USA v. Olario Mitchell Palacio

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10622
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLARIO MITCHELL PALACIO,
a.k.a.
Phillip,
Defendant-Appellant.
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2 Opinion of the Court 21-10622
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:17-cr-00007-SCB-TGW-1
____________________
Before ROSENBAUM, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Olario Mitchell Palacio appeals the substantive reasonable-
ness of his 210-month sentence for conspiring to import cocaine
into the United States from Colombia. He contends that the district
court abused its discretion in considering the Sentencing Guide-
lines and the sentencing factors in 18 U.S.C. § 3553(a) by denying a
downward variance based on his substantial assistance to the gov-
ernment. We find that his guidelines-range sentence was reasona-
ble, and his uncorroborated claims of cooperation did not compel
a lower sentence. Accordingly, we affirm.
I.
In 2017, Palacio was indicted and eventually pleaded guilty
to conspiracy to distribute and possess with intent to distribute five
or more kilograms of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. §§
70503(a)(1), 70506(a)-(b) and 21 U.S.C. § 960(b)(1)(B)(ii); and con-
spiracy to distribute and possess with intent to distribute five kilo-
grams or more of cocaine, knowing and intending that such
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21-10622 Opinion of the Court 3
substance would be unlawfully imported into the United States, in
violation of 18 U.S.C. § 3238 and 21 U.S.C. §§ 959, 960(b)(1)(B)(ii),
963. The minimum term of imprisonment for each count was fif-
teen years, and the maximum was life.
At sentencing, Palacio moved for a downward variance
based on his substantial assistance to the government. Palacio ar-
gued that the district court, under either 18 U.S.C. § 3553 or
U.S.S.G. § 5K2.0, could apply any weight to Palacio’s cooperation
in determining a reasonable sentence, despite the government’s re-
fusal to file a Section 5K1.1 motion. The government recom-
mended against a downward variance because it had received in-
formation that Palacio was offering payments upwards of $25,000
for information. The district court denied Palacio’s request for a
downward variance because his alleged substantial assistance was
uncorroborated.
Based on Palacio’s involvement with 1,880 kilograms of co-
caine and his acceptance of responsibility, the court determined his
total offense level to be 39. Palacio objected to the application of a
four-level enhancement for his role as an organizer or leader of the
criminal activity under Section 3B1.1(a). The court sustained this
objection, bringing Palacio’s total offense level to 35. Combined
with a criminal history category of III, the district court concluded
that the range of imprisonment was 210 to 262 months.
II.
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4 Opinion of the Court 21-10622
We review the reasonableness of a sentence under a defer-
ential abuse-of-discretion standard.
Gall v. United States, 552 U.S.
38, 51 (2007). The defendant has the burden of proving that the
“sentence is unreasonable in light of the entire record, the § 3553(a)
factors, and the substantial deference afforded sentencing courts.”
United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015).
A district court abuses its discretion and imposes a substan-
tively unreasonable sentence when it “(1) fails to afford considera-
tion to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) com-
mits a clear error of judgment in considering the proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)
(quotation marks omitted). We will vacate a sentence as substan-
tively unreasonable only if we are “left with the definite and firm
conviction that the district court committed a clear error of judg-
ment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts
of the case.”
Id. at 1190 (quotation marks omitted). We ordinarily
expect a sentence within the Guidelines range to be reasonable.
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Although a district court must consider the Section 3553(a)
factors, it need not state on the record that it has explicitly consid-
ered each of the factors or discuss each of them.
United States v.
Barrington, 648 F.3d 1178, 1204 (11th Cir. 2011). “It is sufficient for
the district court to explicitly acknowledge that it considered the
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21-10622 Opinion of the Court 5
parties’ arguments at sentencing which were based on the sentenc-
ing factors, and that it considered the factors in § 3553(a).”
Id.
III.
Palacio argues that his sentence is substantively unreasona-
ble because the district court failed to apply the Section 3553(a) fac-
tors. But the district court explicitly acknowledged that it had con-
sidered Section 3553 at sentencing. And Palacio was sentenced to
the lowest possible term under the guidelines range. Thus, the dis-
trict court was within its discretion in sentencing Palacio to 210
months.
See Gonzalez, 550 F.3d at 1324.
Palacio also argues that the district court abused its discre-
tion by declining to vary downward based on Palacio’s alleged sub-
stantial assistance. But his claims of cooperation were mostly un-
substantiated, and even if they had been substantiated, the govern-
ment explained that it did not file a Section 5K1.1 motion because
it believed Palacio was paying for information. His allegations of
cooperation did not compel a downward variance and it was
within the district court’s discretion to impose a guidelines-range
sentence. Accordingly, the district court is AFFIRMED.
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