                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1963




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                                                             NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                   No. 07-1963




                        UNITED STATES OF AMERICA

                                         v.

                        RONAL MURILLO a/k/a ABEJON

                                   Ronal Murillo,
                                            Appellant




                  On Appeal from the United States District Court
                            for the District of New Jersey
                              (D.C. No. 05-cr-00700-2)
                  District Judge: Honorable Dennis M. Cavanaugh




                              Argued June 24, 2008

             Before: SLOVITER, BARRY, and ROTH, Circuit Judges

                               (Filed July 10, 2008)
                                       _____

John P. McGovern (Argued)
Newark, N.J. 07102

     Attorney for Appellant
George S. Leone
Steven G. Sanders (Argued)
Office of United States Attorney
Newark, N.J. 07102

       Attorneys for Appellee

                                            ____

                                          OPINION


SLOVITER, Circuit Judge.

                                              I.

       Appellant Ronal Murillo is a native and citizen of El Salvador who entered the

United States illegally in 1989. Murillo obtained Employment Authorization Documents

(“EADs”) covering the period between 1991 and September 2004, but did not have a

valid EAD between April and June 2005, the time period relevant to this case. Murillo

lived with his girlfriend, Ana Guevara, a native and citizen of El Salvador, who also did

not have a valid EAD during the relevant time period.

       Murillo’s brother, Julio, brokered the purchase of false immigration and

identification documents for customers who paid him to buy them from his sources. In

May 2005, Murillo discussed with Julio his desire to obtain a Social Security card from

Hector Martinez to replace the card Murillo had lost. In a court-authorized wiretap

recording of Julio’s telephone conversations, Murillo said he would call Martinez “to see

if he can make me up one . . . [j]ust like the other one. I also have to get one that I asked

him to do for Ana.” Supp. App. at 179-80. When Martinez could not obtain the

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requested card at that time, Julio told Murillo to try to acquire the card from another

source, Alan, whom Murillo “kn[e]w . . . better” than Julio. Supp. App. at 190. Although

Murillo could not reach Alan, Julio spoke to Alan’s friend who stated that he could get

him “a pink one” (a permanent resident card) later. Supp. App. at 211.

       On June 16, 2005, Murillo, his brother Julio, and Martinez were arrested. Murillo

executed a waiver of his Miranda rights, and told Immigration and Customs Enforcement

(“ICE”) officials that he did not create false documents but knew individuals who did,

including Martinez. He admitted that he sought a fraudulent Social Security card for

himself, but that he never received it. Agents also searched Martinez’s apartment and

found a paper cutter, card stock, a laminating machine, a typewriter ribbon, passport

photos, an alien’s resident card, and a Social Security card, all indicia of a project to

create identification cards. The typewriter ribbon contained 119 different sets of names,

Social Security numbers, and alien numbers, none of which were legitimate. Murillo’s

name was not included on the ribbon.

       On September 26, 2005, Murillo and his two co-defendants were indicted for

conspiracy to transfer false identification documents, in violation of 18 U.S.C. § 1028.

Murillo’s co-defendants entered guilty pleas and cooperated with the authorities. In

contrast, Murillo proceeded to trial, and testified in his own defense. The jury found him

guilty. Murillo was sentenced to thirty-five months imprisonment followed by three years

supervised release. Murillo has served his prison sentence and thus the only remaining



                                               3
issue is the length of his supervised release term.

                                              II.

       Although in his brief to this court Murillo raised multiple issues on appeal, at oral

argument before us his counsel pressed only the issue relating to Murillo’s sentencing.

Thus, we will consider the other issues waived.1

       Murillo contends that the District Court erred when it enhanced Murillo’s base

offense level on the ground that the offense involved 100 or more fraudulent documents.

See U.S.S.G. § 2L2.1(b)(2)(C). The District Court reasoned that Murillo was part of “a

jointly undertaken criminal activity,” and that therefore his offense level was to be


                    1
                       In any event, Murillo’s claim that the District Court abused
             its discretion in denying his request for an interpreter during his
             trial fails because the record suggests that Murillo did not qualify
             for an interpreter under the Court Interpreters Act, 28 U.S.C. §
             1827. We also reject his other claims regarding the District Court’s
             comment in front of the jury that Murillo had never asked for an
             interpreter, and the cross-examination of Murillo in that regard.

                    We reject Murillo’s claim that during his cross-examination
             the prosecutor “testified” at trial by referring to his presence at a
             meeting with Murillo and an ICE agent. The prosecutor phrased
             his questions to Murillo impartially, simply making references to
             his presence, but neither introduced testimony by the ICE agent to
             counter Murillo’s answers nor referred to them in his summation.

                    We also reject Murillo’s contention that the prosecutor (with
             the government’s witness) improperly read parts of the translated
             transcripts of the wiretap-recorded conversations to the jury.
             “[T]he[ ] reading of the transcripts did not constitute ‘testimony’ in
             the sense of ‘evidence given by a competent witness, under oath or
             affirmation.’” United States v. Rengifo, 789 F.2d 975, 983 (1st
             Cir. 1986) (citation omitted).

                                               4
determined on the basis of “all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).

According to the Probation Office, the evidence at trial showed that the fraudulent

document conspiracy created more than 100 documents, and it recommended that a nine-

level increase to Murillo’s base offense level was warranted because “the scope of the

conspiracy was reasonably foreseeable” to Murillo. PSR ¶¶ 30, 32. The District Court

adopted that recommendation.2 We exercise plenary review over the District Court’s

interpretation of a particular Sentencing Guideline and review its factual findings for clear

error. United States v. Zats, 298 F.3d 182, 185 (3d Cir. 2002).

       The commentary to the relevant Sentencing Guideline, § 1B1.3(a)(1)(B), explains

that “the scope of the criminal activity jointly undertaken by the defendant . . . is not

necessarily the same as the scope of the entire conspiracy . . . .” U.S.S.G. § 1B1.3 cmt.

n.2. Accordingly, to determine Murillo’s accountability for his co-defendants’ conduct,

“the court must first determine the scope of the criminal activity the particular defendant

agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced

by the defendant’s agreement).” Id.; see also United States v. Collado, 975 F.2d 985, 991-



                    2
                      Although it recognized the inconsistency between the
             enhancement and the Probation Office’s recommendation that
             Murillo be afforded a two-level minor role downward adjustment
             pursuant to U.S.S.G. § 3B1.2(b), the Court nonetheless adopted
             that recommendation based on the fact that Murillo personally only
             requested three documents and did not himself create the
             fraudulent documents.

                                               5
92 (3d Cir. 1992) (emphasizing that relevant conduct provision is concerned with scope of

defendant’s agreed-upon involvement in a conspiracy, not scope of conspiracy itself).

       Murillo argues that the record only showed that he tried to procure three fraudulent

documents for himself and his girlfriend, Ana Guevara, and that he should therefore not be

held responsible for the 119 sets of names found on Martinez’s typewriter ribbon. The

District Court rejected Murillo’s argument that he was just a purchaser, finding that the

evidence at trial showed Murillo “knew what was going on,” and knew before the

evidence was seized from Martinez’s apartment that his brother, Martinez, and Alan were

in the business of creating fraudulent identification documents. Supp. App. at 715. We

cannot agree with the District Court’s conclusion that Murillo was more than a purchaser

because there is no evidence that Murillo brought in other customers or acted as a broker

for anyone other than himself and his girlfriend. The District Court improperly “focus[ed]

on the scope of the conspiracy as a whole, rather than on the scope of [Murillo’s]

undertaking and involvement as required.” United States v. Evans, 155 F.3d 245, 254 (3d

Cir. 1998).

       We agree with Murillo that the evidence shows only that he agreed to obtain three

fraudulent documents for himself and his girlfriend. The fact that Murillo may have had

knowledge of his co-defendants’ criminal activity is not alone sufficient to establish the

extent of the scope of criminal activity to which he agreed. See United States v. North,

900 F.2d 131, 133-34 (8th Cir. 1990), cited with approval in Collado, 975 F.2d at 994



                                              6
(stating that “North was correctly decided because even though North was aware of

Murphy’s [drug] dealings with others, those dealings were outside the scope of the activity

North agreed to undertake with Murphy”); see also United States v. Marquez, 48 F.3d 243,

246 (7th Cir. 1995) (“[R]easonable foreseeability means more than subjective awareness

on the part of the individual defendants. . . . Instead, conduct of co-conspirators . . . can be

considered reasonably foreseeable to a particular defendant if that defendant has

demonstrated a substantial degree of commitment to the conspiracy’s objectives, either

through his words or his conduct.”) (citation and internal quotation marks omitted).

Because the evidence demonstrates that Murillo’s involvement in his co-defendants’

fraudulent document business was limited to the three documents to be obtained for him

personally, the District Court should not have considered the 119 sets of names found on

Martinez’s typewriter ribbon in the calculation of Murillo’s sentence.

                                              III.

       For the above-stated reasons, we will vacate the District Court’s judgment of

sentence and remand to the Court for resentencing on Murillo’s term of supervised release

consistent with this opinion.




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