USA v. Felix Agundiz-Monte

Filing

OPINION filed : The district court's judgments with respect to both appellants are AFFIRMED. Decision not for publication. John M. Rogers, Jeffrey S. Sutton, and Deborah L. Cook, Circuit Judges. [15-5838, 15-5872]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIX AGUNDIZ-MONTES (15-5838);
ALBERTO LARA-CHAVEZ (15-5872),
Defendants-Appellants.

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Feb 08, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

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.

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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, AgundizMontes 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 LaraChavez to 353 months of imprisonment. The district court also held the defendants jointly-andseverally 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 wholedollar 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. AgundizMontes 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-moneylaundering 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, AgundizMontes 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 AgundizMontes 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 LaraChavez 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 AgundizMontes 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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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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