United States v. Clara Vasquez , 285 F. App'x 699 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 25, 2008
No. 07-13450
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-20023-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARA VASQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 25, 2008)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Clara Vasquez appeals her 41-month sentence for conspiracy to launder the
proceeds of the sale of a controlled substance, in violation of 18 U.S.C.
§ 1956(a)(2)(B)(i), (h). She pled guilty to the § 1956(h) conspiracy charge, and
now appeals the sentence imposed by the district court.
Vasquez first argues that the district court inaccurately determined that she
would be subject to a higher guidelines range if a prior drug trafficking conviction
was considered part of the instant offense. The district court relied on the
probation officer’s determination that the money being smuggled was not related to
the prior drug offense because the marked bills used to purchase the cocaine
underlying that prior drug offense were not among the bills Vasquez was
smuggling. The district court judge responded to Vasquez’s contention that the
offences should be treated as related by informing Vasquez that if he were to
accept Vasquez’s argument, “[s]he would be facing a much higher guideline
calculation, the minimum of 57 months.” Rather than challenge the district court’s
statement, Vasquez instead chose to “withdraw that argument.” By doing so,
Vazquez invited the error she now challenges on appeal. “Where a party invites
error, the Court is precluded from reviewing that error on appeal.” United States v.
Harris, 443 F.3d 822, 823-24 (11th Cir. 2006) (citations omitted). Thus, Vasquez
cannot now challenge the district court’s reasoning because she tacitly accepted it
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at sentencing.1
Vasquez next argues that if her prior drug trafficking convictions and the
instant offense are not related, then the district court erred in enhancing her
guideline sentence by two levels under U.S.S.G. § 2S1.1(b)(2)(B) because the
object of the instant conspiracy was not drug trafficking, but rather failure to
report. We review objections to sentencing issues raised for the first time on
appeal for plain error. See United States v. Harness, 180 F.3d 1232, 1234 (11th
Cir. 1999).
According to the Guidelines, the guideline calculation for an offense under
18 U.S.C. § 1956(h) is found in § 2S1.1. See U.S.S.G., Appendix A. Section
2S1.1 contains the following specific offense characteristics: “If the defendant was
convicted under 18 U.S.C. § 1957, increase by 1 level . . . if the defendant was
convicted under 18 U.S.C. § 1956, increase by 2 levels.” U.S.S.G.
§ 2S1.1(b)(2)(A), (B). However, the two-level enhancement for a conviction under
18 U.S.C. § 1956 “shall not apply if the defendant was convicted of a conspiracy
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Vasquez also argues, for the first time on appeal, that her sentence would not have
increased because U.S.S.G. § 2D1.1 would not apply since “there was no evidence supporting
the amount of drugs” and that there “was no evidence presented on the type or value of the
narcotics allegedly sold to obtain the currency.” However, Vasquez’s prior drug trafficking
conviction, which she now argues is related, was for assisting in the sale of a kilogram of
cocaine. This evidence of her prior offense would be sufficient, were the offenses determined to
be related, to warrant the application of U.S.S.G. § 2D1.1. Thus, her argument fails.
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under 18 U.S.C. § 1956(h) and the sole object of that conspiracy was to commit an
offense set forth in 18 U.S.C. § 1957.” U.S.S.G. § 2S1.1, cmt. (n. 3(c)). The
difference between § 1956 and § 1957 is that § 1957 “criminalizes money
laundering where the proceeds derive from an unlawful activity . . . while § 1956
criminalizes money laundering where the defendant knows that the proceeds
derived from an unlawful activity . . . .” United States v. Torres-Valesquez, 480
F.3d 100, 104 n.1 (1st Cir. 2007).
In this case, Count 1 of the indictment, to which Vasquez pled guilty,
charged Vasquez with conspiracy to launder proceeds of drug sales, in violation of
18 U.S.C. § 1956(a)(2)(B)(i), (h). Since the record clearly demonstrates that the
offense for which Vasquez pled guilty involves a conviction under 18 U.S.C.
§ 1956, the object of which was an offense under 18 U.S.C. § 1956 and not § 1957,
the district court did not err, plainly or otherwise, when it applied the two-level
enhancement under U.S.S.G. § 2S1.1(b)(2)(B).
Vasquez also argues that the district court erred when it attributed co-
conspirator Henry Muriel’s conduct to her for purposes of establishing her base
offense level. We review the district court’s interpretation and application of the
Guidelines de novo and its underlying factual findings for clear error. United States
v. McVay, 447 F.3d 1348, 1352-53 (11th Cir.2006).
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The Guidelines provide that in the context of jointly undertaken criminal
activity, the correct base offense level shall be determined on the basis of “all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). When determining the
defendant’s accountability for the conduct of others, the court must determine the
scope of the criminal activity that the particular defendant agreed to undertake.
See U.S.S.G. § 1B1.3, cmt. (n.2). A defendant’s relevant conduct for sentencing
includes the conduct of others that was both in furtherance of and reasonably
foreseeable in connection with the jointly undertaken criminal activity. See
U.S.S.G. § 1B1.3, cmt. (n.2).
Here, the record amply supports the district court’s factual finding that
Vasquez should be held accountable for the money recovered from Muriel. By
Vasquez’s own admission, she was aware that Muriel was transporting drug money
to Colombia. At the outset of the sentencing hearing, Vasquez admitted that she
knew of Muriel’s recruitment, but contended that she did not participate or assist in
recruiting him. Furthermore, although she did not know how much or to whom he
was delivering the money, Vasquez admitted that she was aware that Muriel was
transporting money to Colombia. Finally, in a conversation recorded by a
confidential informant, Vasquez talked about having been stopped at the Miami
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airport, and stated that she hoped that Muriel had not “snitched” to law
enforcement. It is reasonable to conclude from this comment that Muriel and
Vasquez had an implicit agreement to undertake smuggling together and were
aware of each other’s plans. Thus, the court did not clearly err in concluding that
the acts of Muriel were reasonably foreseeable and in furtherance of the criminal
venture to which Vazquez was a party.
Finally, Vasquez argues that her sentence is unreasonable because the
district court failed to adequately consider the § 3553(a) factors. Vasquez argues
that there are various factors which were presented at the sentencing hearing that
support a below-guideline sentence. Specifically, Vasquez points to the delay in
prosecuting this offense, her age, family responsibilities, her record since her
release from federal custody, and her efforts at rehabilitation. Vasquez argues that
the district court’s failure to consider these factors in imposing the 41-month
sentence was an abuse of discretion.
We review the final sentence imposed by the district court for
reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).
The Supreme Court recently clarified that the reasonableness standard is
synonymous with the abuse of discretion standard. Gall v. United States, __ U.S.
__, __, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). The district court must
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impose a sentence that is both procedurally and substantively reasonable. See
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).
The district court imposed a procedurally reasonable sentence in this case.
The district court correctly calculated the Guidelines range, did not treat the
Guidelines as mandatory, and the record demonstrates that the district court
considered the facts in the pre-sentence investigation report and took into account
the § 3553(a) factors.
Vasquez’s sentence is also substantively reasonable. Vasquez was not only
involved in the sale and distribution of drugs, she was participating with others to
smuggle money from the United States to Colombia. The offense was serious
since there was more than $175,000 involved and the money involved was
admittedly the proceeds of the sale of drugs. Nothing in the record undermines our
ordinary expectation of reasonableness for a within-guideline-range sentence, and
Vasquez has not established that her sentence is unreasonable in light of the record
and the § 3553(a) factors.
Upon careful review of the record on appeal and consideration of the parties’
briefs, we discern no error. Accordingly, we affirm.
AFFIRMED.
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