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noting confusion created by Santos and finding that because of that confusion and the lack of guidance from the Tenth Circuit, district court did not commit plain error in sentencing defendant on charges allegedly based on receipts rather than profits
Summary of this case from U.S. v. BaumOpinion
No. 09-5169.
February 11, 2011.
Appeal from the United States District Court for the Northern District of Oklahoma.
Catherine J. Depew, Kevin Chambers Leitch, Charles M. McLoughlin, Esq., U.S. Attorney, Phillip E. Pinnell, Office of the United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Charles Robert Burton, IV, The Burton Law Firm, Tulsa, OK, for Defendant-Appellant.
Before O'BRIEN, SEYMOUR, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with the terms and conditions of Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
Mr. Robert W. Searles pleaded guilty to conspiracy to commit money laundering. He now appeals his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
In April 2009, Mr. Searles pleaded guilty to conspiracy to commit money laundering under 18 U.S.C. §§ 1956(h), 1957(a). In the plea agreement, he waived the right to directly appeal his conviction, but preserved the right to appeal sentencing issues. Seven months later, he was sentenced to fifty-seven months imprisonment with three years of supervised release. He was also ordered to pay $3,634,192.79 in restitution and $260,288.24 in forfeiture.
Prior to Mr. Searles's guilty plea, in 2008, the Supreme Court issued its decision in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). Santos considered the interaction between an illegal gambling operation and the meaning of the term "proceeds" in the federal money-laundering statute, 18 U.S.C. § 1956. In a fragmented 4-1-4 decision, the plurality and concurring opinions together held that, at least in the illegal gambling context, the term "proceeds" in 18 U.S.C. § 1956 means "profits" rather than "gross receipts." See id. at 514, 128 S.Ct. 2020 (plurality opinion); id. at 528 n. 7, 128 S.Ct. 2020 (Stevens, J., concurring in judgment).
In response to Santos, in May 2009, Congress amended the federal money laundering statute to define "proceeds" to mean "any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity." 18 U.S.C.A. § 1956(c)(9) (2011). This opinion evaluates the legality of Mr. Searles's sentence under the earlier version of the statute, which was in effect at the time he entered into the plea agreement. As a result, all of our references to the U.S. Code are to the unrevised, 2006 version.
Although Santos was decided a year before Mr. Searles was sentenced, he did not object in district court to the meaning of "proceeds" with respect to his conviction and sentencing for conspiracy to commit money laundering, which was based on the predicate offense of conspiracy to commit mail and wire fraud. He now appeals the legality of his sentence, by arguing the criminal charges were erroneously based on "receipts" instead of "profits." He maintains Santos requires the term "proceeds" in 18 U.S.C. § 1956 to be interpreted to mean "profits" when there is no legislative history to the contrary. As a result, he contends he was wrongfully "sentenced on a set of facts that did not fall within conduct criminalized by the federal money laundering statute." Aplt. Br. at 12.
Because Mr. Searles waived his right to challenge his conviction, this appeal only examines the legality of his sentencing. The government does not contest Mr. Searles's right to challenge his sentence based on Santos. But to the extent Mr. Searles's briefs imply that the validity of his conviction may also be challenged, see, e.g., Aplt. Br. at 11 ("Searles [sic] guilty plea and sentence for money laundering cannot stand."), such arguments have been waived and we will not examine them.
Because Mr. Searles did not challenge the definition of "proceeds" in the district court, we review his appeal for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); Fed.R.Crim.P. 52(b). "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Gonzalez-Huerta, 408 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal quotation marks omitted). An error is plain if it is "clear or obvious" under "current, well-settled law." United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir. 2000). "In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed this issue." United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003)
The only thing that is "clear and obvious" about the 4-1-4 Santos decision is that it "raises as many issues as it resolves for the lower courts." United States v. Brown, 553 F.3d 768, 783 (5th Cir. 2008). Various circuit courts have struggled to discern the meaning of Santos, and have greatly differed in their interpretations of Santos's holding and effect. See Garland v. Roy, 615 F.3d 391, 402-03 (5th Cir. 2010) (collecting cases and finding five different views of Santos's holding). Some courts have interpreted Santos as only applying in the illegal gambling context. See, e.g., United States v. Johnson, 405 Fed.Appx. 746, 750 (4th Cir. 2010) (unpublished and non-precedential) (defining "proceeds" to mean "gross receipts" in mail and wire fraud case, because "the plurality opinion in Santos does not appear to extend beyond illegal gambling operations"); United States v. Spencer, 592 F.3d 866, 879 n. 4 (8th Cir. 2010) (holding Santos does not apply in the drug context because Santos's holding was limited to illegal gambling cases); United States v. Demurest, 570 F.3d 1232, 1242 (11th Cir. 2009) (holding a conviction for money laundering of illegal drug trafficking proceeds is not affected by Santos's narrow holding "that the gross receipts of an unlicensed gambling operation were not `proceeds' under section 1956").
Other circuits have interpreted the case broadly. See, e.g., United States v. Yusuf, 536 F.3d 178, 185-86 (3d Cir. 2008) (applying Santos to mail fraud case and explaining "the term `proceeds,' as that term is used in the federal money laundering statute, applies to criminal profits, not criminal receipts, derived from a specified unlawful activity"); United States v. Lee, 558 F.3d 638, 642-43 (7th Cir. 2009) (applying Santos and holding the regular expenses of operating a "massage parlor" that provided prostitution services were not "proceeds" within the meaning of 18 U.S.C. § 1956). Still other circuits have adopted interpretations of Santos that will allow the meaning of "proceeds" to vary among cases. See, e.g., Garland, 615 F.3d at 402-03 (extending Santos to mail and securities fraud case after concluding Santos held "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. . . . [But otherwise there should be a] presumption that `proceeds' should be defined as `gross receipts'" unless legislative history contradicts this presumption (internal quotation marks omitted)); United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009) (applying a "gross receipts" definition of proceeds in bank fraud case, after determining Santos held "`proceeds' . . . means profits only when the § 1956 predicate offense creates a merger problem that leads to a radical increase in the statutory maximum sentence and only when nothing in the legislative history suggests that Congress intended such an increase"); United States v. Van Alstyne, 584 F.3d 803, 814-15 (9th Cir. 2009) (applying Santos to mail fraud case after interpreting Santos as holding "that `proceeds' means `profits' where viewing `proceeds' as `receipts' would present a `merger' problem of the kind that troubled the plurality and concurrence in Santos" but also explaining that not all mail fraud schemes would implicate this merger problem).
Our circuit has not yet determined the effect of Santos. Nor do we decide this issue today. In light of the confusion created by Santos, and the lack of guidance from our circuit, the district court did not commit plain error in its disposition of Mr. Searles's case. Any error which the district court may have made is neither "clear" nor "obvious" under well-settled law.
Accordingly, we AFFIRM Mr. Searles's sentence.