United States v. Bone

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40074
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CATHY EDGE BONE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CR-56-4)
_________________________________________________________________
December 3, 1996
Before KING, GARWOOD, and DENNIS, Circuit Judges.
PER CURIAM:*
Cathy Edge Bone appeals her sentence following conviction
for misprision of a felony in violation of 18 U.S.C. § 4. Bone
argues that the district court erred in finding that she knew or
reasonably should have known that more than $100,000 in funds
derived from drug trafficking were laundered. Having reviewed
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
the record and the briefs of the parties, we hold that the
district court’s finding was not clearly erroneous.
I. BACKGROUND
Bone was of one of 15 defendants named in a 57-count
indictment including charges for drug-related activities and
money laundering. Pursuant to a written plea agreement, Bone
pled guilty to a one-count information charging that she
committed the offense of misprision of a felony by concealing the
money laundering activities of her codefendants. She
subsequently was sentenced to 18 months imprisonment.
The section of the United States Sentencing Guidelines
applicable to misprision of a felony is 2X4.1, which directs that
the offense level should be nine levels below that for the
underlying offense. The guideline section for the underlying
offense of money laundering is 2S1.1, which establishes a base
offense level of 20. According to the presentence report
(“PSR”), three levels were added pursuant to U.S.S.G.
§ 2S1.1(b)(1) because Bone knew that the laundered funds were the
proceeds of unlawful activity involving the manufacture,
importation, or distribution of controlled substances. An
additional one level was added pursuant to U.S.S.G.
§ 2S1.1(b)(2)(B) because it was determined that Bone was aware of
more than $100,000 being laundered. The district court overruled
Bone’s objection at sentencing to this one-level increase. The
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resulting offense level of 24 was then decreased by nine to yield
an offense level of 15, which was subsequently reduced by two
levels for acceptance of responsibility.
Bone’s sole challenge on appeal is the addition of the one
level based on knowledge of an amount in excess of $100,000. The
addition of this level increased the applicable guideline range
from 10-16 months to 10-18 months.
II. ANALYSIS
The guideline for money laundering includes special offense
characteristics that are determined on the basis of acts and
omissions caused by the defendant and all reasonably foreseeable
acts and omissions of others in furtherance of jointly undertaken
criminal activity. U.S.S.G. § 1B1.3(a)(1)(A), (B). Application
note 10 under § 1B1.3 states that in the case of misprision, “the
conduct for which the defendant is accountable includes all
conduct relevant to determining the offense level for the
underlying offense that was known, or reasonably should have been
known, by the defendant.” The determination of what the
defendant knew or should have known is a factual finding. See
United States v. Warters, 885 F.2d 1266, 1273 (5th Cir. 1989).
Accordingly, we review the district court’s finding for clear
error. See United States v. Puig-Infante, 19 F.3d 929, 942 (5th
Cir.), cert. denied, 115 S. Ct. 180 (1994).
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Bone argues that the presentence report provides no
indication as to what amount of money she knew or should have
known had been laundered by others, but merely states generally
that she was “aware of money laundering activities.” Bone
acknowledges that the addendum to the PSR refers to paragraphs 13
and 14 of the PSR to support a finding that Bone should have
known that $134,564.94 had been laundered, and that the addendum
states that the investigating agent reported that Bone had
signature authority on the accounts through which money was
laundered. She asserts, however, that these facts do not support
a finding that she knew or should have known that more than
$100,000 had been laundered. She argues that paragraphs 13 and
14 do not connect her to the bank accounts into which the cash
was deposited, and that the addendum does not identify the time
frame during which she allegedly had signature authority on the
accounts. At sentencing, Bone contested her signature authority
on these accounts. Accordingly, she contends that the one-level
increase in her base offense level for laundering in excess of
$100,000 is “without foundation.”
The district court adopted the information in the PSR.
Paragraph 13 states that in 1990, Bone’s husband, Erskine Bone,
opened an account at the Farmers and Merchants Bank in Burleson,
Texas and deposited $25,000 into the account during that year.
Bone admitted at sentencing that she was aware that her husband
had received $25,000 from Raymond Bone before Raymond went to
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jail for drug trafficking. Paragraph 13 also states that in
1989, Bone purchased the land in Atoka County, Oklahoma that
served as the primary drug manufacturing site, and that the
property owner was paid $4,100 as a down payment. At sentencing,
Bone denied that she made the $4,100 down payment, but stated
that she signed the contract of sale for the property while
sitting at her dining room table.
Paragraph 14 of the PSR states that in 1990, Erskine bone
opened an account at the Security One Federal Credit Union in
Arlington, Texas and deposited a total of $105,464.94 in cash
into the account during the years 1990-93. The addendum to the
PSR states that these deposits consisted of laundered currency,
that Bone had signature authority on the accounts at both Farmers
and Merchants Bank and Security One, and that statements for each
account were mailed to Bone’s residence.
Bone’s key challenge is to the district court’s finding that
she knew or should have known about the $105,464.94 in deposits.
In addition to the facts stated above, the PSR indicated that at
the time of the offense, Bone and her husband had a legitimate
monthly income of $2,385, but total monthly expenses of $4,970.
Bone was actively involved along with her husband in
methamphetamine distribution. Bone also owned a tax service and
helped other members of the drug distribution organization file
their taxes.
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The district court need only determine its factual findings
at sentencing by a “preponderance of the relevant and
sufficiently reliable evidence.” United States v. Alfaro, 919
F.2d 962, 965 (5th Cir. 1990). In resolving any reasonable
dispute concerning a factor important to the sentencing
determination, the court may consider relevant information that
has “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a). “[A] presentence report
generally bears sufficient indicia of reliability to be
considered as evidence by the trial judge in making the factual
determinations required by the sentencing guidelines.” Alfaro,
919 F.2d at 966. “[T]he defendant bears the burden of
demonstrating that the information cannot be relied upon because
it is materially untrue, inaccurate or unreliable.” United
States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
Taking into account Bone’s denial of signature authority on
the two bank accounts, we nevertheless conclude that the district
court had before it sufficient reliable evidence from which to
find that Bone either knew or should have known of over $100,000
in laundered funds. This finding was not clearly erroneous.
AFFIRMED.
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