United States v. Onesimo Marcelino , 537 F. App'x 217 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4816
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ONESIMO MARCELINO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:12-cr-00077-HEH-4)
Submitted: June 6, 2013 Decided: August 6, 2013
Before SHEDD, DUNCAN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, Milin Chun, MURPHY, FALCON & MURPHY,
Baltimore, Maryland, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, Richard D. Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Onesimo Marcelino pleaded guilty to one count of
conspiracy to ship, transport, receive, possess, sell,
distribute, and purchase contraband cigarettes in violation of
18 U.S.C. § 371 and 18 U.S.C. § 2342 (the “contraband cigarette
count”) and one count of conspiracy to commit money laundering
in violation of 18 U.S.C. § 1956(h) (the “money laundering
count”). He now appeals various aspects of his 132-month
sentence. For the reasons that follow, we affirm.
I.
According to facts read into the record by the government
at Marcelino’s plea hearing and to which he agreed, Marcelino
and others purchased over 1,700 “master cases” of cigarettes
from undercover agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives. A master case contains 12,000
cigarettes. Marcelino and his coconspirators paid no tax before
or after purchasing the master cases, and nothing on the master
cases themselves indicated a tax had been paid. Each untaxed
master case therefore represented contraband cigarettes. See 18
U.S.C. § 2341(2) (defining “contraband cigarettes” as “a
quantity in excess of 10,000 cigarettes, which bear no evidence
of the payment of applicable” taxes).
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From June 2010 until April 2012, Marcelino and his
coconspirators purchased the contraband cigarettes in Virginia
and transported them for resale in New York. Marcelino used the
proceeds from the sale of these contraband cigarettes to enable
further purchases of master cases and to continue to operate the
contraband cigarette conspiracy. On April 18, 2012, federal
agents arrested Marcelino and three of his coconspirators. In
May 2012, the government indicted Marcelino and three
coconspirators.
After pleading guilty, Marcelino faced sentencing in
September 2012. The Presentence Investigation Report (the
“PSR”) identified a Sentencing Guidelines (the “Guidelines”)
range of 51-60 months on the contraband cigarette count and 121-
151 months on the money laundering count. Marcelino objected to
the absence of a reduction in his offense level for acceptance
of responsibility under § 3E1.1 of the Guidelines. Finding that
Marcelino had not been forthcoming when interviewed by probation
officers after his arrest, the district court concluded
Marcelino had not met his burden of clearly demonstrating
acceptance of responsibility. Marcelino also objected to the
PSR’s recommendation of a four-level increase to the offense
level under § 3B1.1(a) for his role as a leader of a criminal
activity involving five or more participants. Finding that
Marcelino “exercised decision-making authority,” “gave direction
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to other people,” and supervised at least one other
coconspirator, and that the conspiracy involved at least five
participants, J.A. 178-79, the district court denied Marcelino’s
objection. It sentenced Marcelino to sixty months on the
contraband cigarette count and 132 months on the money
laundering count, to be served concurrently.
II.
Marcelino raises three issues on appeal. He first contends
that his conviction on the money laundering count “merged” with
his conviction for contraband cigarettes under the reasoning set
out in United States v. Santos, 553 U.S. 507 (2008), such that
the 132-month sentence imposed on the former count was improper.
Marcelino also asserts two sentencing challenges: (1) he argues
that the district court erred in denying his objections seeking
acceptance of responsibility, and (2) he contests the
enhancement he received for his leadership role.
We review Marcelino’s merger argument under our plain error
standard because he did not raise it below. See United States
v. Smith, 452 F.3d 323, 338 (4th Cir. 2006) (plain error review
of sentencing challenge not raised below). We consider his
additional sentencing challenges for clear error. United States
v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (district court
determination concerning acceptance of responsibility reviewed
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for clear error); United States v. Thorson, 633 F.3d 312, 317
(4th Cir. 2011) (where district court findings regarding whether
defendant was organizer or leader are “factual in nature, we
reverse only if the district court's findings are clearly
erroneous”).
Marcelino’s merger argument fails because he has waived it.
Although he purports to raise a sentencing challenge, he in fact
seeks to contest his money laundering conviction. In Santos and
in the other cases cited in Marcelino’s brief, including our
post-Santos case law, see United States v. Abdulwahab, 715 F.3d
521 (4th Cir. 2013); United States v. Cloud, 680 F.3d 396 (4th
Cir. 2012); United States v. Halstead, 634 F.3d 270 (4th Cir.
2011), courts have considered the factual record developed at
trial to determine whether the same actions underlying a
defendant’s conviction on a predicate offense pertain to his
conviction for money laundering. We can perform no such fact-
bound inquiry of Marcelino’s convictions here because the record
contains only an indictment sufficiently alleging that Marcelino
used proceeds from an unlawful activity to promote further
unlawful activity, and the brief statement of facts read into
the record by the government at Marcelino’s plea hearing. See
United States v. Smith, 44 F.3d 1259, 1265 (4th Cir. 1995)
(“[D]etails about the nature of the unlawful activity underlying
the character of the proceeds [for money laundering] need not be
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alleged.”). By pleading guilty to the indictment and agreeing
to the government’s statement of facts at his plea hearing,
Marcelino admitted that he engaged in conduct that satisfied the
elements for convictions under both the contraband cigarettes
count and the money laundering count. In so doing, he waived
his merger argument challenging the money laundering conviction.
See United States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004)
(“When a defendant pleads guilty, he waives all
nonjurisdictional defects in the proceedings conducted prior to
entry of the plea.”). *
Having thoroughly reviewed the briefs and the record, we
also conclude that the district court did not clearly err when
it denied both of Marcelino’s objections at sentencing. It
carefully considered the factual record before it with respect
to the very same arguments Marcelino advances on appeal.
III.
We therefore affirm the district court’s judgment and the
sentence it imposed on Marcelino. We dispense with oral
*
To the extent Marcelino’s challenge is to the substantive
reasonableness of his 132-month sentence, we conclude that the
district court did not abuse its discretion in imposing a
sentence well within the 121-151 month range recommended by the
Guidelines. See Rita v. United States, 551 U.S. 338, 347 (2007)
(courts of appeal can apply a presumption of reasonableness to
within-Guidelines sentences).
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argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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