United States v. Orozco ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 5, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-6278
(D.C. No. CR-04-179-R)
ER ICK O RO ZC O, (W .D. Okla.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.
Appellant Erick Orozco appeals his conviction and sentence on one count
of conspiracy to commit money laundering. He argues that (1) there was
insufficient evidence of his involvement in the conspiracy; and (2) his sentence
was erroneously calculated, unreasonable, and in violation of United States v.
Booker, 543 U.S. 220 (2005). W e affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
B ACKGROUND
In 2004, M r. O rozco w as charged in a superceding indictment with two
counts: (1) conspiracy to distribute, and to possess with intent to distribute,
500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846; and
(2) conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956.
He pleaded not guilty.
At trial, the evidence introduced during the government’s case-in-chief
showed the following. In the summer of 2003, Oklahoma City police received
information that Dennis G onzalez, “a member of the Compton Varrio Tortilla
Flats gang out of California,” R., Vol. 6 at 27, was importing “ice
methamphetamine[ ] into Oklahoma City,” id. at 16. Eduardo Verduzco helped
run the operation and Jennifer Lujan acted as Gonzalez’s “No. 1 seller.” Id., Vol.
8 at 361.
Police conducted warrant-based searches of Lujan’s residence and an
apartment occupied by Verduzco in Oklahoma City, finding methamphetamine
consistent with “a larger-scale narcotics dealer,” id., Vol. 6 at 47, narcotics-
packaging and -w eighing instruments, and a notebook belonging to Verduzco.
The notebook contained “a running ledger of who owes what,” id. at 92, “an
expenses sheet,” id. at 95, and references to amounts of methamphetamine.
Appellant Erick Orozco’s name appeared several times throughout the notebook,
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indicating that various monetary “amounts for methamphetamine were owed to
M r. Orozco.” Id., Vol. 8 at 325.
Further investigation revealed that, from October 2002 to June 2003,
Gonzalez and his associates w ired funds from Oklahoma City to M r. Orozco in
California twenty-six times for a total of $33,764.99. The funds were wired under
fictitious names and in amounts that required minimal or no identification.
M r. Orozco received the w ires, supplying fourteen different telephone numbers
and ten different addresses. None of the addresses matched the one listed on his
driver’s license and five addresses did not exist at all. According to a special
agent in the Internal Revenue Service’s criminal-investigation division, Gonzalez
had no legitimate source of income that could have accounted for the money
wired to M r. Orozco.
Lujan testified for the government that on an occasion in which she
complained to Gonzalez about the quality of a methamphetamine shipment,
Gonzalez directed her to tell M r. Orozco. Two other witnesses, Vikki Cerda and
Bryan Friedman, testified that Lujan told them that M r. Orozco was supplying
methamphetamine for the operation. 1
1
M r. Orozco objects to our considering Cerda’s testimony that Lujan
identified him as a methamphetamine supplier. He asserts that Cerda’s testimony
“is inadmissible hearsay and should never have been presented to the jury.” A plt.
Br. at 36. But he did not object during trial. R., Vol. 7 at 175. And he does not
offer any specific argument against the district court’s pretrial ruling admitting
co-conspirator statements under Fed. R. Evid. 801(d)(2)(E), see R., Vol. 4 at 26.
(continued...)
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After unsuccessfully moving for a judgment of acquittal, M r. Orozco
testified in his own defense. He admitted that (1) he knew the money was coming
from Gonzalez, notwithstanding the different names used to send the wires; and
(2) he provided “false addresses and false phone numbers” to receive the wires,
id., Vol. 9 at 424. But M r. Orozco disputed any involvement in a conspiracy, and
he claimed that the money wired to him was in payment of a debt Gonzalez owed
to M r. Orozco’s deceased brother.
The jury could not reach a verdict on the drug-trafficking conspiracy count,
prompting the district court to declare a mistrial on that count and to dismiss it
without prejudice. But the jury did find M r. Orozco guilty of conspiring to
comm it money laundering.
The United States Probation Office prepared a presentence investigation
report (PSR ), calculating M r. Orozco’s base-offense level by converting the
amount of the laundered funds into an equivalent value of methamphetamine and
then selecting the appropriate number, thirty-four, from U.S.S.G. § 2D1.1’s
drug-quantity table. Two-levels were added under § 2S1.1(b)(2)(B) for engaging
in money laundering. Based on the resulting thirty-six level offense and a
category-four criminal history, the guideline for imprisonment was 262 to 327
1
(...continued)
Consequently, M r. O rozco’s objection on appeal is waived. See United States v.
Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).
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months. The PSR noted, however, that there was a 240-month statutory
maximum. See 18 U.S.C. § 1956(a)(1) & (h).
At the sentencing hearing, M r. Orozco objected to the calculation of his
base-offense level using any quantity of methamphetamine because the jury did
not convict him of the drug-trafficking conspiracy, and he sought to downplay his
criminal history, stating that he grew up in “a ghetto” and “was pushed into gang
activities,” but “didn’t get involved in gangs.” R., Vol. 3 at 15. The district court
followed the PSR and sentenced M r. Orozco to 240 months. In doing so, the
district court found that M r. Orozco was involved in Gonzalez’s drug-trafficking
operation and that he knew the wired funds came from that operation. The
district court also recognized the Guidelines’ advisory nature, declared that it had
considered the 18 U.S.C. § 3553(a) factors, 2 and concluded, “I think the
[G ]uidelines, particularly considering this defendant’s criminal history, are
appropriate.” R., Vol. 3 at 16. M r. Orozco appealed.
2
The 18 U.S.C. § 3553(a) factors include (1) the nature of the crime and the
characteristics of the defendant; (2) the need for the sentence to reflect the
seriousness of the crime, deter criminal conduct, protect the public, and provide
the defendant with needed training or treatment; (3) the kinds of available
sentences; (4) the sentencing range under the advisory Guidelines; (5) policy
statements issued by the Sentencing Commission; (6) the need to avoid sentencing
disparities among similar defendants; and (7) the need to provide restitution to
any victims of the crime.
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D ISCUSSION
I. Sufficiency of the Evidence
M r. Orozco argues that the government did not present sufficient evidence
for the jury to find him guilty of conspiracy to commit money laundering. In
reviewing for sufficiency of the evidence, we “view[ ] the evidence in the light
most favorable to the government,” and “[w]e will reverse a conviction only if no
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Willis, 476 F.3d 1121, 1124 (10th Cir.)
(quotation omitted), cert. denied, 127 S. Ct. 3025 (2007).
The elements of money laundering are met if an individual conducts a
financial transaction, such as moving funds by wire through interstate commerce,
knowing that the funds are the proceeds of unlaw ful activity, and with the intent,
as charged in this case, to promote the unlawful activity or to conceal the funds’
unlaw ful source. 18 U.S.C. § 1956(a)(1). A conviction for conspiracy to commit
money laundering requires proof of (1) an agreement with another person to
comm it money laundering; (2) knowledge of the essential objectives of the
conspiracy; (3) knowing and voluntary participation; and (4) interdependence
among the alleged co-conspirators. United States v. Chavis, 461 F.3d 1201, 1208
(10th Cir. 2006), cert. denied, 127 S. Ct. 2062 (2007).
M r. Orozco contends that the government failed to prove his knowledge of
the conspiracy’s objectives. W e disagree. As noted above, the government
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charged a dual objective money-laundering conspiracy: promoting further drug
trafficking and concealing drug proceeds. Regarding the promotion objective,
there was ample evidence that M r. Orozco supplied Gonzalez with
methamphetamine and received numerous w ires of money in connection with his
supplying activities. Evidence of this arrangement, which shows that Gonzalez
and M r. Orozco shared the common goal of trafficking in methamphetamine, was
sufficient to establish M r. Orozco’s knowledge of the conspiracy’s promotion
objective. See United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006)
(“To prove knowledge of the essential objectives of a conspiracy, the
government . . . only needs to demonstrate the defendant shared a common
purpose or design with his alleged coconspirators.” (quotation and citation
omitted)). As for the conspiracy’s concealment objective, we find the subterfuge
employed by M r. Orozco in receiving the wired funds, together with his
awareness that Gonzalez was w iring the funds using fake names, sufficient to
prove M r. Orozco’s knowledge that an objective of the conspiracy was to conceal
the funds’ source. 3
3
M r. Orozco devotes no discussion to support his further assertion that the
government “failed to prove that he voluntarily became part of th[e] conspiracy.”
Aplt. Br. at 32 (emphasis added). C onsequently, we do not consider it. See
United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004). Nor do we dwell
extensively on M r. Orozco’s cursory suggestion that he was an unknowing
participant in the conspiracy. A “defendant’s participation in or connection to the
conspiracy need only be slight” and may be presumed when the defendant acts in
furtherance of the conspiracy’s objectives. United States v. Johnston, 146 F.3d
(continued...)
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Additionally, we reject M r. Orozco’s argument that the jury’s failure to
reach a verdict on the drug-trafficking conspiracy count is somehow inconsistent
with there being sufficient evidence to support the guilty verdict on the
money-laundering conspiracy count. Because M r. Orozco was not acquitted by
the jury for the drug conspiracy and that count was dismissed without prejudice,
there does not appear to be any inconsistency. See United States v. Harris,
369 F.3d 1157, 1168 (10th Cir. 2004). In any event, “[c]onsistency in the verdict
is not necessary. Each count in an indictment is regarded as if it was a separate
indictment.” United States v. Powell, 469 U.S. 57, 62 (1984) (quotation omitted).
W e conclude that there was sufficient evidence to support M r. Orozco’s
conviction for conspiracy to commit money laundering.
II. Sentencing
“W e review the D istrict Court’s sentencing determination under a
reasonableness standard, which is guided by the statutory factors delineated in
18 U.S.C. § 3553(a).” United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir.
2007). R easonableness is assessed both procedurally and substantively. Id.
3
(...continued)
785, 789 (10th Cir. 1998). For many of the same reasons listed in our discussion
concerning M r. Orozco’s awareness of the conspiracy’s objectives, we conclude
that there was sufficient evidence that he knowingly participated in the
conspiracy.
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A. Procedural Reasonableness
“To impose a procedurally reasonable sentence, a district court must
calculate the proper advisory Guidelines range and apply the factors set forth in
§ 3553(a).” Id. (quotation omitted). W e review the district court’s application of
the Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Townley, 472 F.3d 1267, 1275-76 (10th Cir.), cert. denied, 127 S. Ct.
3069 (2007). An error is clear if, based “on the entire evidence, we are left with
the definite and firm conviction that a mistake has been committed.” United
States v. Wilfong, 475 F.3d 1214, 1218 (10th Cir. 2007) (quotation omitted).
M r. Orozco first challenges the calculation of his base-offense level under
the Sentencing Guidelines. The offense level for a money-laundering conspiracy
is the same level used for “the underlying offense from which the laundered funds
were derived,” so long as (1) the defendant either committed the underlying
offense or is accountable for the underlying offense through relevant conduct 4
and (2) the underlying offense level is ascertainable. U.S.S.G. § 2S1.1(a)(1).
M r. Orozco argues that the district court erred in using this provision because
the first condition was not met. Specifically, he claims that there was
insufficient evidence to hold him accountable for the trafficking of
4
Relevant conduct generally includes all acts and omissions comm itted by
the defendant and his confederates “that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of
attem pting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1).
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methamphetamine, as demonstrated by the jury’s inability to reach a verdict on
the trafficking-conspiracy count. W e disagree. Given the evidence that
M r. Orozco acted as a methamphetamine supplier for Gonzalez, the district
court’s finding that M r. Orozco was involved in the drug-trafficking operation
was not clearly erroneous and supports § 2S1.1(a)(1)’s application. See id.
§ 2S1.1 cmt. 2(B) (indicating that a defendant’s laundering of criminally derived
funds during involvement in the underlying offense renders the defendant
accountable for the underlying offense). The jury’s inability to reach a verdict is
irrelevant, because the district court could have considered M r. Orozco’s
involvement even if the jury had acquitted him. See United States v. Watts,
519 U.S. 148, 152, 153-54 (1997) (stating that sentencing courts must consider all
relevant conduct, “w hether or not it resulted in a conviction”).
M r. Orozco next contends that “[t]he district court relied solely on the
Sentencing Guidelines to impose a 240-month sentence . . . and did not consider
the factors enumerated in 18 U.S.C. § 3553(a) at the sentencing hearing.” A plt.
B r. at 46. B ecause he did not make a corresponding objection at the hearing, we
review only for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199
(10th Cir.), petition for cert. filed (U.S. M ay 24, 2007) (N o. 06-11540). “Plain
error occurs when there is (i) error, (ii) that is plain, which (iii) affects the
defendant’s substantial rights, and which (iv) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.-10-
Contrary to M r. Orozco’s assertion, the district court explicitly stated at the
sentencing hearing that it had considered the § 3553(a) factors, including his
criminal history. R., Vol. 3 at 16. It only neglected to recite its consideration on
the record, which is not error, let alone plain error, given that the sentence
imposed was properly calculated under the Guidelines, albeit subject to a
statutory cap below the Guidelines. See Ruiz-Terrazas, 477 F.3d at 1202 (noting
that “a specific discussion of [s]ection 3553(a) factors is not required for
sentences falling within the ranges suggested by the Guidelines”); see also Rita v.
United States, 127 S. Ct. 2456, 2468 (2007) (stating that “when a judge decides
simply to apply the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation”); United States v. Johnson, 445 F.3d 793, 798 (5th
Cir.) (concluding that “where the statutory maximum is lower than a
properly-calculated guidelines range, a statutory maximum sentence is
functionally equivalent to a sentence within the guidelines”), cert. denied, 126
S. Ct. 2884 (2006).
B. Substantive Reasonableness
M r. Orozco next argues that his 240-month sentence was unreasonably
long. The sentence is presumptively reasonable, however, as it was statutorily
capped below a properly calculated advisory Guidelines range. See Hildreth,
485 F.3d at 1129 (recognizing that a properly calculated Guidelines sentence is
presumed reasonable); Johnson, 445 F.3d at 798 (extending the reasonableness
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presumption “to statutory maximum sentences where that maximum falls below
the appropriate guidelines range”); United States v. Shafer, 438 F.3d 1225, 1227
(8th Cir. 2006) (same). M r. Orozco offers nothing to rebut that presumption other
than his assertion that there was insufficient evidence of his involvement in drug
trafficking, which we rejected above, and his claim that the district court punished
him for being a gang member, which is completely unsupported by the
sentencing-hearing transcript. W e conclude that M r. Orozco’s sentence is not
substantively unreasonable.
C. Booker
In United States v. Booker, the Supreme Court held that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” 543 U.S. 220, 244 (2005). M r. Orozco argues that the district court
violated Booker by finding that he was accountable for methamphetamine
distribution, even though the jury did not reach a verdict on the
distribution-conspiracy count and he did not admit involvement in drug
trafficking. This argument was not raised below. In any event, “because the
district court did not consider the guidelines mandatory, there was no Booker
error.” United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir. 2005),
cert. denied, 546 U.S. 1123 (2006); see also United States v. Townley, 472 F.3d
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1267, 1276 (10th Cir.) (“Appellant incorrectly argues that Booker error occurs
any time a district court enhances a sentence based on facts not found by a jury.
Rather, after Booker, a district court is not precluded from relying on judge-found
facts in determining the applicable Guidelines range so long as the G uidelines are
considered as advisory rather than mandatory.”), cert. denied, 127 S. Ct. 3069(2007).
C ONCLUSION
The judgment and sentence of the district court are AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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