United States v. Aracely Lopez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 12, 2010
No. 09-12191
JOHN LEY
________________________ CLERK
D.C. Docket No. 07-00349-CR-1-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARACELY LOPEZ,
RAMON GARZA, JR., a.k.a. Sonny,
ELDA LOPEZ,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
________________________
(November 12, 2010)
Before TJOFLAT, CARNES and COX, Circuit Judges.
PER CURIAM:
This appeal arises out of the prosecution of three defendants for crimes
involving the distribution of drugs and money laundering. The Defendants are:
Ramon Garza, Jr., Aracely Lopez, and Elda Lopez.1 Garza challenges his
convictions. Aracely and Elda challenge both their convictions and their sentences.
We affirm.
I. BACKGROUND
A. The Drug Conspiracy.
The investigation of a cocaine distribution cell led police to Alvin Knox, a
major cocaine distributor in Alabama. Knox was arrested and, pursuant to a plea
agreement, pleaded guilty and agreed to provide assistance to the Government in
exchange for the Government’s promise to make his cooperation known to the court
at sentencing. Alvin Knox’s cooperation ultimately led law enforcement to the
Defendants, who had supplied Knox with drugs.
In April 2008, a federal grand jury issued a twenty-three count indictment
charging Garza, Aracely, and Elda with various crimes involving the distribution of
drugs and money laundering. Count One charged that, from about January 2001 until
about December 31, 2006, the Defendants conspired with each other and with Alvin
Knox, his father Benjamin,2 and others, to possess with intent to distribute
approximately 315 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
1
To avoid confusion, we will refer to Aracely and Elda by their first names.
2
We will refer to Alvin and Benjamin Knox by their first names for the sake of clarity.
2
846. Count Two charged that, from about January 2001 until about December 31,
2006, the Defendants conspired with each other and with Alvin, Benjamin, and
others, to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i)
and (h). Counts Three through Twenty-two charged money laundering in violation
of 18 U.S.C. § 1956(a)(1)(B)(i). Specifically, Garza was charged in Counts Three
and Four; Aracely was charged in Counts Three through Nine, Eleven through
Eighteen, and Twenty through Twenty-two; and Elda was charged in Counts Ten and
Nineteen. Count Twenty-three charged Garza with possessing with intent to
distribute approximately 280 pounds of marijuana, in violation of 21 U.S.C. §
841(a)(1). The indictment also contained a forfeiture count that is not at issue on this
appeal.
The Government presented its case-in-chief by piecing together the conspiracy
from the ground up. The Government led off with testimony from three convicted
drug distributors who testified that they purchased their drugs–primarily cocaine but
also marijuana–from Alvin and Benjamin. The distributors under Alvin who testified
included Tony Preston, Derrick Coston, and Kerry Coston. Alvin testified that he
also distributed drugs to at least three other distributors: Steven Preston, Gerard
Terrell, and Eric White.
3
Tony Preston testified that during one period he was selling ten kilograms of
cocaine obtained from Alvin every week. Derrick Coston received a kilogram of
powder cocaine from Alvin each week from 1999 to 2003. Kerry Coston testified
that he received ten kilograms of cocaine per month from Alvin from 1999 until 2003.
Alvin also provided Eric White and Gerard Terrell with ten kilograms of cocaine
every month during that period.
Alvin and Benjamin were running two family businesses: their lucrative drug
distribution business and a car lot and towing service, known as Premier Auto Sales.
Premier Auto was owned by Alvin. By Alvin’s own admission, that business served
as a front to “cover up” and “legitimize” his drug money. (Dkt.168 at 121.)
Alvin testified at the Defendants’ trial. He said that his father, Benjamin,
introduced him to the drug distribution business in 1999 and supplied him with drugs.
Benjamin, in turn, originally received his drugs from a man named Paul Harris. But
Benjamin and Harris parted ways and that is when the Defendants entered the picture.
Alvin testified that he first met Garza and Aracely in late 2000, but that his
father had met Garza earlier. Aracely was Garza’s wife. Alvin first met Aracely’s
daughters, including Elda, sometime during 2000 or 2001.
Alvin’s initial meeting with Garza and Aracely occurred in a hotel room in a
Texas town near the Mexican border. Benjamin was also at that meeting. The next
4
day, Benjamin and Alvin visited Garza and Aracely’s residence before traveling with
Garza to a trailer. At the trailer, Garza had some money that had been matted together
sitting in a pot of water. Benjamin and Garza discussed how to separate the money,
and Garza gave the money to Benjamin to see if Benjamin could separate it. Federal
agents recovered that money when they executed a search warrant at one of Alvin’s
two houses in Tuskegee, Alabama, in March 2001.
A business relationship developed out of Benjamin and Alvin’s initial meeting
with Garza and Aracely. In early 2001, Benjamin began making trips to Texas every
few weeks to pick up drugs. Aracely’s brother was the source of the cocaine.
Benjamin would drive to Texas in different Lincoln Town Cars. Cash would be
hidden in secret compartments behind the dash. Garza would tell Benjamin where the
delivery would occur, and Benjamin would pick up approximately eight to eleven
kilograms of cocaine on every trip. He would return to Alabama with the cocaine
hidden in the secret compartments, and Benjamin and Alvin would then distribute the
cocaine to their crew for sale.
This distribution arrangement worked well for a time, but it was not without
setbacks. On February 20, 2001, Alvin was arrested in the Atlanta airport after
authorities discovered approximately $80,000 in cash strapped around his waist and
his girlfriend’s waist. He was flying to Texas to deliver that money to Benjamin, who
5
had already driven there. Alvin and Benjamin had planned to give the money to
Garza as a payment for drugs. But Alvin’s airport arrest was not the biggest setback
in the drug distribution scheme; that occurred in 2002.
In 2002, Alvin purchased a Chevy Tahoe from an auto dealer in Montgomery,
Alabama, and had it registered in Benjamin’s name. At trial, Alvin testified that
Garza had installed hidden compartments in the Tahoe. Garza and Aracely then
traveled to Alabama to pick up the Tahoe, which they drove to New York. Once the
Tahoe arrived in New York, it was to be loaded with fifty or more kilograms of
cocaine. The plan was for Garza and Aracely to retrieve the Tahoe after it had been
loaded with cocaine and return it to Benjamin. Things did not go as planned.
Former New York City police officer Edgardo Torres testified that on the
afternoon of April 4, 2002, he was flagged down by a shop owner who said that
someone in the building across the street had a gun. The building across the street
was a large garage. Inside the garage, Torres observed three men standing over
people on the ground and striking them. When Torres and his partner drew their
weapons, the attackers fled. The police cornered and captured one of the attackers
before returning to check on the victims, who turned out to be Garza and Aracely.
They explained to the police that they were in the garage to pick up a vehicle and that
the attackers had intended to rob them. The vehicle was the same Chevy Tahoe that
6
Alvin had purchased and registered in Benjamin’s name. Garza and Aracely said it
belonged to a friend.
The police took Garza and Aracely to a hospital. The two were being treated
as victims at that point, and the police did not watch them closely. Garza and Aracely
took advantage of the situation and skulked away from the hospital. Meanwhile, back
at the precinct, the attacker who was arrested explained that he was there to rob
Aracely and Garza because there were drugs in the vehicle.
Because the garage was about to close for the evening, the owner moved the
Tahoe to a parking garage across the street so that Garza could retrieve it. The police
returned to the area near the garage, where they waited for the couple to return to pick
up the Tahoe. Garza and Aracely arrived in separate vehicles. Aracely departed
unimpeded, but when Garza tried to drive the Tahoe out of the parking garage, the
police arrested him. Garza consented to a search of the vehicle, and the search turned
up eleven kilograms of cocaine hidden in a secret compartment underneath the rear
window. Alvin testified that Garza told him that not all of the cocaine was
discovered; some of it remained hidden in the vehicle after the initial police search.
Garza was incarcerated after his arrest, and the Tahoe and drugs were
confiscated. After Garza’s incarceration, Alvin and Benjamin did business with
Aracely directly. Because Aracely had difficulty speaking English, Benjamin and
7
Alvin communicated with her through her daughters, Elda and Belinda Lopez.3 Alvin
testified that his first conversation with Elda occurred about two to six months after
Garza was incarcerated. Alvin spoke to Aracely through Elda over the telephone and
in person. On at least one occasion, Elda flew to Mobile, Alabama, to discuss drugs
with Alvin. Alvin testified that, based on the nature of the conversations he had with
and through Elda, there was no way that Elda did not know that the conversations
concerned drug deals.
As a result of the conversations he had with Aracely through Elda, Alvin
arranged two cocaine deals. The sales occurred during 2002. The first deal involved
102 kilograms of cocaine, and the second involved 109 kilograms. The cocaine was
delivered to Premier Auto in two shipments by an eighteen-wheeler, and it was
hidden in the refrigeration unit of the truck. Alvin and Benjamin arranged to pay
Aracely for the cocaine at a later date. They successfully paid Aracely $1.2 million
in cash for the cocaine, but they ran into trouble attempting to deliver the rest of the
payment.
In January 2003, Benjamin was stopped by police while driving a Lincoln
Town Car through Refugio, Texas. The officer who stopped him discovered bundles
of money wrapped in green cellophane hidden in a secret compartment in the car’s
3
Belinda Lopez, who was also charged in the indictment, remains a fugitive.
8
dashboard. Law enforcement seized about $340,000. Alvin testified that Benjamin
was en route to deliver the money to Aracely when he was stopped. This money was
to be payment for the cocaine that Alvin and Benjamin had already received.
Aracely’s daughters called and had discussions with Alvin about the lost payment.
In 2004, Garza was released from prison. He contacted Benjamin, so Alvin
said, “to reestablish the relationship” with the Knoxes. (Dkt.168 at 263.) Garza
agreed to sell Benjamin approximately 300 pounds of marijuana. Using an eighteen-
wheeler, Garza delivered the marijuana to a property that Benjamin owned in Eutaw,
Alabama. Garza returned on a later date to collect payment for the marijuana. During
another trip to Alabama, Garza asked Alvin for money to pay off the debt Alvin and
Benjamin owed Aracely as a result of Benjamin’s run-in with the law in Texas. Alvin
gave Garza $300,000 for delivery to Aracely. After Alvin made that payment to
Garza, Aracely stopped contacting him about the drug debt.
B. Money Laundering
The Government introduced evidence concerning the Defendants’ businesses
and financial transactions in an effort to carry its burden of proof on the money
laundering counts. The Government’s position was that Garza, Aracely, and Elda
used banking transactions and sham businesses to disguise their drug distribution
income as legitimate wealth.
9
Travis Ward, a construction worker from Arkansas, testified that, in 2003, he
became aware that a friend of his, Richard Finch, was selling marijuana. Ward helped
Finch hide 400 pounds of marijuana, after which Finch gave Ward money and
instructed him to purchase two cashier’s checks. Ward testified that the money was
drug proceeds. On October 4, 2003, Finch took Ward to two banks. Following
Finch’s instructions, Ward purchased one cashier’s check for $9,000 and another for
$3,000. The first check was made out to Jesus Garza, and the second check was made
out to Irma Garza.4 After purchasing the checks, Ward gave them to Finch. The
Government traced the cashier’s checks and determined that they were each endorsed
by the payees and by Aracely and deposited into one of Aracely’s bank accounts on
October 6, 2003. The next day, Aracely wrote a counter check for $12,000–the sum
total of the two cashier’s checks–and cashed it. Counts Three and Four charged
Garza and Aracely with substantive counts of money laundering based on the
purchases of the $3,000 and $9,000 checks. Count Five charged Aracely with money
laundering based on the purchase of a $12,000 check.
The Government also introduced the testimony of Special Agent Victor
Henken, who works with the criminal investigations unit of the Internal Revenue
Service. Henken had conducted an investigation aimed at identifying money
4
It is unclear from the record whether these two people are relatives of Ramon Garza.
10
laundering financial transactions committed by Garza, Aracely, and Elda. Henken
discussed various companies with which the Defendants were affiliated from 2000
through 2006. He relied heavily on the Defendants’ tax records in conducting his
investigation.
Henken testified that in 2000 and 2001, Aracely reported income from a
Schedule C business known as Espinos Cap Sales on her individual tax returns.
Henken explained that in a Schedule C business, the individual filing the tax return
is in business for herself. From 2000 to 2006, Espinos Cap Sales made no filings
with the IRS. In 2002 and 2003, Aracely reported income from another Schedule C
business, Textiles BISE, that made no filings with the IRS from 2000 to 2006.
Elda reported income from Custom Clay Products in 2003, listing it as a
Schedule C business. She also had income from Custom Clay in 2004 and 2005, but
for those years the income was reported on a W-2 tax form as wages rather than as
Schedule C income. In 2004 and 2005, Aracely reported wage income from Custom
Clay. From September 2000 until March 29, 2001, Garza stayed at a halfway house
following a term of incarceration. He filed paperwork with the halfway house stating
that his employer during that period was Custom Clay Products. Alfredo Saenz, a
former friend of Garza, testified that Garza had used Custom Clay’s vehicles to
transport drugs.
11
Custom Clay filed no corporate income tax returns for any year after 2000, but
it did file highway use tax forms from 2001 to 2005, indicating that the business was
operating trucks during those years. Agent Henken found it noteworthy that Custom
Clay did not file income tax returns despite having trucks on the road, saying, “[Y]ou
would think that those trucks would be generating income that would be reported on
an income tax return. But I did not find any income tax returns.” (Dkt.170 at 588.)
On documents other than tax filings, Aracely claimed that a business called San
Francisco Warehouse was her principal employer. That company did not file income
tax records between 2000 and 2006. In 2007, Aracely made a Schedule C filing
related to San Francisco Warehouse, but that filing provided only gross income. In
other words, it did not list any business expenses associated with purchases of
inventory. Agent Henken considered the absence of listed business expenses an
anomaly, stating that “[n]ormally if you have a warehouse you would buy the goods
that go into the warehouse and then sell those goods.” (Dkt.170 at 586.) He testified
that the lack of records indicating the cost of goods sold made it seem as if the
business was just given items to sell. He further observed that none of the Schedule
C filings made by the Defendants listed business expenses, and that it appeared that
the Defendants were using Schedule C filings to explain instances when they received
money that was not listed on a W-2 form as wages.
12
Agent Henken also described the results of a search carried out at the San
Francisco Warehouse in Rio Grande City, Texas. He found no accounting software,
spreadsheets, or summaries of business income or expenses on a computer seized
from the warehouse. While Henken did recover some spiral notebooks and note cards
containing what appeared to be accounts receivable related to sales of furniture in
2007 and 2008, he did not find any corresponding totals of accounts receivable as
would be expected in a functioning and ongoing business.
Henken said that businesses are often used as fronts to disguise the proceeds
of drug trafficking and that a business that would otherwise fail could be kept afloat
by an infusion of drug money. He discussed multiple purchases of furniture made by
Aracely and Elda from wholesalers between 2004 and 2006, and testified that those
purchases were made for sale rather than personal use. Most of the purchases were
made by Aracely, with very few purchases made in Elda’s name. Also, most of the
purchases were accomplished by wire transfer rather than check. Henken testified
that he noticed irregular influxes of unexplained cash into San Francisco Warehouse
just before large payments, such as furniture purchases, were made. Henken had
observed that pattern of activity in other businesses serving as a front for illegal
activity.
13
Agent Henken also testified that “the purchase of furniture, potentially as a
cover load, would represent money-laundering transactions.” (Dkt.170 at 646.)
Alvin testified that, before Garza was arrested in New York, Garza told him that
buying furniture by the truckload would be a good way to conceal the transport of
drugs and drug proceeds, and that after the drugs were transported, the furniture could
be sold. Counts Six, Seven, Nine, Eleven, Sixteen, and Twenty through Twenty-two
each charged Aracely with a substantive count of money laundering related to
furniture purchases for San Francisco Warehouse.
Finally, Agent Henken described his analysis of the bank records for accounts
belonging to Garza, Aracely, Elda, and Belinda. He determined that, from 2000
through 2006, those four individuals deposited $249,842 in cash into their accounts.
Henken noted that the total of cash deposits exceeded the combined adjusted gross
income of $166,767 that Garza, Aracely, Elda, and Belinda reported during that same
period. He also observed that the cash deposits appeared not to be of a regular
amount or on a recurring basis, but instead were sporadic. He noted that just after
large cash deposits would be made a large check or wire transfer would be issued.
According to him, that pattern of activity is indicative of money laundering. (Dkt.170
at 606-07.)
14
Counts Twelve, Thirteen, Fourteen, Fifteen, Seventeen, and Eighteen charged
Aracely with money laundering based on cash deposits into her bank accounts.
Counts Ten and Nineteen similarly charged Elda. Each of those alleged transactions
involved cash in an amount below the $10,000 reporting threshold.
C. Conviction and Sentences.
The jury found the Defendants guilty as charged on all counts. Garza was
sentenced to life imprisonment on Count One; 240 months imprisonment on Counts
Two, Three, and Four; and 120 months imprisonment on Count Twenty-three. All
his sentences run concurrently. The district court sentenced Aracely to 240 months
imprisonment on each of Counts One through Nine, Eleven through Eighteen, and
Twenty through Twenty-two, all sentences to run concurrently. The district court
sentenced Elda to concurrent sentences of 144 months imprisonment for Counts One,
Two, Ten and Nineteen.
II. STANDARD OF REVIEW
The Defendants’ insufficiency of the evidence arguments were properly
preserved for our review by timely Rule 29 motions for judgment of acquittal. We
review the denial of a motion for acquittal de novo. United States v. Tampas, 493
F.3d 1291, 1287 (11th Cir. 2007). In reviewing the denial of a motion for acquittal,
this court asks whether, after viewing the evidence in the light most favorable to the
15
prosecution, would any rational trier of fact have found all the essential elements of
the crime beyond a reasonable doubt. United States v. Eckhardt, 466 F.3d 938, 944
(11th Cir. 2006), cert denied, 549 U.S. 1230, 127 S. Ct. 1305 (2007). Arguments
raised for the first time on appeal are reviewed for plain error. United States v.
Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001).
III. DISCUSSION
A. The Record Supports Garza’s Count One Drug Distribution
Conspiracy Conviction.
Garza contends that his conviction on Count One must be reversed because the
evidence presented at trial demonstrated multiple conspiracies, rather than the single
drug conspiracy charged in the indictment. Garza admits that “the evidence supports
a conspiracy involving the named Defendants prior to” Garza’s April 2002 arrest.
(Appellant Garza’s Br. at 18.) He argues, however, that his arrest ended that
conspiracy, and that prosecution for it is therefore barred by the five-year statute of
limitations. See 18 U.S.C. § 3282(a). According to Garza, Aracely began a new
conspiracy with Alvin and Benjamin after his arrest, and he had nothing to do with
that conspiracy.
Because Garza did not raise his material variance argument in the district court,
we review only for plain error. Dennis, 237 F.3d at 1300. “We will not reverse a
16
conviction ‘because a single conspiracy is charged in the indictment while multiple
conspiracies may have been revealed at trial unless the variance is [1] material and
[2] substantially prejudicial to the defendant.’” United States v. Edouard, 485 F.3d
1324, 1347 (11th Cir. 2007) (quoting United States v. Alred, 144 F.3d 1405, 1414
(11th Cir. 1998)). “The question of whether the evidence establishes a single
conspiracy is a factfinding for the jury and, even if multiple conspiracies arguably
exist, there will be no variance if, viewing the evidence in the light most favorable to
the Government, a reasonable trier of fact could have found beyond a reasonable
doubt the existence of a single conspiracy.” United States v. Adams, 1 F.3d 1566,
1584 (11th Cir. 1993) (citation omitted). Only if there is no evidentiary foundation
for the jury’s finding of a single conspiracy will we need to determine whether the
variance substantially prejudiced the defendant. United States v. Richardson, 532
F.3d 1279, 1284 (11th Cir. 2008). When determining whether the jury could have
found a single conspiracy, we consider: “(1) whether a common goal existed; (2) the
nature of the underlying scheme; and (3) the overlap of participants.” Id. (quoting
United States v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008)).
We generally “define the common goal element as broadly as possible,” id.,and we define the word “common” to mean “‘similar’ or ‘substantially the same’
rather than ‘shared’ or ‘coordinate.’” Richardson, 532 F.3d at 1285 (quoting United
17
States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997)). As Garza admits, there
was a common goal: the distribution of drugs to Alvin and Benjamin. See Calderon,
127 F.3d at 1327 (“First, a common goal, that of cocaine importation and distribution,
existed in this case.”); Adams, 1 F.3d at 1583–84 (common goal requirement satisfied
where defendants shared goal of importing marijuana).
In addition, as Garza concedes, the underlying scheme remained the same
throughout the period alleged in the indictment. (Appellant Garza’s Br. at 20.) Both
before and after his incarceration in 2002, the drugs and the cash payments were
hidden in motor vehicles while being transported. Additionally, both before and after
Garza’s incarceration, Benjamin and Alvin received the drugs for distribution in
Alabama. See Moore, 525 F.3d at 1043 (finding single underlying scheme where the
two defendants achieved common goal in similar manner); United States v. Alred, 144
F.3d 1405, 1415 (11th Cir. 1998) (finding single underlying scheme where the
allegedly multiple conspiracies were virtually the same).
There was virtually complete overlap of participants in what Garza argues were
two separate drug distribution conspiracies. The only person he claims was in the
pre-incarceration conspiracy, but not the post-incarceration conspiracy, is Garza
himself. But Garza’s arrest and incarceration in 2002 did not end the original
conspiracy; “[a] conspiracy is presumed to continue until its objectives have been
18
abandoned or accomplished.” Richardson, 532 F.3d at 1286 (citation omitted). The
objective of the conspiracy in this case—continually supplying Alvin and Benjamin
Knox with drugs for distribution in Alabama—was not abandoned or accomplished
when Garza was arrested in 2002, but continued thereafter.
Nor did Garza’s arrest automatically trigger his withdrawal from the original
conspiracy or signal the end of his participation in it. See United States v. Gonzalez,
940 F.2d 1413, 1427 (11th Cir. 1991) (“[N]either arrest nor incarceration
automatically triggers withdrawal from a conspiracy.”); United States v. Finestone,
816 F.2d 583, 589 (11th Cir. 1987) (“A mere cessation of activity in the conspiracy
is not sufficient to establish withdrawal.”). Garza attempts to sidestep that principle
of law by pointing to testimony that, after he was released from prison in 2004, he
told a friend that he had ended his relationship with Aracely because she “had been
working with his connection . . . in Alabama.” (Dkt.169 at 478.) However, other
testimony indicated that Garza’s incarceration did not end his involvement in the
conspiracy. For instance, Alvin testified that, after Garza was released from prison,
Garza asked him about a debt that Alvin and Benjamin owed Aracely for drugs. And,
Garza collected money to pay that debt. Alvin also said that Aracely stopped
contacting him about that debt after he paid Garza.
19
In light of the evidence demonstrating a common plan, a consistent underlying
scheme, and overlapping participants, a reasonable jury could find the existence of
a single conspiracy beyond a reasonable doubt. Richardson, 532 F.3d at 1284.
Furthermore, in light of the testimony at trial, a jury could reasonably find that Garza
continued to participate in the conspiracy following his release from prison in 2004.
Garza’s challenge to his conviction on Count One fails.
B. The Record Supports Aracely and Elda’s Count One Drug
Distribution Conspiracy Convictions.
Aracely and Elda contend that the evidence is insufficient to sustain their
convictions on Count One for conspiracy to possess with the intent to distribute
cocaine, in violation of 21 U.S.C. § 846. In evaluating sufficiency of the evidence,
we assume that the jury made all credibility choices in favor of the verdict. United
States v. Valencia-Trujillo, 573 F.3d 1171, 1185 (11th Cir. 2009). Furthermore, “‘we
must determine whether the evidence, construed in the light most favorable to the
government, would permit the trier of fact to find the defendant guilty beyond a
reasonable doubt.’” United States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005)
(quoting United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989). “It is not
enough for a defendant to put forth a reasonable hypothesis of innocence, because the
issue is not whether a jury reasonably could have acquitted but whether it reasonably
20
could have found guilt beyond a reasonable doubt.” United States v. Thompson, 473
F.3d 1137, 1142 (11th Cir. 2006) (citation omitted).
“To sustain a conviction for conspiracy to possess cocaine with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354, 1365
(11th Cir. 2001). “An agreement may be proved by either direct or circumstantial
evidence and a common scheme or plan may be inferred from the conduct of the
participants or from other circumstances.” United States v. Diaz, 190 F.3d 1247,
1254 (11th Cir. 1999). The government need not prove “that a defendant knew every
detail or that he participated in every stage of the conspiracy.” Id. Instead, the
government need only prove “that the defendant knew the essential nature of the
conspiracy.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation
marks and citation omitted).
Aracely contends that the Government failed to prove that she conspired to
possess with intent to distribute approximately 315 kilograms of cocaine. She argues
that Alvin’s testimony was not worthy of belief because he was seeking a reduced
sentence. That argument is meritless. We will not review credibility determinations
made by the jury unless the testimony is “incredible as a matter of law,” United States
21
v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999), and testimony is incredible as a
matter of law only when it is “unbelievable on its face.” Calderon, 127 F.3d at 1325(quotation marks and citation omitted). The fact that a witness engaged in criminal
activities, consistently lied in the past, and thought that his testimony would benefit
him does not make his testimony incredible as a matter of law. Id. (citation omitted).
Aracely also argues that Alvin’s testimony, even if believed, establishes at most
that her role in the conspiracy extended to only 211 kilograms of cocaine, rather than
the approximately 315 kilograms charged in the indictment. In support of that
argument, Aracely claims that the evidence presented by the Government was
insufficient to establish that she was aware of or involved in Garza’s drug dealings
before his arrest or that she was aware that cocaine was in the Tahoe that she and
Garza attempted to retrieve in April 2002.
We find these arguments unconvincing. First, the government is not required
to prove that the defendant knew all of the details of the conspiracy or participated
in each aspect of the conspiracy, but instead need only prove that the defendant knew
the essential objective and general scope of the conspiracy. United States v. McNair,
605 F.3d 1152, 1196 (11th Cir. 2010); United States v. Anderson, 326 F.3d 1319,
1329 (11th Cir. 2003). The Government presented evidence that Aracely personally
took the lead in arranging two major cocaine sales, involving a total of 211 kilograms
22
of cocaine, to Alvin and Benjamin. That evidence is more than sufficient to
demonstrate that she knew the general nature and scope of the conspiracy: supplying
Alvin and Benjamin with large quantities of cocaine for distribution.
Second, Aracely’s argument that the evidence is insufficient to demonstrate her
awareness of Garza’s drug dealings before Garza’s arrest fails because a defendant’s
knowing participation in a conspiracy may be proved through circumstantial
evidence. See McDowell, 250 F.3d at 1365 (upholding conspiracy conviction based
on circumstantial evidence). Aracely was married to Garza up until at least the time
of his arrest in 2002. She also attended the initial meeting with Garza, Benjamin, and
Alvin, after which Alvin and Benjamin began receiving approximately 11 kilograms
of cocaine every few weeks from Garza, which lasted for about a year. A witness at
trial testified that Aracely’s brother was the source of cocaine that was sold to Alvin
and Benjamin. In addition, Aracely accompanied Garza on repeated flights to
Alabama and New York during the period charged in the indictment. Some of those
flights occurred during the month before Garza was arrested in New York. On one
of the trips to Alabama, Aracely and Garza picked up the Tahoe that was to be taken
to New York and loaded with cocaine. While “[t]he inference of participation from
presence and association with conspirators alone does not suffice to convict[,] . . .
23
such an inference is permissible in evaluating the totality of the circumstances.”
United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994) (citations omitted).
Not only did Aracely associate with the conspirators, but she also accompanied
Garza to the garage in New York, where the two attempted to retrieve the Tahoe that
Alvin testified was supposed to be loaded with fifty or more kilograms of cocaine.
It is unlikely that conspirators attempting to transport such a large quantity of drugs
would tolerate the presence of a mere bystander during such an important stage of the
crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1374 (11th Cir. 1994)
(finding sufficient evidence to support conviction where it was “highly unlikely” that
conspirators smuggling drugs would have allowed the presence of a bystander during
smuggling operations). It is also worth noting that, after Garza and Aracely were
taken by police to a hospital following the attack in New York, they slipped away,
only to return to the garage and attempt to retrieve the cocaine-laden Tahoe. Flight
may be considered evidence of guilt. See United States v. Williams, 541 F.3d 1087,
1089 (11th Cir. 2008). And all of this occurred before Garza was arrested, at which
point Aracely quickly and seamlessly took the helm, arranging two massive cocaine
deals with Alvin and Benjamin. A jury could reasonably infer from Aracely’s smooth
and rapid transition into a leadership role that she already had an intimate
understanding of and practical familiarity with the details of the conspiracy. The
24
evidence was more than sufficient to allow a reasonable factfinder to determine that
Aracely was aware of, and participated in, the conspiracy to possess with intent to
distribute approximately 315 kilograms of cocaine as charged in the indictment.
Finally, even if, as Aracely claims, the Government established her personal
involvement only as to 211 kilograms of cocaine, that fact would not require reversal
of her conviction. Aracely was convicted for conspiracy to violate 21 U.S.C. §
841(b)(1)(A), which requires only five or more kilograms of cocaine to trigger the
highest statutory penalty. The two deals that Aracely personally directed involved
a total of 211 kilograms. Aracely’s challenge to her conviction for conspiracy to
possess with intent to distribute cocaine fails.
Elda also challenges her conviction on Count One. She contends that the
evidence failed to prove that she joined the conspiracy charged in Count One. We
conclude that it did.
Alvin Knox testified that Elda served as a translator for her mother during
conversations between Aracely and Alvin concerning drug deals and also translated
similar conversations between Benjamin and Aracely. Alvin testified that Elda
traveled with Aracely to Mobile to translate conversations concerning drugs. Because
of the content of those conversations, Alvin said, there was no way Elda would not
have known that the conversations concerned drug deals. According to Alvin, two
25
drug transactions were arranged as a result of the conversations that Elda translated,
and those transactions involved a total of 211 kilograms of cocaine. The Government
also produced telephone records showing multiple calls between three phone numbers
subscribed to by Elda and phone numbers associated with Alvin. The evidence
considered as a whole was sufficient to allow a reasonable jury to conclude that Elda
knowingly and voluntarily joined the conspiracy charged in Count One. See United
States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998) (noting that, once a drug
conspiracy has been shown to exist, “a defendant can be convicted even if his or her
participation in the scheme is ‘slight’ by comparison to the actions of other co-
conspirators”); see also Miranda, 425 F.3d at 959 (defendant may be convicted if she
knew the “essential nature of the conspiracy,” even if she did not participate in every
stage or know every detail) (quotation marks and citation omitted).
C. The Record Supports Garza’s Count Two Money Laundering
Conspiracy Conviction.
In a repeat of his challenge to his conviction on Count One, Garza challenges
his conviction on Count Two (conspiracy to launder money) on the ground that the
evidence at trial established two money laundering conspiracies, rather than the single
conspiracy charged in the indictment. He says the first conspiracy lasted from
January 2000 until it was ended by his arrest in April 2002. Garza concedes that the
26
evidence presented at trial would support a conviction for conspiracy to launder
money involving the named defendants during that period, but he argues that
prosecution for that conspiracy is barred by the five year statute of limitations. See
18 U.S.C. § 3282(a). Garza claims that he had nothing to do with the second money
laundering conspiracy involving Aracely and her daughters, which he says began
after his arrest and lasted until December 2006.
Garza did not raise this issue before the district court, so we review only for
plain error. Dennis, 237 F.3d at 1300. As we said earlier, “even if multiple
conspiracies arguably exist, there will be no variance if, viewing the evidence in the
light most favorable to the Government, a reasonable trier of fact could have found
beyond a reasonable doubt the existence of a single conspiracy.” Adams, 1 F.3d at
1584 (citation omitted). Garza again concedes the existence of a common goal,
disguising drug proceeds, and he also acknowledges that the nature of the underlying
scheme remained the same throughout the period alleged in the indictment. Garza
also admits that there was a substantial overlap of participants, but argues that he had
nothing to do with the money laundering that occurred after his arrest. A reasonable
jury could have found the existence of a single conspiracy spanning the period
charged in the indictment given the Government’s evidence, which Garza admits
showed a common goal, a consistent underlying scheme, and a substantial overlap in
27
participants. No material variance existed between the indictment and the evidence
presented at trial. See Anderson, 326 F.3d at 1328 (11th Cir. 2003) (holding that no
material variance existed when a reasonable fact finder could have found the
existence of a single conspiracy).
Garza in essence argues that his co-conspirators carried on without him after
he was incarcerated. At its core, his argument is apparently either that his
incarceration ended the original conspiracy, after which his co-conspirators reunited
without him in an attempt to achieve the same goal in the same way, or that the same
conspiracy rolled along the whole time but his incarceration resulted in his
withdrawal from it. Under either characterization, Garza’s argument fails. See
Richardson, 532 F.3d at 1286 (citation omitted) (“A conspiracy is presumed to
continue until its objectives have been abandoned or accomplished.”); Gonzalez, 940
F.2d at 1427.
Further, Garza’s claim that he had nothing to do with Aracely after his
incarceration is discredited by Alvin’s testimony that Garza collected payment in
2004 on a debt that Alvin owed to Aracely. That testimony, viewed in the light most
favorable to the Government, would allow a reasonable jury to determine that Garza’s
association with Aracely and her criminal activities did not end when he was
incarcerated.
28
D. The Record Supports Aracely and Elda’s Count Two
Money Laundering Conspiracy Convictions.
Aracely and Elda contend that the evidence is insufficient to sustain their
Count Two convictions for conspiracy to launder money, in violation of 18 U.S.C. §§
1956(a)(1)(B)(i) and (h). To establish the offense of concealment money laundering
under 18 U.S.C. § 1956(a)(1)(B)(i), the government must demonstrate that:
(1) the defendant conducted or attempted to conduct a financial
transaction; (2) the transaction involved the proceeds of a statutorily
specified unlawful activity; (3) the defendant knew the proceeds were
from some form of illegal activity; and (4) the defendant knew a purpose
of the transaction was to conceal or disguise the nature, location, source,
ownership, or control of the proceeds.
United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002) (citation omitted). To
convict a defendant of conspiracy to commit concealment money laundering, the
government must prove that: (1) an agreement existed between two or more persons
to violate the law, in this case 18 U.S.C. § 1956(a)(1)(B)(i); and (2) the defendant,
knowing the unlawful plan, voluntarily joined the conspiracy. See United States v.
Johnson, 440 F.3d 1286, 1294 (11th Cir. 2006) (stating elements necessary for
conviction under 18 U.S.C. § 1956(a)(1)(A)(i)). Proof of an overt act is not required
for conviction of conspiracy to commit money laundering. United States v. Hall, 349
F.3d 1320, 1323-24 (11th Cir. 2003).
29
In defending the convictions, the Government relies on evidence that the
Defendants worked together to create phony businesses to hide the proceeds of their
drug trafficking. Aracely and Elda argue that the Government failed to offer
sufficient evidence that the businesses’ transactions involved proceeds of drug
trafficking. We disagree.
Proof that the funds underlying a conviction for conspiracy to commit money
laundering were drug proceeds may be established by circumstantial evidence.
United States v. Frazier, 605 F.3d 1271, 1282 (11th Cir. 2010). Furthermore, “[t]he
government need not prove that the funds came from a specific illegal action.” Id.The evidence at trial established that the Defendants received large amounts
of cash in payment for the cocaine that they provided Alvin and Benjamin. The
evidence further established that Custom Clay Products, a business associated with
the Defendants, did not file income tax returns between 2000 and 2006, despite filing
highway use tax forms indicating that it had trucks on the road during that period.
Agent Henken, who specializes in money laundering investigations, testified that he
would have expected to see tax filings indicating the revenue generated by the
business’s activities.
San Francisco Warehouse, another business associated with the Defendants,
did not file any tax returns from 2000 through 2006. A 2007 Schedule C filing for
30
San Francisco Warehouse listed gross income for the business, but did not list any
business expenses indicating that it had purchased inventory to sell. Agent Henken
testified that the lack of any records of the cost of goods sold made it seem as if San
Francisco Warehouse was just given things to sell. Henken also testified that he did
not find totals of accounts receivable or other accounting records that would be
expected in a functioning business.
Agent Henken noted irregular influxes of unexplained cash into San Francisco
Warehouse just before the company made large payments, such as payments for the
furniture purchases, that were the basis of some of the substantive money laundering
counts. According to Henken, that pattern of activity was consistent with what he had
observed in investigating other businesses that were fronts for illegal activity.
Henken’s testimony, viewed in the light most favorable to the Government, was
sufficient to allow a reasonable jury to conclude, as this jury did conclude, that the
businesses’ transactions involved proceeds of the Defendants’ drug distribution.
Brown, 415 F.3d at 1270. Cf. United States v. Johnson, 440 F.3d 1286, 1291 (11th
Cir. 2006) (listing “highly irregular features of the transaction” and “expert testimony
on practices of criminals” among types of evidence that may be considered in
determining if other elements of money laundering have been met) (quoting United
States v. Garcia-Emanuel, 14 F.3d 1469, 1476 (10th Cir. 1994)).
31
Aracely and Elda also contend that their money laundering conspiracy
convictions must be set aside because the Government failed to prove that they
conspired to launder the “profits,” as opposed to the “gross receipts,” of an unlawful
activity as required by United States v. Santos, 553 U.S. 507, 128 S. Ct. 2020 (2008).
Because Aracely and Elda did not raise this argument before the district court, our
review is only for plain error. Dennis, 237 F.3d at 1300.
Aracely and Elda’s reliance on Santos is misplaced. In United States v.
Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009), cert. denied, 130 S. Ct. 421 (2009),
we explained that Santos has limited precedential value, limited to a holding that the
gross receipts of an unlicensed gambling operation were not “proceeds” under section
1956. Id. Like the defendant in Demarest, Aracely and Elda were accused of
laundering and conspiring to launder the proceeds of illegal drug trafficking. Thus,
Santos is not controlling, and the Government was not required to show that they
laundered the profits of a criminal operation. See Demarest, 570 F.3d at 1242.
Consequently, there was no error, much less plain error.
E. The Substantive Money Laundering Counts.
Garza argues that the evidence was insufficient to sustain his convictions on
Counts Three and Four (the purchase of the cashier’s checks by Ward with drug
money) because he was not personally involved in the purchase of either the $9,000
32
or the $3,000 cashier’s check. Garza’s argument falls short because co-conspirator
liability laid out in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946),
supports his conviction. Under Pinkerton, “[e]ach party to a continuing conspiracy
may be vicariously liable for substantive criminal offenses committed by a
co-conspirator during the course and in the furtherance of the conspiracy,
notwithstanding the party’s non-participation in the offenses or lack of knowledge
thereof,” so long as “the substantive crime was a reasonably foreseeable consequence
of the conspiracy.” United States v. Mothersill, 87 F.3d 1214, 1218 (11th Cir. 1996)
(quotation marks and citation omitted). Garza’s counsel conceded at trial that a
Pinkerton instruction was appropriate and one was given, limited solely to Garza.
Our review of the record persuades us that the evidence was sufficient to
sustain Garza’s substantive money laundering convictions. See United States v.
Tokars, 95 F.3d 1520, 1539 (11th Cir. 1996).
Aracely challenges her convictions on Counts Six, Seven, Nine, Eleven,
Sixteen, and Twenty through Twenty-two, arguing that the Government failed to
prove that those transactions involved the proceeds of drug trafficking. Each of those
counts involved a purchase of furniture by San Francisco Warehouse. As we have
already explained, the evidence presented would allow a reasonable jury to determine
that San Francisco Warehouse was not a functioning, legitimate business, but instead
33
served as a front to disguise drug distribution proceeds. In fact, Agent Henken
specifically testified to his opinion that the furniture purchases were money
laundering transactions, and he based that in part on the unexplained, irregular
influxes of cash into San Francisco Warehouse, which did not appear to be a
legitimately functioning business, just before major furniture purchases. That
evidence was sufficient to allow a reasonable jury to conclude that those transactions
involved the proceeds of drug trafficking.
Aracely also challenges the sufficiency of the evidence supporting her
convictions on Counts Eight, Twelve through Fifteen, Seventeen, and Eighteen. Each
of those counts charged her with substantive money laundering based on cash
deposits made between 2000 and 2006 to one of the six bank accounts held in her
name. Once again, Aracely argues that the Government failed to show that those
transactions involved the proceeds of drug distribution. Again, we disagree.
The Government presented evidence that Aracely was involved in drug
distribution and that she received large amounts of cash in exchange for the drugs she
sold. Agent Henken analyzed the Defendants’ bank records and testified that Aracely
had six accounts in her name between 2000 and 2006, into which she made sporadic
cash deposits in non-recurring amounts. Henken testified that those large cash
34
deposits were followed by large checks or wire transfers out of the account, a pattern
indicative of money laundering.
The Government also offered evidence that during every year between 2001
and 2006, Aracely made deposits far in excess of her reported adjusted gross income
for that year. In fact, between 2000 and 2006, she made cash deposits totaling
$216,626 into her bank accounts, while reporting only $83,243 in adjusted gross
income. Given Aracely’s involvement in drug trafficking, the fact that her cash
deposits far exceeded her legitimate income, and the unusual pattern of banking
activity, a reasonable jury could conclude that the cash deposits at issue in Counts
Eight, Twelve through Fifteen, Seventeen, and Eighteen involved proceeds of drug
distribution. See Frazier, 605 F.3d at 1282 (lack of legitimate income is
circumstantial evidence that funds involved in transaction were drug proceeds);
United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990) (expert testimony on
habits of criminals, evidence of defendant’s involvement in drug trafficking, and lack
of legitimate income are sufficient to sustain jury’s determination that transaction
involved proceeds from drug trafficking).
Aracely also challenges her money-laundering convictions on Counts Three
through Five. Those convictions were based on the two cashier’s checks–for $9,000
and $3,000–purchased by Travis Ward in the names of Jesus and Irma Garza and
35
ultimately endorsed by Aracely and deposited into one of her bank accounts. The
next day, Aracely wrote a counter check for $12,000, drawn out of that same account,
and cashed it. Again, Aracely contends that the Government failed to demonstrate
that those transactions involved proceeds of drug distribution. That argument fails
because Ward testified that drug proceeds were used to purchase the cashier’s checks
totaling $12,000.5 This evidence is sufficient to affirm her conviction on these
counts.
Elda argues that the evidence is insufficient to sustain her convictions on
Counts Ten and Nineteen. Those two counts charged her with money laundering
based on deposits of cash into one of her two bank accounts. Specifically, Count Ten
charged that Elda committed concealment money laundering in violation of §
1956(a)(1)(B)(i) by making a $7,700 cash deposit on June 13, 2005. Count Nineteen
charged that she committed the same offense by making a cash deposit of $5,000 on
August 16, 2006. Elda argues that the evidence is insufficient to demonstrate that the
deposits involved the proceeds of illegal activity.
“Proof that . . . funds were drug proceeds may be established by circumstantial
evidence.” Frazier, 605 F.3d at 1282 (citing Blackman, 904 F.2d at 1257). The
5
As with her money laundering conspiracy conviction, Aracely challenges her substantive
money laundering convictions under Santos, 553 U.S. 507, 128 S. Ct. 2020 (2008). These arguments
merit no further discussion.
36
Government presented evidence that Elda was involved in drug distribution and that
there were large amounts of cash involved in the sale of those drugs. The
Government also introduced into evidence Elda’s tax returns, showing that in 2005,
Elda reported income in the amount of $9,100 from her work at Custom Clay
Products, and that in 2006, she reported an income of $11,050 from Ochun
Transportation. The Government presented evidence that Custom Clay’s trucks were
used to transport drugs. The Government also presented evidence that Elda had made
$700 per week while at Ochun, approximately three times the amount she had
reported to the IRS. Further, the Government presented evidence that neither of these
two businesses filed corporate income tax returns, lending credence to the
Government’s contention that these businesses were merely fronts for the money
laundering scheme. There was no evidence that Elda had a source of income other
than these companies in either 2005 or 2006.6 Given Elda’s involvement in drug
6
On cross-examination, Elda’s counsel asked Agent Henken, “if she was taking a vacation
with two of her sisters and each one paid $2,500 in cash to her to put in the bank, to write a check
to Disney World in Orlando, there’s nothing wrong with that, is there?” (Dkt. 170 at 660-61).
Henken replied that such a scenario would be legal. (Id. at 661). Elda contends that Henken’s
answer is evidence that the deposit charged in Count Ten was not drug proceeds. Elda also contends
that the fact that Elda purchased a car on the day after the Count Nineteen deposit is also evidence
that the funds were not drug proceeds. (Appellant Elda’s Br. at 29). We disagree. The jury weighed
the evidence and determined that the Government’s evidence outweighed Elda’s alternative theories.
We note that given the overwhelming testimony that Elda’s family was in the drug smuggling
business, it is not hard to reason that any money Elda may have received from her family for a trip
to Disney World was drug proceeds. Furthermore, the purchase of a car is a prime example of
money laundering and the fact that Elda may have been planning on purchasing a car does is not
indicative of the source of the money.
37
trafficking and the fact that her income was derived from companies associated with
her family’s money laundering scheme, a reasonable jury could conclude that the cash
deposits at issue in Counts Ten and Nineteen involved proceeds of drug distribution.
See id.F. Sentencing.
Finally, Aracely and Elda challenge their sentences. We use a two-step process
when reviewing sentences, and we review only for an abuse of discretion. United
States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). First, we “ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.”
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “If we find the
sentence procedurally sound, the second step is to review the sentence’s ‘substantive
reasonableness’ under the totality of the circumstances, including ‘the extent of any
variance from the Guidelines range.’” Shaw, 560 F.3d at 1237 (quoting Gall, 552
U.S. at 51, 128 S. Ct. at 597). When deciding upon a sentence, “[t]he district court
must evaluate all of the § 3553(a) factors” and consider each convicted person as an
38
individual and each case as unique. Shaw, 560 F.3d at 1237–38. Finally, “[r]eview
for reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). “[W]hen the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Id.Aracely’s challenges her 240-month sentence for procedural error. She contends that
the district court erred in applying a three-level enhancement after finding that she
qualified as a manager or supervisor in a criminal activity that “involved five or more
participants or was otherwise extensive.” See U.S.S.G. § 3B1.1(b) (2008). We
review a sentencing court’s determination of a defendant’s role in the crime only for
clear error. United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010).
Ample evidence demonstrated that the criminal activity involved five or more
participants, including Aracely, Elda, Belinda, Alvin, and Benjamin. See United
States v. Caraballo, 595 F.3d 1214, 1232 (11th Cir. 2010) (person being sentenced
is counted in number of participants for purposes of § 3B1.1). Furthermore, the
evidence established that, at a minimum, Aracely managed or supervised Elda and
Belinda, both of whom traveled with her and served as translators for her. See
U.S.S.G. § 3B1.1, cmt. n.2 (to qualify for enhancement, defendant “must have been
the organizer, leader, manager, or supervisor of one or more other participants”). The
district court did not clearly err in applying the § 3B1.1(b) enhancement.
39
Finally, Aracely contends that her 240-month sentence is substantively
unreasonable. Aracely argues that she deserved a more lenient sentence because of
her lack of criminal history and because she did not get involved with the crime until
she fell in with Garza. Given a total offense level of 43 and a criminal history
category of I, Aracely’s guidelines range was life imprisonment, see U.S.S.G. Ch. 5
Pt. A, but the district court determined that was too high. At the same time, however,
the court determined that a substantial sentence was called for because of the
seriousness of the crimes and the extent of Aracely’s involvement. Accordingly, the
district court imposed a sentence of 240 months in prison, below the guidelines
sentence of life imprisonment. Because that below-guidelines sentence is not outside
the range of reasonableness, the district court’s sentencing decision was not an abuse
of discretion.
Elda challenges her 120-month sentence for reasonableness. Elda does not
argue that the district court improperly calculated her guideline range of 292-365
months. At her sentencing, Elda’s counsel acknowledged that she was responsible
for 109 kilograms of cocaine. (Dkt.181 at 2-3.) Under 21 U.S.C. § 841(b)(1)(A), a
person convicted of a crime involving more than five kilograms of cocaine faces a
mandatory minimum sentence of ten years imprisonment. The district court
determined that the guidelines range was too high given her role in the conspiracy and
40
sentenced Elda to twenty-four months more than the mandatory minimum sentence.
In our view, this is not unreasonable. Because her below-guidelines sentence is not
unreasonable, the district court’s sentencing decision was not an abuse of discretion.
IV. CONCLUSION
Ramon Garza Jr.’s convictions and sentences are AFFIRMED. Aracely
Lopez’s convictions and sentences are AFFIRMED. Elda Lopez’s convictions and
sentences are AFFIRMED.
AFFIRMED.
41