NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                       No. 08-3416




            UNITED STATES OF AMERICA

                            v.

                    LILIAN MUNOZ,
                             Appellant




      On Appeal from the United States District Court
                for the District of New Jersey
                (D.C. No. 2-08-cr-00156-002)
       District Judge: Hon. Joseph A. Greenaway, Jr.




        Submitted Under Third Circuit LAR 34.1(a)
                     June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

                  (Filed: June 30, 2010)




                        OPINION
SLOVITER, Circuit Judge.

       Lilian Munoz (“Lilian”), who pled guilty to conspiracy to commit money

laundering contrary to 18 U.S.C. § 1956(a)(1)(B)(i) in violation of 18 U.S.C. § 1956(h)

challenges the District Court’s application of the Sentencing Guidelines to her sentence.

                                              I.

       In May 2007, Immigration and Customs Enforcement (“ICE”) agents observed

Lilian and her husband Everado Antonio Munoz (“Everado”) as they exited their

apartment building in Weehawken, New Jersey. The ICE agents approached the couple,

and obtained consent to search the large black duffle bag that Everado was carrying.

Inside was $390,010 in cash wrapped in rubber bands. The agents found another

$378,550 in cash but “very little clothing, food or furniture” in their apartment,

Presentence Investigation Report (“PSR”) at ¶ 11, and in Lilian’s purse $5,057 in cash

wrapped in white napkins, a notebook that appeared to contain records of money

laundering transactions, and a cell phone.

       Everado later told interviewers of the probation office that he was recruited to

launder money while visiting Colombia the previous year, that he believed the money was

potential drug money, and that he had been expecting a call on the cell phone found in

Lilian’s purse from the individual to whom he was supposed to deliver the money in

Queens, New York. Everado also claimed that his wife knew nothing of his activities.

       Lilian told her interviewers of the probation office that she was accompanying her



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husband but asserted that she did not know what her husband was doing and, when asked

what she thought he was doing meeting people “in parking lots and giving them bags, she

smiled and shrugged her shoulders and gave no response.” PSR at ¶ 22. Although she

was asked that same question several times, she refused to answer. Lilian also told her

interviewers that her husband had given her the cell phone the day that ICE intercepted

them, and that she knew nothing more about it. “At [that] time,” the phone began to ring

with a call from the same phone number that was written on a post-it note found inside

Lilian’s address book next to a “code . . . for the delivery of the cash and the location in

Queens.” PSR at ¶ 23.

       Lilian and Everado were indicted for conspiracy to launder money in violation of

18 U.S.C. § 1956(h) and both pled guilty. Lilian’s plea agreement specifically noted that

at sentencing she would contest: (1) whether her guidelines calculation should be

enhanced by six levels because she knew that the laundered money was intended to

promote the narcotics trade, see U.S.S.G. § 2S1.1(b)(1); and, (2) whether she merited a

two level decrease for acceptance of responsibility, see U.S.S.G. § 3E1.1. At sentencing,

the District Court applied the six level enhancement of § 2S1.1(b)(1), but declined to

apply § 3E1.1 to decrease her offense level for acceptance of responsibility. After

reviewing the factors referred to in 18 U.S.C. § 3553(a), the District Court sentenced both

Everado, who unlike Lilian had benefitted from a three level reduction for acceptance of

responsibility, and Lilian to seventy months of imprisonment. For Lilian, that sentence



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was twenty seven months under the lowest recommended guidelines sentence.

                                            II.

       Lilian’s principal argument regarding the six level enhancement for laundering

narcotics-related money under § 2S1.1(b)(1) is that the language of her plea colloquy, in

which she admitted that at some point in time she learned “that the source of the funds

was from the sale of narcotics,” App. at A23, was insufficient to support the

enhancement. She asserts that § 2S1.1(b)(1) requires such knowledge at the time the

money was laundered. However, the District Court applied the enhancement not only

because Lilian had “said yes at the plea allocution to knowing [that the] currency was

from the proceeds of some form of illegal activity,” but also because of the “attending

circumstances . . . .” App. at A48. Those circumstances included the large sums of

money involved, Everado’s admission “during his post-arrest statement” that he knew that

the money was from drug sales, Lilian’s possession of the ledger, the cell phone, and the

post-it note, and the government’s plausible assertion that the facts that the Munoz’s

apartment was sparsely furnished and the rent was paid for in cash are “indicative of

laundering money from narcotics sales.” PSR at ¶ 29. The District Court’s conclusion

was not clear error. See United States v. Carr, 

, 1210 (3d Cir. 1994)

(reviewing district court’s three level enhancement under U.S.S.G. § 2S1.1(b)(1) “only

for clear error”).

       We turn to Lilian’s challenge to the District Court’s denial of the two point



                                             4
reduction for acceptance of responsibility. U.S.S.G. § 3E1.1 states, “If the defendant

clearly demonstrates acceptance of responsibility for his offense, decrease the offense

level by 2 levels.” The comments to that guideline further explain that “a defendant who

falsely denies, or frivolously contests, relevant conduct that the court determines to be

true has acted in a manner inconsistent with acceptance of responsibility[.]” U.S.S.G. §

3E1.1 cmt. n.1(a). The District Court found that Lilian’s statements to the probation

office that she accompanied her husband but did not know what he was doing showed a

lack of acceptance of responsibility in someone who had pled guilty to conspiracy to

launder money. Indeed, her statements before the probation office flatly contradicted

those made during her plea colloquy, at which Lilian answered “yes” when asked both

“Did you understand that the currency you received was the proceeds of some form of

unlawful activity?” and “Did you understand that the purpose of deliveries of currency

was to conceal and disguise the nature, location, source, ownership and control of the

funds?” App. at A23.

       Although Lilian was apparently without counsel at the time she spoke with the

probation officer, she did not claim that she misunderstood the questions posed, and,

although given the opportunity, she did not attempt to clarify her answers during the

sentencing hearing.1 See United States v. Singh, 

, 1041-43 (3d Cir. 1991)



                    1
                       Moreover, the District Court disbelieved Lilian’s
            statements that she did not know that the money was connected to
            drugs.

                                              5
(no clear error when district court denied acceptance of responsibility credit for comments

made during uncounseled interview with probation and before defendant plead guilty to

offense). “The sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility,” U.S.S.G. § 3E1.1 cmt. n.5 and we again find no clear error

in the District Court’s decision. United States v. Lessner, 

, 201 (3d Cir.

2007).

         Finally, Lilian can only raise her claim for ineffective assistance of counsel on

collateral review under 28 U.S.C. § 2254 as “[t]his is not a case [w]here the record is

sufficient to allow determination of ineffective assistance of counsel[.]” United States v.

Olfano, 

, 247 (3d Cir. 2007) (internal citation and quotation omitted). It

remains uncertain why counsel allegedly failed to perform certain duties, or whether those

failures prejudiced Lilian in any way.

                                              III.

         For the above stated reasons, we will affirm the District Court’s judgment of

sentence.




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