               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0099n.06

                                   Case Nos. 15-5838/5872

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                          Feb 08, 2017
UNITED STATES OF AMERICA,                         )
                                                                      DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )      ON APPEAL FROM THE UNITED
v.                                                )      STATES DISTRICT COURT FOR
                                                  )      THE EASTERN DISTRICT OF
FELIX AGUNDIZ-MONTES (15-5838);                   )      KENTUCKY
ALBERTO LARA-CHAVEZ (15-5872),                    )
                                                  )
       Defendants-Appellants.                     )


       BEFORE: ROGERS, SUTTON, and COOK, Circuit Judges.

       COOK, Circuit Judge. A jury convicted Alberto Lara-Chavez and Felix Agundiz-Montes

of various crimes arising from a drug-trafficking operation that straddled the Kentucky-Ohio

border. The defendants appeal their convictions and sentences. We AFFIRM.

                                       I. Background

       The defendants’ drug-trafficking venture began in mid-2012, when Agundiz-Montes

signed a lease for a warehouse in Florence, Kentucky. Within months, 100 to 200 pounds of

marijuana started arriving weekly. Sometimes, Lara-Chavez drove to Oklahoma to haul the

marijuana to the warehouse. Other times, his contacts in Texas mailed marijuana-filled boxes to

local Kentucky addresses where Lara-Chavez’s associates would retrieve them.
Case Nos. 15-5838/5872, United States v. Agundiz-Montes, et al.


          Every time a shipment arrived, Lara-Chavez’s coconspirators divided, repackaged, and

then sold the marijuana.     Both defendants participated in varying ways.      Agundiz-Montes

functioned as a processor and a seller. Lara-Chavez recruited coconspirators, arranged major

deals, and organized others to perform essential tasks such as guarding the drugs at the

warehouse.

          In February 2013, Lara-Chavez expanded into the heroin business, turning a house in

nearby Warsaw, Kentucky into the base for the expansion. The Warsaw house’s workflow

mimicked that of the Florence warehouse, with heroin from Mexico arriving in bulk a few times

per month, and Lara-Chavez’s heroin team—which included individuals from his marijuana

team—repackaging the heroin into tiny balloons for its customers. Several of the heroin team

members lived at the Warsaw house to protect the drugs, while others occupied a nearby

apartment—an annex where they also stored and sold drugs.

          In contrast to Lara-Chavez’s hands-on management of the heroin trafficking, Agundiz-

Montes had less involvement with heroin; he mainly procured heroin samples only when his

customers requested some. Regardless, he continued to help import and distribute marijuana

even after he learned that the conspiracy had expanded into the heroin trade.

          In the third extension of his trafficking enterprise, Lara-Chavez rented a house in

Sardinia, Ohio, a rural town north of the Kentucky border. In addition to using the property for

the storage and sale of drugs, Lara-Chavez’s coconspirators cultivated a marijuana field.

Throughout this time, Lara-Chavez and his coconspirators continued processing and selling

heroin.




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       Within a year of renting the Sardinia house, federal agents conducted a sting operation

that nabbed sixteen conspiracy members. Three defendants chose not to plead guilty, including

the two appealing their convictions here.

       Following an eight-day trial, the jury found Agundiz-Montes guilty of conspiring to

distribute marijuana and heroin (21 U.S.C. § 846), attempted possession of marijuana with the

intent to distribute (21 U.S.C. § 846), and conspiring to commit money laundering (18 U.S.C.

§ 1956(h)); and Lara-Chavez guilty of, among other crimes, conspiring to distribute marijuana

and heroin (21 U.S.C. § 846), conspiring to commit money laundering (18 U.S.C. § 1956(h)),

and engaging in a continuing criminal enterprise (21 U.S.C. § 848).

       The district court sentenced Agundiz-Montes to 155 months of imprisonment and Lara-

Chavez to 353 months of imprisonment. The district court also held the defendants jointly-and-

severally liable for all proceeds from the drug-trafficking.          They timely appealed their

convictions and sentences.

                                    II. Prejudicial Variance

       Agundiz-Montes argues that the government created a prejudicial variance when it

charged a single drug conspiracy in the indictment, but presented evidence at trial that sufficed to

prove two separate conspiracies: one for marijuana and one for heroin. We disagree and affirm

because the government provided enough evidence for a rational jury to find an overarching

drug-trafficking conspiracy.

       We review a variance claim raised at trial de novo. United States v. Caver, 470 F.3d 220,

235 (6th Cir. 2006) (citing United States v. Solorio, 337 F.3d 580, 589 (6th Cir. 2003)). But

where the defendant raises a variance claim for the first time on appeal, we review for plain

error. United States v. Adams, 722 F.3d 788, 805 (6th Cir. 2013) (citing United States v.



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Swafford, 512 F.3d 833, 841 (6th Cir. 2008)). Agundiz-Montes’ other co-defendant, Jose Lara,

objected at trial, but Agundiz-Montes did not raise his own variance argument at trial or join

Lara’s objection. Agundiz-Montes nonetheless presses for de novo review, arguing that Lara’s

objection did the double duty of preserving his variance claim as well. See United States v.

Baker, 458 F.3d 513, 517–18 (6th Cir. 2006) (citing cases that hold that a codefendant’s

objection can preserve an error for purposes of appeal). Because Agundiz-Montes cannot show a

prejudicial variance under either standard, we accord his claim de novo review.

       To succeed on his claim, Agundiz-Montes must show that a variance occurred and that

the variance prejudiced his case. Caver, 470 F.3d at 235–37. In the conspiracy context, a

variance occurs when “an indictment alleges one conspiracy, but the evidence can reasonably be

construed only as supporting a finding of multiple conspiracies.” United States v. Warner, 690

F.2d 545, 548 (6th Cir. 1982) (emphasis added). We test for a variance by construing the

evidence “in the light most favorable to the government” and then assessing whether a rational

trier of fact could find that each defendant “had knowledge of and agreed to participate in a

single, overarching conspiracy.” United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003). This

court considers three factors to determine whether a single conspiracy exists: (1) “the

overlapping of the participants in various dealings,” (2) “the nature of the scheme,” and (3) “the

existence of a common goal.” Id. Only if we find a variance do we then measure the degree of

prejudice—that is, the extent to which a jury improperly imputes the conspiratorial activities of a

codefendant to the defendant, or otherwise becomes confused about which defendant participated

in which conspiracy, United States v. Gallo, 763 F.2d 1504, 1526 (6th Cir. 1985)—by evaluating

whether “the error of trying multiple conspiracies under a single indictment substantially




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influenced the outcome of the trial.” Caver, 470 F.3d at 237 (citing Kotteakos v. United States,

328 U.S. 750, 765 (1956)).

         On all three variance factors, the government provided ample evidence to support a

rational juror’s finding of a single, overarching conspiracy.      For the overlapping-personnel

factor, Agundiz-Montes concedes that trial testimony showed at least five core personnel playing

a substantial role in the processing, sale, or transportation of both marijuana and heroin. In one

example, a conspirator who repackaged and peddled heroin from the drug house in Warsaw,

Kentucky later tended the marijuana field in Sardinia, Ohio. Another coconspirator who traveled

to California to pick up marijuana seeds also sold heroin. Agundiz-Montes himself repackaged

marijuana, sold marijuana and heroin, and arranged for marijuana to be mailed to Kentucky.

Several of the overlapping coconspirators also socialized and lived in dwellings that stored both

drugs. See Smith, 320 F.3d at 653 (citing evidence that coconspirators spent recreational time

together as proof of a single overarching conspiracy).

         As to the nature of the scheme, the record suggests that the coconspirators blended the

marijuana operation with the heroin operation. The all-cash rent payments for the Warsaw house

(where the bulk of the heroin processing took place) likely came from the proceeds of marijuana

sales.   The coconspirators stashed both drugs at multiple residences and, in one instance,

attempted to settle marijuana debts by exchanging heroin. The same personnel who sold or

processed marijuana oftentimes sold or processed heroin. Several customers purchased both

drugs from Lara-Chavez’s sellers.

         Finally, the conspiracy’s collective actions reveal a common goal of profiting from the

underground drug market in northern Kentucky.            That the group began offering heroin to

accommodate their customers’ changing tastes does not undermine the existence of a single



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conspiracy. See United States v. Olea-Coronado, 391 F. App’x 508, 509–10 (6th Cir. 2010); see

also United States v. Wilson, 168 F.3d 916, 924 (6th Cir. 1999).

       Agundiz-Montes acknowledges this evidence, but instead argues for separate

conspiracies based on the different leadership of each. That is, he insists Lara-Chavez “headed”

the marijuana operation, and two other coconspirators “ran” the heroin operation. But who led

the conspiracy is irrelevant because all three individuals held overlapping functions in both the

marijuana and heroin operations.

       Agundiz-Montes also characterizes his role in the heroin conspiracy as de minimis. This

argument fails, too. “Once the existence of the conspiracy is proven, only slight evidence is

necessary to connect a defendant with the conspiracy.” United States v. Hitow, 889 F.2d 1573,

1577 (6th Cir. 1989). Moreover, a defendant need not participate in all parts or know all other

conspirators to be members of the conspiracy. United States v. Castaneda, 315 F. App’x 564,

567 (6th Cir. 2009) (citing Warner, 690 F.2d at 549); United States v. Shermetaro, 625 F.2d 104,

108–09 (6th Cir. 1980). Here, Agundiz-Montes continued to manage the delivery of marijuana

through commercial carriers after he learned about the heroin operation. His knowledge of

heroin sales, combined with his sustained involvement in the drug-trafficking scheme despite

that knowledge, provided a rational jury with sufficient evidence to infer that he participated in

the conspiracy with full knowledge of its scope.

       Because we find no variance—and thus no possibility that the guilt of his coconspirators

or activities of a separate conspiracy improperly influenced the conviction of Agundiz-Montes—

we do not address the question of whether a variance prejudiced the trial outcome.




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                          III. Admissibility of Agent Sagrecy’s Testimony

       Lara-Chavez asserts that the district court plainly erred when it determined that it would

not exclude, sua sponte, Special Agent Jeffrey Sagrecy’s opinion testimony on money

laundering. We find no reversible error.

       Where a defendant fails to object to testimony at trial, we review the admission of that

testimony for plain error. United States v. Nixon, 694 F.3d 623, 628 (6th Cir. 2012) (citing

United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007)). To succeed under this standard,

Lara-Chavez must show a plain or obvious error that affects his substantial rights and “seriously

affects the fairness, integrity, or public reputation of [his] judicial proceedings.” United States v.

Collins, 799 F.3d 554, 588 (6th Cir. 2015) (quoting United States v. Marcus, 560 U.S. 258, 262

(2010)).

       At trial, Sagrecy highlighted where Lara-Chavez’s bank records showed multiple whole-

dollar cash deposits in amounts less than $10,000, suggesting an attempt to evade government

detection of illegal activity. Based on witness testimony from coconspirators who deposited or

wired money on Lara-Chavez’s behalf, Sagrecy concluded that the deposits likely came from the

proceeds of drug sales.

       Later, the prosecution asked Sagrecy to define both concealment and promotional money

laundering. The district court allowed Sagrecy to answer, in part, because it thought the defense

would eventually raise an objection. Upon hearing no objection, the district court took the

initiative by instructing the government to steer clear of asking for “an opinion on the ultimate

issue,” especially on “whether or not money laundering [had] occurred.” Heeding the district

court’s warning, the government instead asked Sagrecy whether the evidence “was consistent




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with both . . . types of [money] laundering.” Sagrecy cited further evidence—including the

commingling of funds among Lara-Chavez’s six accounts—in answering yes.

       Lara-Chavez raises three challenges to Sagrecy’s testimony: (1) Sagrecy bolstered the

testimony of trial witnesses by relying on their testimony in forming his opinion; (2) Sagrecy

impermissibly defined the legal terms “promotional money laundering” and “concealment

money laundering” for the jury; and (3) portions of Sagrecy’s testimony amounted to a legal

conclusion.

       We can dispatch Lara-Chavez’s first claim because no bolstering occurred when Sagrecy

relied on the testimony of others. The Federal Rules of Evidence permit an expert witness “to

listen to or read the testimony of other testifying witnesses and express an opinion or conclusion

on this basis.” David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore:

A Treatise on Evidence: Expert Evidence § 4.3.1 (2d ed. 2015) (citations omitted); see also Fed.

R. Evid. 703 (cmt.) (stating in the Advisory Committee Notes that expert witnesses may rely

upon “testimony establishing the facts” in formulating their opinions).

       Lara-Chavez’s second claim founders, too. The district court’s error of letting Sagrecy

define legal terms, though arguably clear, see Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th

Cir. 1994), left Lara-Chavez’s substantial rights unaffected because Sagrecy’s testimony aligned

with the court’s own jury instructions.

       Lara-Chavez’s final evidentiary challenge fares no better than the others because the error

here, if an error at all, is not plainly obvious, but rather reasonably disputed. Federal Rule of

Evidence 704(a) permits expert testimony that “embraces an ultimate issue.” The rule gives the

court plenty of leeway to determine when testimony merely suggests a legal conclusion (which is

permissible) or when it encroaches upon a juror’s duty to reach her own legal conclusion (which



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is not). Nixon, 694 F.3d at 631 (citing Torres v. Cty. of Oakland, 758 F.2d 147, 150 (6th Cir.

1985)). Lara-Chavez complains that the government’s questions—particularly the questions

about whether certain evidence “was consistent with” money laundering—elicited legal

conclusions. Although Sagrecy’s answers strongly suggest a conclusion to the jury, they fall

short of declaring his opinion on the ultimate issue of Lara-Chavez’s guilt. See United States v.

Gomez-Norena, 908 F.2d 497, 502 (9th Cir. 1990) (finding no plain error where an expert

testified “that the defendant’s actions . . . were consistent with possession with an intent to

distribute cocaine,” and the expert did not “speak to” the ultimate issue of defendant’s mental

state or mislead the jury). When combined with Sagrecy’s explanation of the hallmarks of

money laundering and his analysis of the evidence presented at trial, the record reveals no plain

error.

                                IV. Sufficiency of the Evidence

         Lara-Chavez and Agundiz-Montes challenge the sufficiency of the evidence supporting

their convictions for conspiring to commit money laundering. Additionally, Lara-Chavez raises

a challenge to the sufficiency of the evidence supporting his conviction of engaging in a

continuing criminal enterprise. The evidence supports the jury’s findings of guilt on all these

charges.

         We review de novo a district court’s denial of a motion for acquittal. United States v.

Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing United States v. Howard, 621 F.3d 433, 459

(6th Cir. 2010)). If “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt” based on the evidence presented at trial, we must affirm.

United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (quoting United States v. Evans,

883 F.2d 496, 501 (6th Cir. 1989)).



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A) Sufficiency of the Evidence for Money-Laundering Claims

       The government charged Agundiz-Montes and Lara-Chavez with conspiracy to commit

money laundering, which it could prove under a promotional theory, see 18 U.S.C.

§ 1956(a)(1)(A)(i), or a concealment theory, see id. § 1956(a)(1)(B)(i). To establish guilt under

a promotional theory, the government must show that Agundiz-Montes and Lara-Chavez

“conspired to conduct a financial transaction which involved the proceeds of unlawful activity,

with knowledge that the money was the proceeds of unlawful activity, and with the intent to

promote the underlying criminal activity.” United States v. Reed, 264 F.3d 640, 650 (6th Cir.

2001) (citing United States v. Haun, 90 F.3d 1096, 1100 (6th Cir. 1996)). To establish guilt

under a concealment theory, the government must show that Agundiz-Montes and Lara-Chavez

conspired to “conduct[] a financial transaction with criminal proceeds, with knowledge that the

money was the proceeds of unlawful activity, and with knowledge that the transaction was

designed, in whole or in part, to conceal or disguise the nature, location, source, ownership, or

control of the money.” Id. at 650–51. The government need only support one of the two

theories to prove the defendants guilty of conspiracy to commit money laundering. United States

v. Martin, 516 F. App’x 433, 446 (6th Cir. 2013) (citing United States v. Westine, No. 92-3664,

1994 WL 88831, at *2 (6th Cir. Mar. 17, 1994) (per curiam)).

       i. Lara-Chavez’s challenge to his conviction for conspiracy to commit money
          laundering

       Lara-Chavez’s brief makes no distinction between promotional and concealment money

laundering. Nor does he address the elements of money laundering generally. Instead, he argues

that because Sagrecy’s testimony was inadmissible, the remaining evidence was insufficient to

convict Lara-Chavez of conspiring to launder money. His argument fails.




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       Regarding the conspiracy to commit concealment money laundering, multiple witnesses

testified that Lara-Chavez held six accounts at Chase Bank, directed his coconspirators to deposit

cash in even, whole-dollar amounts no greater than $10,000, and shuffled funds between his

personal and business accounts.      When added to Sagrecy’s properly admitted testimony

(discussed above) and construed in the light most favorable to the government, a rational trier of

fact could infer that Lara-Chavez conspired to conceal the illegal source of his money.

       The evidence of promotional money laundering is equally strong. When drug proceeds

came in, Lara-Chavez directed other coconspirators to make wire transfers to pay for additional

drug shipments.    Lara-Chavez also used drug proceeds to pay the rent for several of the

properties where the coconspirators processed, stored, and sold drugs. A rational trier of fact

could unquestionably find that Lara-Chavez conspired to commit promotional money laundering.

       ii. Agundiz-Montes’ challenge to his conviction for conspiracy to commit money
           laundering

       The government cites three examples of Agundiz-Montes’s participation in promotional

money laundering: paying money to coconspirators to transport drugs; wiring money to Mexico

and California to purchase drugs; and paying cash to rent buildings where his coconspirators

stored and sold drugs.

       The evidence at trial showed that Agundiz-Montes paid two coconspirators to transport

boxes of marijuana to the Florence warehouse. Although Agundiz-Montes calls attention to

testimony that the money for the packages could have come from one-off home remodeling and

maintenance jobs, the government presented countervailing evidence that would allow a jury to

infer that such stints were insufficient to fund the regular $200 to $400 cash payments. Agundiz-

Montes also directed his coconspirators to wire drug proceeds to purchase more drugs, and

possessed a wire-transfer receipt at the time of his arrest. Finally, he signed a lease for the

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warehouse in Florence and personally paid the first few months of rent using cash derived from

drug sales. Assessing these actions individually or together, a rational jury could find that

Agundiz-Montes conspired to carry out promotional money laundering.

       Whether a rational juror could find that Agundiz-Montes knowingly participated in the

concealment-money-laundering conspiracy is a closer call.           Evidence of Agundiz-Montes’s

complicity consists mainly of: his asking a coconspirator to make cash deposits at a Chase Bank

branch; his riding with a coconspirator to the bank and standing at a teller window during a

deposit; and a bank slip and wire-transfer receipt found on his person when police arrested him.

Construing this evidence in the light most favorable to the government, a rational juror could

find Agundiz-Montes complicit in the concealment-money-laundering conspiracy. And in any

event, Agundiz-Montes’s conviction would still stand based on the promotional-money-

laundering theory. Martin, 516 F. App’x at 446 (citing Westine, 1994 WL 88831, at *2); cf.

Griffin v. United States, 502 U.S. 46, 56, 60 (1991) (upholding a conviction when the evidence

was sufficient to support only one of two alternative legal theories of liability).

       Agundiz-Montes replies with two points: (1) the government provided no proof that he

explicitly agreed with Lara-Chavez to use proceeds from drug sales to further drug trafficking,

and (2) the government’s closing statement incorrectly suggested that he used the drug proceeds

to pay the rent of his trailer home and other buildings. Neither of these arguments holds water.

       The government correctly explains that it need not prove that Agundiz-Montes entered an

explicit agreement with Lara-Chavez; instead, all it must show is that Agundiz-Montes

knowingly and voluntarily joined the money-laundering conspiracy. United States v. Martinez,

430 F.3d 317, 333 (6th Cir. 2005) (citing United States v. Hodges, 935 F.2d 766, 773 (6th Cir.




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1991)). Evidence that Agundiz-Montes used drug money to pay for rent or additional drugs was

more than enough to find him complicit in a promotional-money-laundering conspiracy.

       By glomming onto a single sentence of the government’s closing statement, Agundiz-

Montes misunderstands what constitutes evidence. No court equates a prosecutor’s closing

statements with evidence. See Wilson, 168 F.3d at 924 n.6. Accordingly, we do not evaluate the

government’s closing argument when assessing whether a rational juror could convict Agundiz-

Montes of conspiring to commit money laundering.

B) Lara-Chavez’s challenge to the sufficiency of the evidence for continuing-criminal-enterprise
   liability

       The government must prove the following elements to convict a defendant of

engaging in a continuing criminal enterprise:

       1) that the defendant committed a felony violation of federal narcotics laws;
       2) that the violation was part of a continuing series of three or more drug offenses
       committed by the defendant; 3) that the defendant committed the series of
       offenses in concert with five or more persons; 4) that the defendant acted as an
       organizer, supervisor, or manager with regard to these five or more persons; and
       5) that the defendant obtained substantial income or resources from this series of
       violations.

United States v. Avery, 128 F.3d 966, 973 (6th Cir. 1997) (citing 21 U.S.C. § 848(c); United

States v. Elder, 90 F.3d 1110, 1122–23 (6th Cir. 1996)). Lara-Chavez challenges the sufficiency

of the evidence for only the fourth element.

       The government can establish a defendant’s supervisory or managerial relationship with

another individual through “evidence that [the other individual was] involved with the defendant

and not independent of his control.” United States v. Long, 190 F.3d 471, 475 (6th Cir. 1999)

(citing United States v. King, 169 F.3d 1035, 1042 (6th Cir. 1999)). Classic examples include

“[a] broker or courier under the defendant’s direction, someone who stores drugs for the




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defendant, or one who collects or launders drug proceeds.” Id. (citing United States v. Ward,

37 F.3d 243, 247 (6th Cir. 1994)).

       The overwhelming evidence establishes that Lara-Chavez was the organizer, supervisor,

or manager of more than five individuals. Multiple coconspirators took orders from Lara-

Chavez to deposit drug money, ship and receive packages of marijuana, wire money to pay for

drug shipments, transport drugs across state lines, process drugs, and so on.

       Lara-Chavez’s counterarguments rely on cherry-picking evidence and drawing inferences

in his own favor to create reasonable doubt. For example, he highlights that two witnesses

testified to not personally knowing or meeting Lara-Chavez, and another thought that he earned

money through a legitimate home-repair business. Lara-Chavez not only ignores all the other

evidence against him, but also disregards the standard of review, which requires us to construe

all evidence in the light most favorable to the government.

                                     V. Sentencing Challenges

A) Agundiz-Montes’s Sentencing

       Agundiz-Montes challenges the amount of heroin attributed to him. Although the jury

held Agundiz-Montes responsible for only 100 grams or more of heroin, the Presentence

Investigation Report (PSR) attributed one to three kilograms to him. At his sentencing hearing,

he urged the district court to adhere to the jury’s finding. The district court, however, accepted

the PSR’s recommendation because the “overwhelming evidence . . . given at trial” showed that

Agundiz-Montes participated in and was aware of the heroin conspiracy. In doing so, the district

court specifically cited two coconspirator plea agreements pegging the amount of heroin at one

to three kilograms.




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       “We review a district court’s drug-quantity determination for clear error.” United States

v. Valentine, 553 F. App’x 591, 594 (6th Cir. 2014) (citing United States v. Hernandez, 227 F.3d

686, 697 (6th Cir. 2000)). “A factual finding is clearly erroneous where, although there is

evidence to support that finding, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Collins, 799 F.3d at 594

(quoting United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)).

       When a jury finds a defendant guilty of conspiring to distribute drugs, a court may hold

that defendant responsible for the drugs that he and his coconspirators distributed. See U.S.S.G.

§ 1B1.3(a)(1)(A)–(B).     For the court to hold a defendant liable for his coconspirators’

distributions, however, it must make particularized findings of fact demonstrating that the

distributions were within the scope of the defendant’s agreement and reasonably foreseeable to

the defendant. United States v. Campbell, 279 F.3d 392, 400–01 (6th Cir. 2002); see also

U.S.S.G. § 1B1.3(a)(1)(B) & cmt. 3.

       Agundiz-Montes contends that the district court erred twice because (1) it neglected to

make particularized findings of fact when it relied almost wholly on the amount of heroin

described in the plea agreements of two coconspirators, and (2) it impermissibly deviated from

the jury’s judgment of how much heroin to attribute to Agundiz-Montes. Neither argument

proves convincing.

       Although the district court relied on the codefendants’ plea agreements, it did so only as a

starting point for understanding the scope of Agundiz-Montes’s participation in the conspiracy.

In those plea agreements, the coconspirators admitted to distributing one to three kilograms of

heroin. Because Agundiz-Montes’s membership in the conspiracy began before and ended after

that of his coconspirators, the government argued that Agundiz-Montes would have been aware



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of more than the 100 to 1,000 grams directly attributed to him by the jury. Accepting this

argument, the district court supplemented the plea agreements with particularized findings of fact

detailing the full scope of Agundiz-Montes’s agreement and the foreseeability of his

coconspirators’ distributions.    With respect to the scope, the district court credited the

prosecution’s assertion that Agundiz-Montes was so deeply involved that he would have known

the full extent of the heroin distribution. As far as foreseeability, the district court cited the

testimony of coconspirator Elizabeth Garcia, who testified that Agundiz-Montes was present

during heroin transactions, obtained heroin to sell several times, and directed her to transport

money from heroin sales. See Valentine, 553 F. App’x at 597. The district court noted that

“many others” in the record corroborated this portrayal of Agundiz-Montes’s involvement.

       Finally, a district court may deviate from a jury’s finding on drug quantity so long as the

final sentencing determination stays between the statutory minimum and maximum triggered by

the jury’s verdict. United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013). The jury here

attributed between 100 and 1,000 grams of heroin to Agundiz-Montes, generating a mandatory

minimum of 5 years of imprisonment and a maximum of 40 years. See 21 U.S.C.

§ 841(b)(1)(B)(i). Although the district court increased the heroin attributable to Agundiz-

Montes to more than 1,000 grams, the sentence resulting from this upward revision—

155 months’ imprisonment—fell within the 5-to-40-years range.           Thus, the district court

committed no error.

B) Lara-Chavez’s Sentencing

       Lara-Chavez argues that the district court erred because it neglected to consider his

“history and characteristics,” as required under 18 U.S.C. § 3553(a)(1). But the district court’s

oral opinion at the sentencing hearing contradicts this claim.



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       We review a district court’s sentencing determination for procedural and substantive

reasonableness “under a deferential abuse-of-discretion standard.” United States v. Dudeck,

657 F.3d 424, 431 (6th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

But when a defendant fails to object at the sentencing hearing when given an opportunity to do

so, we review for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008)

(en banc).   The government suggests that Lara-Chavez did not raise a proper objection at

sentencing, so we should apply plain-error review to his procedural-reasonableness claim.

The record, however, shows mixed support for the government’s assertion. Ultimately, we need

not resolve the proper standard of review because even under the standard more favorable to

Lara-Chavez, the district court did not abuse its discretion.

       At the sentencing hearing, the district court adopted the findings of Lara-Chavez’s PSR

and calculated an advisory Sentencing Guidelines range of 300 to 353 months’ imprisonment.

Lara-Chavez did not object to this calculation, but sought the bottom of the range, stressing that

his history and characteristics—particularly his holding “various jobs to support his family”—

demonstrated his capacity to become a productive member of society. The government opposed

a 300-month sentence, advocating instead for an above-Guidelines sentence of 360 months. It

emphasized his prior criminal offenses—drug trafficking, food stamp fraud, and falsification of

worker’s compensation claims—and the seriousness of the current drug-trafficking conspiracy.

After considering the totality of the factors listed under 18 U.S.C. § 3553(a), the district court

settled on 353 months.

       On appeal, Lara-Chavez raises only a procedural reasonableness claim. A sentence is

procedurally unreasonable “where [the] ‘district judge fails to consider the applicable Guidelines

range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a).’” United States v.



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Case Nos. 15-5838/5872, United States v. Agundiz-Montes, et al.


Erpenbeck, 532 F.3d 423, 436–37 (6th Cir. 2008) (quoting United States v. Richardson, 437 F.3d

550, 553 (6th Cir. 2006)).

       To support his claim that the district court procedurally erred by not considering his

history and characteristics, Lara-Chavez argues that the district court ignored his assertion that he

could be a productive member of society. He also points to his own statement that he is “not a

dangerous person.” Finally, to prove that the district court overemphasized Lara-Chavez’s

criminal history, Lara-Chavez singles out this statement by the district court: “It seems like now

you’ve got a true career offender who is not getting punished.”

       Contrary to Lara-Chavez’s argument, the district court not only took Lara-Chavez’s

personal history and characteristics into account, but also accepted that Lara-Chavez’s capacity

to become a productive member of society weighed against the government’s request for an

above-Guidelines sentence. Unfortunately for Lara-Chavez, the district court determined that

this factor could not offset the other § 3553(a) factors, “all [of which] support[ed] a top of the

guideline sentence.” The district court made this clear to Lara-Chavez at the sentencing hearing,

where it evaluated how each § 3553(a) factor influenced his sentencing determination and

explained how the gravity of his offenses—bringing drugs into the community, growing

marijuana, creating a drug conglomerate—warranted a top-of-the-Guidelines sentence. As for

the quotation regarding Lara-Chavez’s status as a “true career offender,” the district court was

speaking in the context of a hypothetical and not referring to Lara-Chavez.

       Accordingly, the district court did not abuse its discretion.

                                         VI. Conclusion

       For these reasons, we AFFIRM the district court’s judgments with respect to both

appellants.



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