                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2005

USA v. DeMurillo
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2672




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. DeMurillo" (2005). 2005 Decisions. Paper 74.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/74


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                          No. 03-2672



               UNITED STATES OF AMERICA

                                v.

             MARISELA VALLEJO DEMURILLO,
                                  Appellant



         On Appeal from the United States District Court
                 for the District of New Jersey
                    (D.C. No. 02-cr-00820-1)
           District Judge: Honorable John C. Lifland



           Submitted Under Third Circuit LAR 34.1(a)
                      December 16, 2005


Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

                   (Filed: December 21, 2005)


                           OPINION




                               1
SLOVITER, Circuit Judge

       On October 31, 2002, Marisela Vallejo DeMurillo, pursuant to a plea agreement,

entered a plea of guilty to a two count information charging her with conspiring to

distribute and possess with the intent to distribute more than 100 grams of heroin, in

violation of 21 U.S.C. § 846, and with illegally reentering the United States after having

been deported for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and

1326(b)(2). The plea agreement provided that the Government would move for a

downward departure, pursuant to § 5K1.1 of the Sentencing Guidelines, if the

Government determined that DeMurillo provided substantial assistance to the

Government and otherwise fulfilled her obligations pursuant to the agreement.

Specifically, the agreement stated:

               The defendant shall cooperate fully with this Office.1 As part of that
               obligation, the defendant shall truthfully disclose all information
               concerning all matters about which this Office and other
               Government agencies designated by this Office may inquire and
               shall not commit or attempt to commit any additional crimes . . . .

                      The determination whether the defendant has fully complied
               with this agreement and provided substantial assistance to the
               Government rests solely in the discretion of this Office.

App. at 74.




                    1
                     The plea agreement specifies that “Office” refers to the
              United States Attorney for the District of New Jersey.

                                              2
       At sentencing, the Government refused to move for a downward departure.2 The

Government contended that DeMurillo admitted to her cell mate, M.L., that she “had

deliberately lied to federal authorities when questioned about the offense conduct forming

the basis for the instant charges, and had intentionally withheld information concerning

the drug conspiracy of which she was charged.” App. at 112. The Government also

alleged that DeMurillo had threatened, intimidated, and harassed M.L., who was serving

as a cooperating witness for the Government in an unrelated case. The Government

claimed that those threats constituted witness tampering in violation of 18 U.S.C. §

1512(a)(2). DeMurillo objected to the Government’s decision not to file a § 5K1.1

motion.

       The District Judge, finding that the Government had acted in good faith in refusing

to move for a downward departure, overruled DeMurillo’s motion and sentenced her to

100 months’ imprisonment on each count of the information, with the sentences to be

served concurrently. DeMurillo appeals from the sentence and requests an evidentiary

hearing regarding whether she was entitled to a § 5K1.1 motion.

       This court has adopted the approach taken by the Second Circuit in United States

v. Imtiaz, 81 F.3d 262, 264 (2d Cir. 1996), where the court stated:

              [T]o trigger judicial review of the prosecutor's decision, the
              defendant “must first allege that he . . . believes the government is


                   2
                   The Government also notified DeMurillo’s attorney several
            months before sentencing that it was likely that it would not file a
            § 5K1.1 motion.

                                          3
                acting in bad faith.” United States v. Khan, 920 F.2d 1100, 1106 (2d
                Cir.1990), cert. denied, 499 U.S. 969 (1991). The government “may
                rebut this allegation by explaining its reasons for refusing to depart.”
                Knights, 968 F.2d at 1487. If the government explains its reasons,
                the defendant must “make a showing of bad faith to trigger some
                form of hearing on that issue.” Id. (internal quotation marks omitted).
                Unless the government's reasons are wholly insufficient, id. at 1487-
                89, or unless the defendant's version of events, supported by at least
                some evidence, contradicts the government's explanation, see United
                States v. Leonard, 50 F.3d 1152, 1157-58 (2d Cir.1995), no hearing
                is required.

United States v. Isaac, 141 F.3d 477, 484 (3d Cir. 2005).

         Here, the Government concluded that DeMurillo had not truthfully disclosed all

information concerning her crimes, as required by the plea agreement. DeMurillo has not

offered any evidence to contradict the Government’s belief that DeMurrillo had not

revealed the full extent of her criminal activity.3 Because this is dispositive of the merits

of DeMurillo’s appeal, we need not discuss her other arguments.

         For the reasons set forth, we will affirm the judgment and order of the District

Court.


                     3
                        The District Court also held that DeMurillo had breached
              her plea agreement by committing the crime of witness tampering,
              thus relieving the Government of any obligations it has pursuant to
              the agreement. The agreement provided that “should the defendant
              . . . . commit or attempt to commit any additional . . . crimes, . . .
              this Office will be released from its obligations under this
              agreement.” App. at 75. We need not address whether a criminal
              defendant accused of breaching his or her plea agreement by
              committing a crime is entitled to an evidentiary hearing on whether
              that crime was committed because the Government’s good faith
              conclusion that the information provided by DeMurillo was
              incomplete supports its refusal to move for a § 5K1.1 departure.

                                                4
