United States v. Calderon-Lozano ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1977
UNITED STATES,
Appellee,
v.
ALETSYS CALDERÓN-LOZANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges,
and Katzmann, Judge.
Davis Ramos Pagan, was on brief, for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief, for appellee.
January 10, 2019

Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. Aletsys Calderón-Lozano (“Calderón-
Lozano”) received a guideline sentence of 46 months of imprisonment
for conspiracy to launder monetary instruments in violation of 18
U.S.C. § 1956(h). On appeal, Calderón-Lozano challenges the
procedural and substantive reasonableness of his sentence. We
affirm the district court’s sentence.
Between February 25 and 26, 2016, Calderón-Lozano and an
undercover Homeland Security Investigations (“HSI”) agent arranged
a meeting to deliver money. As agreed, Calderón-Lozano sent his
associate (and co-defendant) to deliver $80,000 to the agent. The
$80,000 was then deposited into a bank account and divided between
two accounts in the amount of $52,000 and $23,080 respectively.
On March 23, 2016, Calderón-Lozano arranged another money delivery
with the undercover agent. This time, Calderón-Lozano himself
delivered $100,000. The money was again deposited and divided
between two bank accounts, in the amount of $59,951 and $34,067
respectively. After his arrest, Calderón-Lozano told
investigative agents that “his job in Puerto Rico is to collect
money from drug sales and deliver it to people.” When Calderón-
Lozano entered a straight guilty plea to the conspiracy count, his
lawyer stated that the defendant was not pleading guilty to the
specific unlawful activity of drug importation. The district
court, although noting that the defendant had admitted to his
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involvement in the drug trafficking deliveries to agents,
indicated that it would decide the issue at sentencing.
The third and final amended presentence report (“PSR”)
provided an imprisonment range of 87 to 108 months under the U.S.
Federal Sentencing Guidelines (“Guidelines”). This calculation
included a six-level enhancement for knowing or believing that the
laundered funds were drug proceeds pursuant to U.S.S.G.
§ 2S1.1(b)(1).
In his sentencing memorandum, Calderón-Lozano discussed
his difficult childhood and current familial ties. He also
requested a variant sentence, stating that “[a]lthough there is no
cooperation agreement in this case, the Court should consider the
information [he] provided to federal agents when he was arrested.”
Calderón-Lozano did not object to the PSR’s six-level increase for
knowing or believing that the laundered funds were drug proceeds
pursuant to U.S.S.G. § 2S1.1(b)(1).
At sentencing, Calderón-Lozano again argued for a
variant sentence. Calderón-Lozano urged the district court to
disregard his statements to HSI agents in assessing whether he
knew that the money was from drug trafficking. Calderón-Lozano
conceded that he told the agents that “his job in Puerto Rico is
to collect money from drug sales and deliver it to people.” He
also conceded that he does not have a proffer letter, that the
“government is legally and rightfully using” his “post-arrest,
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pre-counsel statements, and that these statements are sufficient
to prove the six-point enhancement.” He later clarified that he
was “not objecting to the fact that there is a factual basis for
the six point enhancement [as] [t]here clearly is,” but instead
was “making an equity argument.” He argued for a sentence within
the total offense level (“TOL”) of 17 for a guideline range of 24
to 30 months.
The United States (“the government”) opposed a variance.
The government argued that Calderón-Lozano failed to object to the
six-level enhancement in the PSR and that the statements are post-
arrest statements, not part of a cooperation agreement. Noting
that “Mr. Calderón[-Lozano] was approached on numerous times to
see if he wanted to sit down and cooperate, and on each occasion,
he declined,” the government asserted that “[t]here is simply just
no authority to argue that a post-arrest statement should qualify
for a variant sentence.” Finally, the government argued that
Calderón-Lozano’s statements were not useful and “led to nothing.”
Accordingly, the government recommended a sentence of 46 to 57
months, within the guideline range for a TOL of 23.
Ultimately, the district court followed the guideline
calculations in the PSR and calculated a TOL of 23, which included
the six-level drug-trafficking enhancement. The district court
found specifically that “[b]ecause Mr. Calderón[-Lozano] knew or
believed that the laundered funds were the proceeds of or were
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intended to promote an offense involving the manufacture,
importation, or distribution of controlled substances, the offense
level is increased by another six levels pursuant to sentencing
guideline section 2S1.1(b)(1).” With a TOL of 23 and a criminal
history category of I, the district court calculated Calderón-
Lozano’s guideline sentencing range to be 46 to 57 months of
imprisonment. Before imposing his sentence, the district court
expressly stated that it considered the relevant 18 U.S.C.
§ 3553(a) sentencing factors. Reiterating that the six-level
enhancement applied because Calderón-Lozano’s statements were
merely unhelpful post-arrest statements, the district court
sentenced Calderón-Lozano to a low-end guideline sentence of 46
months of imprisonment. Calderón-Lozano objected to the district
court’s denial of his variance request and objected to the sentence
as procedurally and substantively unreasonable. This appeal
ensued.
I.
Calderón-Lozano argues that the district court abused
its discretion by applying a six-level enhancement pursuant to
U.S.S.G. § 2S1.1(b)(1) when it was not proven that he knew that
his crime involved drug trafficking proceeds.
This Court reviews criminal sentences for abuse of
discretion. United States v. Flores-Machicote, 706 F.3d 16, 20
(1st Cir. 2013). “[W]here there is more than one plausible view
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of the circumstances, the sentencing court’s choice among
supportable alternatives cannot be clearly erroneous.” United
States v. Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017) (quoting
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)). We
review unpreserved challenges to guideline calculations under the
more daunting plain error standard. United States v. Arsenault,
833 F.3d 24, 28 (1st Cir. 2016). Because Calderón-Lozano twice
failed to object to the factual basis for the enhancement by not
objecting to the PSR and at the sentencing hearing, he did not
preserve his challenge to the guideline calculations, and his claim
can be reviewed under the plain error standard.
In any event, the district court did not err, much less
plainly err, in applying the six-level drug-trafficking proceeds
enhancement pursuant to U.S.S.G. § 2S1.1(b)(1) because there was
sufficient evidence that Calderón-Lozano knew that the sentencing
court is entitled to rely on the uncontested facts in the PSR.
United States v. González, 857 F.3d 46, 61-62 (1st Cir. 2017)
(internal quotations and citations omitted). The PSR included
information that Calderón-Lozano gave to the HSI agents showing he
had knowledge that the laundered funds were proceeds of an offense
involving narcotics. Calderón-Lozano admitted to the HSI agents
“that his job in Puerto Rico . . . was to collect money from drug
sales and deliver it to people that would launder the money and
wire transfer it to different parts of the world.” He also
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“admitted that his roommate in Puerto Rico would coordinate the
drug shipments from Saint Maarten, and that he was present during
said coordination.” He further “admitted that once the drugs came
in, he was responsible for picking up the money and delivering it
to associates with capacity to launder the drug proceeds.” These
uncontested admissions, as listed in the PSR, provided the district
court ample evidence to establish by a preponderance of the
evidence that Calderón-Lozano knew that the laundered funds were
drug-trafficking proceeds.1 See United States v. Dixon, 449 F.3d
194, 200-01 (1st. Cir. 2006).
II.
Calderón-Lozano also asserts that his 46-month sentence
is both procedurally and substantively unreasonable.
We review preserved claims of sentencing error for abuse
of discretion. United States v. Córtes-Medina, 819 F.3d 566, 569
(1st Cir. 2016). “In reviewing a sentence, [this Court] seek[s]
to ensure that it is both procedurally sound and substantively
reasonable.” United States v. Dávila-González, 595 F.3d 42, 47
1
Calderón-Lozano’s assertion that “the PSR also states that
[he] made no statements as to the relation of said money with drug
trafficking (PSR29),” is misleading. Paragraph 29 states that
Calderón-Lozano made no such statements during his acceptance-of-
responsibility interview on June 27, 2017, but does not address
the interview that Calderón-Lozano conducted with HSI agents.
According to PSR Paragraph 23, Calderón-Lozano’s statements to HSI
agents “showed his knowledge that the laundered funds were proceeds
of an offense involving narcotics.”
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(1st Cir. 2010). Procedural errors include “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 . . .
.” Gall v. United States, 552 U.S. 38, 45-46 (2007). When
reviewing a sentence, we remain “mindful that deference to the
trial court is a lineament of appellate review of federal criminal
sentences.” United States v. Del Valle-Rodríguez, 761 F.3d 171,
176 (1st Cir. 2014). Because Calderón-Lozano objected to the
district court’s denial of his variance request based on its
alleged failure to consider his willingness to cooperate, he
preserved this issue for appeal. Accordingly, this claim is
reviewed for abuse of discretion. See Córtes-Medina, 819 F.3d at
569.
The district court did not abuse its discretion because
it considered all relevant § 3553(a) sentencing factors, including
Calderón-Lozano’s alleged attempts to cooperate with the
government. Section 3553(a) requires the sentencing court to
“impose a sentence sufficient, but not greater than necessary,” to
deter criminal conduct, protect the public from the defendant’s
future crimes, and meet the defendant’s educational and medical
needs. The district court, however, “is not required to address
[each] factor[], one by one, in some sort of rote incantation when
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explicating its sentencing decision.” Dixon, 449 F.3d at 205.
Moreover, “[a] criminal defendant is entitled to a weighing of the
section 3553(a) factors that are relevant to [his] case, not to a
particular result.” United States v. Carrasco-De-Jesús, 589 F.3d
22, 29 (1st Cir. 2009). In imposing the low-end guideline
sentence, the district court expressly stated that it considered
the “nature and circumstances” of the offense as well as “the other
sentencing factors set forth in Title 18, United States Code
section 3553(a).” A district court’s explicit statement that it
considered the § 3553(a) factors is “entitled to significant
weight.” United States v. Arroyo-Maldonado, 791 F.3d 193, 199
(1st Cir. 2015) (citing United States v. Santiago-Rivera, 744 F.3d
229, 233 (1st Cir. 2014)). The district court weighed those
mitigating factors against Calderón-Lozano’s participation in the
instant offense, which was “the coordination of a $100,000 pickup,
and delivery and pick up of $80,000 [of] . . . laundered funds
which were proceeds of . . . distribution of narcotics.” Noting
Calderón-Lozano’s admissions to the HSI agents, the district court
found that he knew the money laundered was the proceeds of drug
trafficking. Rather than viewing his post-arrest statements as
mitigation, as Calderón-Lozano suggests, the district court
properly factored Calderón-Lozano’s admissions into his role in
the offense. The district court expressly referenced its
consideration of these statements during its § 3553(a) analysis.
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The district court also considered the government’s argument that
although Calderón-Lozano had several opportunities to cooperate,
he declined to do so, and thus declined to take advantage of a
cooperation agreement.
Nor is there any evidence that the district court
misunderstood its discretion to consider Calderón-Lozano’s alleged
cooperation. See United States v. Landrón-Class, 696 F.3d 62, 77-
78 (1st Cir. 2012). Calderón-Lozano’s post-arrest statements here
were “vehemently argued by [both] counsel[s] and specifically
acknowledged by the court immediately before it imposed sentence.”
United States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir. 2015).
See also Landrón-Class, 696 F.3d at 77-78. Thus, the district
court properly weighed the § 3553(a) sentencing factors and did
not abuse its discretion in imposing a 46-month imprisonment
sentence.
Calderón-Lozano’s sentence is also substantively
reasonable because the district court provided “a plausible
sentencing rationale and a defensible result,” United States v.
Martin, 520 F.3d 87, 96 (1st Cir. 2008), considering the severity
of the instant offense and that Calderón-Lozano’s sentence is well
below the statutory maximum of 20 years of imprisonment. Moreover,
because Calderón-Lozano’s sentence is at the low end of the
properly calculated guideline sentencing range, it “deserves ‘a
presumption of reasonableness.’” United States v. Llanos-Falero,
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847 F.3d 29, 36 (1st Cir. 2017), cert. denied, 137 S. Ct. 2229
(2017) (quoting Cortés-Medina, 819 F.3d at 572). Thus, Calderón-
Lozano’s 46-month sentence was “not greater than necessary,”
§ 3553(a), but rather, was “within the wide universe of reasonable
sentences.” See United States v. Rivera-Berríos, 902 F.3d 20, 27
(1st Cir. 2018).
The sentence is affirmed.
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