United States v. Edward Smith ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10237
Plaintiff-Appellee, D.C. No.
3:15-cr-00061-HDM-WGC-2
v.
EDWARD SMITH, AKA Smitty, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted July 17, 2020**
San Francisco, California
Before: SILER,*** LEE, and BUMATAY, Circuit Judges.
Edward Smith appeals from the district court’s judgment and sentence
following his trial, where the jury convicted him on six counts pertaining to money
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
laundering and a conspiracy to distribute methamphetamine. Smith raises a
sufficiency of the evidence challenge to his money laundering conviction and
contests three aspects of his sentence. We affirm.
1. With regard to his sufficiency of the evidence claim, Smith alleges that no
rational jury could have convicted him of money laundering because the
government failed to prove that the $1,500 transfer to his coconspirator, Andres
Rodriguez, constituted proceeds of unlawful activity. Where the defendant fails to
renew his motion for a judgment of acquittal after the presentation of all the
evidence, his sufficiency of the evidence challenge is deemed forfeited and is
reviewed for plain error. See United States v. Flyer, 633 F.3d 911, 917 (9th Cir.
2011). To sustain a conviction for money laundering under 18 U.S.C. §
1956(a)(1), the government must prove beyond a reasonable doubt that the
defendant “(1) engaged in a financial transaction which involved proceeds from
specified illegal activity, (2) knew the proceeds were from illegal activity, and (3)
intended the transaction either to promote the illegal activity or to conceal the
nature, source, or ownership of the illegal proceeds.” United States v. Marbella,
73 F.3d 1508, 1514 (9th Cir. 1996). Under the money laundering statute, the term
“proceeds” means “any property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the gross receipts of
such activity.” 18 U.S.C. § 1956(c)(9).
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While Smith was not the person who executed the $1,500 wire transfer to
Rodriguez, he was the person who called Rodriguez with the information needed to
retrieve the money from Wells Fargo, told Rodriguez the transfer was to reimburse
him for drugs he smuggled to Smith in prison, and gave Rodriguez the identity of
the person transferring the money. There is sufficient evidence to support the
jury’s finding that Smith was the source of the money sent via wire transfer.
Further, with regard to Smith’s argument that the government failed to prove the
wire transfer constituted proceeds from unlawful activity under § 1956, we have
explained that “[i]t is permissible to infer from [evidence that the defendant was
involved in a drug conspiracy], along with the lack of any evidence demonstrating
a legitimate source of income, that the funds were drug proceeds.” United States v.
Arteaga, 117 F.3d 388, 390 n.2 (9th Cir. 1997). Smith was a prison inmate who
did not have a legitimate source of income and was involved in a drug distribution
conspiracy.
2. Turning to Smith’s sentence, he challenges two of the enhancements
imposed by the district court and argues that his sentence of 235 months’
imprisonment is substantively unreasonable. “We review the district court’s
interpretation of the sentencing guidelines de novo, its application of the guidelines
to the facts of the case for abuse of discretion, and its factual findings for clear
error.” United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007).
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Smith first argues that the district court erred in applying the
leader/organizer enhancement to him under USSG § 3B1.1(c) because he did not
exercise control or influence over Rodriguez in the execution of the drug deals
with “Javier.”1 The district court applied the two-level enhancement because it
found that Smith was “certainly an organizer” with respect to the drug conspiracy.
For a defendant to qualify as an “organizer” under § 3B1.1(c), there must be
“evidence that [1] the defendant exercised some control over others involved in the
commission of the offense or [2] was responsible for organizing others for the
purpose of carrying out the crime.” United States v. Whitney, 673 F.3d 965, 975
(9th Cir. 2012) (citation omitted). Smith coordinated the deal, set the price, and
convinced Rodriguez to sell to Javier. Therefore, the district court did not commit
clear error in finding Smith to be an organizer under USSG § 3B1.1(c).
Next, Smith asserts that the district court erred in applying the USSG §
2D1.1(b)(4) enhancement to him. Under the guidelines, a two-level increase is
added to the base offense level “[i]f the object of the offense was the distribution of
a controlled substance in a prison, correctional facility, or detention facility.”
USSG § 2D1.1(b)(4). Smith asked Rodriguez to provide him with illegal narcotics
for distribution while he was imprisoned. Nevertheless, Smith argues that the
1
Unbeknownst to Smith and Rodriguez, Javier was a Drug Enforcement
Administration informant named Roberto Contreras.
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object of his conspiracy was for Rodriguez to sell methamphetamine to Javier
outside of prison. But the record confirms that the object of the conspiracy was for
Smith to organize the drug deals between Rodriguez and Javier so that Rodriguez
would smuggle methamphetamine to Smith in prison. The district court did not
abuse its discretion in applying the § 2D1.1(b)(4) enhancement.
Finally, Smith challenges his sentence as substantively unreasonable because
of the large disparity between his sentence of 235 months’ imprisonment and the
sentence of 156 months’ imprisonment of his coconspirator Rodriguez. The
district court noted that it had considered all of the 18 U.S.C. § 3553(a) factors,
compared Smith’s and Rodriguez’s roles in the conspiracy, and discussed the
potential disparity between Smith’s sentence and Rodriguez’s sentence.
Ultimately, because of the disparity between the sentences, the district court
sentenced Smith to 235 months’ imprisonment—a sentence at the bottom of the
guidelines range. Rodriguez’s cooperation with the government and acceptance of
responsibility are what created the sentencing disparity. We have held that “so
long as there is no indication the defendant has been retaliated against for
exercising a constitutional right,” the government may offer leniency to those who
enter pleas and cooperate with prosecutors. United States v. Carter, 560 F.3d
1107, 1121 (9th Cir. 2009) (citation omitted). Smith does not argue that his
sentence was imposed in retaliation for exercising his constitutional rights. “The
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difference in sentences, therefore, does not establish that [Smith’s] sentence was
substantively unreasonable.” United States v. Laurienti, 731 F.3d 967, 976 (9th
Cir. 2013). Accordingly, the district court did not abuse its discretion in imposing
Smith’s sentence.
AFFIRMED.
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