United States v. Jose Murillo-Moya , 171 F. App'x 286 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 20, 2006
No. 05-12628
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00335-CR-T-17-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MURILLO-MOYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 20, 2006)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Jose Murillo-Moya (“Murillo”) appeals his 135-month sentence for
possession with the intent to distribute five kilograms or more of cocaine while on
board a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. app. § 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. § 960(b)(1)(B)(ii), and
conspiracy to possess with the intent to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States, in
violation of 46 U.S.C. app. § 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii).
First, Murillo challenges on appeal the district court’s failure to award a
minor role reduction, arguing that the district court only considered the quantity of
drugs transported and did not consider the fact that his role was only to transfer
fuel and supplies or that he had no financial interest in the drug transaction.
Murillo also notes that he did not own the vessel, did not have any specialized
skills, had no direct contact with the cocaine shipment, and did not aid in the
planning of the shipment.
Next, Murillo argues that his sentence is unreasonable under United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), contending that
the district court failed to consider several of the 18 U.S.C. § 3553(a) factors.
Murillo argues that his sentence does not reflect the seriousness of his participation
or provide a just punishment for a person trying to provide for a family. He
contends that his sentence is excessive because it fails to consider that he would be
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deported upon release from prison and would not be in a position to harm anyone
else in the United States.
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error.
I.
“[A] district court’s determination of a defendant’s role in the offense is a
finding of fact to be reviewed only for clear error.” United States v. De Varon, 175
F.3d 930, 937 (11th Cir. 1999) (en banc). The proponent of the reduction bears the
burden of proving the minor role in the offense by a preponderance of the
evidence. Id. at 939. In determining the defendant’s role in the offense, the
“decision falls within the sound discretion of the trial court.” Id. at 945. “So long
as the basis of the trial court’s decision is supported by the record and does not
involve a misapplication of a rule of law, we believe that it will be rare for an
appellate court to conclude that the sentencing court’s determination is clearly
erroneous.” Id. The district court need not make specific factual findings in
determining the defendant’s role. Id. at 939. “So long as the district court’s
decision is supported by the record and the court clearly resolves any disputed
factual issues, a simple statement of the district court’s conclusion is sufficient.”
Id.3
The guidelines provide for a two-level minor participant reduction. U.S.
Sentencing Guidelines Manual § 3B1.2. A defendant is a minor participant if he is
less culpable than most other participants, but his role was not minimal. Id. cmt.
n.5.
In determining whether a role reduction is warranted, a district court “should
be informed by two principles discerned from the Guidelines: first, the defendant’s
role in the relevant conduct for which [he] has been held accountable at sentencing,
and, second, [his] role as compared to that of other participants in [his] relevant
conduct.” De Varon, 175 F.3d at 940. Under the first prong, the district court
“must assess whether the defendant is a minor or minimal participant in relation to
the relevant conduct attributed to the defendant in calculating [his] base offense
level.” Id. at 941. Under the second prong, the court “measure[s] the defendant’s
culpability in comparison to that of other participants in the relevant conduct.” Id.
at 944. In this analysis the court “should look to other participants only to the
extent that they are identifiable or discernable from the evidence” and “may
consider only those participants who were involved in the relevant conduct
attributed to the defendant.” Id.The district court did not clearly err in denying a minor role reduction. With
respect to the first prong of De Varon, a district court may legitimately conclude
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that a drug courier played an important and essential role where the courier’s
relevant conduct is limited to his own criminal act. Id. at 942-43. The relevant
conduct attributed to Murillo was identical to his actual conduct because he was
only held accountable for the 16 bales of cocaine recovered from the vessel, which
contained 320 kilograms of cocaine. Thus, Murillo’s claim under the first prong
fails.
With respect to the second prong, Murillo’s counsel argued that Murillo was
only a deck hand who was not involved in the planning or financing of the
shipment and would not have profited from the shipment. The Presentence
Investigation Report (“PSI”) did not specify what roles the other crew members
played in organizing the drug shipment, and Murillo did not proffer any facts
distinguishing his role from the other crew members. Murillo did not testify
regarding his involvement in the transaction or proffer testimony from any other
defendants indicating that he played a smaller role than other crew members. As
the record is largely devoid of evidence clarifying any distinction in the roles
played by the crew members, Murillo’s argument also fails under this prong. Thus,
Murillo has not met his high burden of proving that the district court clearly erred
in denying a minor role reduction.
II.
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Following the Supreme Court’s decision in Booker, we review a defendant’s
final sentence imposed, in its entirety, for reasonableness in light of the factors in
18 U.S.C. § 3553(a).1 United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005) (per curiam). Those factors include: (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; (3) the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment; (4) the need to protect the public; and (5)
the guideline range. See 18 U.S.C. § 3553(a). A district court is not required to
state on the record that it has explicitly considered each of the § 3553(a) factors or
to discuss each of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005). We have acknowledged that the guidelines remain “central
to the sentencing process,” but we have rejected the idea that a sentence within the
guidelines is per se reasonable. United States v. Talley, 431 F.3d 784, 787 (11th
Cir. 2005) (per curiam).
We hold that Murillo’s sentence is reasonable in light of the § 3553(a)
1
The government argues on appeal that we do not have subject matter jurisdiction to hear
challenges to the reasonableness of the sentence in this case. We recently held, however, that “a
post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside the
advisory guidelines range, is an appeal asserting that a sentence was imposed in violation of law
pursuant to § 3742(a)(1).” United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006) (per
curiam).
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factors.2 The court stated at sentencing that it had considered the advisory
guidelines and § 3553(a) factors and had determined that the sentence imposed was
sufficient but not greater than necessary to comply with the statutory purposes of
sentencing. Murillo’s 135-month sentence is at the low end of the guideline range,
a range that takes into account Murillo’s offense conduct, personal characteristics
and history, just punishment, and adequate deterrence. See Scott, 426 F.3d at 1330.
Murillo’s sentence is also within the statutory range of ten years to life. The court
also considered the nature of the offense and the need to provide adequate
deterrence because it commented that even individuals playing alleged smaller
roles in drug smuggling need to be deterred. Thus, Murillo’s sentence is
reasonable in light of the § 3553(a) factors.
AFFIRMED.
2
Because the sentence is reasonable under either an abuse of discretion or plain error review
standard, we do not address whether Murillo raised a sufficient reasonableness objection in the
district court, which would affect which standard of review would apply.
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