United States v. Thomas VerburgUnited States v. Thomas Verburg
AFFIRMED.
KAREN NELSON MOORE, Circuit Judge.
In 2009, Thomas Verburg purchased property in California that was later used for purposes of growing marijuana. This marijuana was harvested and distributed to individuals like Ramiro Ramos, who sold it to lower-level dealers. After their indictment and arrest, both Verburg and Ramos agreed to plead guilty to conspiracy to manufacture 100 or more marijuana plants and distribute 100 kilograms or more of processed marijuana, as proscribed under
On appeal, Verburg contends that the district court erred in denying him a mitigating-role adjustment. Furthermore, he posits that his sentence was procedurally unreasonable, bеcause the district court failed to provide him a reasoned basis for its decision. Ramos argues that the court improperly denied the government‘s motion for a downward departure under
Because Verburg played a substantial role in the conspiracy, we conclude that the district court did not err in denying him a mitigating-role adjustment. We also conclude that, while terse, the explanation
I. BACKGROUND
On May 1, 2013, Thomas Verburg pleaded guilty to conspiracy to manufacture 100 or more marijuana plants and to distribute 100 kilograms or more of processed marijuana. R. 188 (Verburg Plea Agreement) (Page ID # 486). During Verburg‘s plea colloquy, Verburg stated that he had contributed to the down payment for a piece of property on Trinity Center Road, in California. R. 426 (Verburg Plea Hr‘g Tr. at 20-21) (Page ID # 2115-16). He originally kept this property in his own name, before later deeding it to his son Daniel. Id. at 22 (Page ID # 2117). After purchasing the Trinity Centеr property, Verburg helped his sons Brian and Daniel build living quarters on the land and, at some point, learned that the property was being used to grow and sell marijuana. Id. at 10 (Page ID # 2105); id. at 22 (Page ID # 2117). Verburg assisted with the collection of proceeds from the sale of this marijuana. Id. at 23 (Page ID # 2118). On at least two occasions, he traveled from Michigan to California to deliver these proceeds directly to his sons. Id. Verburg‘s Presentence Investigation Report (“Verburg PSR“) concluded that he “had knowledge of the sale of over $750,000.00 in marijuana shipped by his two sons,” a fact undisputed by Verburg at his sentencing hearing. Verburg PSR at ¶ 105; R. 427 (Verburg Sentencing Hr‘g Tr. at 10) (Page ID # 2131); see also United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir.2005) (concluding that failure to object to one‘s presentencing report constitutes acceptance of the factual allegations contained within the report). For his assistance, Verburg received a cut of the conspiracy‘s profits—although, according to Verburg, “there was no hard and fast percentage” to this division. Verburg PSR at ¶ 96.
Ramos was one of the major recipients of the marijuana grown on the Trinity Center property, having accepted several substantial shipments from the Verburgs in 2011. R. 506 (Ramos Plea Hr‘g Tr. at 10) (Page ID # 2675). On May 1, 2013, Ramos pleaded guilty to conspiracy to manufacture 100 or more marijuаna plants and to distribute 100 kilograms or more of processed marijuana. R. 196 (Ramos Plea Agreement at ¶ 1) (Page ID # 514). Verburg and Ramos were sentenced separately.
During Verburg‘s sentencing hearing, counsel for Verburg requested that his client “be awarded a minimal or a mitigating role adjustment pursuant to [U.S. Sentencing Guidelines Section] 3B1.2.” R. 427 (Verburg Sentencing Hr‘g Tr. at 3) (Page ID # 2124). Although the government did not object to a minor-role reduction, the PSR did not recommend a reduction. Verburg PSR at ¶ 5. The court denied Verburg‘s request, explaining:
A mitigating role is a role that‘s designed for a very narrow construction. There are a few people that qualify for it, people that drop into something, people that are asked to hold a bag for somebody while they go in the store, that kind of thing. But this is not. This is a long way away from that. This is somebody assisting in the collection of proceeds, had knowledge of a sale of three-quarters of a million dollars’ worth of marijuana, two sons, and there‘s some real troublesome things about the nature of the lifestyle being lived by people that are way beyond their income. So
no, this minimal role is absolutely out. Your objection‘s noted, though.
R. 427 (Verburg Sentencing Hr‘g Tr. at 3) (Page ID # 2124-25). Verburg also requested an additional “downward variance,” in addition to concurring with the governmеnt‘s motion for a downward departure for substantial assistance under
Prior to Ramos‘s sentencing hearing, the government also filed a
Both Verburg and Ramos have timely appealed their sentences.
II. VERBURG‘S SENTENCE
On appeal, Verburg contends that the district court erred in denying him a mitigating-role adjustment. As Verburg has pointed out, in this nine-person conspiracy, “only one other participant ... had a lesser quantity attributed to her than did Mr. Verburg.” Appellant Br. at 17. Thus, “[m]athematicаlly speaking, Mr. Verburg was clearly less culpable than most other participants.” Id. at 18 (internal quotation marks omitted). Furthermore, Verburg argues that “he was not involved in the planning of the conspiracy, was not an essential part of it, and lacked knowledge and understanding of the scope and structure of the enterprise.” Id. at 19. In addition, Verburg argues that his sentence was procedurally unreasonable, because the district court did not fully address his arguments for a variance; in his view, it did not “provide a reasoned basis for its sentencing decision.” See id. at 13, 36.
A. Mitigating-Role Adjustment
Section 3B1.2 of the Sentencing Guidelines provides:
Based on the defendant‘s role in the offense, decrease the offense level as follows:
- If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
- If the defendant was a minor participant in any criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by 3 levels.
U.S. Sentencing Guidelines Manual (“U.S.S.G.“)
Verburg argues “that he qualified for at least a minor role reduction, if not a minimal role reduction.” Appellant Br. at 23. Verburg‘s request for a minimal-role adjustment fails on its face. As we explained in United States v. Gaitan-Acevedo, 148 F.3d 577, 595 (6th Cir.1998) (citation omitted), “[u]nder the sentencing guidelines, a minimal participant is someone who played a single, limited role in the conspiracy.” Verburg‘s involvement, from the beginning of the conspiracy (purchasing the Trinity Center property and building living quarters on it) to its end (collecting money and рhysically transporting funds to California), clearly falls outside the scope of this minimal-participant umbrella.
On his request for a minor-role adjustment, Verburg bases his claim on two different grounds. First, he notes that he was found accountable for 106.34 kilograms of marijuana for guideline computation purposes. Appellant‘s Br. at 18. The only co-defendant held accountable for less was Catherine Weitz (accountable for 10.63 kilograms). Verburg PSR at ¶ 116. By contrast, several co-defendants were held accountable for nearly 900 kilograms of marijuana. See id. at ¶¶ 106-29. Second, he argues that he played a non-essential role in the conspiracy, “act[ing] as a courier essentially transporting money back to his kids.” R. 427 (Verburg Sentencing Hr‘g Tr. at 8) (Page ID # 2129).
Both of Verburg‘s arguments are unavailing. With respect to Verburg‘s first contention—the amount of marijuana—we have held previously that “[d]efendants may be minimal or minor participants in relation to the scope of the conspiracy as a whole, but they are not entitled to a mitigating role reduction if they are held accountable only for the quantities of drugs attributable to them.” United States v. Campbell, 279 F.3d 392, 396 (6th Cir.2002) (citing United States v. Walton, 908 F.2d 1289, 1303 (6th Cir.1990)). In Campbell, we went on to deny the defendant‘s claim for a mitigating-role adjustment, noting that the defendant had been held “accountable for at leаst 100, but less than 200 grams of cocaine, which was the amount of drugs that [defendant] actually purchased and distributed or used.” Id. (internal quotation marks omitted). Thus, “the district court held [defendant] accountable only for the quantity of drugs attributable to him,” rather than the full amount involved in the conspiracy. Id.
Like the defendant in Campbell, Verburg was, for purposes of sentencing guideline computations, found accountable only for the quantity of drugs attributable to him: 106.34 kilograms of marijuana.1
Verburg‘s second argument—that he played a non-essential role in the conspiracy—is likewise unconvincing. To be clear, “[a] defendant does not qualify for a mitigating role reduction merely because someone else planned the scheme and made all the arrangements.” United States v. Sheafe, 69 Fed.Appx. 268, 270 (6th Cir.2003) (citing United States v. Miller, 56 F.3d 719, 720 (6th Cir.1995)). Rather, “[a] defendant who plays a lesser role in a criminal scheme may nonetheless fail to qualify as a minor participant if his role was indispensable or critical to the success of the scheme, or if his importance in the overall scheme was such as to justify his sentence.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir.2001) (citation omitted) (emphasis added); cf. United States v. Samuels, 308 F.3d 662, 672 (6th Cir.2002) (“As Samuels played a key role in brokering the drug transaction, he did not play a limited rоle in the conspiracy. Instead, he was indispensable to the completion of the operation.“) (emphasis added). Here, a number of facts illustrate the critical role Verburg played within this conspiracy. Purchasing the Trinity Center property, building structures on the property, and delivering collection proceeds from Michigan to California—each of these actions evidence the key part Verburg played in this conspiracy. While Verburg might not have planned or directed operations, he certainly “was a fully integrated member of a substantial drug conspiracy.” United States v. Bartholomew, 310 F.3d 912, 924-25 (6th Cir.2002) (upholding district judge‘s denial of a minor- and minimal-role adjustment for member of conspiracy who offered his property “as a base of operations” and “personally received at least one large shipment of marijuana.“) The district court did not err in refusing to grant Verburg a minor-role reduction for his participation.
B. Procedural Unreasonableness
In determining whether a sentence is procedurally reasonable, we must consider whether the district court “(1) properly calculated the applicable advisory Guidelines range; (2) considered the other
As an initial matter, we note that during Verburg‘s sentencing hearing, Verburg‘s counsel raised a single objection—to the district court‘s decision to deny his request for a mitigating-role adjustment. R. 427 (Verburg Sentencing Hr‘g Tr. at 3) (Page ID # 2124). We have already discussed this objection above. The arguments presented on appeal by Verburg regarding the procedural reasonableness of his sentence were not presented to the district court.
The next issue is whether the district court properly considered the
Verburg‘s sentencing transcript indicates that the district court judge engaged in a sufficient discussion of the various
The district court also must, under
[T]here has to be an adequate deterrence to criminal conduct from this kind of circumstance, and there has to be a just punishment component in that manner. This is a serious offense in that it shows a marked effort to thwart any way that the government could determine what was going on.
Id. at 20-21 (Page ID # 2141-42). The district judge then applied the safety-valve provision,
To be sure, the district judge could have done more. He could have discussed the seriousness of the offense at issue in greater detail or given a more thorough rationale for his sentencing decision. He might have drаwn a closer connection between the nature and circumstances of the offense and the need to impose a lighter (or
III. RAMOS‘S SENTENCE
With respect to the legal issues surrounding Ramos‘s sentence, two provisions within his plea agreement stand out. First, depending on the nature and extent of Ramos‘s cooperation, the plea agreement authorized the government, in its “sole discretion,” to “file a motion for departure or reduction of sentence pursuant to
[T]he Defendant knowingly waives the right to appeal any sentence that is at or below the maximum guideline range as determined by the Court before any upward departure or variance, and the manner in which the sentence was determined on the grounds set forth in
Title 18, United States Code, Section 3742 . The Defendant also retains the right to appeal those objections preserved at sentencing that the Court incorrectly determined the final Guideline rаnge. In addition, the Defendant retains the right to appeal a sentence that exceeds the statutory maximum or is based upon an unconstitutional factor, such as race, religion, national origin or gender.
R. 196 (Ramos Plea Agreement at ¶ 11) (Page ID # 521-22). Unfortunately for Ramos, this appeal-waiver clause prevents us from taking up the merits of his argument that the district court erred in denying the government‘s motion
As we have noted elsewhere, “it is well settled that a defendant may waive any right, even a constitutional right, by means of a plea agreement. Only challenges to the validity of the waiver itself will be entertained on appeal.” United States v. Toth, 668 F.3d 374, 377 (6th Cir.2012) (internal quotation marks and citations omitted). In order to examine the validity of Ramos‘s appeal waiver, we must first determine whether “the claim raised on appeal falls within the scope of the appellate waiver.” Id. at 378. On this issue, the appellant‘s brief could not be clearer in demonstrating that Ramos‘s challenge falls outside the relevant scope. The first sentence of his argument summary states that “[d]efendant-[a]ppellant argues that that [sic] he is entitled to relief under
Next, we must examine whether an exception to the appeal-waiver provision applies. This particular provision allows Ramos to retain his right to appeal (1) if his sentence exceeds the statutory maximum, (2) if his sentence is based upon some unconstitutional consideration, or (3) if his sentence involves an incorrect determination of the “final Guideline range” despite Ramos‘s “objections preserved at sentencing.” R. 196 (Ramos Plea Agreement at ¶ 11) (Page ID # 521-22).
None of these exceptions applies to this case. First, Ramos was sentenced to sixty months of imprisonment—the statutory minimum. R. 387 (Ramos Sentencing Hr‘g Tr. at 17, 20) (Page ID # 1994, 1997). Second, Ramos has not argued that his sentence is based on unconstitu
While we are sympathetic to Ramos‘s argument, the plain language of his plea agreement requires that he object to any perceived sentencing errors affecting his “final Guideline range” while at his sentencing hearing. He did not do so. At the beginning of Ramos‘s hearing, the government moved for the district court to grant Ramos a downward departure under
The Court: I believe you have a motion for variance here, is that right?
Counsel for Ramos: Yes
The Court: You may be heard. I think you kind of hear where I‘m coming from.
Counsel for Ramos: Yes. I did file the motion for a variance, Your Honor, and I think that in looking at Mr. Ramos‘s positives....
Id. at 9 (Page ID # 1986). At no point during the
Ramos also argues that he preserved his objection by urging in his sentencing memorandum that the district court should “consider the assistance that he provided as detailed in the government‘s motion and brief.” R. 312 (Rаmos Sentencing Mem. at 6) (Page ID # 1464). However, a sentencing memorandum—written and submitted before one‘s sentencing hearing—cannot be considered a suitable way to preserve an objection to actions taken at one‘s sentencing hearing. See Vonner, 516 F.3d at 385-86. Additionally, the plain language of the plea agreement states that Ramos may only appeal “objections preserved at sentencing.” See, e.g., United States v. Flowers, 428 Fed.Appx. 526, 529 (6th Cir.2011) (applying appeal-waiver provision where plea agreement‘s plain terms required that objections be “preserved at sentencing“).
As a final matter, we must decide whether the plea was made “knоwingly and voluntarily.” United States v. Fleming, 239 F.3d 761, 764 (6th Cir.2001). Ramos has offered no evidence to suggest otherwise. On the contrary, the plea agreement‘s language states explicitly that Ramos entered the agreement freely, knowingly, and voluntarily. See, e.g., R. 196 (Ramos Plea Agreement at ¶ 16) (Page ID # 524). During Ramos‘s plea colloquy, he affirmed that he understood the plea‘s terms and voluntarily agreed to them. R. 506 (Ramos Plea Hr‘g Tr. 4, 7-8) (Page ID # 2669, 2672-73). Nor does Ramos argue on appeal that his plea was made unknowingly or involuntarily.
To be clear, our decision today should not be read as an endorsement of the district court‘s denial of the government‘s
Ramos‘s appeal waiver in his plea agreement, however, prevents us from addressing the merits of whether the district judge actually committed legal error in the
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the sentences for both Verburg and Ramos.
Notes
(a) Factors to be considered in imposing a sentence. The court shall imposе a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
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18 U.S.C. § 3553.