United States v. Thomas Verburg

588 F. App'x 434
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 28, 2014
Docket13-2164, 13-2205
StatusUnpublished
Cited by4 cases

This text of 588 F. App'x 434 (United States v. Thomas Verburg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas Verburg, 588 F. App'x 434 (6th Cir. 2014).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

In 2009, Thomas Verburg purchased property in California that was later used for purposes of growing marijuana. This marijuana was harvested and distributed to individuals like Ramiro Ramos, who sold it to lower-level dealers. After their indictment and arrest, both Verburg and Ramos agreed to plead guilty to conspiracy to manufacture 100 or more marijuana plants and distribute 100 kilograms or more of processed marijuana, as proscribed under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(vii). After taking into consideration the applicable safety-valve provision, the district court sentenced Ver-burg to thirty months in prison. The district court denied the government’s motion for a downward departure for Ramos, sentencing him to sixty months in prison, the statutory minimum.

On appeal, Verburg contends that the district court erred in denying him a mitigating-role adjustment. Furthermore, he posits that his sentence was procedurally unreasonable, because the district court failed to provide him a reasoned basis for its decision. Ramos argues that the court improperly denied the government’s motion for a downward departure under U.S.S.G. § 5K1.1 by basing its decision on factors outside those listed in the Sentencing Guidelines.

Because Verburg played a substantial role in the conspiracy, we conclude that the district court did not err in denying him a mitigating-role adjustment. We also conclude that, while terse, the explanation *436 given by the district court for Verburg’s sentence was not procedurally unreasonable. Finally, because Ramos waived his right to appeal in his plea agreement, he cannot pursue his claim that the district court erred in denying him a downward departure. Thus, we AFFIRM the sentences for both Verburg and Ramos.

I. BACKGROUND

On May 1, 2013, Thomas Verburg pleaded guilty to conspiracy to manufacture 100 or more marijuana plants and to distribute 100 kilograms or more of processed marijuana. R. 188 (Verburg Plea Agreement) (Page ID # 486). During Verburg’s plea colloquy, Verburg stated that he had contributed to the down payment for a piece of property on Trinity Center Road, in California. R. 426 (Verburg Plea Hr’g Tr. at 20-21) (Page ID # 2115-16). He originally kept this property in his own name, before later deeding it to his son Daniel. Id. at 22 (Page ID #2117). After purchasing the Trinity Center property, Ver-burg helped his sons Brian and Daniel build living quarters on the land and, at some point, learned that the property was being used to grow and sell marijuana. Id. at 10 (Page ID # 2105); id. at 22 (Page ID #2117). Verburg assisted with the collection of proceeds from the sale of this marijuana. Id. at 23 (Page ID #2118). On at least two occasions, he traveled from Michigan to California to deliver these proceeds directly to his sons. Id. Verburg’s Presentence Investigation Report (“Ver-burg PSR”) concluded, that he “had knowledge ' of the sale of over $750,000.00 in marijuana shipped by his two sons,” a fact undisputed by Verburg at his sentencing hearing. Verburg PSR at ¶ 105; R. 427 (Verburg Sentencing Hr’g Tr. at 10) (Page ID # 2131); see also United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir.2005) (concluding that failure to object to one’s presentencing report constitutes acceptance of the factual allegations contained within the report). For his assistance, Verburg received a cut of the conspiracy’s profits — although, according to Verburg, “there was no hard and fast percentage” to this division. Verburg PSR at ¶ 96.

Ramos was one of the major recipients of the marijuana grown on the Trinity Center property, having accepted several substantial shipments from the Verburgs in 2011. R. 506 (Ramos Plea Hr’g Tr. at 10) (Page ID # 2675). On May 1, 2013, Ramos pleaded guilty to conspiracy to manufacture 100 or more marijuana plants and to distribute 100 kilograms or more of processed marijuana. R. 196 (Ramos Plea Agreement at ¶ 1) (Page ID # 514). Ver-burg and Ramos were sentenced separately.

During Verburg’s sentencing hearing, counsel for Verburg requested that his client “be awarded a minimal or a mitigating role adjustment pursuant to [U.S. Sentencing Guidelines Section] 3B1.2.” R. 427 (Verburg Sentencing Hr’g Tr. at 3) (Page ID # 2124). Although the government did not object to a minor-role reduction, the PSR did not recommend a reduction. Ver-burg PSR at ¶ 5. The court denied Ver-burg’s request, explaining:

A mitigating role is a role that’s designed for a very narrow construction. There are a few people that qualify for it, people that drop into something, people that are asked to hold a bag for somebody while they go in the store, that kind of thing. But this is not. This is a long way away from that. This is somebody assisting in the collection of proceeds, had knowledge of a sale of three-quarters of a million dollars’ worth of marijuana, two sons, and there’s some real troublesome things about the nature of the lifestyle being lived by people that are way beyond their income. So *437 no, this minimal role is absolutely out. Your objection’s noted, though.

R. 427 (Verburg Sentencing Hr’g Tr. at 3) (Page ID #2124-25). Verburg also requested an additional “downward variance,” in addition to concurring with the government’s motion for a downward departure for substantial assistance under § 5K1.1. Id. at 5 (Page ID # 2126). The district court granted a one-level downward departure pursuant to the government’s motion, but denied Verburg’s request. For the balance of the hearing, the district court discussed, in varying detail, the § 3553(a) factors. It ultimately sentenced Verburg to thirty months of imprisonment, a sentence below the applicable guidelines range of 37 to 46 months. Id. at 21 (Page ID # 2142); Verburg PSR at §§ 145,199.

Prior to Ramos’s sentencing hearing, the government also filed a § 5K1.1 motion, requesting that the district court grant Ramos a downward departure on the basis of his substantial assistance. See R. 387 (Ramos Sentencing Hr’g Tr. at 4) (Page ID # 1981). In denying this motion, the district judge focused exclusively on factors outside of those related to the defendant’s assistance — examining Ramos’s pri- or criminal record, for instance, and the motivation behind the government’s original charging decision. Neither Ramos nor his counsel objected to the district judge’s conclusion.

Both Verburg and Ramos have timely appealed their sentences.

II. VERBURG’S SENTENCE

On appeal, Verburg contends that the district court erred in denying him a mitigating-role adjustment. As Verburg has pointed out, in this nine-person conspiracy, “only one other participant ... had a lesser quantity attributed to her than did Mr. Verburg.” Appellant Br. at 17. Thus, “[mjathematically speaking, Mr.

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Bluebook (online)
588 F. App'x 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-verburg-ca6-2014.