United States v. Steven Moreland

FILED
NOT FOR PUBLICATION DEC 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30330
Plaintiff - Appellee, D.C. No. 2:01-cr-00108-RSM-5
v.
MEMORANDUM *
STEVEN CRAIG MORELAND,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted July 11, 2012 **
San Francisco, California
Before: HUG, McKEOWN, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Steven Craig Moreland appeals from the 216-month sentence imposed for
various offenses associated with his role in a Ponzi scheme. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
Relying on a merger theory and United States v. Santos, 553 U.S. 507(2008), Moreland contends that, notwithstanding the fact that we previously upheld
four of his convictions for money laundering, the district court was not permitted
to consider those convictions when calculating the applicable Sentencing
Guidelines range. He is incorrect. The Sentencing Guidelines required the district
court to consider Moreland’s money laundering convictions when calculating the
Guidelines range. See U.S.S.G. § 2S1.1 (1998). Moreover, Santos did not change
the Sentencing Guidelines. See Santos, 553 U.S. 507.
Moreland argues that the district court erred by failing to group his fraud and
money laundering counts together under U.S.S.G. § 3D1.2(b) and (d) (1998). This
argument is foreclosed by United States v. Syrax, 235 F.3d 422, 424-26 (9th Cir.
2000).
Moreland also argues that the district court erred when it included a ten-level
enhancement under U.S.S.G. § 2S1.1(b)(2)(K) (1998) based on the value of the
1
Because the parties are familiar with the facts and the procedural history,
we do not recount them here.
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funds involved in the foreign promotional money laundering. Relying on United
States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009), Moreland contends that the
funds involved in these money laundering transactions may not be used to enhance
his sentence because these transactions were integral to the underlying fraud.
Contrary to Moreland’s contentions, Van Alstyne does not stand for the proposition
that courts never may base money laundering enhancements on funds associated
with payments integral to an underlying fraud scheme. Rather, Van Alstyne holds
that “the Guidelines do not contemplate a base level enhancement on account of
transactions that do not constitute money laundering within the meaning of the
statute.” Id. at 816. Because the district court based the enhancement on
transactions that constituted foreign promotional money laundering under 18 U.S.C.
§ 1956(a)(2)(A), the district court did not err when it included the enhancement.
Next, Moreland contends that the district court erroneously determined the
amount of the money laundering enhancement because the court included in its
calculations a $10 million dollar transfer from a place outside of the United States
to a place inside the United States. According to Moreland, it was impermissible to
include this transaction in the calculations because he was charged and convicted
only of transferring funds from a place inside the United States to a place outside of
the United States; he was not charged with transferring funds from a place outside
3 11-30330
the United States to a place inside the United States. Van Alstyne forecloses this
argument. See Van Alstyne, 584 F.3d at 816 (explaining that a district court may
rely on uncharged conduct when calculating the enhancement for a money
laundering conviction).
The district court included adjustments for Moreland’s leadership role in the
offense under U.S.S.G. § 3B1.1(a) (1998) and his abuse of a position of trust under
U.S.S.G. § 3B1.3 (1998) when calculating the adjusted offense level for the fraud
group. The court then also included adjustments for role in the offense and abuse of
trust when calculating the adjusted offense level for the money laundering group.
Moreland contends that it was impermissible double counting for the court to rely
on all of these adjustments when determining the total offense level. However,
because the two adjustments for leadership roles were based on different conduct,
wrongs, and victims, it was permissible to impose both leadership adjustments. See
Syrax, 235 F.3d at 428-29. Similarly, the court did not err by imposing the two
adjustments for abuse of a position of trust because the two adjustments result from
different conduct, wrongs, and victims. See id.Moreland next argues that the district court erroneously decided that the law
of the case doctrine and the rule of mandate precluded the court from considering
his merger arguments during resentencing. However, the record shows that the
4 11-30330
court rejected Moreland’s merger argument rather than prohibiting him from raising
it.
Finally, Moreland contends that the district court erred by failing to grant his
motion to dismiss Counts 33-36 to the extent they were based on 18 U.S.C.
§ 1956(a)(2)(B). However, the amended judgment accurately states that Moreland
was convicted of violating 18 U.S.C. § 1956(a)(2), and the district court properly
based the sentence on foreign promotional money laundering, not foreign
concealment money laundering.
AFFIRMED.
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