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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10559
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20341-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO OJEDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 9, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Gilberto Ojeda appeals his conviction and sentence for conspiracy to launder
the proceeds of the manufacture and sale of narcotics, in violation of 18 U.S.C.
§ 1956(h). He argues that the district court abused its discretion by denying his
motion to dismiss his indictment based on a violation of his Sixth Amendment
right to a speedy trial. He additionally argues that the district court clearly erred in
finding that he knew the laundered money was derived from drug trafficking
activity, participated in laundering funds totaling more than $250,000, and did not
play a minor role in the offense.
I.
We review the denial of a motion to dismiss the indictment for an abuse of
discretion. United States v. York,
428 F.3d 1325, 1331 n.8 (11th Cir. 2005).
Whether the government deprived a defendant of his constitutional right to a
speedy trial is a mixed question of law and fact. United States v. Villarreal,
613
F.3d 1344, 1349 (11th Cir. 2010). We review the district court’s legal conclusions
de novo and its factual findings for clear error.
Id.
The Sixth Amendment to the Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. Const.
amend. VI. “Because of the unique policies underlying this right, a court must set
aside any judgment of conviction, vacate any sentence imposed, and dismiss the
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indictment if it finds a violation of the defendant’s right to a speedy trial.”
Villarreal, 613 F.3d at 1349.
A defendant’s voluntary, unconditional guilty plea waives all non-
jurisdictional defects in the proceedings against him. United States v. Brown,
752
F.3d 1344, 1347 (11th Cir. 2014). A defendant who wishes to plead guilty may
preserve his appeal rights by entering a conditional plea. Fed. R. Crim. P. 11(a)(2).
Such a plea must be made “[w]ith the consent of the court and the government,”
and must “reserv[e] in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2);
see also United States Pierre,
120 F.3d 1153, 1155 (11th Cir. 1997). We have
specifically stated that a Sixth Amendment speedy trial claim is waived by a guilty
plea. See
Pierre, 120 F.3d at 1155 (noting that the right to a speedy trial has been
repeatedly been held to be waived by a guilty plea).
Here, Ojeda waived his right to appeal the order denying his motion to
dismiss the indictment based on a violation of his Sixth Amendment right to a
speedy trial by entering an unconditional guilty plea.
II.
We review a district court’s findings of fact for clear error and its application
of the Sentencing Guidelines to the facts de novo. United States v. Demarest,
570
F.3d 1232, 1239 (11th Cir. 2009). We will remand for clear error only if we are
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“left with a definite and firm conviction that a mistake has been committed.”
United States v. Crawford,
407 F.3d 1174, 1177 (11th Cir. 2005) (quotation marks
omitted). A district court’s choice between two permissible views of the evidence
is not clear error. United States v. De Varon,
175 F.3d 930, 945 (11th Cir. 1999)
(en banc).
Under U.S.S.G. § 2S1.1(b)(1), the district court should apply a six-level
enhancement if § 2S1.1(a)(2) applies and the defendant knew or believed that the
laundered funds were the proceeds of a controlled substance. See U.S.S.G.
§ 2S1.1(b)(1)(A), (B)(i). When applying a sentencing enhancement, the
government may use circumstantial evidence to prove the mental state of the
defendant. United States v. Frazier,
605 F.3d 1271, 1282 (11th Cir. 2010).
Here, the district court did not clearly err when it applied a six-level
enhancement for laundering drug proceeds because it had sufficient circumstantial
evidence to support a finding that Ojeda knew the laundered funds were the
proceeds of drug-trafficking activity.
III.
We review the district court’s determination of the facts concerning the
amount of money involved in a money laundering scheme only for clear error.
United States v. Martin,
320 F.3d 1223, 1225 (11th Cir. 2003).
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For offenses involving money laundering, the sentencing guidelines provide
an increase to a defendant’s offense level depending on the value of the laundered
funds. U.S.S.G. § 2B1.1(b)(1). Section 2B1.1(I) provides for a 12-level
enhancement where the loss from an offense is between $250,000 and $550,000.
U.S.S.G. § 2B1.1(b)(1)(E), (G).
Unless otherwise specified, relevant conduct of the defendant shall be used
to determine sentencing. U.S.S.G. § 1B1.3(a). Relevant conduct includes “all acts
and omissions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A).
When the government seeks to apply an offense enhancement under the Sentencing
Guidelines over a defendant’s factual objection, the government has the burden of
providing reliable and specific evidence in support of the enhancement. United
States v. Washington,
714 F.3d 1358, 1361 (11th Cir. 2013). In calculating the
value of laundered funds, “the district court is required to consider the total amount
of funds that it believed was involved in the course of criminal conduct.”
Martin,
320 F.3d at 1226 (quotation marks omitted).
Here, the district court did not clearly err when it determined that the
preponderance of the evidence showed that Ojeda had personally laundered a sum
over $250,000 by delivering cash to his co-conspirators on three occasions. Co-
conspirator Reyes admitted in his factual proffer that he stated to IRS agents that
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Ojeda delivered $99,848 on January 29, 2013, and $99,610 on January 22, 2013.
The district court could have inferred Ojeda’s involvement in the August 2012
delivery from circumstantial evidence as well as from Reyes’ factual proffer.
Involvement in the three deliveries would reach the $250,000 threshold.
IV.
We review a district court’s denial of a role reduction for clear error. United
States v. Bernal-Benitez,
594 F.3d 1303, 1320 (11th Cir. 2010). The defendant
bears the burden of establishing his minor role in the offense by a preponderance
of the evidence.
Id. The clear-error standard gives great deference to the court for
this factual inquiry, as the court “is in the best position to weigh and assess both
the defendant’s role in [his] relevant conduct and the relative degrees of culpability
of the other participants in that conduct.” De
Varon, 175 F.3d at 938.
The Sentencing Guidelines provide for a two-level reduction of the base
offense level if a defendant was a minor participant in the criminal activity.
U.S.S.G. § 3B1.2(b). A minor participant is one “who is less culpable than most
other participants, but whose role could not be described as minimal.”
Id., cmt.
(n.5). The determination of whether to apply a mitigating-role adjustment “is
heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2, cmt.
(n.3(C)). The application notes also explain that a defendant being paid to perform
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certain tasks should be considered for a role adjustment under this section.
Id.,
cmt. (n.3(C)).
The district court must compare the defendant’s role in the offense with the
relevant conduct for which he has been held accountable with respect to
calculating his base offense level.
Bernal-Benitez, 594 F.3d at 1320. A defendant
must prove that he played a lesser role in the relevant conduct attributed to him,
and will fail to carry his burden if either his actual conduct is more serious than his
base offense level suggests or the relevant conduct attributed to him is identical to
his actual conduct. De
Varon, 175 F.3d at 941–43 (noting, for example, that unless
there are additional facts as to the defendant’s status and assigned tasks within the
scheme, a drug courier’s own act of importation alone will not qualify him for a
minor-role reduction). However, “the fact that a defendant’s role may be less than
that of other participants engaged in the relevant conduct may not be dispositive of
role in the offense, since it is possible that none are minor or minimal participants.”
United States v. Alvarez-Coria,
447 F.3d 1340, 1343 (11th Cir. 2006) (brackets and
quotation marks omitted).
The Sentencing Guidelines provide the following factors to determine
whether a defendant’s conduct warrants a minor role reduction:
(i) the degree to which the defendant understood the scope and structure
of the criminal activity;
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(ii) the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts; [and]
(v) the degree to which the defendant stood to benefit from the criminal
activity.
U.S.S.G. § 3B1.2, cmt. (n.3(c)); see also United States v. Cruickshank,
837 F.3d
1182, 1194 (11th Cir. 2016).
Here, the district court did not clearly err when it denied a minor role
reduction because circumstantial evidence supported the conclusion that Ojeda did
not play a minor role in the offense and because the conduct for which he was
charged was not greater than his actual conduct. Although Ojeda contends that he
was merely a one-time courier, he failed to carry his burden to prove that he played
a lesser role in his offense than the conduct attributed to him in calculating his base
offense level. Further, the confidential informant’s notes provided circumstantial
evidence supporting that Ojeda understood the scope of the activity of the
conspiracy by communicating with his co-conspirators in Colombia. The record
also supported a finding that Ojeda participated equally in the planning or
organizing of the laundering when he directed Ceballos and Reyes to receive
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funds. Because the district court could have inferred Ojeda had a larger role from
this evidence, it did not clearly err when it denied the reduction.
AFFIRMED.
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