United States v. Ghali, No. 11-10583 (5th Cir. 2012)
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Defendant was convicted of ten counts of money laundering under 18 U.S.C. 1956, which prohibited individuals from laundering the "proceeds" of certain activities. After the Supreme Court held that "proceeds" meant "profits" rather than "gross receipts" in United States v. Santos, defendant moved for relief under 28 U.S.C. 2255 and appealed from the district court's denial of that motion. The court concluded that defendant did not argue on appeal that he was entitled to relief under the two-step analysis described in Garland v. Roy. Therefore, the court need not and did not resolve those issues. Because Garland prevented the court from uniformly defining "proceeds" as "profits" across the money-laundering statute, the court affirmed the judgment.
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Case: 11-10583 Document: 00512029734 Page: 1 Date Filed: 10/23/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-10583 October 23, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. MOHAMMED KHALIL GHALI, also known as Mohammed Ghali, Defendant - Appellant Appeal from the United States District Court for the Northern District of Texas Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Mohammed Khalil Ghali was convicted of ten counts of money laundering under 18 U.S.C. § 1956, which prohibits individuals from laundering the proceeds of certain activities. Several years later, a fractured Supreme Court held that proceeds means profits rather than gross receipts, at least in certain circumstances. Ghali timely moved for relief under 28 U.S.C. § 2255 and now appeals from the district court s denial of that motion. Because Ghali s claim for relief is foreclosed by Garland v. Roy,1 we affirm. 1 615 F.3d 391 (5th Cir. 2010). Case: 11-10583 Document: 00512029734 Page: 2 Date Filed: 10/23/2012 No. 11-10583 I Ghali owned and operated two convenience stores and a wholesale business within the State of Texas. The government suspected him of buying and selling stolen goods through those operations. It commenced an investigation of Ghali and some of his associates. Ghali was arrested and later charged in a nineteen-count indictment, which included ten counts of money laundering. Nine of those counts were for money-laundering sting ;2 each accused Ghali of purchasing property that an agent of the government represented . . . as having been stolen in the State of Oklahoma. The tenth alleged conspiracy to commit concealment money laundering; in essence, a conspiracy to conceal the proceeds of illegal activity.3 Ghali waived his right to a trial by jury. Following a bench trial, he was convicted on all ten money-laundering counts. The district court sentenced him to 168 months imprisonment.4 Ghali timely appealed to this Court, which affirmed the judgment of the court below.5 Soon after, the Supreme Court denied Ghali s petition for a writ of certiorari.6 A fractured Supreme Court later decided United States v. Santos,7 interpreting the word proceeds within the money-laundering statute under which Ghali was convicted. The Justices in Santos, split 4-1-4, disagreed about 2 See 18 U.S.C. §§ 1956(a)(3)(A) and 2. 3 See id. at § 1956(a)(1)(B)(i). 4 Ghali was convicted of several other offenses. The resulting, shorter sentences ran concurrently with the sentences arising from his money laundering. 5 See United States v. Ghali, 184 F. App'x 391 (5th Cir. 2006). 6 See Ghali v. United States, 549 U.S. 1008, 1008 (2006) (denying certiorari). 7 553 U.S. 507 (2008). 2 Case: 11-10583 Document: 00512029734 Page: 3 Date Filed: 10/23/2012 No. 11-10583 what holding they had collectively produced.8 Ghali timely moved for relief under § 2255, his first such motion. He argued that Santos s understanding of proceeds required the government to prove that he laundered the profits of certain activities, rather than mere gross receipts. The district court disagreed and denied Ghali s motion. Ghali filed a notice of appeal, contending that [u]nder [Santos], the Appellant is actually innocent of the [money laundering] convictions[,] rendering the 168 month sentence imposed [on him] to be in excess of the . . . statutory maximum applicable to the remaining counts of conviction. Judge King granted Ghali a COA, and this appeal followed. II When a district court denies a motion under 28 U.S.C. § 2255, we review its legal conclusions de novo.9 On appeal, Ghali s claim for relief turns on a single argument: Under Santos, proceeds must always mean profits within the money-laundering statute. That argument is foreclosed.10 Our interpretation of Santos is settled. In Garland v. Roy, we applied Marks v. United States to the Supreme Court s 4-1-4 Santos decision.11 We concluded that Justice Stevens s concurrence controls, and summarized his opinion as follows: First, he stated that he was joining the plurality s rule, that the rule of lenity dictates that proceeds must be defined as profits in cases where defining proceeds as gross receipts would result in the perverse result of the merger problem. In other circumstances, however, he could not agree with the plurality 8 See id. at 523 24 (plurality opinion), 528 n.7 (Stevens, J., concurring). 9 See United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). 10 Because Ghali s argument is plainly foreclosed, we need not decide whether the government forfeited any applicable procedural bar. 11 See Garland v. Roy, 615 F.3d 391 (5th Cir. 2010) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). 3 Case: 11-10583 Document: 00512029734 Page: 4 Date Filed: 10/23/2012 No. 11-10583 that proceeds must have one uniform meaning, profits. Instead, second, he stated that in other applications of the statute not involving such a perverse result, he would start from the presumption that proceeds should be defined as gross receipts, but he would look to the legislative history of the money-laundering statute, 18 U.S.C. § 1956, to challenge this presumption. Only if he could locate adequate legislative history to rebut this presumption, indicating that proceeds should be defined as profits, would he conclude that Congress meant for the narrower definition to apply.12 We elsewhere explained that the merger problem exists when a defendant could be punished for the same transaction under the money-laundering statute as well as . . . the [other] statute criminalizing the specified unlawful activity underlying the money-laundering charge. 13 Ghali acknowledges that in Garland, we adopted the two-step approach set out in Justice Stevens s concurrence. Ghali nevertheless argues that we should not follow Garland because it is inconsistent with Clark v. Martinez, in which the Supreme Court explained that judges may not give the same statutory text different meanings in different cases. 14 We cannot agree. [E]ven if a panel s interpretation of the law appears flawed, the rule of orderliness prevents a subsequent panel from declaring it void absent an intervening change in the law. 15 Because the Supreme Court s 2005 decision in Martinez existed when this Court decided Garland in 2010, Martinez cannot provide an intervening change in the law. This is not 12 Id. at 402 (internal citations omitted). 13 Id. (internal quotation marks omitted). 14 543 U.S. 376, 386 (2005). 15 Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008). 4 Case: 11-10583 Document: 00512029734 Page: 5 Date Filed: 10/23/2012 No. 11-10583 to say that Martinez and Garland are consistent. It is only to say that we must faithfully apply Garland regardless.16 Ghali further argues that Garland is distinguishable because the criminal defendant in that case did not raise the Martinez issue. It is true that our opinion in Garland does not cite Martinez. But the Garland opinion certainly reviewed Santos, in which several Justices suggested that Justice Stevens s view was inconsistent with Martinez.17 And more to the point defendant Garland did raise the Martinez issue, citing the case and claiming that the meaning of a word in a statute cannot change with the statute s application. 18 Accordingly, the rule of orderliness applies here with full effect. Garland controls this Court s interpretation of Santos and forecloses Ghali s argument. 16 Ghali also argues that Garland is inconsistent with the rule of lenity and contends that the Garland Court misapplied Marks. Even if true, neither claim even colorably presents an intervening change in law. Ghali does not argue that Santos s interpretation of proceeds should be limited to 18 U.S.C. § 1956(a)(1)(A)(i), the specific provision at issue in that case. In any event, we perceive no reason why that interpretation would not also apply to the word proceeds within Sections 1956(a)(3)(A) and 1956(a)(1)(B)(i), the Sections under which Ghali was convicted. See United States v. Santos, 553 U.S. 507, 512 (2008) (plurality opinion) ( The word [ proceeds ] appears repeatedly throughout the statute, but all of those appearances leave the [ profits or gross receipts ] ambiguity intact. ). 17 See United States v. Santos, 553 U.S. at 522 24 (plurality opinion). The principal dissent in Santos did not cite Martinez, but expressed support for Martinez s basic principle. See id. at 532 (Alito, J., dissenting) (rejecting Justice Stevens s approach insofar as it holds that the meaning of the term proceeds varies depending on the nature of the illegal activity that produces the laundered funds. ); id. at 546 ( I do not see how the meaning of the term proceeds can vary depending on the nature of the illegal activity that produced the laundered funds. ); id. at 548 ( The meaning of the term proceeds cannot vary from one money laundering case to the next. ). 18 Appellant s Br. at 10, Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), (No. 09-40735), available at http://coa.circ5.dcn/ShowDoc.aspx?dlsId=913378; see also Garland, 615 F.3d at 399 ( Garland argues that he satisfies the third . . . factor because the four-Justice plurality opinion in Santos held that proceeds must always be defined as profits . . . [and] argues that we should ignore Justice Stevens analysis. ). 5 Case: 11-10583 Document: 00512029734 Page: 6 Date Filed: 10/23/2012 No. 11-10583 III On appeal, Ghali does not argue that he is entitled to relief under the two-step analysis described in Garland. We therefore need not and do not resolve those issues. Because Garland prevents us from uniformly defining proceeds as profits across the money-laundering statute, we AFFIRM.19 19 Because Ghali has not established that it was error to try him on a gross receipts rather than a profits definition of proceeds, we need not decide whether such an error would entitle him to relief. 6
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