USA v. Eli Palacios

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UNPUBLISHED OPINION FILED. [10-10074 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/15/2010 for Appellant Eli Palacios [10-10074]

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USA v. Eli Palacios Case: 10-10074 Document: 00511272742 Page: 1 Date Filed: 10/25/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10074 S u m m a r y Calendar October 25, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E L I PALACIOS, also known as Boxer, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CR-98-16 B e fo r e WIENER, PRADO and OWEN, Circuit Judges. PER CURIAM:* E li Palacios appeals the 360-month sentence imposed following his guilty p le a conviction for one count of conspiracy to distribute a controlled substance a n d to possess a controlled substance with intent to distribute, one count of d is t r ib u t io n of a controlled substance and aiding and abetting, and three counts o f unlawful use of a communication facility to facilitate a drug felony. Palacios argues that the district court erred by enhancing his sentence b e c a u s e (1) he possessed a dangerous weapon under U.S.S.G. 2D1.1(b)(1); (2) Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 10-10074 Document: 00511272742 Page: 2 Date Filed: 10/25/2010 No. 10-10074 h e had a managerial or supervisory role in the conspiracy under 3B1.1(b); and ( 3 ) he obstructed justice under 3C1.1. He also argues that the district court e r r e d by denying him a three-level adjustment for acceptance of responsibility. Palacios's argument that the district court erred by applying the p o s s e s s io n enhancement is without merit. The record shows that Palacios was in v o lv e d in an extensive drug conspiracy that involved large quantities of drugs a n d money. He used a coconspirator's, Jose Luis Veliz's, house to store, p r e p a r e / c u t , package, and distribute drugs. On numerous occasions, Palacios w a s present in Veliz's house and conducted business there, and a pistol and la r g e amounts of ammunition were found hidden in the wall of that house. Thus, Veliz's possession of the pistol was reasonably foreseeable to Palacios. See U n ite d States v. Cisneros-Gutierrez, 517 F.3d, 751, 765-66 (5th Cir. 2008). In lig h t of these facts, Palacios has not shown that the district court clearly erred b y applying the 2D1.1(b)(1) enhancement. Id. at 765-66. Even if the district c o u r t erred in applying the possession enhancement, any error was harmless b e c a u s e removing the two-level enhancement would have no effect on Palacios's g u id e l i n e s range, which would remain 360 months to life in prison. See FED. R . CRIM. P. 52(A); see also United States v. Scroggins, 485 F.3d 824, 834-35 (5th C ir . 2007) (applying harmless error analysis to sentencing enhancement). A d d it io n a lly , the record supports the conclusion that Palacios played a s u p e r v is o r y or managerial role in an extensive conspiracy involving at least 34 p e o p le by purchasing drugs, distributing drugs to other members to sell, collect in g money, negotiating the return of bad marihuana that could not be sold, r e c r u itin g and hiring at least one person to transport marihuana, serving as an e s c o r t to a member who was purchasing cocaine, ordering that cooperating c o c o n s p ir a t o r s be murdered or marked for death, and directing the activities of a t least five other members. See United States v. Palomo, 998 F.2d 253, 257-58 ( 5 t h Cir. 1993). At the very least, the fact that Palacios collected money and d is t r ib u t e d drugs to other members supports a finding that he "exercised 2 Case: 10-10074 Document: 00511272742 Page: 3 Date Filed: 10/25/2010 No. 10-10074 m a n a g e m e n t responsibility over the property, assets, or activities of a criminal o r g a n iz a t io n ." See United States v. Lopez-Urbina, 434 F.3d 750, 767 (5th Cir. 2 0 0 5 ). Accordingly, the district court did not clearly err in applying the 3B1.1(b) enhancement. See Palomo, 998 F.2d at 257; Lopez-Urbina, 434 F.3d a t 767. F in a lly , the Government presented uncontradicted evidence that Palacios o b s t r u c t e d justice or attempted to obstruct justice. In particular, Palacios a u t h o r e d two letters in which he identified individuals who had cooperated with t h e Government and ordered that they be killed or marked for death. Palacios a ls o told agents during an interview that he felt obligated to take retribution a g a in s t the cooperating witnesses. In light of the foregoing, the district court did n o t clearly err in finding that Palacios obstructed justice. See United States v. M a r tin e z , 263 F.3d 436, 441 (5th Cir. 2001). Likewise, because Palacios has not s h o w n that his case is "exceptional," the district court did not clearly err in d e n y in g him an adjustment for acceptance of responsibility. 3E1.1, comment. (n .4 ). Consequently, the judgment of the district court is AFFIRMED. 3

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