the assault and had
      cautioned the first defendant to be careful not to hurt anyone) because
      the assaultive conduct was within the scope of the jointly undertaken
      criminal activity (the robbery), was in furtherance of that criminal
      activity (the robbery), and was reasonably foreseeable in connection
      with that criminal activity (given the nature of the offense).

U.S.S.G. § 1B1.3 cmt. n.3(D). The reasoning of that application note confirms that

violent or “assaultive” conduct that occurs during a robbery is a foreseeable part of

robbery. The district court did not clearly err in finding that the robbery was a

foreseeable part of the alien smuggling conspiracy and in turn that brandishing a

firearm and restraining the victims were foreseeable actions during the robbery.

      The district court made no findings, however, about whether the robbery was

within the scope of and in furtherance of the alien smuggling conspiracy. It should

have. We might examine the record to determine if we could mine from it enough

facts to convince us that the district court implicitly found enough facts to satisfy

the scope and furtherance requirements of relevant conduct. See United States v.

Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002). But in light of all the circumstances,




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we think it better to remand the case to the district court with instructions for it to

enter the necessary findings to resolve the remaining relevant conduct questions.

      In doing so, we note that even if the district court enters findings precluding

application of the brandishing of a dangerous weapon and restraint of a victim

enhancements, it is not precluded from imposing the same sentences it did by way

of an increased upward variance. See United States v. Williams, 431 F.3d 767,

774 (11th Cir. 2005) (Carnes, J., concurring) (noting that whatever the district

court “decides the advisory guidelines range is in light of what we have said, it still

must consider the same 18 U.S.C. § 3553(a) factors that it did initially in deciding

the appropriate sentence in this case”); cf. United States v. Keene, 470 F.3d 1347,

1350 (11th Cir. 2006) (explaining that “it would make no sense to set aside this

reasonable sentence and send the case back to the district court since it has already

told us that it would impose exactly the same sentence”); United States v.

Goldman, 953 F.3d 1213, 1221 (11th Cir. 2020) (explaining that under Keene “we

need not review an issue when (1) the district court states it would have imposed

the same sentence, even absent an alleged error, and (2) the sentence is

substantively reasonable” because any error in the guidelines calculation is

harmless).

       B. Enhancement for Intentionally or Recklessly Creating a Substantial Risk
                          of Death or Serious Bodily Injury



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      Palacios also contends that the district court erred by enhancing his sentence

two levels for intentionally or recklessly creating a substantial risk of death or

serious bodily injury under U.S.S.G. § 2L1.1(b)(6). He argues that enhancement

does not apply because murdering, raping, or injuring the migrants was not in the

scope of the alien smuggling conspiracy. Regardless of the scope of the

conspiracy, that contention fails. Even apart from the terrible crimes that Ibarguen

and Carreazo committed on the boat, the record supports the application of the

enhancement based on Palacios’ own conduct.

      Palacios was directly involved with the logistics of the alien smuggling

conspiracy, including the dangerous mode of transportation that was used. He

introduced the migrants to Ibarguen and recommended him as a boat captain. He

attended meetings with Weir, Ibarguen, and the victims, planning the route that

would be taken. L.S.C. testified that Palacios assured them that they would be

safe. Despite those assurances, the first boat almost sank. The second boat, which

was to carry five people nearly fifty miles from Colombia to the Panamanian

border across the Gulf of Uraba, was a small, rickety wooden contraption that did

not even have seats for the passengers. The photograph of it, which the

government introduced as evidence, proves that the migrants were subjected to

substantial risk of injury by the mode of transportation that Palacios secured for

their journey. See Appendix 1 (Doc. 117-1, Ex. 1).


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      The evidence established that Palacios put the migrants on the first boat that

almost sank, and L.S.C. testified that Palacios was there the next day when they

got on the second boat that was also unfit for the voyage. Even if the victims had

not been robbed, raped, and murdered, Palacios was justifiably held accountable

for recklessly creating a substantial risk of death or serious bodily injury because

he put them on that small, unseaworthy boat with Ibarguen and Carreazo. See

U.S.S.G. § 2L1.1 cmt. n.3 (defining reckless conduct for purposes of the

enhancement as including “carrying substantially more passengers than the rated

capacity of a motor vehicle or vessel”).

                C. Enhancement for an Offense Resulting in Death

      Palacios also contends that the district court erred by imposing a ten-level

enhancement under U.S.S.G. § 2L1.1(b)(7)(D) for an alien smuggling offense that

resulted in death. We will not address the merits of that contention because even if

the district court did err in applying this enhancement, any error would be invited.

“Where a party invites error, the Court is precluded from reviewing that error on

appeal.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009)

(quotation marks omitted). If it was error to apply § 2L1.1(b)(7)(D), Palacios

invited it not once, not twice, but three times. The first time was in his objections

to the first PSR. Palacios argued that the alien smuggling guideline should set the

base level for the offense, and if it did, the 10-level § 2L1.1(b)(7)(D) enhancement


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would apply because the offense resulted in death. See Second PSR, Addendum at

6 (“Furthermore, counsel comments that if the court find[s] that the §2L1.1 [alien

smuggling] guideline is applicable, the total offense level would be 19 after the

application of a 10-level enhancement for resulting in death, pursuant to

§ 2L1.1(b)(7)(D).”).

      The second time Palacios extended the court an invitation to apply

§ 2L1.1(b)(7)(D) was during the first day of the sentence hearing, when the court

and counsel for Palacios were discussing the application of the alien smuggling

guideline. They had this exchange:

      COUNSEL FOR PALACIOS: The only applicable guideline is the
      alien smuggling guideline under these facts.
      Here is what I propose to the Court should be the guideline
      calculation. The base offense under 2L1.1, is twelve.

      THE COURT: Then you had four, add four.

      COUNSEL FOR PALACIOS: You add ten because of the resultant
      death.

Doc. 134 at 23.

      The third of the three invitations was made on the second day of the

sentence hearing. Counsel for Palacios said: “We agree obviously that the base

offense level is 12, and we also agree that there should be a ten level bump up,

because there was a resulting death as set forth in the indictment.” Doc. 135 at 8.




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         Any error concerning the resulting in death enhancement was not just invited

but thrice invited, and “[w]here invited error exists, it precludes a court from

invoking the plain error rule and reversing.” United States v. Silvestri, 409 F.3d

1311, 1327 (11th Cir. 2005) (quotation marks omitted).

                           III. MINOR ROLE REDUCTION

         Palacios also contends that the district court erred by refusing to grant him a

2-level minor role reduction. We disagree.

         A defendant may receive a mitigating role reduction if he “plays a part in

committing the offense that makes him substantially less culpable than the average

participant in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). The defendant

bears the burden of proving his minor role by a preponderance of the evidence.

United States v. Rodriguez De Varon, 175 F.3d 930, 939 (11th Cir. 1999) (en

banc).

         To receive the 2-level minor role reduction that Palacios contends he should

have gotten, he was required to show that he “is less culpable than most other

participants in the criminal activity,” even if his role could not be described as

minimal. U.S.S.G. § 3B1.2 cmt. n.5. A defendant whose role is “minimal” is

“plainly among the least culpable of those involved in the conduct of a group.” Id.

cmt. n.4.




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      An application note to the mitigating role guideline lists some factors to

consider when determining whether a defendant’s role was minor:

      (i) the degree to which the defendant understood the scope and structure
      of the criminal activity;

      (ii) the degree to which the defendant participated in planning or
      organizing the criminal activity;

      (iii) the degree to which the defendant exercised decision-making
      authority or influenced the exercise of decision-making authority;

      (iv) the nature and extent of the defendant’s participation in the
      commission of the criminal activity, including the acts the defendant
      performed and the responsibility and discretion the defendant had in
      performing those acts; [and]

      (v) the degree to which the defendant stood to benefit from the criminal
      activity.

U.S.S.G. § 3B1.2 cmt. n.3(C). A district court’s determination of a defendant’s

role in an offense is a factfinding that is reviewed only for clear error. See

Rodriguez De Varon, 175 F.3d at 937.

      The relevant considerations are Palacios’ role in the relevant conduct for

which he was held accountable at sentencing and his conduct as compared to that

of the other participants. See id. at 940. Even if firearm brandishing and

restraining of the victims were not considered relevant conduct for Palacios, the

district court did not err, much less clearly err, in finding that he was not entitled to

a minor role reduction.



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      Palacios arranged for Ibarguen to captain the boat. And he attended

meetings where he and the other conspirators discussed the plan to transport the

migrants by boat and the route they would take. And he delivered the migrants

into Ibarguen’s hands not just once but again a second time after Ibarguen’s first

boat almost sank. As the district court noted, Palacios was “an essential part of . . .

putting the whole thing together. Without him . . . these people would not have

had contact with” the murderers, Ibarguen and Carreazo. It is clear that Palacios

“understood the scope and structure” of the alien smuggling scheme, “participated

in planning [and] organizing the criminal activity,” “exercised decision-making

authority or influenced the exercise of decision-making authority,” and personally

performed some of the acts, without which the crime could not have been

committed. See U.S.S.G. § 3B1.2 cmt. n.3(C)(i)–(iv). Even though Palacios

claims that he was not paid, he admitted that he was supposed to be paid 100,000

Colombian pesos per person. So he also “stood to benefit from the criminal

activity.” Id. § 3B1.2 cmt. n.3(C)(v). His role was not minor, and the district court

did not err by refusing to grant him a mitigating role adjustment.

        IV.    PROCEDURAL AND SUBSTANTIVE REASONABLENESS

      Finally, Palacios contends that his sentence is procedurally and substantively

unreasonable. We do not address those arguments since we have decided to vacate




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his sentence because the district court did not make all of the necessary relevant

conduct findings in its application of the enhancements under U.S.S.G.

§§ 2L1.1(b)(5)(B) and 3A1.3. See United States v. Mock, 523 F.3d 1299, 1304 n.2

(11th Cir. 2008) (declining to address the defendant’s reasonableness arguments

because his sentence was vacated and remanded for another reason).

      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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          ATTACHMENT 1
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