USCA11 Case: 22-12653 Document: 28-1 Date Filed: 03/31/2023 Page: 1 of 13 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12653 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DEYVIS BORROTO GIL, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 4:22-cr-10002-JLK-1 ____________________ USCA11 Case: 22-12653 Document: 28-1 Date Filed: 03/31/2023 Page: 2 of 13 2 Opinion of the Court 22-12653 Before WILSON, LUCK, and TJOFLAT, Circuit Judges. PER CURIAM: Deyvis Borroto Gil appeals his conviction for conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) & (a)(1)(A)(v)(I). He first argues that the District Court plainly erred at sentencing by failing to address him directly and provide him with an opportunity to allocute. Sec- ond, he argues that the District Court erred by denying him a three-level reduction to his base offense level, pursuant to U.S.S.G. § 2L1.1(b)(1), which requires the court to apply the reduction if the defendant committed the immigration-smuggling offense other than for profit. For the reasons that follow, we vacate Borroto Gil’s sentence and remand to the District Court. I. On February 3, 2022, a federal grand jury in the Southern District of Florida indicted Deyvis Borroto Gil with one count of conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & (a)(1)(A)(v)(I) (“Count 1”). 1 Borroto Gil was also indicted on 20 counts of 1 According to 8 U.S.C. § 1324(a)(1)(A), “Any person who . . . (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or (v)(I) engages in any conspiracy to commit USCA11 Case: 22-12653 Document: 28-1 Date Filed: 03/31/2023 Page: 3 of 13 22-12653 Opinion of the Court 3 encouraging and inducing aliens to enter the United States, in vio- lation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (a)(1)(A)(v)(II) (“Counts 2 through 21”). 2 Borroto Gil—without a written plea agreement—pleaded guilty to Count 1. The government agreed to dismiss the remain- ing counts at sentencing, provided that Borroto Gil make appropri- ate disclosures to the probation officer during the preparation of his presentence report (“PSR”). The government also agreed to recommend a reduction in offense level for acceptance of respon- sibility. The Magistrate Judge overseeing the change of plea hear- ing recommended that Borroto Gil’s plea be accepted. According to the PSR, Borroto Gil is a Cuban national. He resided in Cuba until 2000, when he tried to immigrate to the United States via the Texas border and was briefly taken into im- migration custody before being deported back to Cuba. In 2015, he made another attempt to immigrate to the United States via the Texas border, and this time was successfully admitted. Since arriv- ing in …
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