United States v. Neal Armstrong , 165 F. App'x 768 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 31, 2006
No. 05-12959 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00084-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEAL ARMSTRONG,
a.k.a. Neil Armstrong,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(January 31, 2006)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Neal Roman Armstrong (“Armstrong”) appeals his
conviction and 109-month sentence for conspiracy to launder monetary
instruments, in violation of 18 U.S.C. § 1956(h). After review, we affirm
Armstrong’s conviction and sentence.
I. BACKGROUND
On May 9, 2003, Wallace Pickett (“Pickett”) was arrested in Montgomery,
Alabama, for taking possession of a package containing 499.5 grams of cocaine
that had been mailed to him from the United States Virgin Islands. After a series
of interviews, Pickett eventually informed federal authorities that Armstrong had
mailed the cocaine from the Virgin Islands, that Armstrong had supplied Pickett
with cocaine on multiple occasions, and that Pickett paid Armstrong for the
cocaine by United States Postal Money Orders. Pickett also informed the
authorities that he sometimes directed Roderick Perkins (“Perkins”) to purchase the
money orders sent to Armstrong.
On May 5, 2004, Armstrong was charged in a four-count indictment with
conspiracy to distribute and possession with intent to distribute cocaine (Count I),
distribution of cocaine (Count II), mailing injurious materials (Count III), and
conspiracy to launder monetary instruments (Count IV). Prior to trial, the
government voluntarily dismissed Count III.
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Both Pickett and Perkins testified at Armstrong’s trial. Pickett testified that
he met Armstrong in Montgomery, Alabama in the summer of 2002, at which point
they agreed to conduct business related to cocaine distribution. According to
Pickett’s testimony, Armstrong shipped cocaine from the Virgin Islands to Pickett
on three or four occasions, beginning in March 2003. Pickett testified that
Armstrong sent roughly a quarter kilogram of cocaine on at least two occasions
and roughly half a kilogram of cocaine once, in the package intercepted by
authorities on May 9, 2003. Per Armstrong’s instructions, Pickett paid Armstrong
for the cocaine by sending postal money orders by express mail.
Perkins testified that he sometimes assisted Pickett in purchasing and
sending money orders to Armstrong. When Perkins purchased and mailed the
money orders, Perkins was aware that they were being sent to Armstrong as
payment for cocaine, which Armstrong was sending from the Virgin Islands to
Montgomery, Alabama.
The government also presented evidence that (1) Armstrong had signed for
express mail packages sent by Pickett and Perkins on April 15, 2003, and May 5,
2003; (2) Armstrong’s sister signed for an express mail package from Pickett and
Perkins on April 23, 2003; and (3) Armstrong endorsed and signed for five money
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orders totaling $5,000, which had been purchased by Pickett and Perkins on April
15, 2003.1
On November 3, 2004, the jury found Armstrong guilty of Count IV,
conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(h).
The jury could not reach a unanimous decision as to Counts I and II. After trial,
the district court granted the government’s motion to dismiss Counts I and II with
prejudice.
The United States Probation Office prepared a presentence investigation
report (“PSI”). The PSI determined that Armstrong was accountable for the 499.5
grams of cocaine Pickett received in May 2004 and for two separate 250-gram
packages Pickett received in April 2004, for a total amount of 999.5 grams of
cocaine. As such, the PSI recommended a base offense level of 26. See U.S.
Sentencing Guidelines § 2S1.1(a)(1) (stating that the base offense level for a
charge of conspiracy to launder monetary instruments in circumstances applicable
to Armstrong is “[t]he offense level for the underlying offense from which the
laundered funds were derived”); U.S.S.G. § 2D1.1(c)(7) (assigning a base offense
1
According to Pickett and Perkins, they purchased and sent to Armstrong money orders
totaling $5,000 on April 15, $5,000 on April 23, and $8,000 on May 5. However, the
government presented evidence identifying Armstrong’s endorsement and signature only on the
April 15 money orders. The endorsements and signatures for the remaining money orders, sent
by Pickett and Perkins to the Virgin Islands, could not be traced to any known person.
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level of 26 for unlawful distribution of at least 500 grams but less than two
kilograms of cocaine). The PSI also recommended a specific offense enhancement
of two levels, see U.S.S.G. § 2S1.1(b)(2)(B) (two-level enhancement for violation
of 18 U.S.C. § 1956), and a two-level enhancement for obstruction of justice, see
U.S.S.G. § 3C1.1, for an adjusted offense level of 30. The PSI assigned Armstrong
a criminal history category of I, with a resulting guidelines imprisonment range of
97 to 121 months.
The district court conducted a sentencing hearing on February 23, 2005.
After hearing from witnesses, the district court found by a preponderance of the
evidence that 999.5 grams of cocaine should be attributed to Armstrong and that
Armstrong had obstructed justice by attempting to solicit the murder of Wallace
Pickett prior to trial. The district court rejected Armstrong’s argument that
enhancing his sentence based on these findings would violate United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), asserting that such extra-verdict
enhancements were permissible under an advisory guideline system. After
considering the advisory guidelines range for an offense level of 30 and criminal
history category of I, the district court sentenced Armstrong to 109 months in
prison, finding such a sentence reasonable.
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II. DISCUSSION
Armstrong was convicted of violating 18 U.S.C. § 1956(h), which makes it
unlawful to “conspire[] to commit any offense defined in [18 U.S.C. § 1956]. . . .”
18 U.S.C. § 1956(h) (emphasis added). Specifically, Armstrong was convicted of
conspiring to commit the offense defined by 18 U.S.C. § 1956(a)(1)(A)(i). That
subsection of Section 1956 makes it unlawful (1) to conduct or attempt to conduct
a financial transaction (2) that the defendant knows involves the proceeds of some
form of unlawful activity (3) with “the intent to promote the carrying on of [the]
specified unlawful activity.” 18 U.S.C. § 1956 (a)(1)(A)(i); see United States v.
Carcione, 272 F.3d 1297, 1302 (11th Cir. 2001) (quoting 18 U.S.C.
§ 1956(a)(1)(A)(i)). At trial, the government presented evidence that (1)
Armstrong cashed or attempted to cash the money orders mailed by Pickett and
Perkins; (2) Armstrong knew that the money orders represented the proceeds of the
illegal sale of cocaine; and (3) Armstrong took the money in exchange for cocaine
he shipped to Perkins with intent to facilitate the illegal sale of cocaine.
On appeal, Armstrong argues that the evidence was insufficient to support a
guilty verdict on Count IV in two respects. First, Armstrong contends that the
government presented no evidence that he concealed or disguised the nature or
source of the money orders he cashed. While Armstrong is correct, concealment is
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not a necessary element of the offense of which he was convicted, see 18 U.S.C.
§ 1956(a)(1)(A)(i); United States v. Williamson, 339 F.3d 1295, 1301 n.15 (11th
Cir. 2003), cert. denied, 540 U.S. 1184, 124 S.Ct. 1427 (2004).2 No evidence of
concealment was necessary to convict Armstrong of Count IV.
Second, Armstrong asserts that because he was not convicted of the
conspiracy to distribute cocaine charged in Count I, his § 1956(h) conviction for
conspiracy to launder monetary instruments derived from the same distribution of
cocaine must be reversed. Contrary to Armstrong’s argument, “[a defendant’s]
personal involvement in, or guilt of, the [underlying drug activity] is not an
element of the money laundering charge he was convicted of in this case.” United
States v. Magluta, 418 F.3d 1166, 1174 (11th Cir. 2005). The government did not
need to prove Armstrong’s personal involvement in drug activities, but rather only
that Armstrong, “with the requisite knowledge and intent, conducted a financial
transaction involving the proceeds of felony drug offenses.” Id.; see also United
States v. Lozano-Hernandez, 89 F.3d 785, 789 (11th Cir. 1996) (conviction on only
one of two related counts may be upheld where “[d]ifferent elements comprise the
two offenses, and, in any event, inconsistent jury verdicts are not necessarily a
2
While concealment is an element of 18 U.S.C. § 1956(a)(1)(B)(i), Armstrong was
convicted of conspiracy to violate 18 U.S.C. § 1956(a)(1)(A)(i). Concealment is not an element
of 18 U.S.C. § 1956(a)(1)(A)(i).
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cause for reversal of a conviction.”) (citing United States v. Powell, 469 U.S. 57,
65-67, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984)).
Finally, Armstrong argues that his constitutional rights were violated
because his sentence was enhanced based on facts not found by the jury. United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). As the district court
correctly noted, “the use of extra-verdict enhancements in a non-mandatory
guidelines system is not unconstitutional.” United States v. Rodriguez, 398 F.3d
1291, 1300 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005). Consistent with
Booker, the district court properly calculated Armstrong’s guideline range, relying
only on facts the government had proven by a preponderance of the evidence. See
United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied, 126
S.Ct. 432 (2005) (stating that even after Booker, a sentencing court still may
consider conduct of which a defendant was acquitted, “as long as the government
proves the acquitted conduct relied upon by a preponderance of the evidence.”)
(quotation marks and citation omitted). The district court then properly applied the
calculated Guidelines range in an advisory fashion. See Rodriguez, 398 F.3d at
1300. We readily conclude that Armstrong’s sentence was consistent with Booker
and did not violate his Sixth Amendment rights.
Accordingly, we affirm Armstrong’s conviction and sentence.
AFFIRMED.
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