US v. Jorge Molina-Sanchez, No. 14-4880 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4880 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE MOLINA-SANCHEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00316-FDW-DSC-2) Submitted: September 29, 2015 Decided: November 6, 2015 Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. David Jonathon Joffe, JOFFE LAW, P.A., Fort Lauderdale, Florida, for Appellant. Jill Westmoreland Rose, Acting United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury distribute kilograms convicted and or detectable to more amount Jorge Molina-Sanchez possess of of a with mixture cocaine and intent of to conspiracy distribute and substance one kilogram five containing or more to of a a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846 (2012) (Count 1); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (2012) (Count 2); possession with intent to distribute a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2012) (Count 3); and using firearms during and in relation to, and possessing firearms in furtherance of, drug trafficking crimes, U.S.C. § 924(c)(1) (2012) (Count 4). raises several challenges downward variant sentence. to his in violation of 18 On appeal, Molina-Sanchez convictions and 420-month, Finding no error, we affirm. I. Molina-Sanchez first argues that the district court erred in denying his motions for judgment of acquittal on the drug trafficking and 2. and money laundering conspiracy offenses—Counts 1 We review de novo the district court’s denial of a motion for judgment of acquittal. F.3d 405, 419 (4th Cir. 2012). United States v. Engle, 676 In assessing the sufficiency of the evidence, we determine whether there is substantial evidence 2 to support the favorable to the evidence that convictions a when government. reasonable viewed Id. in the “Substantial finder of fact light most evidence is accept as could adequate and sufficient to support a conclusion of guilt beyond a reasonable doubt.” Id. Thus, “[a] defendant bringing a sufficiency challenge must overcome a heavy burden, and reversal for insufficiency must be confined prosecution’s failure is clear.” to cases where the Id. (internal quotation marks and citation omitted). To obtain a drug trafficking conspiracy conviction under 21 U.S.C. § 846, “the government must prove that (1) the defendant entered into an agreement with one or more persons to engage in conduct that defendant had defendant 2014) 21 knowledge knowingly conspiracy.” Cir. violated U.S.C. of and the § 841(a)(1); conspiracy; voluntarily and (2) that the (3) that the in the participated United States v. Howard, 773 F.3d 519, 525 (4th (ellipsis, omitted). “Given brackets, the clandestine conspiracies, the conspiracy circumstantial by government quotation marks omitted). and can internal and prove evidence quotation covert the nature existence alone.” marks Id. of of a (internal “Evidence of continuing relationships and repeated transactions can support the finding that there was a conspiracy, especially when 3 coupled with substantial quantities of drugs.” Id. at 526 (brackets and internal quotation marks omitted). To obtain a money laundering conspiracy conviction under 18 U.S.C. § 1956(h), the government must prove: (1) the existence of an agreement between two or more persons to commit one or more of the substantive money laundering offenses proscribed under 18 U.S.C. § 1956(a) . . . ; (2) that the defendant knew that the money laundering proceeds had been derived from an illegal activity; and (3) the defendant knowingly and voluntarily became part of the conspiracy. United States v. Green, 599 F.3d 360, 371 (4th Cir. 2010). As relevant to this case, a defendant commits a money laundering violation under § 1956(a) if he conducts or attempts to conduct a financial transaction: (1) “intending to promote the carrying on of specified unlawful activity (‘promotion money laundering’)”; or (2) “knowing that the financial transaction is designed to conceal unlawful activity the nature of (‘concealment the money proceeds of specified laundering’).” United States v. Bolden, 325 F.3d 471, 486-87 (4th Cir. 2003). Having conclude direct thoroughly that and conspiracy there reviewed was more circumstantial) offenses. to the than sufficient convict Specifically, trial transcript, evidence Molina-Sanchez the evidence of we (both both establishes that Molina-Sanchez knowingly participated in a large-scale drug trafficking operation and that he conspired to conduct financial transactions to both promote the drug trafficking operation and 4 conceal the nature of the proceeds. Although Molina-Sanchez argues that the coconspirators who testified at his trial are inherently the untrustworthy, evidence, witnesses.” we do “[i]n not evaluating review the the sufficiency credibility of of the United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). II. Next, Molina-Sanchez contends that the district abused its discretion in admitting certain evidence. court “We review a trial court’s rulings on the admissibility of evidence for abuse of discretion, and we will only overturn an evidentiary ruling Cole, that 631 is arbitrary 146, F.3d and (4th 153 irrational.” United States Cir. 2011) (internal district court did v. quotation marks omitted). We conclude discretion by that the admitting the challenged not evidence, relevant to the charges and not unduly prejudicial. Evid. 402, 403. abuse as it its was See Fed. R. Notably, the district court took care to issue limiting instructions when appropriate. See United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013) (holding that “any risk of unfair prejudice was effectively mitigated by the court’s carefully framed limiting instructions regarding proper consideration of [the] evidence”). 5 III. Molina-Sanchez argues that his sentence is procedurally and substantively unreasonable. We review a sentence for reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). A. Molina-Sanchez district court’s Guidelines range. first raises calculation several of his challenges advisory to the Sentencing When evaluating Guidelines calculations, we review the district court’s legal conclusions de novo and its factual findings for clear error. F.3d 305, 308 (4th Cir. 2014). United States v. Cox, 744 “Clear error occurs when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (ellipsis and internal quotation marks omitted). Molina-Sanchez contends that he should not be held accountable for all of the drugs in the conspiracy because the evidence does not establish his involvement in the conspiracy. This argument fails for the same reason that his sufficiency argument fails: there was more than adequate evidence establishing Molina-Sanchez’s participation in the large-scale drug trafficking operation. 6 Molina-Sanchez next asserts that the district court erred in applying manager or the three-level supervisor in enhancement the for his role conspiracy and in denying request for a mitigating role reduction. as a his See U.S. Sentencing Guidelines Manual §§ 3B1.1(b), 3B1.2(b) (2013). A three-level enhancement is warranted “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” USSG § 3B1.1(b). “The enhancement is appropriate where the evidence demonstrates that the defendant controlled the activities responsibility.” of other participants or exercised management United States v. Slade, 631 F.3d 185, 190 (4th Cir. 2011) (internal quotation marks omitted). We discern no clear error in the district court’s application of the three-level enhancement and its denial of a mitigating role reduction. The conspiracy involved more than five participants and the evidence presented a trial establishes that Molina-Sanchez was at least a manager or supervisor of the drug trafficking operation. Molina-Sanchez next contends that the district court erred in applying the criminal-livelihood enhancement. The Guidelines provide for a two-level enhancement if the defendant received a leadership enhancement under USSG § 3B1.1 and “committed the offense as part of a pattern of criminal conduct engaged in as a 7 livelihood.” USSG § 2D1.1(b)(14)(E). ““Engaged in as a livelihood” means that, for any 12-month period, “the totality of circumstances defendant’s shows primary that . . . occupation.” criminal USSG conduct § 4B1.3 was cmt. the n.2 (internal quotation marks omitted); see USSG § 2D1.1(b)(14)(E) cmt. n.19(C) (referencing § 4B1.3). example, by demonstrating that This may be proven, for “the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s legitimate employment was merely a front for the defendant’s criminal conduct.” USSG § 4B1.3 cmt. n.2. We conclude that the district court did not clearly err in applying the criminal-livelihood enhancement. By 2009, Molina- Sanchez and his brother were receiving 11-kilogram shipments of cocaine every other month and each shipment yielded $80,000 in profit. Thus, even if Molina-Sanchez earned some money by other means, the primary source of his income for several years was the drug trafficking operation. Moreover, the court could have reasonably concluded that the lawn-mowing business was a front for the brothers’ criminal conduct, considering that the lawnmowing equipment was hardly used. We denial also of adjustment § 3E1.1(a). discern no clear Molina-Sanchez’s for acceptance error request of in for the a district two-level responsibility. court’s downward See USSG Except in rare circumstances not applicable here, 8 “[t]his adjustment is not intended to apply to a defendant,” like Molina-Sanchez, “who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” USSG § 3E1.1 cmt. n.2. B. Finally, Molina-Sanchez challenges reasonableness of his sentence. the substantive “Any sentence that is within or below a properly calculated Guidelines range is presumptively [substantively] reasonable. rebutted by measured against States v. showing that the 18 U.S.C. the Louthian, Such 756 F.3d a presumption sentence § 295, is 3553(a) 306 can only unreasonable factors.” (4th Cir.) be when United (citation omitted), cert. denied, 135 S. Ct. 421 (2014). We conclude that Molina-Sanchez has not met this burden. The district court carefully considered the § 3553(a) factors before imposing a sentence well below Molina-Sanchez’s advisory Guidelines range of life plus 60 months’ imprisonment. Indeed, the downward variance was generous considering that the court stated that conspiracies this it was had one ever of the largest witnessed. drug Moreover, trafficking the court considered Molina-Sanchez’s arguments for a 180-month sentence but concluded that the seriousness of the offenses outweighed any mitigating factors. Finally, 9 the court did not err in concluding that the difference between the postarrest conduct of Molina-Sanchez and his brother warranted a disparity in the their sentences. IV. We affirm the district court’s judgment. oral argument adequately because presented in the the facts and materials legal before We dispense with contentions this court are and argument would not aid the decisional process. AFFIRMED 10
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