United States v. Edgar Palomino , 511 F. App'x 393 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0039n.06
No. 12-5345
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 07, 2013
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
EDGAR GIOVANI ADAME PALOMINO, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.
PER CURIAM. Edgar Giovani Adame Palomino pled guilty to conspiring to possess and
distribute heroin and to conspiring to commit money laundering. [R. 17, 472.] The district court
sentenced Palomino to 132 months in prison. Palomino appeals his sentence.
The presentence report stated that Palomino managed a heroin organization, and that his
sentencing guidelines range was 121 to 151 months. The statutory minimum sentence for
Palomino’s drug crime was 120 months. In a memorandum filed with the court, Palomino’s attorney
argued for a 120-month sentence. The attorney explained that Palomino did not cooperate because
he feared for the safety of his children, mother, and sister. According to the attorney, Palomino’s
fear was reasonable because his brother, who had worked for the same drug organization, had been
murdered.
No. 12-5345
United States v. Palomino
The district court held a sentencing hearing, during which Palomino’s attorney reiterated his
arguments for a 120-month sentence. The government responded by asking for a 144-month
sentence. The government maintained that a 120-month sentence would not reflect the seriousness
of Palomino’s offense. During the government’s presentation, the court commented that, by not
cooperating, Palomino was acting “contrary to his self-interest[.]” The court also stated that it
“could see a realistic fear that if [Palomino] cooperated, something would happen to his family.”
[R. 639 at 9.] Palomino also addressed the court. He apologized for his actions, and said he would
serve his time and then return to his family in Mexico. When Palomino finished, the court stated
that it had expected Palomino to express concern for his family’s safety. The court declined
Palomino’s attorney’s request to address the court again. The court then imposed a 132-month
sentence. It explained that it thought a 144-month sentence was too long, but that a 120 month
sentence was too short. The court sentenced Palomino to 132 months rather than 120 months
because of his “role in a major drug operation.” [Id. at 16.]
Palomino’s attorney filed a motion for reconsideration of the sentence, arguing that
Palomino’s failure to mention his fear was consistent with his actions throughout the proceedings.
Palomino was too afraid to say anything beyond an apology, according to his lawyer, just as he had
been too afraid to help his attorneys. The court denied the motion.
Palomino argues that his 132-month sentence is substantively unreasonable. “A sentence is
substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the
sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an
unreasonable amount of weight to any pertinent factor.” United States v. Cunningham, 669 F.3d
-2-
No. 12-5345
United States v. Palomino
723, 733 (6th Cir. 2012). “In evaluating the substantive aspect of a sentence, we may apply a
rebuttable presumption of reasonableness to sentences within the Guidelines.” United States v.
Pearce, 531 F.3d 374, 384 (6th Cir. 2008). We review a criminal sentence for reasonableness under
an abuse of discretion standard. United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008).
Palomino argues that his within-guidelines sentence was unreasonable because the court
arbitrarily decided to sentence him to more than 120 months. According to Palomino, the district
court was initially receptive to his argument that he did not cooperate because he was afraid. Thus,
Palomino reasons, the court’s rejection of his request for a 120-month sentence was arbitrary. To
show the court’s receptiveness, Palomino cites statements the court made during the government’s
sentencing presentation. But a court’s colloquy with counsel during a sentencing hearing does not
necessarily indicate the court’s intentions. Here, the court’s statements about Palomino’s fear were
made either as a question to the government, or in response to the government’s answers. The court
never said that it was considering a 120-month sentence because of Palomino’s fear. And the court
sentenced Palomino to 132 months rather than 120 months in prison because of his managerial role
in the drug operation, not because of the contents (or lack thereof) of his allocution. The court did
not arbitrarily select Palomino’s sentence.
Palomino also argues that the district court gave too much weight to the first § 3553(a)
factor—“the nature and circumstances of the offense”—when it considered Palomino’s managerial
role even though he had already received a three-level enhancement for it. “A district court does
not[, however,] commit reversible error simply by attaching great weight to a single factor.” United
States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (internal punctuation omitted). And where, as
-3-
No. 12-5345
United States v. Palomino
here, “a district court explicitly or implicitly considers and weighs all pertinent factors, a defendant
clearly bears a much greater burden in arguing that the court has given an unreasonable amount of
weight to any particular one.” Id. Palomino has not met this burden. The district court considered
Palomino’s role as a manager of a heroin distribution ring, the seriousness of his offense, his
criminal history, his financial resources, the kinds of sentences available, and his Guidelines range.
That the court placed great weight, in particular, on Palomino’s role as a manager was not
unreasonable. See Gall v. United States, 552 U.S. 38, 59 (2007).
Palomino’s final argument is that the district court erred by not allowing his attorney to
address the court after he allocuted. The Federal Rules of Criminal Procedure provide that, prior to
imposing a sentence, a district court must give a defendant’s attorney an opportunity to speak on the
defendant’s behalf. See Fed. R. Crim. P. 32(i)(4)(A)(I). A defendant’s right to have his attorney
address the court, however, is not unlimited. See United States v. Carter, 355 F.3d 920, 926 (6th Cir.
2004). Here, the court gave Palomino’s attorney an opportunity to speak. The court merely limited
the opportunity by not allowing the attorney to readdress the court after both the government and
Palomino had spoken. Palomino cites no cases that support his contention that such a limitation is
reversible error. Cf. United States v. Lanning, 633 F.3d 469, 476 (6th Cir. 2011) (“right to
allocution” not denied where defendant “was not given the last word”). So this argument too is
meritless.
The district court’s sentence is affirmed.
-4-