Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 849 F.2d 1476 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.George GEBRAYEL, Defendant-Appellant.

No. 86-1313.

United States Court of Appeals, Ninth Circuit.

Submitted June 13, 1988.* Decided June 16, 1988.

Before KOELSCH, WALLACE and BEEZER, Circuit Judges.


MEMORANDUM** 

George Gebrayel appeals from a district court order denying his motion for a reduction of sentence under Fed. R. Crim. P. 35. Gebrayel was convicted of violating the Currency Transaction Reporting Act (CTRA). Because the district court did not abuse its discretion, we affirm.

FACTS

Gebrayel was vice chairman of the Pan American International Bank's board of directors in Las Vegas. As a result of an Internal Revenue Service (IRS) undercover investigation in 1982, Gebrayel, along with the Bank and others, was indicted for (1) conspiracy to violate the CTRA, 18 U.S.C. § 371; (2) failure to file timely currency transaction reports (CTRs) on transactions aggregating to more than $100,000 in a 12-month period, 18 U.S.C. §§ 5313, 5322(b); and (3) aiding and abetting the filing of a false statement with the government, 18 U.S.C. §§ 2, 1001. A jury found Gebrayel guilty on all three courts.1  Gebrayel was sentenced to two years imprisonment and five years concurrent probation on October 5, 1984. We affirmed the conviction. United States v. Gebrayel, Nos. 84-1296, 85-1277, mem. op. (9th Cir.Apr. 30, 1986). We denied a subsequent petition for rehearing and suggestion for rehearing en banc.

Gebrayel filed a timely motion for reduction of sentence pursuant to Fed. R. Crim. P. 35 on September 19, 1986. The district court denied the motion, by order entered on October 14, 1986. In its order, the district court reasoned:

The Court has reviewed the presentence report, all matters considered by the Court at the time of sentencing, the Motion and the entire record. All relevant and pertinent matters were considered by the Court at the time of sentencing. Nothing has since been presented which was not generally considered at the time of sentencing or which warrants any reduction of sentence.

Id. Gebrayel timely appeals.

ANALYSIS

A Rule 35 motion is essentially a plea for leniency and is addressed to the sound discretion of the district court. United States v. Hooton, 693 F.2d 857, 859 (9th Cir. 1982). We will not disturb the denial of a motion for reduction of sentence absent a clear abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, 107 S. Ct. 462 (1986); United States v. Kouwenhoven, 602 F.2d 234, 238 (9th Cir. 1979). In determining whether the district court abused its discretion, we consider " 'whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Ruffen, 780 F.2d at 1495 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)).

Gebrayel contends that it was error for the district court not to take into consideration United States v. Reinis, 794 F.2d 506 (9th Cir. 1986), which was decided after his sentencing date. Gebrayel expressly called the district court's attention to Reinis in his reduction of sentence motion. In its order, the district court stated that it considered the motion and the entire record, and that "nothing has [been presented since the time of sentencing] ... which warrants any reduction of sentence." We will not assume that the district court ignored any relevant matter presented by Gebrayel. There is no basis for Gebrayel's allegation that the district court did not consider Reinis in denying his motion. Moreover, the district court did not abuse its discretion by not reducing the sentence in light of Reinis since it is inapposite to Gebrayel's case.

In Reinis, defendant conducted a money laundering operation. On different days, he and his agents paid cash to purchase cashier's checks from various banks. Each of the checks was for less than $10,000. The government contended that the purchases were "structured" to avoid the reporting requirements of the CTRA. Defendant was convicted of aiding and abetting a bank's failure to file CTRs in violation of the CTRA, conspiring to violate the CTRA, and causing concealment of a material fact from the IRS. We reversed. Id. at 508.

In our analysis, we observed that 31 C.F.R. Sec. 103.22(a), which was promulgated to implement the CTRA, requires financial institutions to file currency CTRs when they participate in transactions involving more than $10,000. The Secretary of the Treasury had not promulgated a regulation requiring CTRs by other participants in currency transactions. Id. at 507. We further noted two recent decisions. In United States v. Varbel, 780 F.2d 758 (9th Cir. 1986) we held that because the CTRA imposed no duty on a participant in a currency transaction with a bank to inform the bank of the nature of the transaction, a participant could not aid or abet a bank's failure to file CTRs where no evidence indicated that the bank had knowledge of the transactions' nature. Id. at 762. In United States v. Espriella, 781 F.2d 1432 (9th Cir. 1986), we held that where each currency transaction involved less than $10,000, there could be no conspiracy to violate the CTRA under 18 U.S.C. § 371. Id. at 1435.

The defendant in Reinis never personally purchased cashier's checks totaling more than $10,000 from any banking location on any given day; however, on ten different days, defendant and his agents purchased cashier's checks totaling in excess of $10,000 from the same bank. The crux of the government's contention was that the instructions in the Currency Transaction Reporting Form--Form 4789--required the bank to treat these multiple transactions as a single transaction and to report them.2 

We rejected the government's argument, holding that Form 4789 was not effective as a regulation because it was never promulgated pursuant to the rule-making requirements of the Administrative Procedure Act. Reinis, 794 F.2d at 508. We reasoned that " [c]riminal penalties for failure to report currency transactions can attach only upon violation of regulations promulgated by the Secretary." Id. Since the bank did not violate the law by failing to treat multiple transactions on the same day as a single transaction, we concluded that the defendant could not be guilty of any of the offenses for which he was charged. Id.

Unlike Reinis, the government here never attempted to use the instructions on CTR Form 4789 as a regulation. Nor did they have to; the transactions involved in the case at bar were in direct violation of 31 U.S.C. §§ 5313, 5322(b) and 31 C.F.R. Secs. 103.22, 103.25. The transactions here involved a $70,000 deposit, a $90,000 deposit, a $135,000 deposit, a $100,000 withdrawal, a $15,000 transfer within the bank, and a $180,000 wire transfer of funds. These transactions were handled by bank officials who failed to file CTRs concerning transactions that were in excess of $10,000 each and were also part of a pattern of illegal activity involving transactions of more than $100,000 in a twelve-month period. We have already affirmed Gebrayel's conviction for violating the express provisions of the CTRA and rules promulgated thereunder.

Gebrayel argues that the district court erred in disregarding the guidelines issued by the Sentencing Commission, thereby violating 18 U.S.C. §§ 3582(c) (2), 3742(a) (3) (A) and 28 U.S.C. § 994(a) (1). The Sentencing Act of 1987, Pub. L. No. 100-182, provides that the sentencing guidelines do not apply to conduct that occurred before November 1, 1987. See United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Accordingly, Gebrayel's contention is completely without merit.

Gebrayel also argues that the district court erred by failing to consider the fact that the other co-conspirator in the case, Rodriguez, was allowed to withdraw his guilty plea after Gebrayel's sentencing. Again, we stress that we will not assume the district court ignored this matter raised in Gebrayel's motion when it expressly stated that it reviewed the motion and the entire record, and that nothing had been presented since the time of sentencing that warranted any reduction of sentence. We further note that Gebrayel improperly attempts to re-appeal an issue that we have already considered and decided. In his appeal after conviction, Gebrayel argued that because of Rodriguez's withdrawn guilty plea, there was insufficient evidence to convict him of conspiracy since there was no possible co-conspirator. We expressly rejected his argument. Gebrayel, Nos. 84-1296, 85-1277, mem. op. at 9-10. We reasoned that the plea withdrawal did not affect Gebrayel's conspiracy conviction. Id. at 10 (citing United States v. Wright, 742 F.2d 1215, 1224 (9th Cir. 1984); United States v. Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982)). Accordingly, the plea withdrawal does not mandate a reduction of sentence.

Finally, Gebrayel maintains that the district court failed to consider a previously sealed letter from a probation officer to the district court, which was unsealed pursuant to a stipulation of the parties. In the letter, the probation officer who supervised Rodriguez recounted statements made by Rodriguez that in his estimation no one had done anything wrong and that he pled guilty because he was afraid. The probation officer was careful to add, however, that this information would have little bearing on Gebrayel's request for favorable consideration. Because Gebrayel did not raise this issue in his motion for reduction of sentence, it cannot be raised now. Nonetheless, we note that it was the same district judge who received and sealed the letter who subsequently denied Gebrayel's motion for reduction of sentence. The court was completely familiar with the contents of the letter, and stated in its order that it had again reviewed the entire record. The sealed letter was also transmitted to us during the previous appeal. Even if Gebrayel had raised this issue in his reduction of sentence motion, the district court did not clearly abuse its discretion in not reducing his sentence based on the contents of the letter.

Because we conclude that the district court did not abuse its discretion in denying Gebrayel's motion for reduction of sentence, and finding no other error, we affirm.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

The Bank pled guilty and was fined. The Chairman of the Bank's board, Rafael Acosta, was found not guilty on all counts by the same jury that convicted Gebrayel. A bank employee, Richard Rodriguez, initially pled guilty to the conspiracy charge under a plea bargain, but later was allowed to withdraw his guilty plea. Rodriguez was not prosecuted further

 2

The instructions read: "Multiple transactions by or for any person which in any one day total more than $10,000 should be treated as a single transaction, if the financial institution is aware of them." Reinis, 794 F.2d at 508