United States v. Nolverto Murillo-Palos , 385 F. App'x 176 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-1191
UNITED STATES OF AMERICA
v.
NOLVERTO MURILLO-PALOS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-08-cr-00095-001)
District Judge: Honorable Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
June 29, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Filed: June 30, 2010)
_____
OPINION
SLOVITER, Circuit Judge.
Appellant Nolverto Murillo-Palos challenges the sentence he received for his
admitted role in a conspiracy to distribute cocaine.
I.
By pre-arrangement with “Pepito,” also called “El Ingeniero,” Murillo-Palos
met Alejandro Perez at a truck stop in Bordentown, New Jersey in April 2007. Perez
delivered to him twenty-five kilograms of cocaine that Perez had transported from
California. Several days later, Murillo-Palos gave Perez approximately $200,000 to be
transported back to California. Although the Presentence Investigation Report (“PSR”)
created by the Probation Office is unclear about what Murillo-Palos did with the drugs
after he received them, Murillo-Palos admitted that he received $2,500 for his part in that
transaction.
The following month, in May 2007, Murillo-Palos returned to the same truck stop
and was prepared to receive two black bags, one from Perez and one from another man,
that contained a total of forty-five kilograms of cocaine when Drug Enforcement
Administration agents arrested them. Murillo-Palos later admitted that he expected to be
paid $4,500 for his role in that exchange.
Subsequently, Murillo-Palos pled guilty to a one count information for conspiracy
to distribute and to possess with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Murillo-Palos admitted
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during his plea that he participated in a conspiracy with intent to distribute cocaine. He
also admitted that he received approximately twenty-five kilograms of cocaine at the
April transaction, and was in the process of receiving approximately forty-five kilograms
of cocaine in May when he was arrested.
The plea agreement recognized that Murillo-Palos would argue that he qualified
for a two-point minor role reduction pursuant to U.S.S.G. § 3B1.2(b) and that he qualified
for the safety valve in 18 U.S.C. § 3553(f)(1)-(5). Murillo-Palos also stipulated that a
Guidelines range resulting from a grant or denial of both the safety valve and the minor
role reduction (base offense levels of either twenty-six or thirty-three) would be
reasonable, and that he would not argue for any further downward departure or variance.
The District Court granted Murillo-Palos safety valve relief, but did not grant him
a minor role reduction. Ultimately, the Court gave Murillo-Palos a within-Guidelines
sentence of 112 months imprisonment. Murillo-Palos now appeals raising two issues. He
argues that the District Court erred by not granting the minor role reduction and by failing
to recognize its authority to deviate below the Guidelines range and/or to explain why it
chose not to do so. His arguments are unpersuasive.
A defendant is eligible for the two point minor role reduction when he meets his
burden to show that his “part in committing the offense . . . makes him substantially less
culpable than the average participant.” U.S.S.G. § 3B1.2(b) cmt. 3(A) (2008). The
sentencing court is afforded broad discretion in applying this provision. See United States
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v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir. 1998). Factors to be considered include “the
nature of the defendant’s relationship to other participants, the importance of the
defendant’s actions to the success of the venture, and the defendant’s awareness of the
nature and scope of the criminal enterprise.” United States v. Headley, 923 F.2d 1079,
1084 (3d Cir. 1991) (quotation marks and citation omitted).
Murillo-Palos argues that he was a mere drug courier who “exerted no control or
influence over others and had no control over the price and quantities of drugs.”
Appellant’s Br. at 20. “[E]ven if the appellant were accurate in classifying himself as a
courier, that classification is not a talisman that automatically opens a pathway to a minor
role adjustment” under § 3B1.2(b). United States v. Quinones-Medina, 553 F.3d 19, 23
(1st Cir. 2009). Murillo-Palos participated in two transactions that involved large
amounts of drugs in which he was entrusted with at least $200,000 in cash and
approximately $1.4 million worth of cocaine. He also had numerous telephone
conversations with the apparent owner of the drugs and organizer of their transport which
– although spoken in a code that Murillo-Palos himself helped devise – can be read to
imply that Murillo-Palos had a larger role in the drug transactions than that of a mere
courier. Given these facts, the District Court’s determination that Murillo-Palos did not
deserve a reduction as a minor participant was not clear error. See United States v. Carr,
25 F.3d 1194, 1207 (3d Cir. 1994) (where “defendant takes issue with [a] district court’s
denial of a reduction for being a minimal or minor participant which was based primarily
on factual determinations, we review only for clear error” (citations omitted)).
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Murillo-Palos also argues that the District Court “never adequately addressed
whether, exercising its own authority, it would vary its sentence below the advisory
guideline range,” and thus “remand is . . . necessary so that the Court can apply the
[§] 3553(a) sentencing factors and explain whether a variance below the advisory
guidelines range was warranted and if not then why.” Appellant’s Br. at 27. However,
district courts are not always required to “state by rote that they . . . know the sentencing
guidelines are now advisory” or that they have “explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Charles, 467
F.3d 828, 831 (3d Cir. 2006) (citations omitted). Here, the District Court’s short
explanation of why the sentence was reasonable was not an abuse of discretion when
Murillo-Palos made no argument that a variance was warranted and had in fact stipulated
that sentences in a higher Guidelines range than the one that was ultimately applied to
him would be reasonable. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc).
II.
For the reasons stated above, this court will affirm the sentence.
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