United States v. Edgar Lerma Flores
704 F. App'x 445
| 6th Cir. | 2017Background
- Flores, a Chicago-based drug trafficker, transported multi-kilogram shipments of cocaine and methamphetamine to a Lexington, KY drug house; Olvera drove and accompanied him on the trips.
- Police, using an informant, observed a controlled buy, then stopped vehicles leaving the drug house and seized five kilograms of cocaine from the Tahoe; searches uncovered additional cocaine and seven pounds of methamphetamine.
- Both pleaded guilty to two conspiracies: ≥5 kg cocaine and ≥500 g methamphetamine.
- At sentencing, the district court denied Olvera a two-level mitigating-role reduction under U.S.S.G. § 3B1.2 and sentenced him to 118 months.
- The district court imposed an upward variance for Flores, explaining § 3553(a) factors justified sentencing him to 300 months (above his 235–293 month Guidelines range); Flores objected, arguing lack of Rule 32(h) notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 32(h) required advance notice before imposing an upward sentence above the Guidelines | Flores: Rule 32(h) requires notice for departures and his sentence was effectively a departure, so notice was required | Government/District Court: The court imposed a variance under §3553(a), and Irizarry holds Rule 32(h) does not apply to variances | Court: Affirmed—district court imposed a variance based on §3553(a); Rule 32(h) notice not required |
| Whether due process required additional notice of the court’s rationale for an upward variance | Flores: Due process required notice because he was surprised by the court’s emphasis on drug quantity | Government: No undisclosed facts were relied on; quantity is foreseeable and a §3553(a) consideration | Court: Affirmed—no due process violation; defendant was not denied notice of the factual basis and quantity is a garden-variety consideration |
| Whether Olvera was entitled to a two-level mitigating-role reduction under U.S.S.G. §3B1.2 | Olvera: He was merely a driver, satisfied most Application Note 3(C) factors, and thus was substantially less culpable than the average participant | Government/District Court: Although some factors favor Olvera, totality shows he was an average participant (traveled with multiple men, stayed at the drug house, conducted counter-surveillance) | Court: Affirmed—district court did not clearly err in denying the reduction; Olvera failed to show he was substantially less culpable |
| Proper scope of participants for comparing culpability under §3B1.2 | Olvera: Must consider broader conspiracy and unindicted coconspirators, which would make him relatively minor | Government/District Court: Role is measured against participants in the defendant’s relevant conduct; court limited comparison to those involved in transport/receipt between Chicago and Lexington | Court: Affirmed—the court correctly measured Olvera’s role against relevant-conduct participants |
Key Cases Cited
- Irizarry v. United States, 553 U.S. 708 (Sup. Ct. 2008) (Rule 32(h) does not apply to variances)
- Lambrix v. Singletary, 520 U.S. 518 (Sup. Ct. 1997) (sentencing terminology and Guidelines glossary relevance)
- United States v. Denny, 653 F.3d 415 (6th Cir. 2011) (distinguishing departures from variances; examine §3553(a) factors)
- United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015) (due process/notice issue when court relies on undisclosed PSIR facts)
- United States v. Salgado, 250 F.3d 438 (6th Cir. 2001) (mitigating-role reduction burden and measuring role by relevant conduct)
- United States v. Groenendal, 557 F.3d 419 (6th Cir. 2009) (standard of review for role-adjustment factual findings)
- United States v. Roberts, 223 F.3d 377 (6th Cir. 2000) (measuring defendant’s role against other participants in relevant conduct)
- United States v. Barnett, [citation="460 F. App'x 582"] (6th Cir. 2012) (contrast where court expressly invoked §5K2.0 in a departure)
- United States v. Sandoval, [citation="501 F. App'x 491"] (6th Cir. 2012) (drug quantity as reflection of offense seriousness under §3553(a))
- United States v. Milan, [citation="218 F. App'x 492"] (6th Cir. 2007) (same)