United States v. Miguel Amaris-Caviedes , 701 F. App'x 84 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1105
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UNITED STATES OF AMERICA
v.
MIGUEL AMARIS-CAVIEDES,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-cr-00243-001)
District Judge: Honorable Lawrence F. Stengel
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 26, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
(Filed: June 9, 2017)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Miguel Amaris-Caviedes appeals the District Court’s order sentencing him to 60
months’ imprisonment for two international money laundering crimes. He alleges that the
District Court erroneously increased his sentence based on a finding that the offense was
sophisticated. Finding no clear error, we will affirm.
I
In 2013, the Drug Enforcement Administration (DEA) began investigating
Amaris-Caviedes on suspicion of money laundering in Costa Rica. While under
investigation, Amaris-Caviedes traveled to Philadelphia to meet with several cooperating
sources and offered to provide various illicit services to assist their purported drug-related
activities.
Amaris-Caviedes eventually agreed to launder money for two of the cooperating
sources. Specifically, Amaris-Caviedes agreed to use his business in Costa Rica to
receive wire transfers from a Philadelphia account. He would then reroute the money
(minus a fee) to an account in Puerto Rico, and provide fake invoices from his business to
make the transfers appear legitimate. To avoid suspicion, Amaris-Caviedes recommended
that the money be sent in two smaller transfers.
In November 2013, the DEA wired funds to Amaris-Caviedes’s Costa Rican
business account from an undercover account in Philadelphia. As had been arranged,
Amaris-Caviedes then wired the money to another undercover DEA account in Puerto
Rico and provided the cooperating sources with fictitious invoices.
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In May of 2014, Amaris-Caviedes was indicted and charged with two counts of
money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). He pleaded guilty and the
District Court sentenced him to 60 months’ imprisonment. This appeal followed.
II1
Amaris-Caviedes claims that the District Court committed clear error when it
imposed a two-level enhancement for “sophisticated laundering” pursuant to United
States Sentencing Guidelines (USSG) § 2S1.1(b)(3). “‘[S]ophisticated laundering’ means
complex or intricate offense conduct pertaining to the execution or concealment of the . .
. offense.” Id. at App. Note 5(A). Application Note 5 explains that “[s]ophisticated
laundering typically involves the use of: (i) fictitious entities; (ii) shell corporations; (iii)
two or more levels (i.e., layering) of transactions, transportation, transfers, or
transmissions, involving criminally derived funds that were intended to appear legitimate;
or (iv) offshore financial accounts.” Id. We have held that the “factors listed in
Application Note 5 are illustrative but not required; they are typical but non-exhaustive.”
United States v. Fish, 731 F.3d 277, 280 (3d Cir. 2013).
At the outset, we note Amaris-Caviedes used “offshore financial accounts”
because he made the transfers via his Costa Rican bank account. See USSG § 2S1.1(b)(3)
App. Note 5(A)(iv). This fact alone provides sufficient basis for the District Court’s
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review for clear error the District Court’s “application of the
undisputed facts to the requirements for the enhancement.” United States v. Fish, 731
F.3d 277, 279 (3d Cir. 2013).
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sophistication determination. See Fish, 731 F.3d at 280–81; United States v. Miles, 360
F.3d 472, 482 (5th Cir. 2004) (explaining that where one of the Note 5 factors are met,
“the commentary clearly subjects an individual to the sophisticated laundering
enhancement” (emphasis added)). Without citing any relevant law, Amaris-Caviedes
suggests that the term “offshore bank account” encompasses only banks in countries that
provide protection from law enforcement. We disagree. The Guidelines do not so qualify
“offshore financial account,” and the term’s plain meaning embraces all foreign bank
accounts. See Offshore, Oxford English Dictionary (3d ed. 2004) (“In a territory outside
one’s own country.”).
Although the offshore aspect of the transactions would suffice to affirm, there is
more. The District Court noted that Amaris-Caviedes knew that the purpose of the
transactions was to conceal drug money, and that the transactions involved: (a) transfers
of money on multiple levels; (b) false invoices; (c) use of legitimate businesses to conceal
ill-gotten gains; and (d) a plan to structure the transactions to avoid the attention of
authorities. The District Court did not clearly err in finding that these facts supported a
determination of sophistication. See Fish, 731 F.3d at 280 (upholding a sophistication
finding where the District Court noted, inter alia, the “difficulty in uncovering” the
scheme and the defendant’s “efforts to evade detection”).
Amaris-Caviedes’s arguments to the contrary are unavailing. First, he argues that
the District Court “deemed money laundering, by its nature, to require sophisticated
means,” and thus did not consider whether Amaris-Caviedes’s conduct was sophisticated
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relative to other money laundering offenses. Amaris-Caviedes Br. 14. It’s true that early
in the sentencing proceeding the District Court remarked that “it’s hard to argue that any
money laundering scheme, even if it’s a mom-and-pop money launderer, is not
sophisticated.” Id. at 10. But by the time the District Court made the sophistication
determination, it had corrected itself—properly comparing Amaris-Caviedes’s conduct to
other money laundering offenses. See id. at 13 ( “[T]o suggest that . . . this was . . . a
generic or garden variety money laundering scheme really is at odds with the evidence
and with the proof. . . . ”).
Second, Amaris-Caviedes argues that the District Court “placed improper weight
on conduct not relevant to the sophistication of the actual offense.” Id. at 23. For
example, the Government presented testimony at sentencing that Amaris-Caviedes told
an informant he could provide trade-based money laundering services by purchasing
goods abroad, importing them via cargo ships, and selling them in Costa Rica. But
contrary to Amaris-Caviedes’s contention, the District Court made no mention of these
hypothetical transactions when making its sophistication determination. And even if it
had, the Court was entitled to consider the entirety of Amaris-Caviedes’s conduct in
applying the enhancement. See United States v. Charon, 442 F.3d 881, 892 (5th Cir.
2006).
* * *
For the reasons stated, we will affirm the order of the District Court.
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