United States v. Matthew Boeve ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0592n.06
No. 20–1102
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Oct 19, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff – Appellee, )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR
v. )
THE WESTERN DISTRICT OF
)
MICHIGAN
MATTHEW JAMES BOEVE, )
)
Defendant – Appellant. )
BEFORE: MERRITT, KETHLEDGE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Matthew Boeve pleaded guilty to one count of
conspiracy to distribute methamphetamine, 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii) (Count
One), and one count of aiding and abetting obstruction of justice, 18 U.S.C. §§ 1503 and 2 (Count
Five). The district court sentenced him to concurrent prison terms of 235 months in prison on
Count One and 120 months in prison on Count Five. On appeal, Boeve seeks resentencing, arguing
that the district court abused its discretion in applying a four-level leadership enhancement under
the Sentencing Guidelines. We AFFIRM.
I.
In November 2018, Boeve was released from prison after serving a term for a probation
violation. From December 2018 through February 2019, Boeve acquired methamphetamine from
a supplier known as “Hype” in the Grand Rapids area and sold it locally in Holland, Michigan. In
early to mid-February, Boeve learned of a source of supply in Kalamazoo, Michigan, through
No. 20-1102, United States v. Boeve
Philip Bell, a co-defendant in this case. At first, Boeve went through Bell to obtain
methamphetamine from the Kalamazoo source, but eventually Boeve began contacting the source
directly and making trips to Kalamazoo every few days to replenish his supply.
The West Michigan Enforcement Team (“WMET”) began investigating Boeve in February
2019, after multiple sources reported that he had supplied them with methamphetamine. One
source, Kayde Metzler, told investigators that he had purchased a total of approximately six
kilograms of methamphetamine from Boeve. Metzler’s cellular phone showed that he had
received four phone calls from Boeve, and a text message from Boeve’s girlfriend, Danielle
Malanowski, telling Metzler that he needed to pay back money he owed Boeve.
On March 25, 2019, a confidential informant contacted case agents and informed them that
Boeve had requested a ride to Kalamazoo to purchase three ounces of methamphetamine. WMET
officers observed Boeve travel to Kalamazoo, exit the vehicle near a residence, reenter the vehicle
a short time later, and then travel back to Holland. The officers obtained search warrants for the
vehicle and Boeve’s person. When WMET executed the warrants, they found a plastic bag
containing 67 grams of methamphetamine, another bag containing approximately 5.9 grams of
methamphetamine, and a realistic looking CO2-powered .177 BB gun.
In an interview conducted after he was given his Miranda rights, Boeve admitted that he
had traveled to Kalamazoo to obtain two ounces of methamphetamine; he had been obtaining one
to two ounces of methamphetamine every two days since the beginning of 2019; and his practice
was to use a few grams of the methamphetamine himself and sell the remainder in various
quantities to other dealers and users in Holland.
On April 17, 2019, Boeve participated in a proffer interview. He admitted that he began
using methamphetamine in November 2018 and that by late December 2018 he began selling
-2-
No. 20-1102, United States v. Boeve
methamphetamine to fund his addiction. He identified his supplier in Grand Rapids and estimated
that he purchased a total of eight ounces of methamphetamine from that supplier. He also admitted
purchasing methamphetamine from a Kalamazoo source whom he located through Bell.
While in the custody of the U.S. Marshal, Boeve contacted Mark Baker, a friend he had
previously met in prison, and sent him documents with instructions to post the documents to
Facebook for others to see. The documents underlined the names of potential grand jury witnesses
who had cooperated with law enforcement in the investigation. Baker posted the documents to
Facebook according to Boeve’s instructions with captions that included references to “snitches”
and “rats.” R. 137, PID 520.
On May 21, 2019, a five-count indictment was filed naming Boeve, Bell, Metzler, and
Baker as defendants. Count One charged Boeve, Bell, and Metzler with conspiracy to distribute
methamphetamine. Count Two charged Metzler with possession with intent to distribute
methamphetamine. Count Three charged Boeve with possession with intent to distribute
methamphetamine. Count Four charged Bell with distribution of methamphetamine. And Count
Five charged Boeve and Baker with obstruction of justice.
On June 6, 2019, Bell participated in a proffer interview. He stated that he believed Boeve
had been controlling most of the methamphetamine supply in the Holland area prior to his arrest.
He said that he sold methamphetamine for Boeve and acted as a middleman between Boeve and
the source in Kalamazoo.
On June 17, 2019, Baker participated in a proffer interview. He stated that he had met
Boeve in prison, and that upon his release Boeve had befriended him. Baker claimed that Boeve
attempted to recruit him to sell methamphetamine and gave him a quantity of drugs to distribute,
but Baker ended up selling only a small amount and then returning the remainder back to Boeve.
-3-
No. 20-1102, United States v. Boeve
Baker admitted receiving documents from Boeve containing the names and identifications of
cooperating witnesses and posting them on Facebook at Boeve’s direction. He also admitted to
confronting some of the identified individuals about their cooperation with law enforcement.
On September 3, 2019, Boeve entered a plea of guilty to Counts One and Five pursuant to
a written plea agreement. The U.S. Probation Office prepared a Presentence Investigation Report
(“PSR”) that stated:
Mr. Boeve is the most culpable individual in this conspiracy. Although the
“conspiracy” was not organized, case materials do suggest Mr. Boeve held a
leadership role in the conspiracy as he had at least three individuals selling
methamphetamine on his behalf in addition to utilizing Mr. Bell as a middleman to
a source of supply.
R. 137, PID 520. Utilizing Boeve’s statements from his proffer interview, the PSR conservatively
estimated that Boeve bought and distributed a minimum of 40 ounces of a substance containing
methamphetamine. That quantity of methamphetamine yielded a base offense level of 30. The
PSR recommended a four-level enhancement for Boeve’s leadership role pursuant to Sentencing
Guidelines § 3B1.1(a). An additional two-level enhancement was recommended for obstruction
of justice. The PSR recommended a three-level deduction for acceptance of responsibility. This
yielded a total offense level of 33. Boeve’s criminal history established a criminal-history category
of V. Based on a total offense level of 33 and a criminal history category of V, the Guidelines
imprisonment range was calculated as 210 to 262 months, with a statutory mandatory-minimum
term of 120 months in prison.
Boeve filed a sentencing memorandum confirming the accuracy and completeness of the
PSR but objecting to the four-level leadership enhancement. The Government filed a
memorandum asserting that the four-level enhancement for leadership was appropriate. The
Government also argued that Boeve was not entitled to a two-level reduction for acceptance of
-4-
No. 20-1102, United States v. Boeve
responsibility under the Sentencing Guidelines § 3E1.1(a), and did not move for the additional
one-level reduction for acceptance of responsibility under § 3E1.1(b).
At the sentencing hearing the Government called two witnesses: co-defendant Philip Bell
and Detective Adam Hill of the Ottawa County Sherriff’s Department.
Bell testified that Boeve’s girlfriend Malanowski introduced Bell to Boeve, and that from
late-December 2018 through early February 2019, Boeve and Malanowski were Bell’s source of
methamphetamine. At the beginning of February 2019, Bell was introduced to a new source of
methamphetamine in Kalamazoo, and he and an individual named Sean Williams began buying
from that source rather than Boeve. According to Bell, Williams owed Boeve money from a
previous drug deal, and Williams repaid Boeve by taking him to the new source in Kalamazoo.
Bell testified that once Boeve became aware of the source in Kalamazoo, Boeve supplied most of
the money for the methamphetamine, and Bell went to Kalamazoo to pick up the drugs.
The largest transaction Bell was involved in was the purchase of over seven ounces of
methamphetamine from the Kalamazoo supplier. Bell testified that on this occasion, Williams had
driven to Kalamazoo to purchase eight ounces of methamphetamine for himself and Boeve.
Williams contacted Boeve and told him that he was approximately $200-$300 short of the purchase
price. Boeve then called Bell and asked him to contact the supplier and accompany Boeve to
Kalamazoo to see if they could get the drugs for only an additional $150, since that was all Boeve
had. Bell did so and was able to finalize the purchase of a bit more than seven ounces of
methamphetamine for a total of $1,650. According to Bell, Boeve had contributed $1,350 for the
purchase and Williams had contributed $300. Williams was given one ounce of methamphetamine
for his contribution; Boeve gave Bell approximately fourteen grams of the methamphetamine and
-5-
No. 20-1102, United States v. Boeve
told Bell he owed $150 for that share; and Boeve kept the remainder. At a certain point, Boeve
began to obtain drugs from Kalamazoo without going through Bell.
Detective Hill testified, in relevant part, that he had identified at least seven individuals
who sold methamphetamine for Boeve, and that Boeve was setting the purchase price. Detective
Hill also testified that in mid-February 2019, there was a gang-related murder at a Holland hotel,
and that Boeve admitted during his interview and proffer that after the murder he was concerned
that “the heat was on” because “the feds were in town,” so he put Malanowski up in a hotel and
provided her with a cell phone so that she could coordinate his drug sales and he would not lose
money. R. 161, PID 711.
Based on the evidence and testimony presented at the sentencing hearing, the district court
determined that a four-level enhancement for a leadership role was appropriate. Specifically, the
district court found that there were “at least five or six other participants” in the conspiracy and
that Boeve exerted control over at least one other individual. The district court found that Boeve
had directed “Malanowski to set up in another hotel and sell his drugs” when he was worried about
police activity, and that fact warranted a finding that Malanowski was a participant in the
conspiracy over whom Boeve exerted control. R. 161, PID 736. The district court also found it
relevant that Boeve regularly fronted drugs to other members of the conspiracy and that he was
the main source of funding for the purchase of drugs from suppliers.
The district court accepted the PSR’s recommended grant of a two-level reduction for
acceptance of responsibility, over the objection of the Government. The district court stated that
the reduction was “extremely generous” given the circumstances. R. 161, 741. Because the
Government did not move for the additional one-level reduction for acceptance of responsibility,
the additional reduction in the PSR was not applicable. Based on those determinations, the district
-6-
No. 20-1102, United States v. Boeve
court calculated an offense level of 34 and a criminal-history level of V, which together yielded a
Guidelines range of 235 to 293 months in prison. The district court found that a sentence at the
low end of the advisory Guidelines range was appropriate and sentenced Boeve to concurrent
prison terms of 235 months on Count One and 120 months on Count Five.
II.
Boeve argues that the district court abused its discretion when it applied the four-level
leadership-role enhancement. Because the conclusion that a person is an organizer or leader under
Section 3B1.1 of the Sentencing Guidelines “depends on a number of factual nuances that a district
court is better positioned to evaluate,” this court applies a deferential standard in reviewing such
an enhancement. United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013).
Boeve makes two arguments in support of his challenge. First, he argues that the leadership
enhancement is inappropriate because Boeve did not exercise sufficient control or authority over
any individual in the conspiracy. Second, he argues that the factors courts consider in determining
whether to impose the leadership enhancement do not weigh in favor of its application here.
A.
Under the Sentencing Guidelines, an enhancement of four levels is appropriate if the
defendant “was an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a). Control of all participants is not required; the
enhancement is applicable if the defendant exercised control over even a single participant in the
conspiracy. See U.S.S.G. § 3B1.1 cmt. n.2; United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th
Cir. 2012).
Here, the district court found that there were “at least five or six other participants” in the
conspiracy. R. 161, PID 736. This finding is supported by Detective Hill’s testimony identifying
-7-
No. 20-1102, United States v. Boeve
at least seven individuals who were selling methamphetamine for Boeve. Boeve does not appear
to challenge this finding.
The district court also found that Boeve exerted control over at least one other individual,
because Boeve directed “Malanowski to set up in another hotel and sell his drugs” when he was
worried about police activity in the area. Id. Boeve argues that his “relationship with Danielle
Malanowski was insufficient to support the leadership enhancement.” Appellant Br. 19. He claims
that because Malanowski was his girlfriend, their relationship in the conspiracy should be
considered a “partnership” in which the conduct of each was in furtherance of the partnership as a
whole. Id. at 20. We disagree. Boeve and Malanowski’s personal relationship does not negate
the fact that Malanowski was selling Boeve’s drugs, on his behalf, at his instruction, so that he
could avoid detection by police while continuing to turn a profit. Thus, the district court did not
abuse its discretion in finding that Boeve exerted control over Malanowski.
Because there was sufficient support for the district court’s conclusion that Boeve exerted
control over Malanowski, we need not address Boeve’s additional arguments that fronting drugs
to other conspirators and exercising control of the funds used to purchase drugs do not justify a
leadership enhancement. Although these findings bolstered the district court’s determination that
Boeve acted in a leadership position, the district court’s finding that Boeve exerted control over
Malanowski was sufficient, on its own, to support the leadership enhancement.
B.
Boeve also argues that the district court did not properly weigh the factors relevant to the
imposition of the leadership enhancement. Again, we disagree. In determining whether a Section
3B1.1(a) enhancement is appropriate, a court should consider:
the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
-8-
No. 20-1102, United States v. Boeve
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
United States v. Hernandez, 227 F.3d 686, 699–700 (6th Cir. 2000) (quoting U.S.S.G. § 3B1.1
cmt. n.4).
As discussed, the district court properly found that Boeve exercised authority over at least
one member of the conspiracy, and there was testimony from Detective Hill that there were at least
seven individuals selling methamphetamine for Boeve. Thus, Boeve’s exercise of decision-
making authority, the nature of his participation in the commission of the offense, and the degree
of control and authority exercised over others all suggest that the enhancement was appropriate.
Although the district court did not discuss Boeve’s recruitment of accomplices, the PSR indicated
that at least one individual stated in his proffer that he was recruited by Boeve to sell
methamphetamine. There is no evidence suggesting that Boeve ever claimed a larger share of the
fruits of the crimes than his co-conspirators, and Bell’s testimony suggests that each co-conspirator
generally recovered a quantity of drugs equivalent to his contribution of money. Thus, this factor
does not support the imposition of the enhancement. Finally, although Boeve was only engaged
in the conspiracy for a few months before his arrest, he appears to have become a significant
supplier of methamphetamine during that period.
Thus, the majority of the factors considered under Section 3B1.1(a) weigh in favor of its
application, and therefore, the district court did not abuse its discretion in imposing the leadership
enhancement.
III.
For the foregoing reasons, we AFFIRM.
-9-