Monday, March 29, 2010

High Sierra

United States v. Sierra, No,. 08-2761-cr (2d Cir. March 29, 2010) (Jacobs, Miner, Livingston, CJJ)

Gustavo Sierra pled guilty to one count of drug trafficking and one count of money laundering. The drug count involved 21 kilograms of heroin, while the money laundering count involved the proceeds of the sale of between 2 and 3.5 kilograms. Sierra’s presentence report calculated the base offense level for the money laundering count by using the total amount of the drugs involved in the drug trafficking count. With adjustments, this produced a sentencing range of 135-168 months.

Sierra objected, arguing that the guideline range for the money laundering count should be based only on the drug quantity alleged in that count, which would produce a lower offense level. The district court disagreed, used the higher range, and sentenced him to 135 months’ imprisonment.

On appeal, the circuit affirmed. It characterized Sierra as a “direct money launderer,” which means that he both laundered the money and committed the offense that produced it. And the guideline for direct money launderers, § 2S1.1(a)(1), clearly specifies that the base offense level should be the offense level “for the underlying offense from which the laundered funds were derived” if the defendant either committed the underlying offense or would be accountable for it under the usual relevant conduct principles. Here, the “underlying offense” was indisputably the 21-kilogram heroin conspiracy. Thus, under this instruction, the offense level for that conspiracy became the base offense level for the money laundering count.

The court also rejected Sierra’s novel argument that the guideline’s reference to relevant conduct principles should mitigate his sentence, rather than increase it, because he in fact laundered only the proceeds of 2 to 3.5 kilograms and not the full 21. Under the relevant conduct guideline, a defendant is accountable for “all quantities of contraband with which he was directly involved”; thus, that a defendant “laundered a lesser amount of funds than the value of his entire drug operation” is “immaterial.” Sierra’s argument would also have the effect of “underminin[g] the express purpose of” the money laundering guideline, which is to punish direct money launderers “one to four levels greater than the Chapter Two offense level for the underlying offense.” Finally, the argument is precluded by the language of the guideline itself which, for direct money launderers, does not refer to the value of the laundered funds in any way. Accordingly, Sierra’s guidelines were correctly calculated.

Sierra also argued, for the first time on appeal, that his sentence created an unwarranted disparity with his co-defendants. But the court disagreed, calling the disparities warranted. His co-defendants either had plea agreements, pled guilty only to one of the counts, were “exceptionally honest in admitting to the crimes," or had unique personal circumstances, such as serious illness, that reduced their risk of recidivism.

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