United States v. Olivarez ( 2015 )


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  •                         NOT RECOMMENDED FOR PUBLICATION
    File Name: 15a0268n.06
    Nos. 14-1277/1415                            FILED
    Apr 14, 2015
    DEBORAH S. HUNT, Clerk
    UNITED STATES COURTS OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,                            )
    )
    v.                                                    )      ON APPEAL FROM THE
    )      UNITED STATES DISTRICT
    EVE OLIVAREZ; REM TO,                                 )      COURT FOR THE WESTERN
    )      DISTRICT OF MICHIGAN
    Defendants-Appellants.                         )
    )
    )
    BEFORE:       BATCHELDER, SUTTON, and COOK, Circuit Judges.
    ALICE M. BATCHELDER, Circuit Judge. This case is a combined appeal in which
    Defendants Eve Olivarez and Rem To ask this court to review their sentences. Olivarez and To
    pleaded guilty to trafficking crystal methamphetamine in violation of 
    21 U.S.C. §§ 841
    (a) and
    841(b)(1)(B)(viii). Olivarez received a sentence of 210 months’ imprisonment followed by four
    years of supervised release. [R. 91 at Pg. ID#459–60] To received a sentence of 170 months’
    imprisonment followed by four years of supervised release. [R. 98 at 508–09] We AFFIRM.
    I.
    In January 2012, law enforcement officials discovered that Eve Olivarez was trafficking
    drugs out of her home in Zeeland, Michigan. [R. 70 at Pg. ID#233–35] When officers searched
    the home, they discovered unspecified amounts of marijuana and crystal methamphetamine
    (“meth”). [Id.] They also seized a blade, two digital scales, drug paraphernalia, tracking
    Nos. 14-1277 & 14-1415,
    United States v. Olivarez & To
    receipts, a ledger book, a laptop, glass pipes, Money Gram receipts, residency paperwork, and
    some cash. [Id.] After further investigation, law enforcement officials determined that Rem To,
    Olivarez’s cohabiting boyfriend, was also involved in the drug trafficking scheme and that To’s
    sisters in California were responsible for shipping the drugs to Olivarez and To. [Id.]
    During the course of the investigation, law enforcement officials traced financial and
    shipping records, interviewed five separate informants, and questioned Olivarez, To, and To’s
    sisters. [Id.; R. 71 at Pg. ID#272–73] From these sources, it became clear that Olivarez was
    known as “the boss” of the operation. [Id.] Not only did she traffic crystal meth, she was also
    addicted to it. [R. 70 at Pg. ID#235–36, 250–51] It did not appear that To was addicted to the
    drugs, but he was thoroughly involved in the trafficking operation. [R. 71 at Pg. ID#272–75]
    Unfortunately, only a limited quantity of drugs was seized in the course of the investigation.
    This made it necessary for law enforcement and probation officers to approximate the quantity of
    drugs that had been trafficked during the course of Olivarez and To’s operation. By conservative
    estimates, the probation officers determined that Olivarez and To were both responsible for
    trafficking at least 283.5 grams of crystal meth. [R. 70 at Pg. ID#239–40; R. 71 at Pg. ID#276–
    77]
    In June 2013, Olivarez and To were arrested on charges of possessing crystal meth with
    the intent to distribute. [R. 70 at Pg. ID#232; R. 71 at Pg. ID#269] Both of them pleaded guilty
    to violating 
    21 U.S.C. §§ 841
    (a)(1) & 841(b)(1)(B)(viii).        [R. 84 & 90]       At Olivarez’s
    sentencing, the district court determined that she trafficked 50 to 150 grams of crystal meth and
    used her home in the trafficking operation. [R. 91 at Pg. ID#444–45] This calculation, coupled
    with her Category IV criminal history, placed her sentence range at 210 to 262 months. [Id.]
    The district court imposed a final sentence of 210 months. At To’s sentencing, the district court
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    United States v. Olivarez & To
    determined that he trafficked 150 to 500 grams of crystal meth and used his home in the
    trafficking operation. [R. 98 at Pg. ID#499, 504] This calculation placed his sentence range at
    188 to 235 months; however, the district court granted an 18-month downward variance, and
    imposed a final sentence of 170 months. [Id. at 503–04, 508]
    II.
    There are four issues in this appeal: (1) Olivarez appeals the district court’s decision to
    enhance her sentence based upon her maintaining a premises for the purpose of drug distribution;
    (2) both Olivarez and To appeal the district court’s refusal to grant reductions based upon their
    acceptance of responsibility; (3) To appeals the district court’s decision to find that he had
    trafficked at least 260 grams of meth; and (4) Olivarez appeals the district court’s decision to
    deny her motion for a downward variance based upon the nature of her criminal history and her
    efforts at rehabilitation.
    Appellate courts review a district court’s sentencing decisions with a high degree of
    deference:
    Regardless of whether the sentence imposed is inside or outside the Guidelines
    range, the appellate court must review the sentence under an abuse-of-discretion
    standard. . . . The fact that the appellate court might reasonably have concluded
    that a different sentence was appropriate is insufficient to justify reversal of the
    district court.
    Gall v. United States, 
    552 U.S. 38
    , 51 (2007). If the sentencing decisions of the district court are
    reasonable in light of the standards set by 
    18 U.S.C. § 3553
    (a), then this court has no reason to
    interpose its judgment into the matter. 
    Id.
    III.
    The first issue on appeal is the district court’s two-point enhancement of Olivarez’s
    baseline sentence based on the fact that she maintained her home for the purpose of drug
    trafficking. According to U.S.S.G. § 2D1.1(b)(12), “If the defendant maintained a premises for
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    Nos. 14-1277 & 14-1415,
    United States v. Olivarez & To
    the purpose of manufacturing or distributing a controlled substance, increase by 2 levels.” As we
    noted in United States v. Bell, this circuit “has not settled on the proper standard of review for
    assessing such enhancements.” 
    766 F.3d 634
    , 636 (6th Cir. 2014) (comparing United States v.
    Jackson-Randolph, 
    282 F.3d 369
    , 390 (6th Cir. 2002) (reviewing for clear error) with United
    States v. Sweet, 
    630 F.3d 477
    , 480 (6th Cir. 2011) (reviewing de novo)). Nevertheless, we need
    not answer this question here since Olivarez’s claim fails under either de novo or clear error
    review. In United States v. Johnson, we stated that this enhancement is properly applied “to
    anyone who (1) knowingly (2) opens or maintains any place (3) for the purpose of manufacturing
    or distributing a controlled substance.” 
    737 F.3d 444
    , 447 (6th Cir. 2013). To make this
    determination, the district court may consider the significance of the premises to the drug
    operation, the extent to which the defendant had access to and control over the premises, and the
    presence of tools and equipment used specifically for drug trafficking. 
    Id.
     at 447–48; see also
    Bell, 766 F.3d at 636–38.
    Here, there is ample evidence to support the finding of the district court. The drugs were
    sent to the home, divided and weighed in the home, stored in the home, packaged in the home,
    and distributed from the home. [R. 91 at Pg. ID#430–34] The veracity of these facts is not
    disputed by Olivarez. Rather, she argues that this was merely a collateral use of the home
    instead of a primary use. Appellant’s Brief at 24–25. But it does not matter if the defendant has
    not used his whole house for the sole purpose of drug trafficking, so long as it is one of his
    principal uses for some of the house. Johnson, 737 F.3d at 447. Even if the defendant’s home is
    not the scene of frequent drug transactions, the mere storage of drugs on the premises makes the
    home continuously available to the trafficking operation. Id. at 447–48. Olivarez has provided
    no evidence to controvert the district court’s conclusion.
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    Nos. 14-1277 & 14-1415,
    United States v. Olivarez & To
    The second issue on appeal is the district court’s denial of Olivarez and To’s motions for
    two point reductions based on their acceptance of responsibility. The same issue was entertained
    by this court in United States v. Angel, where we stated that “[t]he district court’s determination
    regarding acceptance of responsibility must be sustained unless clearly erroneous.” 
    355 F.3d 462
    , 476 (6th Cir. 2004). With respect to Olivarez, after reviewing the record, there is nothing in
    the district court’s decision that is clearly erroneous. [R. 91 at Pg. ID#436–44] The judge
    reviewed all of the facts submitted to him and concluded that “it’s just this outright denial over
    and over again of what she did and how she did it and who she was with.” [Id.] Similarly, with
    respect to To, after reviewing the record, there is no indication of clear error. [R. 98 at Pg.
    ID#487–500] Even To’s own attorney admitted that it was difficult for To to claim acceptance
    of responsibility in light of his obstinacy and repeated denials. The judge pointed out To’s
    numerous lies and concluded that “when it comes to acceptance of responsibility, he’s out of
    bounds.” [Id. at 503] Olivarez and To have not presented any evidence to this court to
    controvert the district court’s conclusions.
    The third issue on appeal is the district court’s manner of calculating the quantity and
    quality of drugs attributed to To. This court has held that “[w]e review a district court’s drug
    quantity determination for clear error.” United States v. Hernandez, 
    227 F.3d 686
    , 697 (6th Cir.
    2000). Because of the nature of drug trafficking conspiracies, it is not always possible for the
    court to know the exact quantity of the drugs for which the defendants should be charged. In
    such cases, “[a]n approximation by a court is not clearly erroneous if it is supported by
    competent evidence on the record.” United States v. Ward, 
    68 F.3d 146
    , 149 (6th Cir. 1995). In
    this case, the district court’s decision is certainly supported by competent evidence in the record.
    The judge considered the history of the operation, the nature of the investigation, the evidence
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    United States v. Olivarez & To
    presented by all parties, the nature of the drug being distributed, the amount of money involved
    in the operation, the nature of the transactions that were investigated and described, and the
    direct testimony of To’s sisters. [R. 98 at Pg. ID#496–99] After reviewing all of these facts, the
    judge concluded that his finding of 260 grams was “clearly right on target with what was given
    here and the nature of these people coming and going all hours of the day or night in this matter.”
    [Id.] No evidence has been presented to this court to controvert this conclusion.
    The final issue on appeal is the district court’s denial of Olivarez’s motions for a
    downward variance from the Guidelines based on her efforts at rehabilitation and the nature of
    her criminal record. In her plea agreement, Olivarez retained the right to appeal the district
    court’s decisions pertaining to the interpretation and application of the Sentencing Guidelines,
    but she waived her right to appeal the district court’s decisions pertaining to variances and
    departures from the Guidelines. [R. 64 at Pg. ID#166] Thus, we do not need to speak to the
    merits of this issue. Nevertheless, even if this issue were properly appealable, there is nothing in
    the record that indicates that the district court abused its discretion by refusing to vary from the
    Guidelines on account of Olivarez’s criminal history and efforts at rehabilitation. The judge
    specifically noted that the Guidelines sentence was consistent with the proper purpose and intent
    of punishment in this case. [R. 91 at Pg. ID# 458–61] No evidence has been presented to
    controvert this conclusion.
    On each of these issues, the district court did not err or abuse its discretion. Olivarez and
    To have not provided any evidence to show that their sentences were improperly decided by the
    district court. For these reasons, we AFFIRM.
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