United States v. Bolster

1

UNITED STATES OF AMERICA v. MICHAEL BOLSTER

No. 2:23-cr-00109-JAW-1

United States District Court, D. Maine

May 29, 2024

SENTENCING ORDER

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.

In this sentencing order, the court explains that it will comply with the provisions of the United States Sentencing Guidelines and caselaw from the Court of Appeals for the First Circuit in assessing the drug quantity attributable to a defendant who has been convicted of engaging in a drug-trafficking conspiracy.

I. BACKGROUND

On July 28, 2023, the Government filed a criminal complaint against Michael Bolster and his wife Jessica Bolster, alleging that in July 2023, they had engaged in the distribution of controlled substances, namely fentanyl, in violation of federal criminal law. Compl. (ECF No. 3). On October 4, 2023, in Count One, a federal grand jury indicted Mr Bolster, Ms. Bolster, and Darwin Mateo, charging Mr. and Ms Bolster with engaging in a conspiracy to distribute fentanyl between July 12, 2023 and August 3, 2023. Indictment (ECF No. 49). As regards Mr. Bolster, the indictment charged that his conduct as a member of the conspiracy, together with the reasonably foreseeable conduct of other members, involved 40 grams or more of a mixture or substance containing fentanyl. Id. at 1-2. Counts Two and Three alleged specific instances of distribution of fentanyl by Mr. Bolster. Id. at 2.

On January 18, 2024, Mr. Bolster pleaded guilty to all three charges. Min. Entry (ECF No. 91). At his guilty plea hearing, Mr. Bolster admitted the accuracy of a prosecution version of the offenses, which stated that he had “knowingly and intentionally conspired with Jessica Bolster and others known and unknown to distribute and possess with the intent to distribute 40 grams or more of a mixture or substance containing [fentanyl].” Pros. Version at 1 (ECF No. 89). The prosecution version detailed two instances where Mr. Bolster sold fentanyl: a July 12, 2023 sale of 9 grams and a July 13, 2023 sale of 30 grams. Id. at 1-2. On July 26, 2023, Mr. Bolster arranged for a sale of 29 grams, and Ms. Bolster completed the sale later that day. Id. at 2. Then on August 3, 2023, law enforcement searched the Bolster residence and found two bundles: one containing 301 grams of a mixture or substance containing fentanyl and the other 240 grams of a mixture or substance containing fentanyl. Id. Mr. Bolster admitted that “[a] trained and experienced agent would testify that the quantity of seized fentanyl is consistent with further distribution and inconsistent with personal use.” Id.

On April 2, 2024, the United States Probation Office (PO) completed a Revised Presentence Investigation Report (PSR). Revised Presentence Investigation Report (ECF NO. 107) (PSR). Describing the offense conduct, the PSR states that Mr. and Ms. Bolster were distributing cocaine and fentanyl from their apartment in Biddeford, Maine, and allowed two young males, who were his source of supply, to sell drugs from the apartment. Id. ¶ 5.

In calculating the drug quantity attributable to Mr. Bolster, the PSR eliminated three controlled buys from Mr. and Ms. Bolster in July 2023. Id. ¶ 10. The PSR included the drugs seized from the Bolster residence on August 3, 2023 and added a historical report that Mr. Bolster bought 12 sticks (120 grams) from “Charlie” / “Jason.” Id. The PSR calculated the total drug quantity to equal 662.1 grams. Id.

Based on this drug quantity, the PSR fixed Mr. Bolster's base offense level at 30 pursuant to United States Sentencing Guideline (USSG) § 2D1.1(a)(5), increased this level by two for maintaining a premises for the purpose of drug distribution pursuant to USSG § 2D1.1(b)(12), and granted a three-level reduction for acceptance of responsibility under USSG § 3E1.1, for a total offense level of 29. Id. ¶¶ 19-28. The PSR calculated Mr. Bolster's criminal history as IV. Id. ¶¶ 31-42. With a total offense level of 29 and a criminal history category of IV, the PSR calculated the guideline sentence range to equal 121 to 151 months. Id. ¶ 75.

II. DRUG QUANTITY

At the presentence conference, defense counsel raised several issues, including drug quantity, the enhancement for drug-involved premises, subtraction of personal use amounts, Sixth Amendment exclusion of prior convictions, and a request for a variant sentence. Sentencing Legal Mem. Addressing Relevant Conduct at 8 (ECF No. 120) (Def.'s Mem.). Defense counsel elected to brief only the drug quantity issue, leaving the other issues for resolution at the sentencing hearing. Id.

A. The Defendant's Position

Mr. Bolster characterizes the PSR as having taken a “broad view of relevant conduct” in arriving at 662.1 grams of drug quantity. Id. at 1. Mr. Bolster argues that the PO “believed the charged conduct of 68.842 grams of fentanyl, should be substituted for the real offense conduct involving the greater amounts.” Id. at 2. Mr. Bolster observes that the PO described the Bolster home as a “trap house,” and he objects to this characterization, arguing that it relies on evidence from cooperating sources. Id. Mr. Bolster points out that the transactions themselves took place away from the Bolster residence, and that there is no evidence that the Bolsters allowed the courier who stayed with them to deal drugs from their apartment. Id. In fact, Mr. Bolster maintains that they had tried to stop the courier from staying with them, but they were unable to do so because the drugs belonged to the courier. Id. at 3.

Mr. Bolster turns to First Circuit law. Contrasting United States v. Nieves-Melendez, 58 F.4th 569 (1st Cir. 2023), where the First Circuit concluded that the defendant forfeited the argument that he should not have been held responsible for drugs in his apartment, Mr. Bolster points out that he is objecting to this determination by the PO. Id. (quoting Nieves-Melendez, 58 F.4th at 579). Here, Mr. Bolster points out that the courier only gave the Bolsters a couple of sticks of fentanyl, about 20 grams, in exchange for staying with them. Id. Mr. Bolster says that even if he may have known that the courier was “generally in the business of distributing drugs,” he “denies that he had sufficient knowledge to aid and abet the courier, nor were the 661.2 grams foreseeable to him within the scope of an agreement that involved tens of grams of fentanyl not hundreds.” Id. at 4. Mr. Bolster says that the Court has “an obligation to make an individualized finding of drug quantity in a case where there is jointly undertaken criminal activity.” Id.

Mr. Bolster examines First Circuit caselaw that requires an individualized finding of drug quantity in order to apply a statutory mandatory minimum sentence. Id. at 4-5. Quoting United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004), Mr. Bolster contends that the Court must make an individualized finding that he was properly held responsible for only those drugs reasonably foreseeable to him in jointly undertaken criminal activity. Id.

Quoting USSG § 1B1.3(a)(1), Mr. Bolster contends that the 661.2 grams is improperly deemed relevant conduct as he was not personally responsible for that amount simply because he allowed a drug courier to stay at his home and because the amounts the drug courier brought were not reasonably foreseeable to Mr. Bolster. Id. at 5. Mr. Bolster argues that the Court should “not include more than 70.2 grams as Mr. Bolster's relevant conduct.” Id.

Conceding that USSG § 1B1.3 n.4 provides commentary that seems to include the full amount of drugs in a suitcase, even though the transporter knew only that there were drugs in the suitcase, not the actual amount, Mr. Bolster nevertheless asserts “that the law in the United States draws a fundamental distinction between possession of a container like a suitcase and possession of a residence with other people.” Id. To be responsible for aiding and abetting, Mr. Bolster compares an accomplice's knowledge of a confederate's design to carry a gun under Rosemond v. United States, 572 U.S. 65, 78 (2014). Id. By way of his analogy, it would be necessary for Mr. Bolster to know the drug quantity before he allowed the courier to stay at his house in order for him to have aided and abetted a 21 U.S.C. § 841(b)(1)(A) offense.” Id. at 6-7. Citing United States v. Wood, 924 F.2d 399, 404 (1st Cir. 1991), Mr. Bolster states that “any quantity above the upper end of 140 grams for base offense level of 24 under the guidelines falls within the exception to relevant conduct promulgated in [Wood].” Id. at 7.

Mr. Bolster turns to the foreseeability requirement. Id. at 8. Quoting United States v. O'Campo, 973 F.2d 1015, 1026 (1st Cir. 1992), he argues that he “did not know the extent of the quantities that would be involved in the courier's possession and he did not see evidence that it exceeded what he would be given as payment.” Id. at 8. In short, Mr. Bolster contends that 661.2 grams of fentanyl “should not be attributed to him because it was not foreseeable that allowing the courier to stay at his home would involve such a quantity.” Id.

B. The Government's Response

On May 23, 2024, the Government responded. Gov't's Sent. Mem. (ECF No. 127) (Gov't's Opp'n). In its memorandum, the Government lists the evidence it anticipates offering at the sentencing hearing: video recordings of statements made by Mr. Bolster during his August 3, 2023 post-arrest interview, video recording of the July 26, 2023 controlled purchase at his residence, and law enforcement reports. Id. at 2. The Government says it will show:

1) That Mr. Bolster and Ms. Bolster, his wife and co-defendant, resided at 84 Granite Street, Biddeford, Maine;

2) That Mr. Bolster allowed Darwin Mateo and “Jason,” associates of a known

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