United States v. Murillo ( 2021 )

Case: 20-10473 Document: 00515816687 Page: 1 Date Filed: 04/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 9, 2021
No. 20-10473
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Daniel Murillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-362-11
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Daniel Murillo appeals the 210-month prison term and the three-year
term of supervised release imposed on his guilty plea conviction for
conspiracy to possess with intent to distribute a controlled substance,
namely, a mixture and substance containing a detectable amount of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10473 Document: 00515816687 Page: 2 Date Filed: 04/09/2021
No. 20-10473
methamphetamine. See 21 U.S.C. § 846; see also 21 U.S.C. § 841(a)(1) and
(b)(1)(C). For the reasons that follow, we affirm.
The district court declined to reduce Murillo’s adjusted offense level
by two levels under U.S.S.G. § 2D1.1(b)(18) because the court determined
that Murillo possessed firearms in connection with the crime of conviction
and thus could not meet that subsection’s requirement that he satisfy all the
criteria of U.S.S.G. § 5C1.2(a). As the Government shows, applying the
reduction under § 2D1.1(b)(18) does not change the 240-month guidelines
sentencing range calculated by the district court because the requested
reduction produces that same range. Both with and without the reduction,
the applicable guidelines range is above the statutory maximum sentence of
20 years and therefore the guidelines range is 240 months. See U.S.S.G.
§ 5G1.1(a); 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), 846. Consequently,
because it does not affect the guidelines sentencing range, the alleged error
causes no harm. See United States v. Chon, 713 F.3d 812, 822 n.7 (5th Cir.
2013). Because the Government has carried its burden of establishing that
the district court’s decision not to apply the § 2D1.1(b)(18) offense level
reduction was harmless, we need not consider the propriety of that decision.
See United States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir. 2005); see also
Chon, 713 F.3d at 822 n.7; United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008).
AFFIRMED.
2