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United States v. Menendez

March 29, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
RAMIRO MENENDEZ, ALBERTO SIERRA, VILMA BIDO, ANGELO LISI, RUSSELL LAWRENCE, CARLOS EKMEIRO, ALSO KNOWN AS "PELON," PAUL PACHECO, RICARDO SOBALVARRO, MARTHA COBIS, KENYI MARIELA DIAZ-PEREZ, DEFENDANTS, GUSTAVO SIERRA, ALSO KNOWN AS "PAPO," ALSO KNOWN AS "RAY," ALSO KNOWN AS "RAUL," ALSO KNOWN AS "MR. X," DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Appeal from a judgment entered on June 3, 2008, in the United States District Court for the Southern District of New York (Batts, J.), following a guilty plea, convicting defendant-appellant of one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of a substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846, and one count of conspiracy to launder narcotics proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h), the court having sentenced defendant to concurrent terms of imprisonment of 135 months upon a determination that the base offense level under the United States Sentencing Guidelines for defendant's conviction for conspiracy to launder money was to be calculated in accordance with the amount of narcotics involved in his conviction for conspiracy to distribute narcotics.

Affirmed.

The opinion of the court was delivered by: Miner, Circuit Judge

Submitted: October 19, 2009

Before: JACOBS, Chief Judge, MINER and LIVINGSTON, Circuit Judges.

Defendant-appellant Gustavo Sierra ("Sierra") appeals from a judgment of conviction and sentence entered on June 3, 2008, in the United States District Court for the Southern District of New York (Batts, J.), following a guilty plea to one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of a substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846, and one count of conspiracy to launder narcotics proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h). The District Court sentenced Sierra to concurrent terms of imprisonment of 135 months upon a determination that the base offense level under the United States Sentencing Guidelines (the "Guidelines") for Sierra's conviction for conspiracy to launder money, see 18 U.S.C. § 1956(a)(1)(B)(i), (h), was to be calculated in accordance with the amount of narcotics involved in his conviction for conspiracy to distribute narcotics, see 21 U.S.C. §§ 841(a)(1), (b)(1), 846. For the reasons that follow, we affirm the judgment of the District Court.

I. BACKGROUND

From 2003 to 2004, Sierra and his principal co-conspirator, Alberto Sierra ("Alberto"), engaged in a conspiracy to distribute drugs and launder money. According to the scheme, a supplier based in Venezuela provided Alberto with heroin to sell in the New York City area, and Sierra - on behalf of Alberto - collected the proceeds of the drug sales as well as sold some of the heroin. Sierra then transferred the drug proceeds to either Alberto or to "other people," who acted as intermediaries on behalf of drug suppliers located in Venezuela, to disguise the nature, location, source, ownership, and control of the drug proceeds.

Following Sierra's, Alberto's, and other related defendants' arrests in 2004, Sierra was indicted on two counts: one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of a substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846 ("Count One"), and one count of conspiracy to launder narcotics proceeds, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h) ("Count Two"). Although the amount of narcotics in Count One involved approximately 21 kilograms of heroin, the value of the laundered funds in Count Two amounted to the proceeds from the sale of between 2 and 3.5 kilograms of heroin.*fn1 On July 12, 2006, Sierra, without a plea agreement, pleaded guilty to both counts of the Indictment.

In preparation for sentencing, the United States Probation Department submitted a Presentence Investigation Report ("PSR") calculating Sierra's applicable Guidelines offense level. The PSR grouped Counts One and Two pursuant to U.S.S.G. § 3D1.2(c), and calculated Sierra's base offense level for Count Two by applying the total amount of drugs involved in Count One.*fn2 This grouped calculation resulted in a base offense level of 36. After adding two levels for Sierra's conviction under 18 U.S.C. § 1956, adding three levels for Sierra's supervisory or managerial role in the criminal scheme, and subtracting three levels for Sierra's acceptance of responsibility for his crimes, the PSR assigned Sierra a total Guidelines offense level of 38. Sierra objected to the PSR's application of the total amount of drugs involved in Count One to calculate the base offense level for Count Two.

Although the government agreed for the most part with the PSR's calculations, it notified the District Court that, contrary to the findings in the PSR, Sierra did not warrant a role enhancement as a manager or supervisor in the criminal scheme. The government also advised the District Court that Sierra qualified for safety valve relief under 18 U.S.C. § 3553(f).

Accordingly, the government submitted an adjusted Guidelines offense level of 33, and requested that Sierra be sentenced within the corresponding Guidelines range of 135 to 168 months' imprisonment. Sierra again objected that Count Two could not be calculated by applying the amount of drugs involved in Count One.

At Sierra's sentencing hearing, the District Court agreed with the government that Sierra's Guidelines offense level was 33. The District Court rejected Sierra's contention that the amount of drugs involved in Count One, i.e., the conspiracy to distribute approximately 21 kilograms of heroin,*fn3 could not be considered in calculating the base offense level for Count Two, i.e., the conspiracy to launder proceeds from the sale of 2 to 3.5 kilograms of heroin. Upon reviewing the factors set forth in 18 U.S.C. § 3553(a) in addition to the Guidelines, the District Court sentenced Sierra to concurrent terms of imprisonment of 135 months; to concurrent terms of supervised release of 5 and 3 years (Count One and Count Two, respectively); and imposed a mandatory assessment of $200. This timely appeal followed.

On appeal, Sierra argues that the District Court erred in considering the amount of drugs involved in Count One to calculate the base offense level for Count Two. This presents an issue of first impression in this Circuit. Sierra also argues, for the first time, that the District Court created an unwarranted disparity in sentencing by imposing upon him a longer term of imprisonment than on each of his several co-defendants. Specifically, Sierra asserts that ...


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