602 F. App'x 307
6th Cir.2015Background
- Murillo-Almarez pleaded guilty to conspiracy to distribute >100g heroin after a Cincinnati drug investigation with controlled buys and a confidential informant.
- Police seized ~55 grams of heroin and $13,853 at a Florence, KY apartment; later searches of Murillo’s motel room/vehicle recovered suspected ledgers, fraudulent IDs, cell phones, and $35,713.
- Co-defendants and a cooperating courier implicated Murillo as the supplier who provided 16–18 "balloons" several times per week and paid rent/visited the apartment frequently.
- The district court held evidentiary hearings, set a base offense level at 30 (drug-quantity calculation ≈719g), then granted a 2-level variance to 28 anticipating Guideline amendments and calculated Criminal History II.
- Murillo was sentenced to 121 months (top of Guidelines range) and appealed, arguing errors in drug-quantity calculation, inapplicable premises enhancement, and inadequate § 3553(a) consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Drug-quantity calculation | Murillo: court used $120/gram; should have used $130/gram, which yields lower grams and lower base level | Government: court reasonably estimated quantity using evidence (controlled buys, seized cash, heroin); $120 was conservative | Court: No clear error; $120 supported by evidence and conservative relative to controlled-purchase average ($85/g) |
| Premises-enhancement (U.S.S.G. §2D1.1(b)(12)) | Murillo: Did not formally lease apartment; not proven he maintained it for distribution | Government: Evidence Murillo paid rent, had keys, supplied heroin to residents, large cash/heroin found—apartment played significant role | Court: Enhancement proper; preponderance of evidence showed he maintained premises used significantly for distribution |
| § 3553(a) considerations / disparity due to alien status | Murillo: As an alien, ineligible for some BOP drug-rehab programs that could shorten confinement; court failed to address resulting disparity | Government: Eligibility is contingent on BOP, reductions are discretionary; not a basis to reduce sentence | Court: Sentence within Guidelines enjoys presumption of reasonableness; district court adequately considered §3553(a) factors and provided a reasoned explanation |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (Sup. Ct. 2007) (standard for procedural/substantive review of sentences)
- Rita v. United States, 551 U.S. 338 (Sup. Ct. 2007) (district court must explain sentencing decisions sufficiently)
- United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (within-Guidelines sentence carries rebuttable presumption of reasonableness)
- United States v. Walton, 908 F.2d 1289 (6th Cir. 1990) (when drug quantity uncertain, court must err on side of caution)
- United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002) (court may estimate drug quantity based on competent evidence)
- United States v. Johnson, 737 F.3d 444 (6th Cir. 2013) (elements for premises-maintenance enhancement)
- United States v. Smith, 474 F.3d 888 (6th Cir. 2007) (ineligibility for BOP programs is not a basis for a lower sentence)