United States v. Adorno-Molina , 774 F.3d 116 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1065
UNITED STATES,
Appellee,
v.
MARVA ADORNO-MOLINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan Pérez-Giménez, U.S. District Judge]
Before
Howard, Selya, and Lipez,
Circuit Judges.
Raymond L. Sanchez Maceira for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
December 19, 2014
LIPEZ, Circuit Judge. Appellant Marva Adorno-Molina
("Adorno") was convicted on drug trafficking conspiracy and money
laundering charges related to her involvement in a wide-ranging
drug trafficking organization led by Angel Ayala-Vazquez ("Ayala").
Adorno challenges her drug conspiracy conviction on sufficiency
grounds. She also argues that her money laundering conviction
should be vacated pursuant to United States v. Santos, 553 U.S. 507
(2008), because the government failed to prove that the monies
laundered were "net profits" of drug-trafficking, not merely "gross
revenues." Additionally, she contends that the district court
erred when it gave a willful blindness instruction to the jury, and
when it relied on the money laundering proceeds to establish a base
offense level at sentencing. We reject Adorno's arguments and
affirm the convictions and sentence.
I.
Because Adorno's appeal follows the jury's finding of
guilt, and she challenges the sufficiency of the evidence, we view
the facts in the light most favorable to the verdict. United
States v. Rodríguez, 731 F.3d 20, 23 (1st Cir. 2013).
Ayala was the leader of a drug trafficking organization
("DTO") using as its base the Jose Celso Barbosa Public Housing
Project and the Sierra Linda Public Housing Project in Bayamón,
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Puerto Rico.1 Ayala's DTO required many vehicles to transport
drugs and firearms, secure proceeds from drug sales, and elude
authorities. Alberto Meléndez-Sáez ("Meléndez") was in charge of
procuring vehicles for Ayala's DTO.
In 2007, Adorno was a financing manager for Bella
International's Honda and Acura dealership on Kennedy Avenue in San
Juan, Puerto Rico. During her time at Bella International, Adorno
befriended Meléndez and assisted him with procuring many vehicles.
Meléndez and Adorno would use "straw owners" to conceal the fact
that the vehicles were being purchased for Ayala's DTO. Adorno and
Meléndez would recruit prospective straw owners by seeking out
individuals in need of extra money. They would tell the straw
owners that professionals with bad credit required assistance
purchasing vehicles. Adorno and Meléndez paid the straw owners
$2,000 to $5,000 per vehicle once they signed the purchase
documents and became the registered owner of a vehicle.
For example, one straw owner, Mary Soto, testified that
Adorno convinced her to act as a straw owner for five vehicles from
July to September 2007 by using the professionals with bad credit
1
Ayala was convicted of multiple charges relating to his
leadership of the drug trafficking organization and is serving a
life sentence. See United States v. Ayala-Vazquez, 751 F.3d 1, 6
(1st Cir. 2014).
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rationale. In exchange for signing the purchase documents,
Meléndez paid Soto $4,000 to $5,000 per vehicle.
Although the cars were technically titled in the straw
owners' names, they never drove the cars. Instead, Meléndez or
individuals who worked with him would pick up the vehicles directly
from the dealership lot. Meléndez and Adorno also paid for all
vehicle-related expenses, including the down payment, monthly loan
payments, and insurance.
Meléndez and Adorno procured cars from both Bella
International and other dealerships in Puerto Rico. At Bella
International, they usually worked with the same salesperson, Luis
Martínez. Martínez testified that whenever Meléndez wanted to
purchase a vehicle, the transaction was "very easy" and was
"squared away" by Adorno and Meléndez ahead of time. All Martínez
had to do was find the requested vehicle from the dealership lot.
Instead of delivering the vehicle to the straw owner who signed the
purchase documents, Martínez would give the car directly to
Meléndez.
Meléndez would visit Adorno at Bella International at
least three times per week. Adorno liked to conduct business with
Meléndez in private. Whenever they would exchange money in her
office, Adorno would ask Martínez to leave them alone.
Nevertheless, at times, Martínez saw Meléndez deliver cash to
Adorno, either from his pockets or in a paper bag.
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Top management at Bella International became concerned
about Adorno's business practices. The accounts receivable for
many of her clients were not paid on time, and many payments were
more than 30 days late. Bella International had difficulty when it
tried to collect on those accounts because the documentation
completed by Adorno contained inaccurate information. Her
supervisor, José Colon Ayala, investigated her sales and discovered
that many of Adorno and Martínez's clients would purchase multiple
cars in a brief one-to-two month period as straw owners for other
individuals. As a result of the investigation, Bella International
fired both Adorno and Martínez in October 2007. After her
dismissal from Bella International, Adorno continued to help
Meléndez procure cars from other dealerships. For example, in
December 2007, she helped straw owner Agustín Treviño purchase five
cars from the Autocentro, Autogermana, Lexus de San Juan, and
Triangle Honda dealerships.
Many of the vehicles purchased through Adorno and
Meléndez's scheme were later used in criminal activity, some of
which was linked to Ayala's DTO. For example, in May 2009, a white
BMW with license plate HFQ 548 was involved in a murder and
shootout at Pájaros Park. The same vehicle had been purchased by
Treviño in December 2007. After the shootout, the police stopped
the white BMW, arrested its three occupants, and seized the vehicle
and four Glock pistols found inside. Police Sergeant Benjamín
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Burgos-Del Toro testified that members of Ayala's DTO were involved
in the shootout.
Other vehicles purchased through the scheme were driven
by members of Ayala's DTO. On May 11, 2009, the police stopped
Diego Cardona while he was driving a white Acura MDX with license
plate HAC 284. Earlier that morning, FBI Special Agent Joseph
González observed Ayala himself driving the same vehicle. The
Acura MDX had been purchased at Bella International by straw owner
Arenymar Ortíz-Valle under Adorno's direction.
Some straw owners became concerned when they learned that
the vehicles they had purchased were connected to criminal
activity. For example, in 2008, an agent from the U.S. Drug
Enforcement Administration ("DEA") contacted Treviño after the DEA
had confiscated a black Toyota Highlander he had purchased.
Treviño subsequently contacted Adorno, who told him that the
vehicle was confiscated because "[the driver] got stopped for
something . . . and the person was carrying I think more than
$10,000.00 and he couldn't prove that it was from his business."
Adorno instructed Treviño to retrieve the vehicle. She arranged
for Treviño to meet with an individual at Toyota Credit, where the
DEA had transferred the black Highlander. The individual paid
Toyota Credit approximately $40,000 to pay off the remainder of the
loan amount and obtain the vehicle.
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A few weeks later, Treviño learned from the newspaper
that a gray Toyota Highlander, similar to one that he had purchased
under Adorno's direction, had been involved in a crime. Treviño
again contacted Adorno, who instructed him to report the car as
stolen. Treviño refused and asked Adorno to return to him all of
the vehicles he had purchased. In response, Adorno said: "[Y]ou
know what, if I was you I would just be quiet because this thing is
bigger than what you think it is, and there is a lot of people
involved in this." Scared by Adorno's warning, Treviño agreed to
be quiet and did not bring up the issue again.
In addition to acquiring vehicles, Adorno also procured
an apartment used by Ayala's DTO. In June 2009, she helped obtain
a lease on an apartment located at the Astralis Condominium complex
in Isla Verde. She personally paid the apartment's $2,050 monthly
rent from June to October 2009. In February 2010, the DEA executed
a search warrant for the apartment and found drug packing
materials, loaders for semiautomatic weapons, ammunition boxes, and
$240,260 in cash. The apartment also contained several documents,
including a DEA investigation report about Ayala's DTO and a
vehicle registration for a BMW M5 registered in Adorno's name.
Adorno was arrested on October 2, 2009. She was charged
with conspiracy to possess with intent to distribute controlled
substances in violation of 21 U.S.C. § 846 (count one) and
conspiracy to launder money in violation of 18 U.S.C. § 1956 (count
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nine), as one of 65 defendants in a multi-defendant, eleven-count
indictment relating to Ayala's drug trafficking activities. After
a ten-day trial, in which she was tried alone, Adorno was found
guilty on both counts. The district court sentenced Adorno to 121
months' imprisonment as to each count, to be served concurrently.
This timely appeal followed.
II.
Adorno raises three challenges to her convictions:
sufficiency challenges to the drug trafficking and money laundering
conspiracy convictions as well as a claim of instructional error.
We review each in turn.
A. Drug Trafficking Conspiracy
We review preserved challenges to the sufficiency of
evidence de novo. United States v. Ihenacho, 716 F.3d 266, 279
(1st Cir. 2013). In analyzing such claims, we consider "'whether
any rational factfinder could have found that the evidence
presented at trial, together with all reasonable inferences, viewed
in the light most favorable to the government, established each
element of the particular offense beyond a reasonable doubt.'"
United States v. Willson, 708 F.3d 47, 52 (1st Cir. 2013) (quoting
United States v. Poulin, 631 F.3d 17, 22 (1st Cir. 2011)).
To sustain a conspiracy conviction under § 846, "the
evidence must show that: (1) a conspiracy existed; (2) the
defendant had knowledge of the conspiracy; and (3) the defendant
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knowingly and voluntarily participated in the conspiracy." United
States v. Maryea, 704 F.3d 55, 73 (1st Cir. 2013). To prove the
third element, the government must establish "that the defendant
both intended to join the conspiracy charged and intended to
effectuate the objects of that conspiracy." Id. The defendant's
specific intent "may be established through circumstantial evidence
alone." United States v. Cortés-Cabán, 691 F.3d 1, 15 (1st Cir.
2012).
Adorno concedes that the evidence presented at trial was
sufficient to establish a drug trafficking conspiracy led by Ayala,
and that Meléndez participated in the conspiracy by procuring cars
through straw owners. Adorno also admits that the government
established that she knew or was willfully blind "that something
illegal was afoot" in her scheme for procuring vehicles. However,
Adorno argues that the government failed to prove that she
knowingly participated in the conspiracy because the evidence did
not show that she was aware that the cars she helped Meléndez
acquire were being used for Ayala's DTO.
Adorno's argument is unavailing. The record contains
ample circumstantial evidence to demonstrate that Adorno knew she
was assisting Ayala's DTO through her actions. First, Adorno had
a close working relationship with Meléndez, who visited her at
least three times per week at Bella International to purchase cars
through straw owners for Ayala's DTO. Because of their close
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working relationship involving matters essential to the operations
of the DTO, the jury could, in the circumstances of this case,
reasonably infer that Adorno knew that the vehicles she obtained
with Meléndez -- an Ayala associate -- were in furtherance of a
drug-trafficking conspiracy led by Ayala. Cf. United States v.
Azubike, 564 F.3d 59, 64-65 (1st Cir. 2009) (finding that a jury
could infer that defendant knew that drugs were inside his
briefcase because of his close relationship with drug trafficker).
The fact that Meléndez entrusted Adorno to facilitate the
acquisition of vehicles for Ayala's DTO further supports this
conclusion. See id. at 65 ("[D]rug organizations do not usually
take unnecessary risks by trusting critical transactions to
outsiders." (internal quotation marks omitted)).
Second, vehicles obtained through Adorno were
subsequently involved in criminal activity linked to Ayala's DTO
and were seen driven by Ayala and his associates. When straw owner
Agustín Treviño contacted Adorno after discovering that a gray
Toyota Highlander he had purchased was involved in a crime, she
warned him to be quiet because "this thing is bigger than what you
think it is, and there is a lot of people involved in this."
Adorno's statement creates a reasonable inference that she not only
knew "that something illegal was afoot" but also the specific
nature of the underlying criminal activity, a wide-ranging drug
trafficking conspiracy involving Ayala, Meléndez, and others.
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Finally, Adorno obtained a lease on an apartment at the
Astralis Condominium complex used by Ayala's DTO. The apartment
directly connects Adorno to the drug trafficking conspiracy. She
paid for the apartment every month until her arrest in October
2009. When DEA agents searched the apartment, they found drug
packing materials, weapons, $240,260 in cash, a car registration
document in Adorno's name, and a DEA investigation report about
Ayala's DTO. Adorno's relationship with Meléndez, the vehicles'
involvement in crimes linked to Ayala's DTO, and Adorno's
connection to the Astralis Condominium apartment are sufficient
circumstantial evidence to permit a reasonable jury to conclude
that Adorno knew she was assisting Ayala's DTO with her actions.2
B. Money Laundering Conspiracy
Adorno challenges her conviction for money laundering in
violation of 18 U.S.C. § 1956 on the ground that the government did
not prove that the money she laundered was the "net profits" of
2
Adorno also contends that the trial evidence regarding her
drug trafficking conspiracy conviction prejudicially varied from
the allegations in her indictment. While the government may have
proven a conspiracy between Adorno and Meléndez, she argues that it
failed to connect Adorno to Ayala's DTO. The parties dispute
whether Adorno properly preserved this argument in the district
court and whether we should apply de novo or a more deferential
standard of review. We do not need to resolve this dispute
because, even under de novo review, Adorno's argument has no merit.
Adorno's variance argument simply rehashes her sufficiency argument
and fails for the same reasons. See Maryea, 704 F.3d at 73
(rejecting "[a] claim that the Government’s proof varied
impermissibly from the charges contained in the indictment" where
it "is essentially a challenge to the sufficiency of the evidence"
(internal quotation marks omitted)).
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drug-trafficking in accordance with United States v. Santos, 553
U.S. 507 (2008). The government argues that, properly read, Santos
only requires it to demonstrate that the laundered funds were
"gross revenues" from the sale of illicit drugs. We review this
preserved question of law de novo. See United States v. Troy, 618
F.3d 27, 31 (1st Cir. 2010).
Section 1956 makes it a crime to engage in a "financial
transaction" involving "the proceeds of specified unlawful
activity" with the intent either to "promote the carrying on" of
that activity, or to "conceal or disguise" the proceeds of that
activity. 18 U.S.C. § 1956. In Santos, the Supreme Court had to
determine whether "proceeds" should be interpreted broadly to mean
"receipts" of specified unlawful activity or narrowly to include
only the "profits" of such activity. 553 U.S. at 509. Santos had
been convicted of operating an illegal lottery in violation of 18
U.S.C. § 1955, as well as conspiracy to launder money and money
laundering involving funds derived from the lottery. Id. at
509–10. The transactions underlying Santos's money laundering
conviction involved his payments to employees who collected bets
from gamblers, as well as payments to the lottery winners. Id.
Applying the rule of lenity, a four-Justice plurality held that the
word "proceeds" in § 1956 means "profits."3 Id. at 510–14. The
3
In response to the plurality's opinion in Santos, Congress
amended § 1956 in 2009 to define "proceeds" as "gross receipts" in
all cases. See Fraud Enforcement and Recovery Act of 2009, Pub. L.
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plurality was concerned that "[i]f 'proceeds' meant 'receipts,'
nearly every violation of the illegal-lottery statute would also be
a violation of the money laundering statute." Id. at 515. That
would be so because "paying a winning bettor is a transaction
involving receipts that the defendant intends to promote the
carrying on of the lottery." Id. This would create a "merger"
problem -- prosecutors could charge money-laundering, with its
twenty-year maximum sentence, in any lottery case, even though the
lottery statute carried a maximum of five years. Id. at 516.
Justice Stevens delivered the tie-breaking vote. He
concurred in the judgment that "proceeds" means "profits" where the
specified unlawful activity is illegal gambling because the
legislative history of § 1956 was silent as to this type of
activity, and, therefore, the rule of lenity should apply. Id. at
524–28 (Stevens, J., concurring). However, Justice Stevens
reasoned that the definition of "proceeds" could vary depending on
which unlawful activity formed the predicate for the money
laundering charge. Id. at 525. Justice Stevens agreed with the
four dissenting Justices that "the legislative history of § 1956
makes it clear that Congress intended the term 'proceeds' to
include gross revenues from the sale of contraband and the
No. 111–21, § 2(f)(1), 123 Stat. 1617, 1618 (2009) (codified at 18
U.S.C. § 1956(c)(9)). The amendment is not retroactive and,
therefore, has no effect on this case because Adorno's charges stem
from her conduct in 2007 and 2008. See United States v. Grasso,
724 F.3d 1077, 1092 (9th Cir. 2013).
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operation of organized crime syndicates involving such sales." Id.
at 525–26; see also id. at 532 n.1 (Alito, J.,
dissenting)("not[ing] that five Justices agree with the position
taken by Justice Stevens on [this] matter").
Justice Stevens's concurrence is the controlling law.
See Santos, 553 U.S. at 523 (plurality opinion) ("Since [Justice
Stevens's] vote is necessary to our judgment, and since his opinion
rests upon the narrower ground, the Court's holding is limited
accordingly."); see also Marks v. United States, 430 U.S. 188, 193
(1977) ("When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds." (internal quotation marks omitted)).
In Santos, a majority of the Supreme Court (Justice
Stevens and the four dissenting Justices) reasoned that "proceeds"
means "gross revenues" -- not "profits" -- when the predicate
offense involves the "sale of contraband and the operation of
organized crime syndicates involving such sales." 553 U.S. at 526.
Drug trafficking is one such offense. Therefore, Adorno's argument
fails because the government needed to prove only that the
laundered funds were gross revenues of Ayala's DTO, which Adorno
concedes that it did. Our sister circuits have uniformly come to
the same conclusion. See, e.g., United States v. Richardson, 658
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F.3d 333, 340 (3d Cir. 2011) (holding that "'proceeds' means gross
receipts" in drug trafficking case); Wilson v. Roy, 643 F.3d 433,
436-37 (5th Cir. 2011) (finding that "when the laundered money is
derived from the sale of drugs and other contraband, Congress used
'proceeds' in § 1956 to mean receipts rather than profits" because
"five Justices agree with the position taken by Justice Stevens on
the matter"); United States v. Quinones, 635 F.3d 590, 600 (2d Cir.
2011) (holding that "'proceeds' under 18 U.S.C. § 1956 are not
limited to 'profits' at least where, as here, the predicate offense
involves the sale of contraband"); Brace v. United States, 634 F.3d
1167, 1170 n.3 (10th Cir. 2011) ("Santos does not hold that
'proceeds' means 'profits' in the context of drug sales. Justice
Stevens, the critical fifth vote in Santos, explicitly departed
from the plurality's conclusion that 'proceeds' means 'profits' in
the context of drug sales.") (emphasis in original); United States
v. Webster, 623 F.3d 901, 906 (9th Cir. 2010) ("We . . . read
Santos as holding that where, as here, a money laundering count is
based on transfers among co-conspirators of money from the sale of
drugs, 'proceeds' includes all 'receipts' from such sales.");
United States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010) ("As
Justice Stevens made clear in his concurring opinion in Santos, the
predicate offense of conspiracy to distribute cocaine does not fall
within the category of offenses for which 'proceeds' means
'profits.'"); United States v. Spencer, 592 F.3d 866, 879 (8th Cir.
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2010) ("[T]his court agrees . . . that Santos does not apply in the
drug context."); United States v. Demarest, 570 F.3d 1232, 1242
(11th Cir. 2009) (concluding that "the narrow holding in Santos"
does not apply when "the laundered funds were the proceeds of an
enterprise engaged in illegal drug trafficking").
C. Willful Blindness Instruction
Adorno contends that the district court erred when it
gave a willful blindness instruction to the jury on the money
laundering count. She has preserved her challenge to the giving of
the instruction. Although "[w]e have not definitively resolved
what standard of review we apply to the district court’s decision
to give a willful blindness instruction," United States v. Appolon,
695 F.3d 44, 63 (1st Cir. 2012) (internal citation omitted), we do
not need to resolve that issue here because Adorno's claim fails
even under de novo review.
A willful blindness instruction is appropriate if "(1) a
defendant claims a lack of knowledge, (2) the facts suggest a
conscious course of deliberate ignorance, and (3) the instruction,
taken as a whole, cannot be misunderstood as mandating an inference
of knowledge." Azubike, 564 F.3d at 66. Adorno argues that the
facts presented at her trial were insufficient to justify the
instruction. Specifically, she contends that the trial evidence
could not prove that Adorno knew or was willfully blind to the fact
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that the money she laundered through car sales came from Ayala's
DTO.
The district court did not err in giving the willful
blindness instruction. As demonstrated above, see Part II.A supra,
there was sufficient circumstantial evidence that Adorno either
knew or deliberately ignored that the laundered proceeds originated
from Ayala's DTO. The instruction was warranted because "the
record evidence reveals 'flags' of suspicion that, uninvestigated,
suggest willful blindness." Azubike, 564 F.3d at 66 (quoting
United States v. Epstein, 426 F.3d 431, 440 (1st Cir. 2005)). The
use of straw owners to purchase vehicles, the frequent cash
transfers between Adorno and Meléndez, and the vehicles'
involvement in crimes linked to Ayala's DTO were "sufficient
warning signs [to Adorno] that call out for investigation or
evidence of [her] deliberate avoidance of knowledge" of the money
laundering conspiracy. Id.
III.
Adorno also challenges her 121-month sentence. She
argues that the district court erred when it relied on the money
laundering proceeds to establish a base offense level at
sentencing. Adorno's argument has two parts. First, she contends
that the district court failed to give advance notice under Federal
Rule of Criminal Procedure 32(h) that it intended to use the value
of the laundered funds -- instead of the quantity of drugs -- to
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calculate a base offense level under the advisory Sentencing
Guidelines. Second, she contends that the district court's
calculation of $1,153,137.30 in laundered funds was inaccurate.
Both contentions fail.
Because Adorno did not raise these sentencing challenges
in the district court, we review for plain error. See United
States v. Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011)
("When a defendant fails to preserve an objection below, the plain
error standard supplants the customary standard of review."
(alteration omitted)). To succeed on plain error review, Adorno
must show: "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." United States v.
Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009) (internal quotation marks
and citation omitted). In the sentencing context, a defendant must
demonstrate that, but for the error, there is a reasonable
probability that the court would have imposed a more favorable
sentence. See id. at n.5.
A. Notice Under Federal Rule of Criminal Procedure 32(h)
Prior to Adorno's sentencing, the probation officer
prepared a presentence investigation report ("PSR") that calculated
Adorno's base offense level using the quantity of drugs underlying
her drug-trafficking conspiracy conviction. Adorno challenged the
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probation officer's determination on the ground that the government
failed to prove the exact quantity of drugs that was attributable
to, or foreseeable by, Adorno. See Fernández-Hernández, 652 F.3d
at 71; United States v. Colón-Solís, 354 F.3d 101, 103-04 (1st Cir.
2004). At sentencing, the district court did not resolve the
dispute. The court ignored the probation officer's recommendation
to determine Adorno's base offense level using the quantity of
drugs, and instead relied on the amount of laundered funds, which
it calculated to be $1,153,137.30.
Adorno does not dispute that the district court was
permitted to rely on the value of the laundered funds to calculate
her base offense level under the Sentencing Guidelines.4 See
U.S.S.G. § 2S1.1(a)(2). However, she argues that the court should
have given her advance notice under Fed. R. Crim. P. 32(h) that it
was planning to do so. Rule 32(h) states that "[b]efore the court
may depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in a
party's prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure." In
Irizarry v. United States, the Supreme Court interpreted Rule 32(h)
4
Section 2S1.1(a) of the Sentencing Guidelines states that
when an defendant is convicted of money laundering, the base
offense level can either be established using "[t]he offense level
for the underlying offense from which the laundered funds were
derived" -- in this case, the quantity of drugs underlying Adorno's
drug-trafficking conspiracy conviction -- or "the number of offense
levels . . . corresponding to the value of the laundered funds."
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narrowly, holding that the rule applies only to authorized
"departures" under the Sentencing Guidelines and not to
"variances," non-Guidelines sentences that result from the
sentencing judge's consideration of factors under 18 U.S.C. § 3553.
See 553 U.S. 708, 714 (2008) (holding that Rule 32(h) "does not
apply to 18 U.S.C. § 3553 variances by its terms. 'Departure' is
a term of art under the Guidelines and refers only to
non-Guidelines sentences imposed under the framework set out in the
Guidelines."). In this case, the district court sentenced Adorno
to 121 months, which was within the Guideline range of 121 to 151
months. Therefore, Rule 32(h) is inapplicable to Adorno's
sentence.
B. Amount of Laundered Funds
In a money laundering conspiracy, the amount of laundered
funds attributable to a defendant "includes not only that which he
handled but also the amount he could reasonably have foreseen would
be laundered through the conspiracy." United States v.
Rivera-Rodríguez, 318 F.3d 268, 273 (1st Cir. 2003) (citing
U.S.S.G. § 1B1.3(a)(1)). When calculating the amount of loss to
determine an offense level for sentencing purposes, a district
court "need only make a reasonable estimate of the loss."
Ihenacho, 716 F.3d at 278 (citing U.S.S.G. § 2B1.1, cmt. n.3(C)).
The court's calculation is entitled to deference because it "is in
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a unique position to assess the evidence and estimate the loss
based upon that evidence." U.S.S.G. § 2B1.1, cmt. n.3(C).
Adorno argues that the district court erred in
calculating the amount of laundered funds attributed to her as
$1,153,137.30, producing a base offense level of 24. See id.
§§ 2S1.1(b)& 2B1.1. However, she has not offered an alternative to
the district court's tally. Although the court did not provide
any explanation for its calculation, the government argues that the
trial record shows twenty car purchases, eighteen car insurance
payments, and two cash deposits attributable to Adorno, which
totaled $1,155,948.91. The government's figure would also have
established a base offense level of 24. See id.
Based upon our own detailed review of the record, the
district court's calculation appears to be a "reasonable estimate"
of the amount of laundered funds attributable to Adorno. Id.
§ 2B1.1, cmt. n.3(C). Therefore, there was no plain error.
Affirmed.
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