Opinion
Nos. 07-5750-cr (L), 08-0965-cr (CON).
September 23, 2009.
Appeal from the United States District Court for the Southern District of New York (Cote, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court as to defendant-appellant Jaime Humberto Gutierrez-Gonzalez be and hereby is AFFIRMED and that the appeal of defendant-appellant Francisco Javier Castro Lomeli be and hereby is DISMISSED.
For Defendant-Appellant Francisco Javier Castro Lomeli: Allan P. Haber, New York, NY
For Defendant-Appellant Jaime Humberto Gutierrez-Gonzalez: B. Alan Seidler, New York, NY
For Appellee: Brendan R. McGuire (Andrew L. Fish, on the brief), Assistant United States Attorneys, for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, NY
Present: ROGER J. MINER, ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges.
The Honorable Gerard E. Lynch was a District Judge for the United States District Court for the Southern District of New York, sitting by designation, when this appeal was submitted. Prior to this summary order's release he was elevated to this Court.
Defendants-appellants Francisco Javier Castro Lomeli and Jaime Humberto Gutierrez-Gonzalez ("Gutierrez") appeal from judgments of the district court dated December 18, 2007, and February 19, 2008, respectively. The district court sentenced Lomeli principally to 108 months' imprisonment and Gutierrez principally to 135 months' imprisonment. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.
Lomeli's appeal, which challenges the substantive reasonableness of his sentence, must be dismissed because he waived his right to appeal in the plea agreement he entered into with the government. The waiver provision states that "the defendant will not file a direct appeal [of] . . . any sentence within or below the Stipulated Guidelines Range [of 135 to 168 months' imprisonment]." "This waiver is in a familiar form that we have consistently held enforceable" as long as the waiver is "knowing and voluntary." See United States v. Roque, 421 F.3d 118, 121-22 (2d Cir. 2005). The colloquy at Lomeli's plea proceeding "adequately establishes that [Lomeli] understood the terms of his waiver in the plea agreement," see United States v. DeJesus, 219 F.3d 117, 121 (2d Cir. 2000) (per curiam), and Lomeli does not point to anything showing that the waiver was not otherwise voluntary. Because Lomeli was sentenced to 108 months, a sentence below the range stipulated in the plea agreement, he has waived his right to appeal and his appeal must be dismissed.
Gutierrez raises two separate issues on appeal. First, he argues that there was no factual basis for his guilty plea to a charge of conspiracy to commit money laundering; second, he argues that the district court erred in finding that he was not entitled to a reduction in his offense level because he was a minor participant in the offense.
There was a sufficient factual basis for Gutierrez's plea to the money laundering conspiracy charge. Rule 11 of the Federal Rules of Criminal Procedure provides that, "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." Fed.R.Crim.P. 11(b)(3). This rule "requires the court to assure itself simply that the conduct to which the defendant admits is in fact an offense under the statutory provision under which he is pleading guilty." United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997).
Gutierrez pled guilty to conspiring to violate 18 U.S.C. § 1956(a)(1)(B)(i), the elements of which are
(1) that the defendant conducted a financial transaction; (2) that the transaction in fact involved the proceeds of specified unlawful activity [including the narcotics offense at issue here]; (3) that the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity; and (4) that the defendant knew that the financial transaction was designed in whole or in part to conceal or disguise the source, ownership, control, etc., of those proceeds.
Id. at 1527-28. The required "financial transaction" can be a "transfer" or "delivery" of cash. 18 U.S.C. § 1956(c)(3), (4), (5). To conspire to commit this offense requires the extra elements that two or more people agreed to commit the offense and that the defendant knowingly joined the conspiracy with the intent to fulfill its purpose; for purposes of a money laundering conspiracy, "the Government need not prove an overt act to obtain a conviction." Whitfield v. United States, 543 U.S. 209, 214 (2005). Where, as here, the defendant did not challenge the factual sufficiency of his plea in the district court, we review the district court's acceptance of the plea for plain error. See United States v. Barnes, 244 F.3d 331, 333 (2d Cir. 2001) (per curiam).
Gutierrez's plea allocution provided a sufficient factual basis for the money laundering charge, in that he admitted that he agreed to make phone calls to both sides of the narcotics transaction to facilitate the transfer of two million dollars in cash, all of which he knew was proceeds from the relevant narcotics transaction, from the New York-based buyer to the Mexico-based seller. Indeed, the only element that was not explicitly admitted by Gutierrez was that he knew that the transfer of the cash was designed "in whole or in part to conceal or disguise the source, ownership, [or] control" of the drug proceeds. However, the district court reasonably "rel[ied] on . . . information appropriate to th[is] specific case," see United States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999), to find a sufficient factual basis for this element, where the record before the district court showed that the amount of money changing hands was so large that a reasonable person could infer that it was only transferred in cash (rather than, for example, through a bank) in order to disguise, inter alia, its source and ownership; and, furthermore, where Gutierrez admitted that he was "involved in this conspiracy" after the district court had informed him earlier in the proceeding, and Gutierrez had acknowledged that he understood, that an element of the offense was that Gutierrez "underst[ood] that the transaction was undertaken, in part, to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity." We find no plain error here.
Gutierrez's challenge to the calculation of his guidelines range also fails. In reviewing a district court's guidelines calculation, we "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). As we have previously noted, "a sentencing court's assessment of the defendant's role in criminal activity is highly fact-specific and depends upon the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." United States v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001) (alteration and internal quotation marks omitted). We find no error in the district court's determination that Gutierrez was not "substantially less culpable than the average participant" in this type of drug crime. See United States v. Ravelo, 370 F.3d 266, 269 (2d Cir. 2004) (internal quotation marks omitted). Accordingly, both of Gutierrez's arguments on appeal are without merit.
We have previously noted that it is unclear in this Circuit whether sentencing courts' decisions with respect to mitigating role adjustments are reviewed de novo or for clear error. United States v. Burgos, 324 F.3d 88, 91 n. 2 (2d Cir. 2003). This question need not be resolved here, as under either standard of review the outcome would be the same.
Gutierrez also argues generally that his sentence was "unreasonable." To the extent that this is an argument that the sentence was procedurally unreasonable because the two errors he identifies on appeal led the district court to err in calculating his guidelines range, this argument fails for the reasons just discussed. To the extent that Gutierrez is asserting a claim that his sentence was substantively unreasonable this claim fails as well; this is not the "exceptional" case "where the trial court's decision cannot be located within the range of permissible decisions." See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted).
For the foregoing reasons, the judgment of the district court as to defendant-appellant Jaime Humberto Gutierrez-Gonzalez is AFFIRMED and the appeal of defendant-appellant Francisco Javier Castro Lomeli is DISMISSED.