     12-2770-cr
     United States v. Morillo
 1
 2                                         UNITED STATES COURT OF APPEALS
 3                                            FOR THE SECOND CIRCUIT
 4
 5                                               SUMMARY ORDER
 6
 7           Rulings by summary order do not have precedential effect. Citation to a summary
 8   order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
 9   Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order
10   in a document filed with this court, a party must cite either the Federal Appendix or an
11   electronic database (with the notation “summary order”). A party citing a summary order
12   must serve a copy of it on any party not represented by counsel.
13
14          At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
16   York, on the 6th day of November, two thousand and thirteen.
17
18   PRESENT:
19
20              JOHN M. WALKER, JR.,
21              JOSÉ A. CABRANES,
22              BARRINGTON D. PARKER,
23                                   Circuit Judges.
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25   UNITED STATES OF AMERICA,
26
27                        Appellee,
28
29                                  -v.-                                                              No. 12-2770-cr
30
31   JOEL JESUS MORILLO,
32
33                         Defendant-Appellant.
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35
36   FOR DEFENDANT-APPELLANT:                                                  Jesse M. Siegel, New York, NY.
37
38   FOR APPELLEE:                                                             Brian A. Jacobs, Brent S. Wible, Assistant
39                                                                             United States Attorneys, for Preet Bharara,
40                                                                             United States Attorney for the Southern
41                                                                             District of New York, New York, NY.
42

43          Appeal from the judgment, entered June 29, 2012, of the United States District Court for the
44   Southern District of New York (Katherine B. Forrest, Judge).


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45        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
46   AND DECREED that the judgment of the District Court is AFFIRMED.

47           Defendant Joel Jesus Morillo appeals the judgment of the District Court sentencing him
48   principally to 100 months’ imprisonment after he pleaded guilty, pursuant to a cooperation
49   agreement, to conspiracy to distribute and to possess with intent to distribute various controlled
50   substances in violation of 21 U.S.C. § 846. Morillo contends that the sentence imposed by the
51   District Court was both procedurally and substantively unreasonable.

52                                            BACKGROUND

53           After his arrest in 2010, Morillo pleaded guilty pursuant to a cooperation agreement with the
54   Government. Thereafter, he did in fact provide substantial assistance, including participating in
55   numerous proffer sessions, wearing a wire, and testifying against a co-defendant. As part of his
56   cooperation, Morillo was required to, and did, disclose all criminal activity in which he had been
57   involved. Notably, this involved a substantially larger quantity of drugs than the amount for which
58   he had initially been arrested.

59           Before sentencing, the Government submitted a letter pursuant to Section 5K1.1 of the
60   United States Sentencing Guidelines which recounted Morillo’s cooperation and recommended that
61   he receive a downward departure from his Guidelines range. In its presentence report, the United
62   States Probation Office (“Probation Office”) calculated Morillo’s Guidelines range as 135 to 168
63   months, based on the fully disclosed amount of drugs activity. However, the Probation Office
64   recommended a sentence of time served (approximately 20 months).

65          At sentencing, Judge Forrest imposed a sentence of 100 months’ imprisonment, to be
66   followed by supervised release for five years.

67                                              DISCUSSION

68             “Criminal sentences are generally reviewed for reasonableness, which requires an
69   examination of the length of the sentence (substantive reasonableness) as well as the procedure
70   employed in arriving at the sentence (procedural reasonableness).” United States v. Chu, 714 F.3d 742,
71   746 (2d Cir. 2013) (per curiam) (internal quotation marks omitted). As we have explained, “[a]
72   district court commits procedural error where it fails to calculate (or improperly calculates) the
73   Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18
74   U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to
75   explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall v.
76   United States, 552 U.S. 38, 51 (2007)). A district court errs substantively “only in exceptional cases
77   where the trial court’s decision cannot be located within the range of permissible decisions.” United
78   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal citation omitted). “[W]hen



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 79   conducting substantive review, we take into account the totality of the circumstances, giving due
 80   deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional
 81   advantages of district courts.” Id. at 190.

 82                                   A. “Procedural Unreasonableness”

 83            Morillo contends the District Court erred by failing to consider (1) the effect Morillo’s
 84   sentence would have on general deterrence; (2) the sentencing range Morillo would have faced had
 85   he not cooperated; (3) whether the sentence would promote respect for the law; and (4) the risk of
 86   injury Morillo took by exposing himself to a higher sentencing range by disclosing his full criminal
 87   history.

 88           We have reviewed the sentencing proceedings and find no procedural error. As an initial
 89   matter, Morillo concedes that the District Court correctly calculated his Guidelines sentencing range.
 90   The District Court properly treated the Guidelines as advisory, and specifically stated that it was
 91   “weighing all of the factors . . . under 3553(a).” In doing so, it explained the reasons for the
 92   sentence in great detail, and the facts on which the sentence was based were amply supported by the
 93   record.

 94           That Morillo was a cooperator does not change this analysis. The District Court clearly
 95   understood its discretion to mitigate Morillo’s sentence based on his cooperation and, indeed,
 96   exercised it. As it was required to do, the District Court considered Morillo’s cooperation. In doing
 97   so, Judge Forrest expressly stated that she was balancing Morillo’s criminal conduct against his
 98   cooperation: “[H]is assistance was substantial, and the Court has that on one side of the ledger and
 99   is weighing against that how serious the offense was in terms of the totality of all of the drugs that
100   were involved.” That she chose not to give greater weight to the cooperation and the 5K1.1 letter
101   does not rise to the level of an error or an “abuse of discretion,” or make the sentence procedurally
102   unreasonable. See United States v. Johnson, 567 F.3d 40, 52 (2d Cir. 2009) (“[A] district court alone may
103   determine what effect to give a 5K1.1 letter . . . .”).

104                                  B. “Substantive Unreasonableness”

105           Morillo next contends that the District Court erred by imposing a sentence that was higher
106   than the advisory sentencing range he would have faced had he not cooperated. This is because he
107   had to “come clean” about other narcotics activity as part of his cooperation, which led to a higher
108   Guidelines range based on the larger amount of drugs. Morillo concedes that he has no legal
109   authority to support this argument. This argument fails both as a matter of fact and of law.

110          As a factual matter, Morillo faced a mandatory minimum sentence of ten years for the count
111   to which he pleaded guilty. See 21 U.S.C. § 841(b)(1)(A). Therefore, although Morillo’s Guidelines
112   range absent cooperation may have been lower, the District Court would have been constrained to



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113   sentence him to 120 months. With the benefit of his 5K1.1 letter, however, Morillo received a
114   sentence that departed downward from that “mandatory” minimum. Such a downward departure
115   was unavailable to him absent a 5K1.1 letter or “safety valve” relief pursuant to 18 U.S.C. § 3553(f)
116   and Section 5C1.1 of the Guidelines. Both of these routes required Morillo truthfully to disclose his
117   additional narcotics trafficking activity, beyond the conduct for which he was arrested. Thus, the
118   only way for Morillo to avoid a 120-month mandatory minimum was to disclose his other crimes,
119   thereby raising his Guidelines range to 135 to 168 months’ imprisonment. Morillo voluntarily chose
120   to do so. Accordingly, it is simply wrong to state that the 100-month sentence imposed was higher
121   than what he would have faced had he not cooperated.

122            Even if that were not so, it would not alter our conclusion. “Where, as here, we have
123   identified ‘no significant procedural error . . ., a reviewing court then considers the substantive
124   reasonableness of the sentence imposed under an abuse-of-discretion standard,’ taking ‘into account
125   the totality of the circumstances, including the extent of any variance from the Guidelines range.’”
126   United States v. Rigas, 583 F.3d 108, 121–22 (2d Cir. 2009) (omission in original) (quoting Cavera, 550
127   F.3d at 200 (Raggi, J., concurring)). Here, Judge Forrest substantially departed downward from the
128   Guidelines range, and sentenced the defendant to a term of imprisonment that was 20 months
129   below the mandatory minimum. Morillo quibbles only with the extent of the downward departure.
130   However, while we recognize the importance of giving cooperators “credit” for their assistance to
131   law enforcement, our role is not to ask whether we would ourselves have imposed the 100-month
132   sentence, but rather, to determine whether it falls within the range of permissible decisions available
133   to the District Court. Judge Forrest appropriately exercised that discretion here. See United States v.
134   Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (“In the absence of clear evidence of a substantial risk that
135   the judge misapprehended the scope of his departure authority, we presume that a sentence judge
136   understood the scope of his authority.” (internal quotation marks omitted)). In addition, we cannot
137   conclude that Morillo’s sentence constitutes a “manifest injustice,” “shock[s] the conscience,” or is
138   in any other way substantively unreasonable. Rigas, 583 F.3d at 123–24 (internal quotation marks
139   omitted).

140                                             CONCLUSION

141          We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
142   above, we AFFIRM the judgment of the District Court, entered June 29, 2012.

143                                                  FOR THE COURT,
144                                                  Catherine O’Hagan Wolfe, Clerk of Court
145




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