United States v. Carlos Emilio Ibarg ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10734
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cr-20013-JEM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS EMILIO IBARGUEN PALACIOS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 8, 2020)
Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
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In September 2016, Carlos Ibarguen Palacios (“Ibarguen Palacios”), a
Colombian citizen, took three Cuban nationals on his boat through the Colombian
waters towards the Panamanian border, where the aliens planned to continue their
journey to the United States. During that trip, Ibarguen Palacios and another
smuggler, Jhoan Stiven Carreazo Asprilla (“Carreazo Asprilla”), raped and
murdered one Cuban national and murdered another. The third Cuban national
escaped and alerted the Colombian authorities. Colombian law enforcement
arrested Ibarguen Palacios and Carreazo Asprilla. The United States Department
of Homeland Security (“DHS”) identified the two smugglers as participants in an
alien smuggling operation, and Colombia extradited them both to the United
States. Ibarguen Palacios was then charged, 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). The United States District Court for the
Southern District of Florida sentenced him to 540 months in prison.
On appeal, Ibarguen Palacios asserts the district court erred in three respects.
First, he claims the district court wrongly imposed a two-level sentencing
enhancement for the use of a special skill (navigating a vessel in open waters) in
the commission of the crime. Second, he argues the district court erred in applying
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a first-degree murder cross-reference because he did not commit the crime with
malice and the underlying offense (alien smuggling) cannot serve as a predicate for
the felony-murder rule. Third, he asserts the district court abused its discretion in
imposing a substantively unreasonable sentence of 540 months. For the reasons
that follow, we affirm.
I.
In July 2016, two Cuban nationals, “E.M.A.” and “L.S.C.,” began their
journey to the United States. They flew from Cuba to Guyana, then illegally
crossed through Brazil and Venezuela, arriving in Colombia in August 2016. Once
there, they sought to arrange transportation to smuggle them to Panama, Mexico,
and ultimately, the United States. While LS.C. and E.M.A. were staying at a hotel
in Cucuta, Colombia, Jorge Fernando Rivera Weir (“Rivera Weir”) approached
them and offered to transport them to the Panamanian border.
E.M.A. and L.S.C. arranged and paid for the journey and the group
continued to Turbo, Colombia. 1 After the payment was received, Rivera Weir
introduced E.M.A. and L.S.C. to his two associates: Ibarguen Palacios and Fredis
Valencia Palacios (“Valencia Palacios”). Rivera Weir explained that Ibarguen
Palacios and Valencia Palacios operated the boat that Rivera Weir used to transport
1
E.M.A.’s family in Miami, Florida wired $500 to Rivera Weir as a down payment for
the trip. After the group arrived at a hotel in Turbo, Colombia, E.M.A.’s family wired an
additional $1,400 to a person designated by Rivera Weir.
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people through the Colombia rivers to the Panamanian border. Ibarguen Palacios
would captain the boat.
Ibarguen Palacios was no novice to the Colombian waterways: he had
worked as a fisherman in Turbo, Colombia for approximately twelve years—since
he dropped out of grade school to assist his father and brother, also fishermen. As
a fisherman, he earned the U.S. equivalent of $250 per month. 2 To supplement
these wages, Ibarguen Palacios planned to receive 200,000 Colombia pesos per
alien for the trip—600,000 in total.
Although Rivera Weir only offered transport to the Panamanian border, the
Cuban nationals intended to cross the United States border. E.M.A. and L.S.C.
told Rivera Weir, Ibarguen Palacios, and Valencia Palacios (together, the
“smugglers”) that they were travelling to the United States and planned to
ultimately settle in Miami. Another Cuban national, D.E.L.S., arrived at the hotel
in Turbo and decided to join the group, informing the smugglers that he too was
travelling to the United States.
On the morning of September 7, 2016, Ibarguen Palacios and another
smuggler, Carreazo Asprilla, set off on a vessel with the three Cuban nationals,
2
On the day that Colombian authorities arrested Ibarguen Palacios—September 10,
2016—one U.S. dollar was equal to approximately 2,919.71 Colombian pesos. See XE Currency
Converter – Historical Rate Table for 2016-09-10, available at https://www.xe.com/currency
tables/?from=USD&date=2016-09-10 (accessed July 2, 2020). Therefore, Ibarguen Palacios
earned approximately 744,927.50 Colombian pesos per month as a fisherman.
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heading towards the Panamanian border.3 Before the group departed, Carreazo
Asprilla and Ibarguen Palacios agreed that they would rob E.M.A., L.S.C., and
D.E.L.S. during the trip, because another smuggler had told them that the Cubans
had “a lot” of money. At some point during the trip, Ibarguen Palacios and
Carreazo Asprilla executed their plan: Ibarguen Palacios brandished a firearm and
Carreazo Asprilla pulled a knife on E.M.A., L.S.C., and D.E.L.S. At Carreaz
Asprilla’s direction, Ibarguen Palacios tied the wrists of L.S.C. and D.E.L.S. and
threw them overboard but pulled them up so their heads were just above the water
and anchored them with rope to the inside of the boat. Carreazo Asprilla and
Ibarguen Palacios first took turns sexually assaulting E.M.A. and then killed her by
cutting her throat. Next, they brought D.E.L.S. back into the boat and then cut his
throat, killing him. While Carreazo Asprilla and Ibarguen Palacios struggled with
D.E.L.S., L.S.C. freed himself from his bindings, swam away from the vessel, and
hid in the surrounding mangroves. Carreazo Asprilla and Ibarguen Palacios tried
to find L.S.C., using flashlights to try to spot him in the mangroves, but eventually
abandoned their search.
3
The group, including Valencia Palacios, had attempted to leave on September 6, but
shortly after departing, the boat began to take on water, forcing them to return to shore. Ibarguen
Palacios took the three Cuban nationals back to his home in Turbo, where they spent the night.
They left on a different vessel the next day. No information was provided as to why or how
Carreazo Asprilla came to take the place of Valencia Palacios.
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A local fisherman discovered LS.C. the next day. L.S.C. directed the
Colombian authorities to the location of the murders. There, the authorities
retrieved the bodies of E.M.A. and D.E.L.S., which had their throats and stomachs
cut open. The bodies were tied together and submerged in the water. L.S.C. also
identified photographs of Rivera Weir, Ibarguen Palacios, Carreazo Asprilla, and
Valencia Palacios as the men who had agreed to smuggle the victims. He
specifically identified Ibarguen Palacios and Carreazo Asprilla as the men who
raped and killed E.M.A. and killed D.E.L.S.
Just three days after the murders, Colombian law enforcement officials
arrested Ibarguen Palacios and Carreazo Asprilla at a hotel in Turbo, Colombia.
The police recovered some of the victims’ personal items in their hotel rooms, and
discovered more of the victims’ personal property, as well as the vessel used
during the smuggling venture and a homemade firearm, in Ibarguen Palacios’s
home. Ibarguen Palacio and Carreazo Asprilla pleaded guilty in Colombia to
murder, rape, aggravated robbery, and femicide and were each sentenced to 43
years and 6 months in prison.
Following Ibarguen Palacios’s arrest in Colombia, the United States
Department of Homeland Security began investigating the smugglers for violations
of the United States Code, and on December 5, 2016, Ibarguen Palacios was
charged by complaint with conspiring to commit alien smuggling, attempting to
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bring aliens to the United States, and encouraging or inducing aliens to come to the
United States, all in violation of 8 U.S.C. § 1324. On January 6, 2017, a grand jury
in the Southern District of Florida returned an indictment charging Ibarguen
Palacios with one count of conspiring 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). Colombia
extradited Ibarguen Palacios, Carreazo Asprilla, and Valencia Palacios to the
United States on November 9, 2017.4 As part of the extradition agreement, the
United States assured Colombia that Ibarguen Palacios would not be sentenced to
death or life imprisonment.
On October 26, 2018, Ibarguen Palacios pleaded guilty as charged in the
indictment. A probation officer prepared a presentence investigation report
(“PSI”) prior to sentencing. Because the smuggling resulted in death, the
probation officer applied the first-degree murder offense level found in § 2A1.1(a).
The probation officer increased the base offense level by two points under §3A1.3,
because the victims were physically restrained in the course of the offense. The
probation officer also determined that Ibarguen Palacios had used a special skill to
facilitate the commission of the offense, and accordingly increased the offense
4
Rivera Weir remains a fugitive.
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level an additional two levels, consistent with § 3B1.3. The offense level was
decreased by three levels total: two for accepting responsibility and one for timely
pleading guilty. The resulting total offense level of 43, together with Ibarguen
Palacios’s criminal history category of I, resulted in a guideline imprisonment term
of life. The district court accepted these recommendations but varied downward
from the guideline range of life and sentenced Ibarguen Palacios to 540 months in
prison on each count to run concurrently.
II.
Generally, this Court reviews the reasonableness of a sentence under the
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). The
party challenging the sentence bears the burden of demonstrating that the sentence
is unreasonable in light of the record, the factors listed in 18 U.S.C. § 3553(a),5 and
the substantial deference afforded sentencing courts. United States v. Rosales-
Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). “In reviewing the reasonableness of
5
The factors a district court must consider are:
(1) “the nature and circumstances of the offense and the history and
characteristics of the defendant;” (2) the need “to reflect the seriousness of the
offense;” (3) the need “to afford adequate deterrence to criminal conduct; (4) the
need “to protect the public from further crimes of the defendant; (5) the need “to
provide the defendant with . . . correctional treatment in the most effective
manner;” (6)”the kinds of sentencing and the sentencing range established for the
applicable category of offense;” and (7) “any pertinent policy statement.”
18 U.S.C.A. § 3533(a).
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a sentence, we must . . . consider the totality of the facts and circumstances.”
United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc) (citing
United States v. Pugh, 515 F.3d 1179, 1192 (11th Cir. 2008). We accept the
district court’s findings of facts unless they are clearly erroneous. Irey, 612 F.3d at
1190. Still, we should consider “additional salient facts that were elicited, and
uncontroverted.” Pugh, 515 F.3d at 1192.
This Court reviews a district court’s legal interpretations and applications of
the Sentencing Guidelines de novo, and its factual findings for clear error. United
States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quotation marks
omitted); see also United States v. De La Cruz Suarez, 601 F.3d 1202, 1219 (11th
Cir. 2010) (“The district court’s legal interpretation of the term ‘special skills’ is
reviewed de novo, but whether the defendant possesses a special skill under §
3B1.3 of the Sentencing Guidelines is a factual finding reviewed for clear error.”).
The sentencing court must consider all relevant conduct, as described in U.S.S.G. §
1B1.3, when determining a defendant’s sentence, which this Court reviews for
clear error. United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015).
Relevant conduct is defined broadly and includes uncharged conduct that is proven
by a preponderance of the evidence at sentencing. Id. at 1332.6
6
The Sentencing Guidelines define relevant conduct to include “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of conviction . . . or in the
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A. The Special Skill Enhancement
This first question before this Court is whether the district court erred in
applying the special skill enhancement. Ibarguen Palacios received a two-level
special skill enhancement because he “used a special skill, in a manner that
significantly facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3. A “special skill” is a “skill not possessed by members of the
general public and usually requiring substantial education, training or licensing.”
Id. cmt. (n. 4).7 The district court determined:
I think boat captain is a special skill, even [if it is] a crummy little
leaky boat . . . . I’ve seen the picture of the boat. It’s a crummy little
leaky boat, but you know what, if I got into that and I was in
Colombia, I would have a heck of a time getting down the little canals
or estuaries and getting it to somewhere where I really wanted to go,
and I probably would have sunk the first day.
On appeal, Ibarguen Palacios argues that his ability to pilot the boat through the
Colombia waterways does not qualify as a special skill, and therefore the district
court should not have enhanced his sentence.
We find the district court did not clearly err in finding that Ibarguen Palacios
employed a special skill in piloting the boat from Turbo, Colombia to the
course of attempting to avoid detection or responsibility for that offense.”
U.S.S.G. § 1B1.3(a)(1)(A)-(B).
7
The “commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
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Panamanian border. We have previously held that operating a boat for smuggling
purposes is a special skill, particularly where the defendant did not rely on
advanced technology. In De La Cruz Suarez, the defendant piloted a boat,
“overloaded” with Cuban migrants from Cuba to the Florida Keys, without the use
of GPS or a satellite phone. 601 F.3d at 1219. In concluding that the boat
operation was a special skill, this Court emphasized that the defendant evaded the
United States Coast Guard “us[ing] specialized knowledge of the area to find a
predetermined location.” Id. at 1219. Similarly, in United States v. Calderon, we
held that the defendant possessed a special skill because he successfully
“captain[ed] a cocaine laden boat on the high seas from the Bahamas to a
predetermined specific location in Southern Florida using a chart and compass at
night without lights while taking care to elude detection.” 127 F.3d 1314, 1340
(11th Cir. 1997).
With those cases in mind, we turn to Ibarguen Palacios’s “crummy little
leaky boat.” Ibarguen Palacios contends that he could not have a special skill
because “the boat in question was nothing more than a glorified rowboat with
motors attached.” But the boat’s lack of technological sophistication does not
negate the skill used to operate it; indeed, it might even make Ibarguen Palacios’s
handling of it all the more impressive. In De La Cruz Suarez, this Court noted that
the skill involved in operating a boat at night “was a special skill, particularly after
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the GPS and satellite phone were thrown overboard.” 601 F.3d at 1220. Here,
Ibarguen Palacios transported five people, including himself, on a small boat
without lights, a GPS, or radio. And, in the dead of night, he directed that little
boat to a dead-end canal, where the victims’ bodies were found. Ibarguen Palacios
clearly had a special skill.
Nor does it matter that Ibarguen Palacios did not receive any specialized
education or licensing in order to operate the boat. In other contexts, we have held
that a special skill requires neither licensing nor formal education. Foster, 155
F.3d at 1332. A person can obtain a special skill “through life experience and self-
study.” United States v. Batista De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006). See
also United States v. Gandy, 36 F.3d 912, 914 (10th Cir. 1994) (recognizing “that a
defendant need not have completed formalized educational or licensing
requirements in order to possess a special skill . . . a defendant's special skill can
also be derived from experience or from self-teaching.”). The record shows that
Ibarguen Palacios worked as a fisherman in Turbo, Colombia from 2003 until
September 2016. Over those years, Ibarguen Palacios developed the skill
necessary to drive a boat through the waterways near his home in order to do his
job.
On this point, we further note that Ibarguen Palacios was the designated boat
driver in the smuggling gang and expected to be paid 200,000 Colombian pesos
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per Colombian national for the trip. In comparison, Valencia Palacios (who was
supposed to also be on the trip before Carreazo Asprilla replaced him) expected to
be paid 100,000 Colombian pesos per Cuban national.8 As this Court observed in
Calderon,
[A]ppellants were each payed [sic]. . . exponentially more than
captains of similar boats receive for pleasure outings. While this tidy
sum was no doubt inflated to reflect the profits involved with drug
dealing and to offset the risk and consequences of getting caught
attempting to smuggle cocaine into the United States, that still does
not explain why appellants were paid far more for their role as
captains than were other members of the crew. Similarly, why did
captains have to be “recruited” for each load? If anyone could provide
such services, why didn't existing participants in the conspiracy take
on that role, thereby reducing the cost of the operation as well as the
chances of detection? The obvious answer, we believe, is that
captaining the boat required skills not possessed by the other
participants.
127 F.3d at 1340.
The Calderon Court emphasizes points similarly applicable to the facts here:
To captain the boat, Ibarguen Palacios was paid double that paid to the other
participants in the scheme. What is more, another smuggler actively recruited
Ibarguen Palacios for this specific role. Thus, Ibarguen Palacios’s role in and
payment for the alien smuggling operation indicate that his ability to operate the
boat is a special skill.
8
During post-arrest statements, Valenica Palacios informed the police that had worked as
a boat captain in the past but was unable to do so this trip. He introduced Rivera Weir to
Ibarguen Palacios and arranged to receive 100,000 pesos per Cuban national as a finder’s fee.
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Finally, Ibarguen Palacios makes a general objection to the district court’s
appraisal of his ability to operate the smuggling boat. He claims that “driving
similar small boats in the canals around the area was commonplace and
comparable to driving a car here in the United States,” and therefore cannot be a
special skill. True, a “special skill” is defined as a “skill not possessed by
members of the general public.” U.S.S.G. § 3B1.3 cmt (n. 4). See also De La Cruz
Suarez, 601 F.3d at 1219 (observing that if an “average person off the street” does
not possess the skill, then the skill must be “special.” (quoting Calderon, 127 F.3d
at 1339)). But this Court has never determined the ability of the “general public”
based on geography and, for several reasons, we do not need to decide the scope of
the inquiry here. First, Ibarguen Palacios provides no support for his evaluation of
the capabilities of the people of Turbo, Colombia. In the absence of that evidence,
we must rely on the evidence presented to the district court. Second, as discussed
above, the evidence shows Ibarguen Palacios possessed a skill that the other
smugglers (who were also from the area) did not possess. See supra at 12–13.
Third, although “[t]he boat in question was not travelling on the open or high seas
[and] instead the route involved local estuaries,” the trip is not as simple as
Ibarguen Palacios suggests. Let us go to the map. 9 In order to reach the
9
Although the parties did not provide us a map, based on the undisputed evidence, we
take judicial notice of a map of Colombia. See Fed R. Evid. 201(b),(c)(1); State of Arizona v.
State of California, 283 U.S. 423, 452, (1931) (“[A] court may take judicial notice that a river
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Panamanian border, Ibarguen Palacios needed to pilot the boat across a body of
water called the Darien Gap to Acandi, Colombia. Although not an ocean, the
Darien Gap is by no means a small canal or estuary: the most direct possible route
between Turbo and Acandi is approximately 50 miles across that large body of
water. And an indirect route around it (which someone avoiding detection would
likely take) is an even greater distance. Ibarguen Palacios operated a small boat, at
night, loaded with passengers, through these waters, without technology. We
conclude that his ability to operate the boat in this manner qualifies as a special
skill. Accordingly, the district court did not err in applying the two-level
enhancement.
B. The First-Degree Murder Cross-Reference
Ibarguen Palacios’s next claim on appeal is that the district court erred in
applying a first-degree murder cross-reference at sentencing. Ibarguen Palacios
was convicted of three counts of knowingly encouraging or inducing an alien to
come to, enter, or reside in the U.S. and one count of conspiracy to commit that act
in violation of 8 U.S.C.A. § 1324(a)(1)(A)(iv), (v)(I). Accordingly, the district
court sentenced him pursuant to U.S.S.G. § 2L1.1, which governs smuggling
within its jurisdiction is navigable.”); United States v. Burroughs, 810 F.3d 833, 835 n.1 (D.C.
Cir. 2016) (taking judicial notice of Google map whose “’accuracy [could not] reasonably be
questioned’” for relevant purpose (quoting Fed. R. Evid. 201(b)(2)); United States v. Proch, 637
F.3d 1262, 1266 n. 1 (11th Cir. 2011) (taking judicial notice of map of Fort Walton Beach,
Florida).
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offenses. This provision specifies that “[i]f death resulted,” from the defendant’s
crime, courts should “apply the appropriate homicide guideline . . .”
U.S.S.G. § 2L1.1(c)(1). Here, the district court chose to apply the first-degree
murder guideline. The commentary to the first-degree murder sentencing guideline
explains that it applies (1) “in cases of premeditated killing” and (2) “when death
results from the commission of certain felonies” (the felony murder rule).
U.S.S.G. § 2A.1.1, cmt. (n. 1). Section 2A1.1 incorporates 18 U.S.C. § 1111, the
federal murder statute. In accordance with § 1111, those certain felonies include
arson, kidnapping, aggravated sexual abuse or sexual abuse, burglary, and robbery.
18 U.S.C. § 1111.10 Where, as here, the district court finds the cross-reference
applies, the base offense level is 43. U.S.S.G. § 2A.1.1(a).
Ibarguen Palacios claims that the first-degree cross reference does not apply
to him because (1) the government failed to provide sufficient evidence that
Ibarguen Palacios committed the murders with malice aforethought or
10
18 U.S.C. § 1111 defines first-degree murder as:
[T]the unlawful killing of a human being with malice aforethought. Every murder
perpetrated by poison, lying in wait, or any other kind of willful, deliberate,
malicious, and premeditated killing; or committed in the perpetration of, or
attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or
robbery; or perpetrated as part of a pattern or practice of assault or torture against
a child or children; or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than him who is killed, is
murder in the first degree.
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premeditation; and (2) the death arose out of the crime of alien smuggling, which is
not a predicate felony for the felony murder rule. Both of Ibarguen Palacios’s
arguments fail.
1. Requisite Intent
Ibarguen Palacios first claims that he did not have the requisite intent to
murder E.M.A. and D.E.L.S. because his co-defendant, Carreazo Asprilla,
independently devised the plan to murder the Cuban nationals and threatened to
kill Ibarguen Palacios if he did not assist him.
At the sentencing hearing, the judge expressed his concern with the
application of the cross-reference, asking the government to “explain to [him] the
rationale for first-degree murder. It would appear that this is something that,
although terribly serious, was not a premeditated matter, but a matter which
evolved from the situation. . .” In response, the government pointed out several
facts indicating that both Ibarguen Palacio and Carreazo Asprilla acted willfully in
murdering E.M.A. and D.E.L.S, including that: (1) Ibarguen Palacios drove the
boat to a “dead-end,” secluded area with which he was familiar, (2) after arriving
in that location, Ibarguen Palacios grabbed a machete, (3) Ibarguen Palacios tied
up the victims so tightly that the survivor’s wrists are scarred, (4) Ibarguen
Palacios said he wanted to rape E.M.A. and did rape her, (5) Ibarguen Palacios and
Carreazo Asprilla cut both of the victims’ throats and stomachs, and (6) Ibarguen
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Palacios jumped in the water to search for the survivor, L.S.C. In addition, the PSI
reveals: (7) Ibarguen Palacios and Carreazo Asprilla brought weapons on board
and used these weapons to commit the assault and murders, and (8) the
conspirators tied the bodies together and submerged them in the water.
In its representation to the district court, the government recognized that
Ibarguen Palacios initially objected to Carreazo Asprilla’s instruction to tie up the
victims and Carreazo Asprilla told Ibarguen Palacios that he would “die with them
today” if he did not comply. The government also acknowledged, “while [the
murders] may not have been premeditated several days in advance, there was
certainly an opportunity for reflection and deliberation.” Ibarguen Palacios did not
raise any additional facts or dispute these facts, but emphasized that he was “put in
a position where a man takes out a gun and says ‘do something,’” and violence did
not enter his mind prior to that.
The district court did not clearly err in concluding that these facts
demonstrate that Ibarguen Palacios acted willfully and with malice aforethought.
Even assuming, as Ibarguen Palacios claims, that he and Carreazo Asprilla did not
have a plan to kill the Cuban nationals prior to embarkation, the evidence shows
that there was “enough time for [him] to be fully conscious of having the intent to
kill.” Eleventh Circuit Pattern Jury Instructions (Criminal Cases), O45.1 (2016).
Moreover, Ibarguen Palacios acted deliberately prior to the murders: he drove the
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boat to a secluded spot, tied the victims to keep them from escaping, and raped
E.M.A. Nor do the facts support Ibarguen Palacio’s contention that Carreazo
Asprilla forced him to murder E.M.A. and D.E.L.S. Despite Ibarguen Palacios’s
single objection to tying the victims up, the overwhelming evidence shows he was
a willing participant. Ibarguen admitted to raping and killing E.M.A. and killing
D.E.L.S. He also pursued the sole surviving witness to keep him from escaping.
2. Felony-murder
Ibarguen Palacios further argues that the first-degree cross reference does
not apply because at the time of the murders, he was smuggling aliens, which is not
a predicate felony for the felony murder rule. But Ibarguen Palacios and Carreazo
Asprilla killed E.M.A and D.E.L.S. during the perpetuation of a robbery and an
aggravated sexual assault. Carreazo Asprilla admitted that before they set out on
the boat, he and Ibarguen Palacios planned to rob the victims. Ibarguen Palacios
did not rebut or object to this statement. And following their arrest, Colombian
authorities found the victims’ belongings in Ibarguen Palacios’s and Carreazo
Asprilla’s hotel rooms, as well as Ibarguen Palacios’s home. With regard to the
sexual assault, although Carreazo Asprilla threatened Ibarguen Palacios when he
initially refused to tie up the victims, Ibarguen Palacios readily participated in the
rape of E.M.A. before he and Carreazo Asprilla murdered E.M.A. and D.E.L.S.
Moreover, Ibarguen Palacios pleaded guilty to robbery and rape in Colombia.
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Both robbery and rape are predicate felony offenses that qualify Ibarguen
Palacios’s murders for first degree murder. 18 U.S.C. § 1111(a).
In applying the felony-murder cross reference, a district court is not limited
to considering the crime with which the defendant was charged and convicted: “the
Relevant Conduct provision [of the sentencing guidelines] directs a court to
sentence a defendant for uncharged conduct germane to the charge-offense by
authorizing it to consider events before, during, and after the offense conduct.”
United States v. Ritsema, 31 F.3d 559, 566 (7th Cir.1994); see also United States v.
Behr, 93 F.3d 764, 765 (11th Cir. 1996) (“This Court broadly interprets the
provisions of the relevant conduct guideline.”) Before the murders, Ibarguen
Palacios and Carreazo Asprilla raped E.M.A. After the murders, they robbed the
victims. Because the evidence supports the district court’s finding that Ibarguen
Palacios engaged in predicate offenses for the felony-murder rule—robbery and
sexual assault—when he murdered the victims, the district court correctly applied
the first-degree murder cross reference.
C. The Substantive Reasonableness of the Sentence
Lastly, Ibarguen Palacios claims his 540-month total sentence is
substantively unreasonable because the district court failed to adequately consider:
(1) that he is 27 years old and already serving a 43 year sentence in Colombia for
the same criminal acts, (2) that Carreazo Asprilla, not Ibarguen Palacios, was the
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initial aggressor of the violence, and (3) that the government requested the district
court apply a second-degree murder cross reference to another codefendant,
Valencia Palacios.
As stated above, this Court reviews the reasonableness of a sentence under
the abuse-of-discretion standard. Gall, 552 U.S. at 41. To be substantively
reasonable, the district court must impose a sentence that is sufficient, but not
greater than necessary, to comply with the factors and purposes listed in §
3553(a)(2). 18 U.S.C. § 3553(a)(2); United States v. Croteau, 819 F.3d 1293, 1309
(11th Cir. 2016). The district court is not required to discuss each of the § 3533(a)
factors: an acknowledgement that it has considered them will suffice. United
States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). Still, a district court
abuses its discretion when it (1) fails to consider relevant factors that were due
significant weight, (2) gives an improper or irrelevant factor significant weight, or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Irey, 612 F.3d at 1187.
Ibarguen Palacios fails to demonstrate that his 540-month sentence is
substantively unreasonable in light of the record, the factors listed in 18 U.S.C.
§ 3553(a), and the substantial deference afforded sentencing courts. Ibarguen
Palacios argues that the district court should have weighed three factors more
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heavily, but the district court has discretion as to what weight to afford any specific
factors in § 3553(a). United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
Moreover, before imposing the sentence, the district judge declared that he
had “considered the statements of all the parties, the presentence report which
contains the advisory guidelines and the statutory factors as set forth in 18 U.S.C.
Section 3553(a). A sentence will be imposed within the advisory guideline range
as this will provide sufficient punishment and deterrence.” 11
Specific to Ibarguen Palacios’s objections, the transcript reflects that the
district court heard the parties’ arguments concerning Ibarguen Palacios’s sentence
in Colombia, Carreazo Asprilla’s role in the murders, and the government’s
request for a second-degree murder cross-reference to Valencia Palacios.
We make three brief observations before concluding. First, Ibarguen
Palacios cites no case law, and we are not aware of any, requiring a United States
district court to consider a defendant’s sentence in a foreign jurisdiction when
sentencing that defendant under the laws of this country. Second, the district court
affirmatively granted a lower sentence based on Carreazo Asprilla’s comparative
role in the murders. When Carreazo Asprilla’s threat towards Ibarguen Palacios
came to light the day before the sentencing hearing, the government decreased its
11
Although the district court announced that it was imposing a sentence within the
Guidelines’ range, in fact, the court departed downward from the Guidelines due to the
extradition agreement with Colombia.
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sentencing recommendation from 600 to 540 months. The district court issued that
lower sentence. Third, the government’s request that the second-degree murder
cross-reference be applied to another codefendant is not inconsistent: that other
defendant did not participate in the rape, murder, and robbery of the victims. In
fact, he was not even on the boat.
Considering the totality of the circumstances—including the district court’s
choice not to give weight to Ibarguen Palacios’s Colombian sentence—and the
district court’s deliberation of the § 3553(a) factors and sentencing guidelines, we
determine that the district court did not abuse its discretion in imposing Asprilla’s
sentence.
For the foregoing reasons we AFFIRM the district court’s sentence.
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