USA v. Ulises Murillo-Almarez

Filing

OPINION filed: For all of the reasons set forth above, we AFFIRM the judgment of the district court. Decision not for publication. Eric L. Clay' Ronald Lee Gilman (AUTHORING), and Jeffrey S. Sutton, Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0205n.06
No. 14-5469
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ULISES A. MURILLO-ALMAREZ,
Defendant-Appellant.

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FILED
Mar 12, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
OPINION

Before: CLAY, GILMAN, and SUTTON, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. In May 2013, a federal grand jury indicted
Ulises A. Murillo-Almarez for the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1).
He pleaded guilty three months later to the lesser-included offense of conspiracy to distribute
heroin. Over the course of the next eight months, the court held two different sentencing
hearings for Murillo-Almarez. After hearing evidence from both parties, the court determined
that Murillo-Almarez was subject to a two-point increase for maintaining a premises for drug
distribution and a two-point increase for being a leader in the conspiracy. The court found that
the appropriate base offense level for Murrillo-Almarez was 30, but it varied downward to level
28 in anticipation of amendments to the Sentencing Guidelines for drug offenses.

It then

considered the sentencing factors listed in 18 U.S.C. § 3553(a) and, in the end, sentenced

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Murillo-Almarez to 121 months in prison, which was at the high end of the applicable Guidelines
range.
Murillo-Almarez now appeals that sentence.

For the reasons set forth below, we

AFFIRM the judgment of the district court.
I. BACKGROUND
A. Underlying offense
The district court summarized the relevant facts as follows:
In October 2012, the Cincinnati Police Department’s Major Drug
Offenders Unit began investigating a drug trafficking organization (“DTO”)
responsible for dealing black tar heroin in the Cincinnati/Northern Kentucky area.
Utilizing a confidential informant (“CI”), Detective Robin Kelly was ultimately
introduced to the DTO in an undercover capacity. She was present for five
controlled purchases between the CI and members of the DTO, occurring on
January 14, 2013, January 24, 2013, February 8, 2013, February 14, 2013 and
March 26, 2013.
Through the controlled purchases, officers were able to learn a significant
amount about the DTO’s operations. The CI always placed orders by phone with
an individual known as “Ivan,” who was later identified by the CI as Defendant
Murillo. The CI ordered quantities of heroin in terms of “balloons,” either “big”
or “small” denoting gram or half-gram weights, respectively. Murillo would have
one of his couriers—either Defendants Plazola Aramburo, Meza-Paez or SoutoValdez (who remains at-large)—deliver the balloons to the CI’s residence in
Cincinnati, Ohio. The CI typically paid $120.00 per gram of heroin.
On March 5, 2013, Defendant Souto-Valdez was stopped by the
Cincinnati Police Department for a traffic violation.
Officers seized
approximately nine grams of heroin from Souto-Valdez’s vehicle. He was then
arrested and brought to a local precinct for an interview with Officer Rivera.
During the interview, Souto-Valdez agreed to work with officers and provide
information about the DTO. He explained that he lived with Defendants MezaPaez and Plazola Aramburo at an apartment on Turfway Road in Florence,
Kentucky, just across the Ohio River from Cincinnati. He also admitted that
Defendant Murillo provided each of the co-defendants with heroin to sell.
Specifically, Murillo typically supplied him with sixteen (16) to eighteen (18)
balloons of heroin three (3) times a week. At the conclusion of the interview,
Souto-Valdez was released in order to provide additional assistance. He
absconded two days later.

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On March 27, 2013, officers executed a search warrant at the Turfway
Road apartment. Defendants Plazola Aramburo and Meza-Paez were found
inside and placed under arrest. Officers also seized approximately 40 grams of
heroin and $13,853.00 in U.S. currency. At some point thereafter, Agent Kappes
received a call from the apartment’s management that they found an additional
quantity of heroin in the apartment when they were cleaning it. With that
additional quantity, a total of 55 grams of heroin was ultimately found in the
apartment.
Once the search was completed, Defendants Plazola Aramburo and MezaPaez were transported to the Boone County Sheriff’s Department for additional
questioning. Both defendants admitted that Defendant Murillo supplied them
with between 16 to 18 balloons containing heroin three times per week for the
five weeks they were each a part of the conspiracy. Defendant Plazola Aramburo
also confessed that Defendant Murillo gave him $10,000.00 on three separate
occasions for him to send to ten fictitious names in Mexico. Plazola Aramburo
admitted that the money was the proceeds of heroin sales. Additionally, Plazola
Aramburo told officers that Defendant Murillo was currently residing in
Lexington, Kentucky.
Acting on Plazola Aramburo’s tip, officers were able to locate Murillo at a
Value Place Motel in Lexington. On October 27, 2013, officers executed a search
warrant at Murillo’s motel room and on his Chrysler Pacifica vehicle. Their
search uncovered the following: several fraudulent identification cards, a
suspected drug ledger, approximately $35,713.00 in U.S. currency, and several
cell phones.
B. District court proceedings
A federal grand jury returned a one-count indictment against Murillo-Almarez and his
coconspirators in May 2013. In August of that year, Murillo-Almarez pleaded guilty to
conspiracy to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 846. The
prosecution agreed to make certain sentencing recommendations in exchange for the guilty plea,
but the plea agreement did not specify a recommended length of the sentence. An evidentiary
hearing was held in January 2014, during which the district court heard arguments of counsel
regarding the appropriate base offense level and any deviations from that level. It also heard
testimony from three law-enforcement officers. After taking the arguments and the evidence

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under advisement, the court issued an order on April 7, 2014 that set Murillo-Almarez’s base
offense level at 30.
On April 15, 2014, the court held a final sentencing hearing at which it considered the
factors set forth in 18 U.S.C. § 3553(a). The court granted Murillo-Almarez a two-level variance
based on the anticipated amendments to the guidelines for drug offenses, moving his adjusted
offense level to 28. Combined with a criminal history category of II, Murillo-Almarez was
sentenced to 121 months in prison, a sentence at the top end of the applicable Guidelines range.
He now timely appeals that sentence.
II. ANALYSIS
A. Standard of review
We review challenges to the reasonableness of a sentence under the abuse-of-discretion
standard. United States v. Brooks, 628 F.3d 791, 795 (6th Cir. 2011). Sentences must be both
procedurally and substantively reasonable. United States v. Castilla-Lugo, 699 F.3d 454, 458–59
(6th Cir. 2012). We first evaluate whether the district court committed “significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall v. United States, 552 U.S. 38, 51 (2007).
The district court must provide a statement of reasons sufficient “to satisfy the appellate
court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). Although
the district court need not explicitly discuss each § 3553(a) factor, the record must demonstrate

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that the district court at least considered each factor when determining the appropriate sentence.
United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010).
If the sentence is procedurally sound, we next evaluate whether the sentence is
substantively reasonable. “The essence of a substantive-reasonableness claim is whether the
length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in
18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010).
A sentence is substantively unreasonable if the district court “fail[ed] to consider relevant
sentencing factors” or gave an “unreasonable amount of weight to any pertinent factor.” United
States v. Camacho-Arellano, 614 F.3d 244, 247 (6th Cir. 2010) (internal quotation marks
omitted).

Sentences that fall within the appropriately calculated Guidelines range enjoy a

rebuttable presumption of reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.
2008) (en banc).
B. Issues raised
Murillo-Almarez raises three arguments as to why his sentence is unreasonable: (1) the
district court was not appropriately conservative in determining the quantity of drugs involved in
the offense and thus improperly calculated the applicable Guidelines range, (2) there was
insufficient proof to support a sentencing enhancement for maintaining a premises for the
manufacture or distribution of drugs, and (3) the district court failed to consider all of the factors
required by 18 U.S.C. § 3553(a). We find none of these arguments persuasive.
1. The district court did not err in calculating the quantity of drugs involved
Murrillo-Almarez first argues that the district court erred in calculating the applicable
Guidelines range based on the quantity of drugs involved in his offense. Because the precise
amount of heroin involved in the conspiracy was not readily apparent at the scene, the court

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calculated the amount involved by dividing the total amount of money recovered in connection
with the conspiracy by the typical street price per gram of heroin, which the court found to be
$120.

Using this calculation, and taking into account the actual heroin found during the

searches, the court determined that there were approximately 719 grams of heroin involved.
Murrillo-Almarez argues, however, that the court should have used a street price of $130 per
gram in its calculation, which would have reduced the total to 675 grams of heroin. This
difference is significant, he claims, because the base offense level for 675 grams of heroin is 28,
whereas the base offense level for 719 grams is 30.
We review a district court's drug-quantity determination under the clear-error standard.
United States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000). “[W]hen the exact amount of
drugs involved is uncertain, the court may make an estimate supported by competent
evidence. . . .” United States v. Keszthelyi, 308 F.3d 557, 576 (6th Cir. 2002) (internal quotation
marks omitted). But when that estimate is based upon circumstantial evidence, “a court must err
on the side of caution” so as to avoid holding defendants “responsible for drug quantities in
excess of the amounts for which they more likely than not are responsible.” United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir. 1990).
The district court’s estimation in this case was supported by competent evidence and was
appropriately conservative. Murillo-Almarez complains that the district court used the street
value of $120 per gram of heroin in making its calculation, as testified to by a witness, when the
same witness testified earlier that, according to her best recollection, $130 per gram was the
going rate at the time. By using the lower of the two prices presented, Murillo-Almarez argues
that the district court did not “err on the side of caution” and thus improperly calculated the
applicable Guidelines range.
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The witness’s recollections, however, were not the only evidence before the district court
regarding the value of the heroin at issue. Agents and confidential informants had made four
controlled purchases, which provided the court with the precise amount paid for the amount of
heroin received. The average price per gram based on those purchases was $85. Had the court
used this arguably more reliable price per gram, it would have found Murillo-Almarez
responsible for significantly more than 719 grams of heroin. We therefore conclude that the
district court exercised an appropriate degree of caution in calculating the approximate quantity
of drugs involved in Murillo-Almarez’s offense and did not commit clear error in its calculation.
2. The district court did not err in applying the sentencing enhancement for
maintaining a premises for the distribution of drugs
Murillo-Almarez next argues that the district court erred in applying a two-point
enhancement for maintaining a premises for the manufacture or distribution of drugs. The
government bears the burden of establishing by a preponderance of the evidence that a
sentencing enhancement applies. United States v. Byrd, 689 F.3d 636, 640 (6th Cir. 2012). “Our
circuit has not settled on the proper standard of review for assessing [maintaining-a-premises]
enhancements. Compare United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002)
(reviewing for clear error), with United States v. Sweet, 630 F.3d 477, 480 (6th Cir. 2011)
(reviewing de novo).” United States v. Bell, 766 F.3d 634, 636 (6th Cir. 2014). In this case,
however, as in Bell, “the standard makes no difference [because Murillo-Almarez] loses either
way.” Id.
A defendant who has been convicted of a federal drug crime and who “maintained a
premises for the purpose of manufacturing or distributing a controlled substance” is subject to an
enhanced sentence. U.S.S.G. § 2D1.1(b)(12).

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This enhancement applies to anyone who

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“(1) knowingly (2) opens or maintains any place (3) for the purpose of manufacturing or
distributing a controlled substance.” United States v. Johnson, 737 F.3d 444, 447 (6th Cir.
2013). The distribution of drugs need not be the sole purpose of the premises in order for the
enhancement to apply.

Id. “At bottom, the question is whether [the premises] played a

significant part in distributing drugs.” Bell, 766 F.3d at 637 (internal quotation marks omitted).
In this case, there was ample evidence for the district court to conclude by a
preponderance of the evidence both that the apartment in question played a significant part in
distributing drugs and that Murillo-Almarez was responsible for maintaining the apartment. A
great deal of cash and heroin was recovered from the apartment when it was searched. Evidence
was presented that Murillo-Almarez paid rent for the apartment, that he had keys to the
apartment, and that he was at the apartment multiple times per week. There was also testimony
that Murillo-Almarez brought large quantities of heroin to the apartment to be distributed by his
coconspirators, who were residing there.
The fact that Murillo-Almarez did not formally lease the apartment is of no consequence
because “[d]rug kingpins are not known for signing leases for their drug houses.” United States
v. Cannon, 552 F. App’x 512, 516 (6th Cir. 2014). Similarly, the fact that the apartment was
also used as a residence by Murillo-Almarez’s coconspirators is irrelevant because the
distribution of drugs need not be the only purpose of a premises in order for this enhancement to
apply. See Johnson, 737 F.3d at 447. The district court thus did not err in applying the
enhancement.

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3. The district court sufficiently considered the sentencing factors set forth in
18 U.S.C. § 3553(a)
Finally, Murillo-Almarez argues that his sentence was substantively unreasonable
because the district court did not adequately consider the potential sentencing disparity between
himself, an alien, and other similarly situated defendants who are citizens of the United States.
As an alien, Murillo-Almarez is ineligible for a number of drug-rehabilitation programs that
could have reduced his actual period of confinement by a year and a half, assuming that he were
to successfully complete the programs. Because other defendants convicted of a similar crime
who are not aliens would be eligible to participate in these programs, and because the court did
not directly address this potential disparity, Murillo-Almarez argues that his sentence is
substantively unreasonable. This argument faces an uphill battle, however, because the sentence
imposed by the court fell within the applicable Guidelines range and is thus presumed to be
substantively reasonable. See United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en
banc).
Moreover, this court has previously held that the fact that a defendant is ineligible for
drug-rehabilitation programs in prison does not provide a basis for claiming that he was
improperly sentenced as compared to other defendants convicted of the same crime. See United
States v. Smith, 474 F.3d 888, 895 (6th Cir. 2007). Eligibility for such programs is “contingent
on approval by the [Bureau of Prisons (BOP)],” and “[e]ven if a defendant completes the
program, the BOP does not have to reduce [his] sentence.”

Id.

(citing 18 U.S.C.

§ 3621(e)(2)(B)). “In addition, the reduction of the prisoner’s sentence is . . . structured as an
incentive. To reduce the sentence before the defendant even attempts to enroll, based on the
assumption that he would both enroll in and complete the program if allowed, provides no

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incentive to obtain treatment.” Id. The district court was thus well within its discretion to not
reduce Murillo-Almarez’s sentence based on this alleged disparity.
Finally, the district court provided ample explanation for the sentence imposed on
Murillo-Almarez. See id. at 894 (“We do not require a rote recitation of § 3553(a) factors[,] but
rather an explanation of why the district court chose the sentence it did.”). The court expressed
concerns about the longevity of the conspiracy, the quantity of drugs involved, the scope of the
conspiracy, the amount of money involved, and the fact that Murillo-Almarez recruited others to
distribute the drugs. These factors, combined with Murillo-Almarez’s leadership role, gave the
court more than sufficient grounds to sentence him to a term of imprisonment at the high end of
the applicable Guidelines range. We therefore conclude that the 121-month sentence imposed by
the district court was not substantively unreasonable.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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