                                                                            FILED
                             NOT FOR PUBLICATION                            FEB 18 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50036

                Plaintiff - Appellee,            D.C. No. 2:09-cr-00230-SVW-47

    v.
                                                 MEMORANDUM *
JUDY JARAMILLO, AKA Judy Romero,

                Defendant - Appellant.



                     Appeal from the United States District Court
                         for the Central District of California
                     Stephen V. Wilson, District Judge, Presiding

                        Argued and Submitted February 9, 2011
                                 Pasadena, California


Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.


         Appellant Judy Jaramillo (“Jaramillo”) appeals a 60-month sentence imposed

following her guilty plea to a heroin distribution conspiracy. We affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      There was no plain error in finding Jaramillo ineligible for the “safety-valve”1

exception to the statutory mandatory minimum. Jaramillo failed to establish by a

preponderance of the evidence that she satisfied the requirements for the safety valve.

United States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006). In the government’s

sentencing papers, it noted that Jaramillo had “refused to truthfully provide the

necessary information. For instance, defendant refused to identify individuals to

whom she distributed heroin.” Jaramillo offered no evidence to contradict this

assertion.

      Nor was there error in not further clarifying whether Jaramillo wished to

allocute at sentencing. See Fed. R. Crim. P. 32(i)(4)(A)(ii). When the government

asked whether the court was going to provide an opportunity for Jaramillo to speak,

the court indicated it understood (apparently from a letter Jaramillo had submitted)

that she did not want to, and Jaramillo stated, “No.” When no objection followed, the

sentencing continued. Under these circumstances, it was reasonable for the court to

interpret Jaramillo’s “no” as confirming the court’s understanding that she did not

wish to speak, and as preempting the need to clarify further.

      Moreover, any alleged error was harmless because Jaramillo received the

statutory minimum sentence. See United States v. Mejia, 953 F.2d 461, 468 (9th Cir.


      1
          See 18 U.S.C. § 3553(f).

                                          2
1991) (where court has already “used all the discretion it had available,” any

allocution error was harmless). Jaramillo’s allocution could not have resulted in

safety valve relief because Jaramillo expressly conditioned her request for safety valve

relief on a favorable recommendation by the government, which did not occur.

      AFFIRMED.




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