USA v. Yolanda Villarreal
Per Curiam OPINION: we AFFIRM Villarreal's sentence as procedurally and substantively reasonable, decision not for publication. Raymond M. Kethledge, Circuit Judge; Helene N. White, Circuit Judge and Thomas L. Ludington, U.S. District Judge for the Eastern District of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0289n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Apr 16, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
BEFORE: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.
Yolanda Villarreal challenges her above-guidelines sentence as
procedurally and substantively unreasonable. We affirm.
Villarreal pleaded guilty without a plea agreement to conspiracy to distribute alprazolam,
a Schedule IV controlled substance, in violation of 21 U.S.C. § 846. (RE 164, Order Accepting
Guilty Plea, Page ID # 858-59; RE 255, Rearraignment Tr. 38, Page ID # 1221). The district
court calculated Villarreal’s guidelines range as zero to six months of imprisonment based on an
offense level of 8 and a criminal history category of I. (RE 245, Presentence Report 11, Page ID
# 1123; RE 259, Sentencing Tr. 95, Page ID # 1333). Varying upward from that range, the
district court sentenced Villarreal to twelve months and one day of imprisonment, followed by
The Honorable Thomas L. Ludington, United States District Judge for the Eastern
District of Michigan, sitting by designation.
United States v. Villarreal
three years of supervised release.
(RE 238, Judgment 2-3, Page ID # 1082-83; RE 259,
Sentencing Tr. 95-101, Page ID # 1333-39).
We review Villarreal’s sentence for reasonableness under a deferential abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Battaglia,
624 F.3d 348, 350 (6th Cir. 2010). Reasonableness review has both procedural and substantive
components. United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013).
We “must first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51.
Villarreal contends that her sentence is procedurally unreasonable because the district court
(1) failed to state specific reasons for the upward variance and (2) ignored the impending
amendment to the guidelines reducing by two levels the base offense level for most drug
offenses. See USSG App. C, amend. 782 (Nov. 1, 2014).
“For a sentence to be procedurally reasonable, a district court must explain its reasoning
to a sufficient degree to allow for meaningful appellate review.”
United States v. Zobel,
696 F.3d 558, 566 (6th Cir. 2012) (internal quotation marks omitted). If the sentence is outside
the guidelines range, as in this case, the district court must state in open court and in a written
statement of reasons the specific reasons for the departure or variance. 18 U.S.C. § 3553(c)(2);
Zobel, 696 F.3d at 566.
After reviewing the § 3553(a) factors, the district court concluded that the nature and
circumstances of Villarreal’s offense warranted “a very small variance.” (RE 259, Sentencing Tr.
United States v. Villarreal
99, Page ID # 1337). According to the presentence report, members of a drug trafficking
organization travelled to Texas to obtain large amounts of alprazolam (a conservative estimate of
200,000 dose units) from Villarreal and her boyfriend and transported those pills to southeastern
Kentucky and eastern Tennessee. (RE 245, Presentence Report 3-4, Page ID # 1115-16). When
defense counsel requested specific findings as to the upward variance, the district court stated:
The problem with this crime is it is a rather complicated drug conspiracy. It is a
drug conspiracy that involves a drug that without question is viewed less seriously
than others, but when it’s related to a community in which there is such a serious
drug problem, and particularly on this record as it relates to the relationship to
even more serious drugs which are being abused in this particular community, I
think a modest variance is appropriate in this particular case.
(RE 259, Sentencing Tr. 103-04, Page ID # 1341-42). The district court’s written statement of
There are no illusions that this crime is not a serious crime; it is a serious crime
and requires a restriction of liberty to reflect the seriousness of the crime, but to
also promote respect for the law and deter future criminal conduct. Crimes of this
nature (diversion of drugs) are crimes which have an adverse impact on the
community, a community which is already reeling from this type of offense.
Crimes that harm the community must receive a just punishment. As a result, the
Court believes the defendant must feel the sting of her liberty being taken away.
An upward variance is appropriate based on the nature of the offense. It is a
complicated drug conspiracy and a drug (Schedule IV) that is not viewed by many
as a drug that is as dangerous as others that are being introduced into a
community that is already reeling from drug diversion. All of these factors result
in the need for a sentence with a slight upward variance from the guideline range.
(RE 245-1, Statement of Reasons, Page ID # 1132). The district court provided an adequate
explanation for the upward variance.
Villarreal asserts that the district court discussed the general nature and circumstances of
the offense without addressing her specific conduct and points out that her co-defendant Sherrill
King had the same offense level, criminal history category, and guidelines range but received a
within-guidelines sentence of six months. The district court, however, found that King was a
United States v. Villarreal
minor participant. (RE 259, Sentencing Tr. 26, Page ID # 1264). As the government stated at
sentencing: “Sherrill King’s role was making travel arrangements and assisting his brother. Ms.
Villarreal is part of the source of supply, the chain of supply for these pills coming in.” (Id. at
56, Page ID # 1294). Contrary to Villarreal’s argument, King was differently situated.
Villarreal also contends that her sentence is procedurally unreasonable because the
district court failed to consider the policy implications of an impending guidelines amendment
that would have reduced her offense level by two. We review for plain error, because Villarreal
did not preserve this argument by raising it at the district court after the court gave her the
opportunity to raise any objections to her sentence. R. 259 at 103-04; United States v. Vonner,
516 F.3d 382, 385 (6th Cir. 2008) (en banc). Under plain-error review Villarreal must show,
among other things, that any error affected her substantial rights. Id. at 386. Here, Villarreal’s
guidelines range would have been the same under either the old or new guidelines, as the district
court noted. R. 259 at 33-34. And given the court’s extensive explanation for varying upwards,
Villarreal suffered no prejudice from the court’s failure to address the policy implications of the
pending drug-offender amendments.
“For a sentence to be substantively reasonable, it must be proportionate to the seriousness
of the circumstances of the offense and offender, and sufficient but not greater than necessary, to
comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir.
2008) (internal quotation marks omitted). Where, as in this case, the district court imposes a
sentence outside the guidelines range, we “may consider the extent of the deviation, but must
give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 552 U.S. at 51. “A sentence may be considered substantively
unreasonable when the district court selects a sentence arbitrarily, bases the sentence on
United States v. Villarreal
impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th
Cir. 2008). Villarreal contends that her sentence is substantively unreasonable because the
district court (1) gave an unreasonable amount of weight to the nature and circumstances of the
offense and (2) created an unwarranted sentencing disparity between her and King.
Villarreal asserts that the district court based the upward variance on the nature and
circumstances of the offense, specifically the harmful effects of the unlawful distribution of
alprazolam on the community, which she contends were already taken into account by the
guidelines. “That a circumstance was addressed in the Guidelines, however, does not prevent the
district court from considering it under section 3553(a), so long as the court explains why the
circumstance warrants additional weight with regard to that particular defendant’s sentence.”
United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011); see United States v. Tristan-Madrigal,
601 F.3d 629, 635 n.1 (6th Cir. 2010). Villarreal argues that the district court could not impose
an above-guidelines sentence based on a disagreement with the guidelines for alprazolam
offenses. But district courts may vary from the guidelines based on a policy disagreement. See
United States v. Camacho-Arellano, 614 F.3d 244, 250 (6th Cir. 2010); United States v. HerreraZuniga, 571 F.3d 568, 585 (6th Cir. 2009). According to Villarreal, the district court gave too
little weight to her minor role in the offense and her lack of danger to the public. Villarreal
essentially argues that the district court should have weighed the § 3553(a) factors differently.
But we look to whether a district court’s sentence is reasonable, not whether we would have
imposed the same sentence in the first instance. United States v. Sexton, 512 F.3d 326, 332 (6th
Cir. 2008). Here, it was reasonable for the court to conclude that the seriousness of Villarreal’s
offense—she participated in a conspiracy that transported several hundred thousand pills across
United States v. Villarreal
state lines—warranted a slight upward variance, regardless of whether we would have weighed
the § 3553(a) factors differently.
Villarreal finally contends that the upward variance created an unwarranted disparity with
King’s six-month sentence. “We have explained, however, that [the need to avoid unwarranted
sentence disparities] concerns national disparities between defendants with similar criminal
histories convicted of similar criminal conduct—not disparities between codefendants.”
Conatser, 514 F.3d at 521.
The district court specifically found that King was a minor
participant and did not make such a finding with respect to Villarreal. (RE 259, Sentencing Tr.
26, Page ID # 1264). The different roles that Villarreal and King played in the conspiracy—
supplier versus travel agent—justified the disparity between their sentences. (Id. at 56, Page ID
For the foregoing reasons, we affirm Villarreal’s sentence as procedurally and
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