United States v. Vasquez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 2, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-3079
(D.C. No. 2:12-CR-20066-KHV-JPO-20)
ROBERT VASQUEZ, (D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Following a jury trial, Defendant and Appellant, Robert Vasquez, was
found guilty of two counts of money laundering, and sentenced to 70 months’
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
imprisonment. As part of that sentencing determination, the district court
imposed a six-level enhancement under the United States Sentencing
Commission, Guidelines Manual (“U.S.S.G.”) § 2S1.1(b)(1), because it
determined that Mr. Vasquez “knew or believed that any of the laundered funds
were the proceeds of, or were intended to promote . . . an offense involving the
manufacture, importation, or distribution of a controlled substance.” Id. Arguing
that the evidence at sentencing failed to support that enhancement, and that the
district court erred in imposing it, Mr. Vasquez appeals his sentence. We affirm.
BACKGROUND
The trial revealed the following facts, which neither party disputes: In
October of 2010, the Drug Enforcement Administration (“DEA”) initiated an
investigation into the illegal distribution of cocaine by an individual named
Djuane Sykes and his criminal associates, a Kansas City, Kansas, street gang
known as “Deuce Deuce.” Special Agent Nicholas Wills and Task Force Officer
Eric Jones headed the investigation. The investigation involved the interception
of calls from forty-three cellular telephones, including multiple roving
interceptions of calls involving Hector Aguilera, who was identified as a
significant distributor of cocaine in the Kansas City metropolitan area. The
interceptions of Mr. Sykes’ telephone calls quickly led to the identification of
multiple sources of cocaine, which was being transported from Mexico by various
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means to the Kansas City area. DEA investigators intercepted hundreds of calls
between June 2011 and April 2012.
On January 10, 2012, DEA investigators began intercepting a series of
telephone calls between Mr. Aguilera and Humberto Ramirez-Lerma, a/k/a “El
Arabe,” who was a drug trafficker living in California. The calls indicated that,
as payment for a large prior shipment of cocaine, Mr. Aguilera would be sending
a significant quantity of United States currency to the Mexican sources of that
cocaine. The currency would be delivered via a tractor trailer courier facilitated
by “El Arabe.” DEA agents intercepted additional calls on January 12, which
indicated that the courier had arrived in the Kansas City area. Mr. Aguilera
advised “El Arabe” that the exchange would take place the following morning (on
January 13). Mr. Aguilera confirmed in these calls that he had collected in excess
of $500,000.
On January 13, 2012, Mr. Aguilera spoke to “El Arabe” about meeting the
courier at a Shell gas station near Exit 8B off of I-435. Agents conducting
surveillance observed Mr. Aguilera and a co-defendant, Gerardo Flores-Avila,
arrive at the location. Agents followed these two individuals to Swift Trucking in
Edwardsville, Kansas, while intercepting calls between Mr. Aguilera and “El
Arabe.” “El Arabe” told Mr. Aguilera that the courier would be wearing black
pants and a brown jacket. Agents then saw defendant Mr. Vasquez, wearing black
pants and a brown jacket, enter Mr. Aguilera’s Dodge pickup truck. Mr. Aguilera
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drove a short distance, at which time Mr. Vasquez exited the pickup truck,
carrying a black duffle bag. Mr. Vasquez entered a Swift semi-truck with a trailer
and drove away from the lot. At that time, Mr. Aguilera called “El Arabe” and
advised him that the transaction had been done. During a subsequent call, Mr.
Aguilera told “El Arabe” to alert Mr. Vasquez about a suspicious looking vehicle
that had been in the parking lot and to warn Mr. Vasquez to be careful and pay
attention.
Mr. Vasquez drove southbound on I-435, then southbound on I-35, heading
towards Wichita, Kansas. A caravan of DEA investigators provided constant
surveillance of Mr. Vasquez from the time he left Kansas City. Mr. Vasquez then
traveled west out of Wichita on Highway 54, and the DEA agents decided to
contact Kansas Highway Patrol (“KHP”) troopers for assistance in conducting a
stop of Mr. Vasquez’s truck.
At approximately 3:59 p.m., KHP trooper Lee Rose observed Mr.
Vasquez’s truck in Pratt County, Kansas, and initiated a commercial vehicle
safety inspection stop. At Trooper Rose’s request, Mr. Vasquez produced a Texas
driver’s license, his permit book, log book, and medical card. Mr. Vasquez
informed Trooper Rose that he was coming from the Edwardsville, Kansas,
terminal and did not have any shipping papers because his truck was empty. He
indicated he was driving to El Paso, Texas, with an empty truck, which Trooper
Rose found to be unusual given the cost associated with traveling that distance
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with an empty truck. Because of safety concerns at the particular location of the
initial stop, the trooper asked Mr. Vasquez to move his truck to a nearby truck
stop to complete the safety inspection, and Mr. Vasquez complied.
At the truck stop, Mr. Vasquez exited his truck and apparently assisted in
various aspects of the inspection. Trooper Rose completed a Level II inspection
and discovered no violations. He also completed a KHP Driver/Vehicle
Examination Report and ran routine checks of Mr. Vasquez’s driver’s license,
registration and the United States Department of Transportation number
associated with the truck. Trooper Rose testified that Mr. Vasquez appeared
“very nervous” during the truck inspection, and chewed gum “vigorously.” Supp.
Vol. 1 at 639. He further stated that “[m]ost commercial motor vehicle drivers
are not that nervous when they deal with law enforcement” because “[t]hey get
stopped on a regular basis for commercial motor vehicle inspections.” Id. The
trooper also stated that he noticed a “strong odor” of air freshener. Id. at 640.
At the completion of the inspection, Trooper Rose returned all of Mr.
Vasquez’s documents to him, confirming that Mr. Vasquez had them all. As
Trooper Rose was walking back to his vehicle, and Mr. Vasquez was climbing
back in his truck cab, the trooper returned to the truck and asked Mr. Vasquez if
he could answer some more questions. Mr. Vasquez replied “yeah.” Id. at 651.
The trooper asked if there was “anything illegal” in the truck, such as “guns,
weapons, drugs or large amounts of money.” Id. at 652. Mr. Vasquez “replied in
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a repetitive no, no, sir, to each . . . question.” Id. When Trooper Rose asked Mr.
Vasquez if he could search the truck, Mr. Vasquez responded, “no, . . . he didn’t
mind.” Id. Trooper Rose then patted Mr. Vasquez down, and “confirmed with
him again . . . [that he] could search the truck and trailer and he said go ahead.”
Id. at 654.
Trooper Rose then searched the cab of the truck. In the sleeper berth,
under the bed, he discovered a black duffle bag that contained bundles of what
appeared to be U.S. currency wrapped in black tape. DEA investigators
subsequently determined that the duffle bag contained fifty-five bundles, totaling
$549,749.00.
Mr. Vasquez was thereupon arrested and transported to the Pratt County
Law Enforcement Center, where he was interviewed by agents Jones and Wills.
Mr. Vasquez was advised of his Miranda rights, waived those rights, and agreed
to speak to the agents. Mr. Vasquez initially told the agents that he thought the
black bag contained marijuana or cocaine. Mr. Vasquez eventually admitted that
he was transporting U.S. currency for an individual named “Arabe” and he
expressed a great deal of fear. Mr. Vasquez further explained that he met
“Arabe” at an airport terminal in Fontana, California, and that he had
communicated with “Arabe” several times about picking up money in Kansas City
and transporting it to El Paso. Mr. Vasquez told agents Jones and Wills that he
was paid $1000 for the job.
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Mr. Vasquez then agreed to cooperate with law enforcement and contacted
DEA Agent Yvette Lomeli once he returned to El Paso. Agent Lomeli met with
Mr. Vasquez on several occasions and he told her that he had met “Arabe”
through an individual he identified as Gloria Saldana, who also worked as a truck
driver. Mr. Vasquez told Agent Lomeli that Ms. Saldana and “Arabe” had asked
him to pick up some money in Kansas City and deliver it to El Paso. Mr.
Vasquez indicated that he was aware there was money in the bag that he was
transporting to El Paso. Ultimately, Mr. Vasquez failed to follow through in his
efforts to cooperate with law enforcement, and he stopped communicating with
Agent Lomeli.
Subsequently, in October 2012, a grand jury indicted Mr. Vasquez and
fifty-two other individuals in a Second Superseding Indictment. The Indictment
charged numerous narcotic, money laundering, and firearms offenses. Mr.
Vasquez was charged in three counts: Count 1 charged him with conspiracy to
manufacture, to possess with intent to distribute and to distribute five kilograms
or more of cocaine; Count 2 charged him with conspiracy to engage in money
laundering; and Count 75 charged him with laundering $549,749 in U.S currency
on January 13, 2012.
The trial commenced on August 5, 2013, and lasted five months. On
January 2, 2014, the jury convicted Mr. Vasquez on the two money laundering
offenses (Counts 2 and 75) and acquitted him of the drug conspiracy in Count 1.
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Count 2 required the jury to find the following elements established beyond a
reasonable doubt in regards to Mr. Vasquez:
FIRST: From in or about January of 2009 and continuing to on or
about April 27, 2012, . . . two or more persons agreed to transport or
attempt to transport funds from a place in the United States to and
through a place outside the United States, either (a) with the intent to
promote the carrying on of a conspiracy to possess with intent to
distribute and to distribute five kilograms or more of a mixture and
substance containing cocaine; or (b) knowing that the funds
represented the proceeds of some form of unlawful activity and
knowing that such transportation was designed in whole or in part to
conceal and disguise the nature, location, source, ownership and
control of the proceeds of a conspiracy to possess with intent to
distribute and to distribute five kilograms or more of a mixture and
substance containing cocaine;
SECOND: Robert Vasquez voluntarily and intentionally joined the
agreement;
THIRD: When Robert Vasquez joined, he knew the essential
objective of the agreement; and
FOURTH: The parties to the agreement intended to act together
within the scope of the agreement for their shared mutual benefit.
Doc. 1213, Instr. No. 23 at 30 (emphasis added). 1
Count 75 required the jury to find the following elements had been proven
beyond a reasonable doubt:
FIRST: Defendant knowingly transported or attempted to transport
funds from a place in the United States to or through a place outside
the United States; and
1
The jury instructions do not appear to be in the record in this case. The
government’s brief contains the jury instruction quoted above, and Mr. Vasquez
does not dispute the accuracy of that representation. Brief of Appellee at 13-14.
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SECOND: Defendant did so with the intent to promote the carrying
on of a conspiracy to possess with intent to distribute five kilograms
or more of a mixture or substance containing cocaine.
Doc. 1213, Instr. 24 at 32 (emphasis added).
As indicated, the jury found Mr. Vasquez guilty of both money laundering
counts (Counts 2 and 75) and acquitted him of the drug conspiracy in Count 1.
Following the jury verdict, in preparation for sentencing under the advisory
Guidelines, the United States Probation Office prepared a presentence report
(“PSR”). The PSR assessed a six-level enhancement to Mr. Vasquez’s offense
level under U.S.S.G. §2S1.1(b)(1). Mr. Vasquez objected to this enhancement,
arguing there was “no evidence whatsoever that Vasquez knew or believed that
these monies were the proceeds of, or were intended to promote, an offense
involving the manufacture, importation, or distribution of a controlled substance.”
PSR ¶ 163; R. Vol. 3 at 49. The government disagreed with Mr. Vasquez’s
objection, stating:
This is an incorrect assertion. In fact the defendant first told
investigators post-Miranda that he thought the bundles he was
transporting were either packages of cocaine or marijuana. When
agents told him they didn’t think he was being truthful about his
story, he then admitted that he had been contacted by “Arabe” and
was asked to pick up some money in Kansas City. He further
admitted that the money did not belong to him, but that he was only
delivering it to El Paso. He indicated he was going to get paid
$1,000 for doing the job. Vasquez was tearful and fearful throughout
his contact with the law enforcement officers. In addition, there was
testimony during trial from Yvette Lomeli, a DEA agent from El
Paso, Texas, who had subsequent contact with Vasquez. He likewise
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admitted to her that he had been hired to transport money for El
Arabe.
The defendant attempts to bolster his position by the jury’s verdict as
to Count 1. In order to convict the defendant of this count, the jury
had to find the requisite elements beyond a reasonable doubt. This
acquittal does not support his contention; however, because the
acquittal only tends to support that the jury didn’t think that the
defendant was personally involved in the transporting of the
narcotics–which in fact, there was no evidence of. In order to
establish the 6-level enhancement, the burden of proof is by only a
preponderance of the evidence; the defendant seems to suggest that
the burden should be higher.
PSR ¶¶ 164-65; R. Vol. 3 at 50. The government went on to point out that the
evidence showed that Mr. Vasquez’s co-conspirators may have wanted to keep
him “in the dark” about various aspects of the overall conspiracy. However, the
fact that “he immediately referenced that he was transporting drugs before
admitting that it was money,” leads to the “reasonable . . . conclu[sion] that the
defendant knew or believed the money was proceeds from the specified unlawful
activity (drug trafficking).” Id. ¶ 166; R. Vol. 3 at 50. The government then
refuted Mr. Vasquez’s suggestion that his minimal participation reduction under
U.S.S.G. § 3B1.2 supports his argument, stating that the reduction was given
because “this incident is the only evidence the Government has in which the
defendant assisted the organization,” id., contrasted with “many of the other
couriers” who “were involved on multiple occasions and those that were not
received this adjustment.” Id.
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At Mr. Vasquez’s sentencing, Mr. Vasquez again argued that there was no
evidence he knew the origination of the money and he asserted that the
coconspirators were trying to keep him in the dark about the money. The
government responded that his coconspirators were only trying to keep him in the
dark about the amount of the money he was transporting.
The district court overruled Mr. Vasquez’s objection to the sentencing
enhancement and found that the only reasonable inference a person could draw
from his conduct, along with the statements that he made, was that he knew he
was transporting the proceeds of drug transactions. The court accordingly
sentenced him to 70 months’ imprisonment. This appeal followed.
DISCUSSION
I. Sufficiency of Evidence:
Mr. Vasquez first argues there was insufficient evidence to support the
sentencing enhancement under U.S.S.G. §2S1.1(b)(1). In particular, he argues
that, because he was acquitted of the drug trafficking conspiracy, the evidence
was insufficient to establish that he knew or believed the money he was
transporting constituted proceeds from drug trafficking.
When evaluating sentence enhancements under the
Sentencing Guidelines, we review the district court’s
factual findings for clear error and questions of law de
novo. We will not disturb a factual finding unless it has
no basis in the record. Moreover, in reviewing the
court’s decision to apply an enhancement, we view the
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evidence and inferences therefrom in the light most
favorable to the district court’s determination.
United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir. 2005) (internal citations
omitted); see also United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009).
Under the clear error standard, “we will not reverse the district court’s finding
unless, ‘on the entire evidence, we are left with the definite and firm conviction
that a mistake has been committed.’” United States v. Shengyang Zhou, 717 F.3d
1139, 1149 (10th Cir. 2013) (quoting United States v. James, 592 F.3d 1109, 1113
(10th Cir. 2010)).
“The government bears the initial burden of proving the enhancement
appropriate by a preponderance of the evidence.” United States v. Castro-Perez,
749 F.3d 1209, 1211 (10th Cir. 2014). The government clearly met that burden.
As the government points out, Mr. Vasquez’s conviction on Count 2 required the
jury to find, beyond a reasonable doubt, that Mr. Vasquez knew the money
involved was derived from unlawful activity (the conspiracy to manufacture,
possess with intent to distribute and to distribute cocaine). Similarly, a
conviction on Count 75 required proof beyond a reasonable doubt that Mr.
Vasquez knowingly transported the money with the intent to promote the carrying
out of the drug conspiracy.
Furthermore, Mr. Vasquez initially admitted to transporting drugs, not
money. There was also evidence that he was afraid of “El Arabe;” the district
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court could reasonably infer from that fearfulness, along with the other evidence,
that Mr. Vasquez knew his transporting of the money was connected to illegal
drug activity.
Mr. Vasquez suggests that his acquittal on the drug conspiracy charge of
Count 1 means that the enhancement was improper. As with the prior argument,
this claim confuses the burden of proof for a sentencing enhancement, as opposed
to a jury conviction. To find Mr. Vasquez guilty of Count 1, the jury would have
had to convict him beyond a reasonable doubt as to each element. By contrast,
the standard for application of the sentencing enhancement under U.S.S.G.
§ 2S1.1(b)(1) is only a preponderance of the evidence. “[W]hen a district court
makes a determination of sentencing facts by a preponderance test under the now-
advisory Guidelines, it is not bound by jury determinations reached through
application of the more onerous reasonable doubt standard.” United States v.
Bass, 661 F.3d 1299, 1307 (10th Cir. 2011) (quoting United States v. Magallenez,
408 F.3d 672, 685 (10th Cir. 2005)). 2
2
Similarly, we reject Mr. Vasquez’s reliance on United States v. Jones, 44
F.3d 860, 865 (10th Cir. 1995), to challenge the validity of any reliance upon
inferences. While we noted in Jones that “an inference must be more than
speculation and conjecture to be reasonable,” that case involved the sufficiency of
the evidence to support a conviction under the reasonable doubt standard. It did
not involve a sentencing enhancement under the preponderance of the evidence
standard. Other cases cited by Mr. Vasquez are also inapposite.
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In sum, viewing the evidence and inferences in the light most favorable to
the district court’s determination, we find there was sufficient evidence to support
the application of the enhancement.
II. Did the District Court Err in Applying Enhancement:
Mr. Vasquez also argues the district court erred in denying his objection to
the U.S.S.G. § 2S1.1(b)(1) sentencing enhancement. U.S.S.G. § 2S1.1
distinguishes between primary and secondary money launderers. Because Mr.
Vasquez did not commit the underlying offense (drug trafficking) for which the
moneys were laundered, he was assigned a base offense level of 8 plus a number
from the table in § 2B1.1 corresponding to the value of the laundered funds. See
§ 2S1.1(a)(2). The Guidelines then provide for an enhancement in certain
situations, where the defendant was not necessarily directly involved in the
underlying offense, but still has some knowledge of the unlawful activity:
(b) Specific Offense Characteristics:
(1) If (A) [U.S.S.G. § 2S1.1](a)(2) applies; and (B) the
defendant knew or believed that any of the laundered
funds were proceeds of, or were intended to promote . . .
an offense involving the manufacture, importation, or
distribution of a controlled substance or a listed
chemical . . . increase by 6 levels.
U.S.S.G. § 2S1.1(b)(1). The PSR recommended that this 6-level enhancement
apply. As indicated, Mr. Vasquez objected to that enhancement in the PSR, and
he maintained his objection at sentencing. He continues to argue on appeal that
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the district court erred in imposing that enhancement because it “was without
factual support and was erroneously applied.” Appellant’s Br. at 16.
We review sentences for procedural and substantive reasonableness under a
deferential abuse-of-discretion standard. United States v. Huckins, 529 F.3d
1312, 1317 (10th Cir. 2008). Procedural reasonableness “relates to the manner in
which the district court calculated and explained the sentence.” United States v.
A.B., 529 F.3d 1275, 1278 (10th Cir. 2008). In determining whether the district
court correctly calculated the recommended Guidelines range through application
of the Guidelines, we review de novo the district court’s legal conclusions and we
review any factual findings for clear error, giving due deference to the district
court’s application of the Guidelines to the facts. See United States v. Kristl, 437
F.3d 1050, 1054 (10th Cir. 2006 ) (per curiam). Mr. Vasquez challenges the
procedural reasonableness of his sentence by arguing that the court erred in
applying the § 2S1.1 enhancement.
As both parties agree, the sentencing enhancement does not turn on the
objective characteristic of the funds, but rather upon the subjective knowledge or
belief of the defendant, Mr. Vasquez. See United States v. Payne, 962 F.2d 1228,
1235 (6th Cir. 1992); see also United States v. Mitchell, 613 F.3d 862 (8th Cir.
2010).
There is sufficient evidence to support the district court’s application of the
enhancement, and the court accordingly did not err in imposing it. Much of our
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discussion above supports this conclusion. In addition, at sentencing the
following exchange took place between the court and defense counsel:
THE COURT: Isn’t it a completely reasonable inference to
assume that he [Mr. Vasquez] knew he was transporting drugs –
either drugs or drug money?
MR. COX: Well, based on his statements to the federal agent?
THE COURT: Yes.
MR. COX: I think that he was afraid. I think that if he–
THE COURT: What’s to be afraid of if you don’t think you’re
taking drugs for money –
MR. COX: Because he was carrying money. I don’t see that
there’s any direct or any circumstantial evidence that he knew the
money was proceeds of any drug related activity.
THE COURT: So if somebody is carrying money and they
don’t think the money is tainted in any way and they’re asked about
it by law enforcement, why would they say, oh, I’m carrying cocaine
or marijuana?
MR. COX: Well, it wasn’t his money. It clearly wasn’t his
money.
THE COURT: Okay. But, I mean, give me a scenario where
that is what would go through a person’s mind. They’re carrying
money. Under your theory, he doesn’t know where it came from;
what’s the source; he doesn’t know if it’s legit or not legit; he had
just . . . some people gave him some money and said, we will give
you a thousand dollars to transfer this money.
If that in itself doesn’t raise some red flags, I mean, I think it
does, but even if it didn’t, why would he then report to law
enforcement officers that he’s transporting drugs?
Tr. of Sentencing Hr’g at 8-9; R. Vol. 2 at 12-13.
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After further argument and discussion between the court and counsel, the
court overruled the objection to the 6-level enhancement, concluding with the
following explanation, directed specifically at Mr. Vasquez :
THE COURT: So but why would somebody pay you a
thousand dollars to take some luggage to El Paso? If everything is
on the up and up, first, why would somebody pay a thousand dollars
to get luggage to El Paso and why would they pay you to do it? . . . .
If there was no drugs, if there was no illegal money, if there was no
contraband involved, why wouldn’t somebody just go to the Fed Ex
store and pay $50 and mail it? Why would they ask you to drive that
down there? . . . And so when a stranger says, I will pay you a
thousand dollars to take my suitcase to El Paso, doesn’t that make
you have some concern about what’s going on?
Id. at 23-24; R. Vol. 2 at 27-28. The district court’s explanation clearly indicates
why the court concluded that the government had established, by a preponderance
of the evidence, that the 6-level enhancement applied. In short, we perceive no
procedural unreasonableness in the district court’s sentencing determination. 3
3
While Mr. Vasquez couches his challenge to his sentence as a challenge to
its procedural reasonableness, we have also considered whether the sentence is
substantively reasonable. We conclude that it is, in light of the sentencing factors
contained in 18 U.S.C. § 3553(a), and in view of the deferential abuse-of-
discretion standard applied to such a sentence.
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CONCLUSION
Having considered all of Mr. Vasquez’s arguments, and for the foregoing
reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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