United States v. Maria Marleny Grajales Jaramillo , 518 F. App'x 757 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15223
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20277-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA MARLENY GRAJALES JARAMILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 8, 2013)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
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Maria Marleny Grajales Jaramillo appeals the concurrent 46-month’s prison
sentences she received after pleading guilty to two drug-trafficking offenses,
importing and possessing with the intent to distribute 100 grams or more of heroin,
in violation of 21 U.S.C. §§ 952(a) and 841(a)(1). The District Court imposed
these sentences at the low end of the Guidelines sentencing range. On appeal
Grajales Jaramillo argues that the court clearly erred by refusing to grant a
minor-role downward adjustment of her offense level because she served only as a
“human container” by bringing heroin into the United States from Colombia. She
also argues that the sentences are substantively unreasonable because they are too
harsh, given her poor and desperate background in Colombia.
I.
We review the district court’s decision as to a minor-role adjustment for
clear error. United States v. De Varon, 175 F.3d 930, 934, 937 (11th Cir. 1999)
(affirming the denial of the minor-role adjustment to a defendant who had
smuggled 70 heroin-filled pellets into the United States from Colombia). Pursuant
to U.S.S.G. § 3B1.2(b), a defendant who is a minor participant in any criminal
activity can receive a two-level reduction of her offense level. U.S.S.G.
§ 3B1.2(b). In determining whether to grant the minor-role reduction, the
sentencing court is required to measure the defendant’s role against her relevant
conduct, or the relevant conduct attributable to the defendant in calculating her
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base offense level. Id. at 940-41. Where the relevant conduct attributed to a
defendant is identical to the defendant’s actual conduct, the defendant cannot prove
that she is entitled to a minor-role adjustment simply by pointing to a broader
criminal scheme in which she was a minor participant, but for which she was not
held accountable. Id. at 941. Specifically, when a drug courier’s relevant conduct
is limited to her own act of importation, the district court is entitled to conclude
that the courier played an important role as to the importation of those drugs. Id.
at 942-43. The court should grant the minor-role reduction only if the defendant
can establish that she played a relatively minor role in the conduct for which she
was held accountable, not a minor role in any larger conspiracy. Id. at 944. The
court is permitted to measure the defendant’s conduct against that of other
participants in the relevant criminal scheme only where the record evidence is
sufficient to do so and only as to those participants who were involved in the
relevant conduct attributed to the defendant. Id.
After reviewing the record, we are satisfied that the District Court did not err
in denying Grajales Jaramillo a minor-role downward adjustment of her offense
level. The facts of this case are nearly identical to the facts in DeVaron, which
denied a minor-role adjustment. She was held accountable for the heroin she
brought to the United States, not for any relevant conduct involving a broader
criminal scheme.
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II.
Typically, the reasonableness of a sentence will be reviewed under a
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41,
128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). However, when, at sentencing, the
defendant fails to object to her sentence after being given an opportunity to do so
by the district court, the challenges to the sentence on appeal will be reviewed only
for plain error. United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir. 1990),
overruled in part on other grounds by United States v. Morrill, 984 F.2d 1136(11th Cir. 1993) (en banc). “To establish plain error, a defendant must show there
is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States
v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). We will recognize plain error
“only if the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation omitted) (alteration in original).
We find no error here, much less plain error. Grajales Jaramillo points to no
binding precedent, and we are aware of none, that would have informed the
District Court that the sentences it was imposing were substantively
unreasonable—especially sentences imposed at the low end of an error-free
calculation of the Guidelines sentencing range.
AFFIRMED.
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