United States v. Blanco

102 F.4th 1153

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Guerra BLANCO, a.k.a. Abu Zahra Al-Andalusi, Defendant-Appellant.

No. 22-10419

United States Court of Appeals, Eleventh Circuit

Filed: May 23, 2024

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket No. 1:20-cr-20245-RNS-1

Scott Dion, DOJ-USAO, Southern District of Florida, Miami, FL, Brandy Brentari Galler, DOJ-USAO, West Palm Beach, FL, Lisa Tobin Rubio, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Ana M. Davide, Ana M. Davide, PA, Miami, FL, for Defendant-Appellant.

Before Jordan, Lagoa, and Marcus, Circuit Judges.

JORDAN, Circuit Judge:

Jonathan Guerra Blanco appeals his 192-month sentence following his guilty plea to attempting to provide material support to ISIS, a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). First, he contends that at sentencing the government improperly used evidence obtained from testimony he had provided pursuant to a proffer agreement and argues that the district court erred in not holding an evidentiary hearing on the matter. Second, he challenges the application of a 12-point sentencing enhancement under U.S.S.G. § 3A1.4(a) for promoting a federal crime of terrorism. Third, he asserts that the district court erred by not applying a 3-level reduction for acceptance of responsibility from his maximum statutory sentence of 240 months.

After a review of the record, and with the benefit of oral argument, we affirm.

I

In early December of 2020, the government charged Mr. Guerra by information with one count of attempting to provide material support to ISIS, a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). Later that month he pled guilty and agreed to the government's factual proffer.

A

The facts set out below are taken from the factual proffer used to support Mr. Guerra's guilty plea and the unobjected-to factual narrative in the presentence investigation report.

ISIS, or the "Islamic State of Iraq and al-Sham," is the infamous foreign terrorist organization responsible for countless terrorist attacks across the world. Mr. Guerra knew what ISIS stood for, and he also knew that the U.S. Secretary of State had designated ISIS as a foreign terrorist organization.

Sometime between October of 2019 and September of 2020, Mr. Guerra ran two unofficial ISIS media networks primarily directed at Spanish speakers. One of those networks was called "Muntasir Media." Mr. Guerra's operation of the media networks involved the production and dissemination of ISIS propaganda, recruiting materials, and instructional guides for committing acts of terror.

ISIS has relied more on these sorts of decentralized networks due to significant losses in the past few years. Indeed, ISIS has said that the propaganda work on its behalf is just as valuable to its efforts as are ISIS militants committing acts of violence.

Via the two media networks, Mr. Guerra produced and disseminated the following:

• A November 2019 video threatening terrorist attacks on the Spanish National Police and the Spanish subway system. The video featured a masked individual stating that ISIS cells in Spain remained intact despite the arrest of a Muntasir-affiliated ISIS operative.

• A December 2019 video threatening and encouraging attacks on behalf of ISIS in Madrid, Spain. The video included footage of a popular public square in Madrid with a narration: "don't let them celebrate in peace," and "kill them, give them jihad!"

• A second and similar December 2019 video threatening attacks in Spain and calling for supporters to take up arms for ISIS.

• A February 2020 video, titled "Called to Islam," threatening "non-believers" to convert to a radicalized version of Islam. The video featured footage of a well-known hotel in Miami and the Las Vegas Strip, along with clips of a suicide bomber's farewell address and an ISIS execution.

• A February 2020 instruction manual titled "Open Source Jihad [1] . . . How to Make a Bomb in the Kitchen of Your Mom." The manual provided instructions in Spanish on how to build a home-made bomb for use in a terrorist attack.

• A February 2020 instruction manual titled "Open Source Jihad 2 . . . The Ultimate Mowing Machine." The manual provided instructions, in Spanish, on how to effectively conduct a vehicle attack against a pedestrian crowd. The manual had long been published in English, but Mr. Guerra provided a Spanish translation and included original content on how to avoid detection online by the authorities.

To help him operate the media networks, Mr. Guerra recruited other ISIS sympathizers with foreign language abilities. Unbeknownst to Mr. Guerra, however, some of his prospective recruits were undercover FBI operatives and sources. Mr. Guerra told one such recruit that "[w]ithout us . . . [ISIS] in the online world is dead," and that, although he was loyal to ISIS, he could not "express things which are clearly [a] 'crime' where I am." Using coded language, Mr. Guerra asked another recruit to help him translate an instruction manual on building a mail bomb.

Mr. Guerra was skilled at obfuscating his true identity and location online. He used a combination of tools (e.g., virtual private networks and encrypted messaging platforms) to evade detection by the authorities. And he instructed his recruits to do the same.

Although skilled at concealing his identity online, Mr. Guerra eventually slipped up by revealing his true identity to a recruit (an undercover FBI operative) whom he was pursuing romantically. On a trip to Miami on September 11, 2020, to meet that recruit, Mr. Guerra was arrested by the authorities. A subsequent search of his home revealed the same software and hardware that he instructed his recruits to use for online anonymity and a handdrawn ISIS flag under his mattress.

B

Around the time of the plea, the government executed a proffer letter agreement with Mr. Guerra (and his counsel) setting out the parameters of a debriefing. See D.E. 82, Exh. A. The letter agreement required Mr. Guerra to give the government a truthful account and to provide a password for the computer and electronic devices that were seized at the time of his arrest. See id. at 1.

For its part, the government "agree[d] that no statements made by [Mr. Guerra] during the debriefing(s) w[ould] be offered into evidence against him as part of any government direct case," but "remain[ed] free to use information derived from the debriefing directly or indirectly for the purpose of obtaining leads to other evidence, which may be used against [him] in any investigations or prosecutions." Id. Mr. Guerra "expressly waive[d] any right to claim that such evidence should not be introduced because it was obtained as a result of the debriefing." Id. This "provision [wa]s necessary in order to avoid the necessity for a Kastigar hearing." Id.¹

In addition, the government's "agreement to not use statements against [Mr. Guerra] made during th[e] proffer d[id] not extend to statements concerning violent acts, or violence in any form." Id. at 1-2.²

With respect to sentencing, the letter agreement contained additional language. It stated that "pursuant to [U.S.S.G.] § 1B1.8 . . . none of the information provided to the [government] during these debriefings shall be used against [Mr. Guerra] in determining the applicable guideline range." Id. at 2.³

C

The presentence investigation report recommended a total offense level of 37 for Mr. Guerra. This resulted from (a) a 12-level increase to the base offense level of 26 under U.S.S.G. § 3A1.4(a) because the offense involved, or was intended to promote, a federal crime of terrorism; (b) a 2-level increase to the base offense because he served as an organizer or leader under U.S.S.G. § 3B1.1(c); and (c) a 3-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b).

The terrorism enhancement also increased Mr. Guerra's criminal history category from I to VI, which, when combined with a total offense level of 37, yielded an advisory guideline imprisonment range of 360 months to life. But because the statutory maximum for the offense was 240 months, the guideline term also became 240 months. See U.S.S.G. § 5G1.1(a)

Mr. Guerra raised two objections to the report before his sentencing hearing.

First, he objected to the application of the terrorism enhancement. He asserted that a violation of the material support statute does not per se warrant the imposition of the terrorism enhancement. For that enhancement to apply, he argued, the government had to prove by clear and convincing evidence that his conduct was "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." D.E. 45 at 5 (quoting 18 U.S.C. § 2332b(g)(5)(A)). And that, he further maintained, required a showing of specific intent. See id. at 7.

Second, he objected to applying the 3-level reduction for acceptance of responsibility to the adjusted offense level of 40 (resulting in a total offense level of 37) rather than to the 240-month maximum statutory sentence. See id. at 18. He argued that if the 3-level reduction was not applied to the 240-month maximum statutory sentence, his acceptance of responsibility would be rendered "effectively meaningless." Id. He maintained that the district court could depart or vary to make his acceptance of responsibility meaningful under United States v. Rodriguez, 64 F.3d 638, 643 (11th Cir. 1995) ("[A] district court has the discretion to reward a defendant's acceptance of responsibility by departing downward when [U.S.S.G.] § 5G1.1(a) renders [U.S.S.G.] § 3E1.1 ineffectual in reducing the defendant's actual sentence."). See D.E. 45 at 18-19.

Mr. Guerra also filed a motion for a downward departure or variance pursuant to the 18 U.S.C. § 3553(a) factors. In...