United States v. Judy Jaramillo ( 2011 )

FILED
NOT FOR PUBLICATION FEB 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50036
Plaintiff - Appellee, D.C. No. 2:09-cr-00230-SVW-47
v.
MEMORANDUM *
JUDY JARAMILLO, AKA Judy Romero,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Appellant Judy Jaramillo (“Jaramillo”) appeals a 60-month sentence imposed
following her guilty plea to a heroin distribution conspiracy. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
There was no plain error in finding Jaramillo ineligible for the “safety-valve”1
exception to the statutory mandatory minimum. Jaramillo failed to establish by a
preponderance of the evidence that she satisfied the requirements for the safety valve.
United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006). In the government’s
sentencing papers, it noted that Jaramillo had “refused to truthfully provide the
necessary information. For instance, defendant refused to identify individuals to
whom she distributed heroin.” Jaramillo offered no evidence to contradict this
assertion.
Nor was there error in not further clarifying whether Jaramillo wished to
allocute at sentencing. See Fed. R. Crim. P. 32(i)(4)(A)(ii). When the government
asked whether the court was going to provide an opportunity for Jaramillo to speak,
the court indicated it understood (apparently from a letter Jaramillo had submitted)
that she did not want to, and Jaramillo stated, “No.” When no objection followed, the
sentencing continued. Under these circumstances, it was reasonable for the court to
interpret Jaramillo’s “no” as confirming the court’s understanding that she did not
wish to speak, and as preempting the need to clarify further.
Moreover, any alleged error was harmless because Jaramillo received the
statutory minimum sentence. See United States v. Mejia, 953 F.2d 461, 468 (9th Cir.
1
See 18 U.S.C. § 3553(f).
2
1991) (where court has already “used all the discretion it had available,” any
allocution error was harmless). Jaramillo’s allocution could not have resulted in
safety valve relief because Jaramillo expressly conditioned her request for safety valve
relief on a favorable recommendation by the government, which did not occur.
AFFIRMED.
3