UNITED STATES оf America, Plaintiff-Appellee v. Juan Luis RAMIREZ; Alejandro Cabrera; Jorge Salas-Leyva, also known as Jorge Sala, Defendants-Appellants.
No. 12-41217.
United States Court of Appeals, Fifth Circuit.
Feb. 3, 2014.
315
Bobbie Peterson Cate, Esq., Sherman, TX, Todd Alan Durden, Durden Law Firm, Keller, TX, Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX, for Defendants-Appellants.
PER CURIAM:*
Juan Luis Ramirez, Alejandro Cabrera, and Jorge Salas-Leyva appeal thеir convictions for drug and money laundering conspiracy. Ramirez and Salas-Leyva also challenge their sentences. The Government concedes error on the sufficiency of the evidence for the money laundering conspiracy as to Cabrera. We agree and find no other error. We therefore AFFIRM the convictions for the drug conspiracy as to all defendants and the money laundering conspiracy as to Ramirez and Salas-Leyva, but we REVERSE Cabrera‘s conviction for money laundering conspiracy and REMAND for resentencing.
I.
Cabrera argues first that his prosecution in the instant case violated his plea agreement with the Government in a prior case. “Whether the Government has breached a plea agreement is a question of law we review de novo.” United States v. Harper, 643 F.3d 135, 139 (5th Cir.2011).
In the prior case, Cabrera pleaded guilty to an indictment charging him with conspiracy to distribute methamphetamine. In return for the plea, the Government agreed not to prosecute Cabrera in the Eastern District of Texas for other charges based on conduct underlying the plea. The instant prosecution was not a breach of the agreement because, although one of the codefendants overlapped in the two cases, the conduct underlying the two offenses was not the same. In the methamphetamine casе, Cabrera was charged with a conspiracy lasting from 2007 through July 23, 2009, to distribute 500 grams or more of a mixture or substance containing methamphetamine, and that as part of the offense Cabrera possessed one pound of methamphetamine on July 23, 2009. The factual basis for the offense showed that Cabrera and another defendant intended for a third individual to sell the methamphetamine in Longview or Shreveport. In the instant case, Cabrera was charged with a much larger conspiracy lasting from January 2006 through July 13, 2011, to distribute five kilograms or more of cocaine, and with conspiracy to commit money laundering, in the Eastern District of Texas. Given the different time frames, co-defendants, controlled substances, and general locations of the two offenses, it would not be reasonable for Cabrera to believe that his plea agreement in the methamphetamine case barred his prosecution for the instant cocaine offense. See, e.g., United States v. Lewis, 476 F.3d 369, 387-88 (5th Cir.2007) (an alleged breach of a plea agreement is determined in part based on defendant‘s reasonable understanding of the agreement). Fur
II.
All three defendants argue that venue was improper in the Eastern District of Texas. They assert that the evidence at trial showed that the drug operations and activity were in Dallas, that all co-conspirators lived in Dallas, and that stash houses were located in Dallas. They contend that the evidence failed to show that the offenses occurred in the Eastern District of Texas. We disagree.
We will affirm a conviction where the defendant challenges venue if, viewing the evidence in the light most favorable to the Government, a rational jury сould find that the Government established venue by a preponderance of the evidence. United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir.2009). In a conspiracy case, venue is proper in any district where the agreement was formed or an overt act occurred. Id.
Here, although many acts in the conspiracies occurred in Dallas, which is in the Northern District of Texas, there was also evidence of significant acts occurring within the Eastern District of Texas, especially in and around Lufkin. The evidence showed that two individuals involved in the conspiracy, Melesio Noyola and Jonathan Beltran, lived in Lufkin, where multiple-kilogram shipments of cocaine were delivered. Some of the cocaine was then further distributed to Louisiana. Money was also delivered to and sent from Lufkin. These acts were all in furtherance of the conspiracies and supported venue in the Eastern District of Texas. See id. (“Venue can be based on evidence of any single act that initiated, perpetuated, or complet
III.
All defendants also challenge the sufficiency of the evidence to support their convictions. Because all three defendants timely moved for a judgment of acquittal, we review the challenge to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the Government, and asking whether any rational jury could have found all of the essential elements of the offense beyond a reasonable doubt. United States v. Davis, 735 F.3d 194, 198 (5th Cir.2013).
In order to convict the defendants of the conspiracy to distribute cocaine, the Government had to prove “(1) an agreement between two or more persons to violate the narcotics laws, (2) the defendant‘s knowledge of the agreement, and (3) the defendant‘s voluntary participation in the conspirаcy.” United States v. Zamora, 661 F.3d 200, 209 (5th Cir.2011) (internal quotation marks and citation omitted). The Government also had to prove that the overall scope of the conspiracy involved at least five kilograms of cocaine. See United States v. Turner, 319 F.3d 716, 721-22 (5th Cir.2003).
The evidence here showed that the defendants were part of a wide-ranging operation involving the Gulf cartel moving large amounts of cocaine and money between Mexico and the United States. The operation was headed in Mexico by Salas-Leyva‘s cousin, who was known as El Tigre, and involved numerous drivers, middlemen, and other participants. The evidence incriminated all three defendants in the conspiracy.
Trial testimony showed that a co-conspirator named Gumercindo Chavarria delivered multiple shipments of cocaine in quantities of seven to eight kilograms to Ramirez. Ramirez also made introductions allowing Noyola and Beltran to sell cocaine to a person named Peter Mingo. Ramirez himself also delivered cocaine to Mingo for resale in Louisiana. Noyola, Beltran, Mingo, and Chavarria all testified to transactions implicating Ramirez.
With respect to Cabrera, co-conspirators Jesus Jaimes and Jorge Villegas-Jaimes (Villegas) both testified about deliveries of cocaine to Cabrera and to Cabrera‘s partner, Jose Gaona. Jaimes testified that hе delivered approximately 120 kilograms of cocaine to both men and that approximately 50 kilograms went directly to Cabrera at Cabrera‘s home. Villegas believed that Cabrera received approximately 70 kilograms. Cabrera argues that the evidence was insufficient because Jaimes and Villegas were criminals and not credible. A conviction may be based even on uncorroborated testimony of a co-cоnspirator, however, as long as the testimony is not incredible as a matter of law. See United States v. Valdez, 453 F.3d 252, 257 (5th Cir.2006). Because Jaimes‘s and Villegas‘s testimony did not relate to facts that the witnesses could not have observed or to events which could not possibly have happened, the testimony was not incredible as a matter of law and the evidence was sufficient. See id.
The evidence was also sufficient to support the conviction of Salas-Leyva.
In order to convict the defendants of money laundering, the Government had to prove “(1) that there was an agreement between two or more persons to commit money laundering; and (2) that the defendant[s] joinеd the agreement knowing its purpose and with the intent to further the illegal purpose.” United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.1999). Proof of an overt act is not required. United States v. Fuchs, 467 F.3d 889, 906 (5th Cir.2006). The indictment here alleged four objects of the conspiracy involving the promotion of unlawful activity, in violation of
The defendants contend that the evidence was insufficient becаuse it showed merely that money was transported hidden in vehicles as part of the drug offense, without the use of wires, financial institutions, or financial transactions. They argue that the money was payment for past drug shipments and that their conduct involved merely concealing the money itself during transportation rather than transporting money to conceal the nature, location, source, ownership, or control of the funds. See, e.g., Cuellar v. United States, 553 U.S. 550, 568, 128 S.Ct. 1994, 2006, 170 L.Ed.2d 942 (2008); see also
The sufficiency of the evidence with respect to promotion money laundering is necessarily a fact-intensive inquiry, dependent on the circumstances of each case. See United States v. Trejo, 610 F.3d 308, 315 (5th Cir.2010). To prove a conviction for money laundering under
The evidence and circumstances here showed that Ramirez personally participated in the transportation of multiple shipments of both cocaine and money conceаled in vehicles. Ramirez was directly compensated for the transportation. On more than one occasion, he turned the money over to another co-conspirator for
To show that the defendants had the specific intent to promote unlawful activity, the Government had to show more than the defendants’ knowing promotion, but rather that the defendants acted intentionally to promote the unlawful activity. See Trejo, 610 F.3d at 314. Here, the evidence did more than show that funds were frequеntly transported in a manner designed to prevent detection while en route to Mexico, which undoubtedly promoted the conspiracy. More than that, the evidence of Ramirez‘s and Salas-Leyva‘s extensive participation in the drug operation, and their leadership roles in the activity by directing others, supports a conclusion that both knew the funds were drug proceeds, knew they were being transported out of the United States, and intеnded the transactions to further the progress of the unlawful drug conspiracy. See, e.g., id. at 315 (defendant‘s knowledge of inner workings of drug organization or extensive involvement in the operation may be sufficient to show intent to promote unlawful purpose of money laundering). We are satisfied based on the circumstances here that the Government proved the essential elements of money laundering with respect to Ramirez and Salas-Leyva.
The Government concedes on appeal that the evidence was insufficient to show that Cabrera joined an agreement to commit money laundering knowing the purpose of the agreement and with intent to further that purpose. Cabrera‘s conviction on the money laundering count is therefore reversed and the case is remanded for the district court to resentence Cabrera.
IV.
Ramirez and Salas-Leyva both challenge sentencing enhancements applied when determining their sentencing ranges under the Sentencing Guidelines. “We review a district court‘s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.” United States v. Reagan, 725 F.3d 471, 493 (5th Cir.2013).
A.
Ramirez contends that the district court erred by overruling six objections to the presentence report (PSR). He does not specify in his brief how the court erred in its analysis, however. An appellant may not incorporate by reference arguments made in his district court pleadings, and conclusional and inadequately briefed arguments are waived. See, e.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Moreover, we discern no clear error in the district court‘s determinations based on the drug quantity attributed to Ramirez or Ramirez‘s role in the offense.
Ramirez also argues for the first time on appeal that the district court erred when
The district court used the adjusted offense level for the drug conspiracy (which included Chapter 3 enhancements) as the base offense level for money laundering and thеn added two levels pursuant to
However, the base offense level for money laundering should have been determined from the drug quantity аlone without considering any Chapter 3 enhancements applicable to the drug offense. See
B.
With respect to Salas-Leyva, the jury specifically found that the drug conspiracy involved “5 kilograms or more” of cocaine. This finding exрosed Salas-Leyva to a statutory maximum sentence of not less than ten years or more than life. See
Salas-Leyva also argues that the district court improperly applied a fourlevel enhancement to the drug offense for a leadership role pursuant to
Like Ramirez, Salas-Leyva argues, also for the first time on appeal, that the district court misapplied the cross-reference in
Finally, Salas-Leyva argues that the district court should have granted his request, made during the sentencing hearing, for a continuance so that he could call his brothers as witnesses to rebut Gutierrez‘s testimony that Salas-Leyva еxercised control over them in directing the delivery of cocaine. In denying the continuance, the district court noted that Salas-Leyva knew about the probation department‘s position when the PSR was distributed several months before the sentencing hearing but he did not subpoena the witnesses. Moreover, as noted by the Government, the district court‘s leadership role enhancement for the drug offense was based on the testimony of other witnesses, in addition to Gutierrez. Salas-Leyva fails to show that the district court‘s denial of the continuance was arbitrary or unreasonable or that he suffered serious prejudice. See United States v. Barnett, 197 F.3d 138, 144 (5th Cir.1999); United States v. Peden, 891 F.2d 514, 519-20 (5th Cir.1989).
V.
For the foregoing reasons, the convictions and sentences of Ramirez and Salas-Leyva are AFFIRMED. The conviction of Cabrera for the drug conspiracy is AFFIRMED, but Cabrera‘s conviction for the money laundering conspiracy is RE