[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10419

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JONATHAN GUERRA BLANCO, 

a.k.a. Abu Zahra Al-Andalusi, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cr-20245-RNS-1

____________________

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2 Opinion of the Court 22-10419

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. 

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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 

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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. 

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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 

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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

1See generally Kastigar v. United States, 406 U.S. 441, 453 (1972) (holding that the 

government cannot use, directly or indirectly, compelled testimony obtained 

under a grant of statutory immunity in the prosecution of the witness who 

was compelled to testify).

2In an email to Mr. Guerra’s counsel, the Assistant U.S. Attorney stated that 

“[t]his letter would cover what we obtain from any devices we access with the 

password(s) provided. The letter specifically excludes any violence.” D.E. 82, 

Exh. B. 

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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 

3As relevant here, § 1B1.8(a) provides as follows: “Where a defendant agrees 

to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the 

agreement will not be used against the defendant, then such information shall 

not be used in determining the applicable guideline range, except to the extent 

provided in the agreement.” This provision, however, does not restrict the use 

of information “known to the government prior to entering into the cooperation agreement.” § 1B1.8(b)(1).

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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 

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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 support of 

a sentence below the advisory guidelines, he pointed to his lack of 

criminal history, his “very serious medical and psychological ailments,” and his acceptance of responsibility. See D.E. 76 at 2 (filed 

under seal). 

The government opposed Mr. Guerra’s objections and motion for a downward departure or variance. In part, the government relied on some materials obtained from Mr. Guerra’s computer, including a video threatening the assassination of a Spanish 

judge for which Mr. Guerra had inserted subtitles in English. See 

D.E. 102 at 14. One of the subtitles reads “you will die with a sticky

bomb.” See id. at 34; D.E. 94-4 at 5.4 

In response to the government’s opposition, Mr. Guerra 

filed an emergency motion for a Kastigar hearing. See generally 

United States v. Schmidgall, 25 F.3d 1523, 1528 (11th Cir. 1994) 

(“[W]hen presented with a Kastigar challenge, a court’s task is to 

determine whether any of the evidence used against the defendant 

was in any way derived from his compelled immunized 

4 The government knew that Muntasir Media disseminated the video before 

the execution of the proffer letter agreement, but only learned that Mr. Guerra 

had inserted English subtitles after looking at his computer by using the password he provided. See, e.g., D.E. 102 at 18, 31–32 (statements by the Assistant 

U.S. Attorney and by Mr. Guerra’s counsel). 

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testimony.”). He asserted that the government was improperly using evidence—such as the video threatening the assassination of a 

Spanish judge and three documents titled “Open Source Jihad”—

that it had obtained from his immunized proffer. See D.E. 82 at 2–

3. 

D

The sentencing hearing began with argument on Mr. 

Guerra’s motion for a Kastigar hearing. 

Mr. Guerra explained that, pursuant to the proffer letter 

agreement, he provided the government with the passwords

needed to access his computer and electronic devices, which contained incriminating evidence. He argued that the government had 

agreed not to use any of the evidence it obtained against him, including at his sentencing. He understood the letter agreement to 

not cover any violent acts that he personally participated in—had 

there been evidence of him planting a bomb, that would be fair 

game—but that it would cover his translation and dissemination of 

materials containing calls for violence. 

Importantly, however, Mr. Guerra clarified that he was not 

objecting, under the proffer letter agreement, to the government’s 

presentation of the two February 2020 instruction manuals—the 

ones he translated and published in Spanish on how to build a 

home-made bomb (Open Source Jihad 1) and how to use a vehicle 

against a pedestrian crowd (Open Source Jihad 2)—because the 

government knew about them prior to his arrest. His objection 

was limited to the use of two videos—one threatening the 

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assassination of a Spanish judge and another in which he pledged 

allegiance to ISIS. 

The government responded that the proffer letter agreement’s exclusion for “violent acts, or violence in any form,” applied 

to the evidence it sought to introduce. As to the video threatening 

the assassination of a Spanish judge, the government asserted that 

it knew before execution of the letter agreement that Muntasir Media had disseminated the video. Mr. Guerra agreed the government knew about the video, but asserted that it did not learn about 

his insertion of English subtitles until it searched his computer using the password he provided. 

The district court denied Mr. Guerra’s motion for a Kastigar

hearing. It found that the objected-to evidence fell within the proffer letter agreement’s exclusion for evidence concerning violent 

acts. The court also ruled that the Assistant U.S. Attorney’s email 

to Mr. Guerra’s counsel was parol evidence that it could not consider given that the letter agreement was unambiguous. 

The next matter taken up at the hearing was Mr. Guerra’s

objection to the terrorism enhancement under U.S.S.G. § 3A1.4(a). 

The government introduced four exhibits in support of the enhancement: (1) Open Source Jihad 1, the manual on home-made 

bombs; (2) Open Source Jihad 2, the manual on using a vehicle 

against a pedestrian crowd; (3) Open Source Jihad 3, a manual on 

how to use arson to commit a terrorist act; and (4) the video threatening the assassination of a Spanish judge. All four were produced 

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and disseminated by Muntasir Media—the network that Mr. 

Guerra admitted to “direct[ing] and coordinat[ing].” 

Open Source Jihad 1 called itself “America’s worst nightmare” and a “disaster for the repressive imperialistic nations.” 

Open Source Jihad 2 explained that:

This idea [of driving a truck through a crowd] could 

be implemented in countries like Israel, the U.S., . . . 

and other countries where the government and public 

sentiment is in support of the Israeli occupation of 

Palestine, the American invasion of Afghanistan and 

Iraq . . . . In such countries, we may strike at the public 

at large. As long as they target our noncombatants, 

we will target theirs. 

Mr. Guerra then called Dr. Michele Quiroga, a psychologist,

as an expert witness to testify about his alleged inability to form the 

requisite intent for the terrorism enhancement. Dr. Quiroga explained that Mr. Guerra was “wired differently” due to his various 

health conditions, including autism. She concluded that he did not 

form the “specific intent to retaliate against the government” and 

was instead lured into the fold as a result of his deep desire for acceptance. But she also conceded that he knew what a crime is “at 

a certain level.” 

The district court overruled Mr. Guerra’s objection and applied the terrorism enhancement. The court did not find credible 

Dr. Quiroga’s testimony that Mr. Guerra lacked specific intent. It 

instead reasoned that Open Source Jihad 1 and Open Source Jihad 

2 “on their own establish[ed]” that “the offense was calculated to 

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influence or affect the conduct of government by intimidation or 

coercion or retaliat[ion] against government conduct.” In its view, 

the references to western governments in both exhibits made clear 

that Mr. Guerra was not promoting the killing of people “for no 

reason whatsoever, but in retaliation for the United States[’] public 

support of Israel and [its] invasion of Afghanistan and Iraq.” The 

court stressed that it was making “a clear finding that, even without 

[the video threatening the assassination of the Spanish judge], 

there is more than enough evidence to meet the government’s burden in this case.” The court added that this video made the finding 

“overwhelming, but even without [it], there’s more than sufficient 

evidence to meet the government’s burden.” 

The district court then addressed Mr. Guerra’s objection to 

applying the 3-level acceptance of responsibility reduction to the 

adjusted offense level of 40 rather than to the statutory maximum 

sentence of 240 months. The court considered that to be a “variance request . . . . because he’s not effectively getting the value of 

it[,]” but not an issue as to “calculation” of the advisory guidelines. 

Seemingly in agreement, Mr. Guerra again brought up the issue in 

the context of arguing for a variance under 18 U.S.C. § 3553(a) after 

the court had already ruled on his objections to the guideline 

range. The court adopted the guideline calculations in the presentence investigation report as previously described—240 months. 

Mr. Guerra presented testimony from Dr. Jaime Ghitelman, 

an expert in cardiology, on his various health conditions. The district court later heard directly from Mr. Guerra and his mother.

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In support of a variance under § 3553(a), Mr. Guerra argued 

that the district court should “consider his acceptance of responsibility” by applying the 3-level reduction to the statutory maximum 

sentence of 240 months, which would yield a guideline range of 

151–188 months. Mr. Guerra cited to a previous case involving 

money laundering in which the district court had done something 

similar. From that proposed guideline range, Mr. Guerra requested 

a sentence of 78 months because of his serious health conditions, 

his age at the time of the crime, and his cooperation. 

After hearing from the parties, the district court considered 

and discussed the § 3553(a) factors. In its view, the offense “was a 

very serious” one that warranted “a significant prison sentence” to 

promote respect for the law, to protect the public, and to deter others who might consider getting involved in similar offenses. But it 

also found that there were “several factors that weigh[ed] in mitigation of a lengthy sentence.” It departed under U.S.S.G. § 5H1.4 

due to Mr. Guerra’s serious health conditions, including his neurodevelopmental disorder and level 3 autism. It also found mitigating 

Mr. Guerra’s lack of prior arrests, age and immaturity, psychological trauma, and acceptance of responsibility. And it explained that 

“the way the guidelines have worked out, he doesn’t really get 

credit for the acceptance of the responsibility, so it is warranting 

some variance from the guidelines range.” 

The district court imposed a 192-month sentence—48 

months below the 240-month guideline sentence—with a lifetime 

term of supervised release to follow. It did not explain how many 

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of the 48-months were attributable to the § 5H1.4 departure and 

how many were due to the variance to give Mr. Guerra some benefit for his acceptance of responsibility. 

This appeal followed.

II

Mr. Guerra argues that the district court erred in failing to 

hold a Kastigar hearing. He asserts that the government breached 

the proffer letter agreement by using against him, at sentencing, 

evidence it obtained from the information he provided pursuant to 

the agreement. His argument with respect to breach is limited to 

the government’s use of the video threatening the assassination of 

a Spanish judge. See Appellant’s Br. at 17–18.5 

The government responds that, even assuming there was 

any breach, Mr. Guerra suffered no harm. It points out that the 

district court expressly found that Open Source Jihad 1 and Open 

Source Jihad 2 were sufficient to apply the terrorism enhancement, 

and Mr. Guerra did not and does not object to the consideration of 

those two manuals because the government knew about them 

5As noted, at the sentencing hearing Mr. Guerra agreed that the government 

could use Open Source Jihad 1 and Open Source Jihad 2 because it had them 

before the execution of the proffer letter agreement. And at oral argument, 

Mr. Guerra’s counsel stated that there was also no objection to the government’s use of Open Source Jihad 3, a manual on how to use arson to commit 

a terrorist act. As a result, the only evidence at issue on appeal is the video 

threatening the assassination of a Spanish judge.

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before execution of the proffer letter agreement. See Appellee’s Br. 

at 31–32. 

A

Our interpretation of the proffer letter agreement is plenary. 

See United States v. Hill, 643 F.3d 807, 874 (11th Cir. 2011). “And 

because due process requires us to enforce the government’s agreement . . . , we apply the same rules and method of analysis to an 

informal grant of use or transactional immunity as we would to a 

formal grant.” Id. (internal quotation marks and citation omitted).

“The construction of proffer agreements, like plea agreements, is governed generally by the principles of contract law, as 

we have adapted it for the purposes of criminal law.” United States 

v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). “This analogy, however, should not be taken too far. A hyper-technical reading of the 

written agreement and a rigidly literal approach in the construction 

of language should not be accepted. The written agreement should 

be viewed against the background of the negotiations. Any ambiguities in the terms of a proffer agreement should be resolved in 

favor of the . . . defendant.” Id. at 709–10 (internal quotation marks 

and citations omitted). See also 3 Wayne R. LaFave et al., Criminal 

Procedure § 8.11(e) (4th ed. 2023) (“For informal immunity, unlike 

statutory use/derivative-use immunity, issues relating to the scope 

of the immunity cannot be answered by reference to the commensurate protection provided under the self-incrimination privilege. 

Here, scope may be broader or narrower than what would be required to supplant the privilege, and the crucial question is what 

scope was agreed to by the parties.”).

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If “the government breaches [a proffer] agreement [at sentencing], the defendant must either be resentenced by a new judge 

or allowed to withdraw his plea, regardless of whether the judge 

was influenced.” See United States v. Foster, 889 F.2d 1049, 1055–56 

(11th Cir. 1989) (“As the Supreme Court held in Santobello v. New 

York, 404 U.S. 257, 262 (1971), it makes no difference whether the 

judge was (or was not) influenced by information divulged through 

the government’s breach.”). And when the government’s breach is 

after a trial, “the only available and sufficient remedy is to require 

specific performance of the agreement, which means that [the defendant] must be resentenced by a different judge.” Id. at 1056.

The “consensus view” in the circuits seems to be that under 

Santobello “harmless-error analysis does not apply when the government breaches a plea agreement.” See United States v. Mosley, 

505 F.3d 804, 810 (8th Cir. 2007) (citing cases from ten circuits). But 

that view is not unanimous, at least not when it comes to the 

breach of a proffer agreement at sentencing. The Seventh Circuit, 

for example, has concluded that if the government breaches a proffer agreement at sentencing, thereby violating the provisions of 

U.S.S.G. § 1B1.8(a), the breach is subject to harmless error review. 

See United States v. Bennett, 708 F.3d 879, 886 (7th Cir. 2013).

B 

The parties do not cite Foster. Nor do they discuss whether 

it precludes a harmless error analysis should we find that the government breached the proffer letter agreement. Fortunately, we 

do not need to consider Foster today, as we agree with the district 

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court that the government’s use of the video threatening the assassination of a Spanish judge—with English subtitles inserted by Mr. 

Guerra—did not constitute a breach. We therefore do not address 

whether the district court’s reliance on Open Jihad 1 and Open Jihad 2 for the imposition of the terrorism enhancement rendered 

harmless the government’s alleged breach of the letter agreement.

As a reminder, the proffer letter agreement 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.” The 

letter agreement also contained limiting language providing that 

the government’s promise “to not use statements against [Mr. 

Guerra] made during th[e] proffer d[id] not include statements concerning violent acts, or violence in any form.” 

The parties proceed on the assumption that, under the language of the proffer letter agreement, this violence exclusion applies to the use of statements or information at sentencing. See 

Appellee’s Br. at 28–31; Appellant’s Reply Br. at 4–7. We will do the 

same.

Mr. Guerra contends that the violence exclusion only covers 

violent acts or violence that he “participated in.” Appellant’s Reply 

Br. at 6. He says that the government drafted the violence exclusion only so that it could prosecute “someone being debriefed who 

reveals that [he] had committed violent acts or violence.” Id. We 

disagree. Both the text of the agreement and the context of the 

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negotiations support the government’s use of the Spanish judge 

video. 

We turn first to the language of the proffer letter agreement. 

The exclusion’s relevant phrase is “statements concerning violent 

acts, or violence in any form.” The last clause is broad. See Cassell’s

Dictionary of English Idioms 301 (2002) (“in any shape or form” 

means “of any kind”); McGraw-Hill’s American Idioms Dictionary 

251 (4th ed. 2007) (“in any way, shape or form” means “in any manner”). One of the English subtitles that Mr. Guerra inserted in the 

video reads “you will die with a sticky bomb.” See D.E. 102 at 34; 

D.E. 94-4 at 5. In our view, inserting that English subtitle in a video 

threatening the assassination of a Spanish judge falls squarely 

within the violence exclusion.

Our cases caution against a “hyper-technical reading” of a 

proffer agreement that does not consider the “background of the 

negotiations.” See Pielago, 135 F.3d at 709. In this vein, Mr. Guerra 

argues that a broad reading essentially runs counter to the spirit of 

the agreement because it would “permit [the government] to utilize anything he told them during the briefing.” Appellant’s Reply 

Br. at 6 (emphasis in original). If that were the case, his argument

seems to go, then why would he have ever entered into the agreement? 

As Mr. Guerra acknowledges, however, the government 

sought his cooperation to identify other targets and thwart potential terrorist attacks. In exchange, the government agreed not to 

use his statements against him unless they concerned violent acts 

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or violence in any form. Had the proffer sessions proved fruitful,

he could have received a motion for a downward departure. See 

U.S.S.G § 5K1.1. That was the bargain, and because the government agreed not to use his statements unless the violence exclusion 

applied, the agreement was not illusory. See generally Restatement 

(Second) of Contracts § 77 cmt. a (Am. L. Inst. 1981) (“Words of 

promise which by their terms make performance entirely optional

with the ‘promisor’ do not constitute a promise.”).6

III

Mr. Guerra also challenges the district court’s application of 

the terrorism enhancement under U.S.S.G. § 3A1.4(a). “A challenge 

to the application of the Sentencing Guidelines is a mixed question 

of law and fact.” United States v. Mandhai, 375 F.3d 1243, 1247 (11th 

Cir. 2004). We review factual findings for clear error, but the “application of those facts to justify a sentencing enhancement is reviewed de novo.” United States v. Castaneda-Pozo, 877 F.3d 1249, 1251 

(11th Cir. 2017) (citation omitted). Contrary to Mr. Guerra’s contention that the government’s standard of proof is clear and convincing evidence, “our circuit’s settled law is that the preponderance of the evidence standard is sufficient to establish the predicate 

facts for a sentencing adjustment or enhancement.” United States v. 

Arcila Ramirez, 16 F.4th 844, 855 n.8 (11th Cir. 2021). 

6 Even if we consider the Assistant U.S. Attorney’s email, the result remains 

the same. That email reiterated that the proffer letter agreement “specifically 

excludes violence.” 

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The terrorism enhancement provides that: 

(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is 

less than level 32, increase to level 32.

(b) In each such case, the defendant’s criminal history 

category from Chapter Four (Criminal History and 

Criminal Livelihood) shall be Category VI.

U.S.S.G. § 3A1.4. Application Note 1 to § 3A1.4 explains that a 

“‘federal crime of terrorism’ has the meaning given [to] that term 

in 18 U.S.C. § 2332b(g)(5).” In turn, § 2332b(g)(5) defines a “federal 

crime of terrorism” as an offense that: 

(A) is calculated to influence or affect the conduct of 

government by intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of . . . [18 U.S.C. §] 2339B (relating to 

providing material support to terrorist organizations)[.]

Mr. Guerra concedes that his conviction under 18 U.S.C. 

§ 2339B(a)(1) is in violation of an enumerated statute under subsection (g)(5)(B). As a result, only subsection (g)(5)(A) is at issue. 

We recently held that the term “calculated” in subsection 

(g)(5)(A) imposes “an intent requirement,” such that “the government must show that the defendant’s offense was planned to influence, affect, or retaliate against government conduct, even if that 

was not the defendant’s personal motive.” Arcila Ramirez, 16 F.4th at 

854 (emphasis added). Because defendants rarely admit their “full 

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knowledge or intentions,” district courts may rely on “circumstantial evidence and reasonable inferences drawn from the facts.” Id. 

For instance, though a defendant’s “[p]ersonal motive is not relevant,” his “knowledge that a terrorist organization solicited his actions to attack the government could demonstrate” that his conduct was “calculated to influence government.” Id. (emphasis 

added). 

The district court found that by translating and disseminating Open Source Jihad 1 and Open Source Jihad 2, Mr. Guerra was

“knowingly promoting activities . . . . to retaliate against government 

conduct.” D.E. 102 at 73 (emphasis added). It also found, alternatively, that by inserting English subtitles in the video threatening 

the assassination of a Spanish judge, Mr. Guerra was acting in a way 

“calculated to influence the conduct of government by intimidation or coercion[.]” Id. 

Mr. Guerra’s arguments against the terrorism enhancement 

can be summed up as follows: (1) being convicted under the material support statute does not per se warrant the enhancement; (2) 

to show retaliation, the government had to prove that he “intended 

to respond to specific government action;” and (3) the government 

failed to prove specific intent. None are convincing. 

The first two arguments can be quickly dispensed with. As 

to the first, the district court never said anything to even remotely 

suggest that it was applying a per se rule. Its findings were thorough 

and clearly set out at the sentencing hearing. See id. at 69–74. As 

for the second, though we doubt that a defendant like Mr. Guerra 

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must be shown to be responding to a “specific government action,”

the record here supports such a finding. One example of sufficiently intentional retaliation provided by Mr. Guerra in support of 

his second argument is that of a defendant who attacked an embassy “to retaliate against the U.S. government[’s] . . . presence in 

Libya.” Appellant’s Br. at 30–31. Here, through Open Source Jihad 

2, Mr. Guerra promoted acts of terror in countries “where the government and public sentiment is in support of the Israeli occupation of Palestine [and] the American invasion of Afghanistan and 

Iraq . . . . ” Under Mr. Guerra’s proposed standard, that is specific 

enough. 

The third argument requires more discussion, but it is nonetheless unavailing. We have not gone so far as to say that “specific 

intent” is required under § 2332b(g)(5)(A). In Arcila Ramirez, our 

most recent published case in this area, we held that the “calculated” prong of § 2332b(g)(5)(A) imposes an intent requirement

such that “the government must show that the defendant’s offense 

was planned to influence, affect, or retaliate against government 

conduct, even if that was not the defendant’s personal motive.” 16 

F.4th at 854. 

“[W]hether a defendant’s offense is calculated (i.e., intended) to influence, affect, or retaliate against government conduct is a highly fact specific inquiry that requires examining the record as a whole.” Id. There is no need for us to decide whether 

specific intent, in the form described by Mr. Guerra, is required. 

That is because the district court found that Mr. Guerra, by 

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inserting the English subtitles in the video threatening the assassination of a Spanish judge, had such an intent—his conduct was 

“calculated to influence the conduct of government by intimidation or coercion.” D.E. 102 at 73. This finding is not clearly erroneous, as the targeted political killing of a judge—a government 

official—can be for the purpose of influencing, affecting, or retaliating against government conduct. See United States v. Matchett, 802 

F.3d 1185, 1191 (11th Cir. 2015) (“We may affirm a sentencing enhancement ‘for any reason supported by the record, even if not relied upon by the district court.’”) (citation omitted).7 

Mr. Guerra attempts to minimize his conduct by characterizing himself as a mere translator and an oblivious operator of terrorist media accounts. The problem for Mr. Guerra is that he admitted to so much more in his factual proffer. He stipulated to, 

among other things, knowing that ISIS is an active foreign terrorist 

organization; directing and coordinating the efforts of ISIS media 

networks; recruiting other ISIS sympathizers; concealing his identity online and instructing his recruits on how to do the same; stating that “[w]ithout us [ISIS] in the online world is dead”; and, in 

addition to translating and disseminating Open Source Jihad 2 to a 

broader audience, “featur[ing] original content” to help others 

7At oral argument, Mr. Guerra’s counsel pointed to United States v. Stewart, 590 

F.3d 93 (2d Cir. 2009), as the best case on the issue of specific intent. Stewart, 

however, is distinguishable. In that case the government sought the terrorism 

enhancement even though it conceded that the defendant “ha[d] committed 

neither a federal crime of terrorism nor any other crime with the intent to 

promote such a crime.” Id. at 138. That is not the case here.

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evade detection online. The fact of the matter is that Mr. Guerra’s 

conduct places him a long ways away from being a mere translator 

or unknowing participant. 

IV

Mr. Guerra’s third and final issue on appeal concerns the 

manner in which the district court applied the 3-level reduction for 

acceptance of responsibility. Mr. Guerra argues that, under Rodriguez, 64 F.3d at 642–43, the district court “should have” varied 

downward so as to calculate the reduction from the 240-month 

statutory maximum sentence.8

In Rodriguez—a case decided when the Sentencing Guidelines were still mandatory—we held that a district court may, in its 

discretion, depart downward if the reduction for acceptance of responsibility gives the defendant no actual benefit because the 

guideline sentence far exceeds the statutory maximum. See id. at 

643. We came to this conclusion because we thought that “the 

[Sentencing] Commission failed to consider that [U.S.S.G.] 

§ 5G.1(a) [which provides that where the statutory maximum sentence is less than the low end of the guideline range, the statutory 

maximum sentence becomes the guideline sentence] might 

8 Mr. Guerra argues for the first time in his reply brief that the district court

misunderstood its authority to apply the reduction for acceptance of responsibility as a departure rather than a variance. By not raising that argument in 

his opening brief, Mr. Guerra forfeited its consideration, and we see no reason 

to exercise our discretion to address it. See generally United States v. Campbell, 

26 F.4th 860, 873–74 (11th Cir. 2022) (en banc). In any event, there is nothing 

in the record which suggests that the district court believed it could not depart. 

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operate to negate the [U.S.S.G.] § 3E1.1 [acceptance of responsibility] adjustment and undermine the ‘legitimate societal interests’ 

served by the adjustment.” See id. 

The Sentencing Commission in 2003—after Rodriguez, but 

still before the Supreme Court made the Sentencing Guidelines advisory in United States v. Booker, 543 U.S. 220 (2005)—promulgated 

U.S.S.G. § 5K2.0(d)(2). This provision prohibits district courts from 

departing from the applicable guideline range, outside of § 3E1.1,

based on acceptance of responsibility. In other words, § 5K2.0(d)(2) 

appears to make § 3E1.1 the exclusive means by which a district 

court may account for acceptance of responsibility within the Sentencing Guidelines. The government, in fact, argues that 

§ 5K2.0(d)(2) abrogated Rodriguez. 

As far as we can tell, no other circuit has addressed the impact of § 5K2.0(d)(2) under a similar circumstance. Only the Third 

Circuit has come close to doing so. In a pre-Booker case, the Third 

Circuit held that “a sentencing court may depart downward when 

the circumstances of a case demonstrate a degree of acceptance of 

responsibility that is substantially in excess of that ordinarily present.” United States v. Lieberman, 971 F.2d 989, 996 (3d Cir. 1992), 

abrogated on other grounds by United States v. Douglas, 885 F.3d 124 (3d 

Cir. 2018). Then, in a post-Booker case, the Third Circuit noted that 

a district court “reasonably questioned the continued vitality of 

Lieberman under § 5K2.0(d)(2),” but explained that it need only decide whether the district court “understood [§ 5K2.0(d)(2)] to mean 

that it lacked the authority to consider extraordinary acceptance of 

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responsibility in issuing a variance pursuant to the [18 U.S.C.] § 

3553(a) factors.” United States v. Severino, 454 F.3d 206, 210 n.2 (3d 

Cir. 2006) (emphasis added).

We likewise see no reason to decide the effect of 

§ 5K2.0(d)(2) on Rodriguez. As a procedural matter, the district 

court understood Mr. Guerra to be seeking a downward variance 

(and not a downward departure) to give him the benefit of his acceptance of responsibility, see D.E. 102 at 75, and Mr. Guerra’s 

counsel did not tell the court that it was wrong to view the request 

that way.

The district court considered Mr. Guerra’s acceptance of responsibility to be a mitigating factor under § 3553(a), among others, in varying downward 48 months, from 240 months to 192 

months. Although the court did not say how many months of the 

variance were attributable to acceptance of responsibility and how 

many months were attributable to its departure under § 5H1.4, Mr. 

Guerra does not argue that the court committed any procedural 

error in that regard. His argument, in essence, is that by not varying downward more, the court abused its discretion and imposed a 

substantively unreasonable sentence.9 

9 To the extent that Mr. Guerra contends that the district court erred by not 

departing downward to account for acceptance of responsibility, that claim is 

not cognizable. See United States v. Calderon, 127 F.3d 1314, 1342 (11th Cir. 

1997) (a refusal to depart downward cannot be a ground for appeal unless the 

district court believed it had no authority to depart). 

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A district court abuses its discretion and imposes a substantively unreasonable sentence “when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives 

significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” 

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) 

(citation omitted). We may only vacate a sentence “if [ ] we ‘are 

left with the definite and firm conviction that the district court 

committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.’” Id. at 1190 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). And 

“[a]lthough we do not automatically presume that a sentence 

within the guidelines range is reasonable, we ordinarily expect such 

a sentence to be reasonable.” United States v. Perkins, 787 F.3d 1329, 

1342 (11th Cir. 2015). 

The district court considered Mr. Guerra’s offense to be very 

serious, and believed it required a significant sentence. Nevertheless, it varied and departed downward 48 months below the 240-

month statutory maximum sentence after expressly considering 

and weighing the § 3553(a) factors. We find no abuse of discretion

with respect to substantive reasonableness. Cf. United States v. 

Tounisi, 900 F.3d 982, 987–88 (7th Cir. 2018) (upholding, as substantively reasonable, a 180-month sentence imposed on a defendant 

who violated § 2339B(a)(1) by attempting to provide material support to a foreign terrorist organization). 

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V

We affirm Mr. Guerra’s sentence. 

AFFIRMED.

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