Lawernce Kenemore, Jr. v. Keith Roy

Case: 12-41111 Document: 00512307467 Page: 1 Date Filed: 07/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2013
No. 12-41111
Summary Calendar Lyle W. Cayce
Clerk
LAWRENCE D. KENEMORE, JR.,
Petitioner-Appellant
v.
KEITH ROY, Warden at FCI Texarkana,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:08-CV-104
Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Lawrence D. Kenemore, Jr., federal prisoner # 26175-077, was convicted
by a jury of “conspiracy to commit mail fraud, conspiracy to embezzle funds
from employee benefit plans, conspiracy to launder money, mail fraud,
embezzlement from employee benefit plans, money laundering, and making a
false statement to the United States Department of Labor.” See United States
v. Kenemore, No. 96-11029, 1997 WL 574971 at *1 (5th Cir. Aug. 28, 1997)
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 12-41111
(unpublished). Kenemore filed a petition under 28 U.S.C. § 2241 arguing that
his money laundering conviction should be invalidated in light of the Supreme
Court’s decision in United States v. Santos, 553 U.S. 507 (2008). The district
court dismissed the § 2241 petition because Kenemore did not meet the
requirements for proceeding under the savings clause of 28 U.S.C. § 2255 as set
forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). In
reviewing the denial of habeas relief, the district court’s findings of facts are
reviewed for clear error and issues of law are reviewed de novo. Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
This court vacated the dismissal of Kenemore’s § 2241 petition and
remanded to the district court to determine whether, consistent with Garland
v. Roy, 615 F.3d 391 (5th Cir. 2010), Kenemore’s claim fell within the savings
clause. Kenemore v. Roy, 401 F. App’x 975 (5th Cir. 2010) (unpublished).
Following remand, the district court again dismissed Kenemore’s § 2241
petition because he did not meet the requirements for proceeding under the
savings clause of § 2255. The district court found that the convictions on counts
2 and 17-20 were not affected by the holding in Santos because they involved
violations of 18 U.S.C. §1956(a)(2)(A), which does not contain the word
proceeds. With respect to counts 21-25, the district court judge found that
defining proceeds as gross receipts did not cause a merger problem because the
monetary transfers were separate from the underlying fraud and
embezzlement from employee benefit plan funds and were designed to conceal
and disguise the source of the funds. The district court alternatively found that
the amounts alleged in these counts excluded operating expenses and involved
only the money diverted for Kenemore’s personal use.
On appeal, Kenemore does not challenge the district court’s finding that
counts 2 and 17-20 were not affected by the holding in Santos. Kenemore
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No. 12-41111
argues that he is entitled to relief under an interpretation of Santos in which
proceeds means profits in all money laundering cases. Although he does not
specifically challenge this court’s holding in Garland, his interpretation of
Santos directly contradicts Garland. In Garland, this court interpreted Justice
Stevens’s Santos concurrence as requiring a bifurcated analysis to determine
if proceeds should be defined as profits. Garland, 615 F.3d at 402-04. One
panel of this court may not overrule the decision of another panel absent an en
banc or superseding Supreme Court decision. See United States v. Lipscomb,
299 F.3d 303, 313 n.34 (5th Cir. 2002). As Kenemore has cited to no such
superseding case, this issue is without merit.
Next, Kenemore conclusionally suggests that the district court erred in
finding that his convictions presented no merger problems. Kenemore has
presented nothing specific to challenge these findings. Kenemore’s most potent
argument challenging the district court findings under the Garland bifurcated
analysis is that separating money transfers essential to the fraud from those
related to money laundering is difficult. Kenemore has not shown that the
district court erred in concluding that he had not shown that he may have been
convicted of a nonexistent offense under Santos. See Reyes-Requena, 243 F.3d
at 904.
AFFIRMED.
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