Filed: Nov. 06, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4880 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE MOLINA-SANCHEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00316-FDW-DSC-2) Submitted: September 29, 2015 Decided: November 6, 2015 Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4880 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE MOLINA-SANCHEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00316-FDW-DSC-2) Submitted: September 29, 2015 Decided: November 6, 2015 Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished p..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE MOLINA-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00316-FDW-DSC-2)
Submitted: September 29, 2015 Decided: November 6, 2015
Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David Jonathon Joffe, JOFFE LAW, P.A., Fort Lauderdale, Florida,
for Appellant. Jill Westmoreland Rose, Acting United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Jorge Molina-Sanchez of conspiracy to
distribute and to possess with intent to distribute five
kilograms or more of a mixture and substance containing a
detectable amount of cocaine and one kilogram or more of a
mixture and substance containing a detectable amount of heroin,
in violation of 21 U.S.C. § 846 (2012) (Count 1); conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h)
(2012) (Count 2); possession with intent to distribute a mixture
and substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2012) (Count 3); and using
firearms during and in relation to, and possessing firearms in
furtherance of, drug trafficking crimes, in violation of 18
U.S.C. § 924(c)(1) (2012) (Count 4). On appeal, Molina-Sanchez
raises several challenges to his convictions and 420-month,
downward variant sentence. Finding no error, we affirm.
I.
Molina-Sanchez first argues that the district court erred
in denying his motions for judgment of acquittal on the drug
trafficking and money laundering conspiracy offenses—Counts 1
and 2. We review de novo the district court’s denial of a
motion for judgment of acquittal. United States v. Engle, 676
F.3d 405, 419 (4th Cir. 2012). In assessing the sufficiency of
the evidence, we determine whether there is substantial evidence
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to support the convictions when viewed in the light most
favorable to the government. Id. “Substantial evidence is
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of guilt beyond
a reasonable doubt.”
Id. Thus, “[a] defendant bringing a
sufficiency challenge must overcome a heavy burden, and reversal
for insufficiency must be confined to cases where the
prosecution’s failure is clear.”
Id. (internal quotation marks
and citation omitted).
To obtain a drug trafficking conspiracy conviction under 21
U.S.C. § 846, “the government must prove that (1) the defendant
entered into an agreement with one or more persons to engage in
conduct that violated 21 U.S.C. § 841(a)(1); (2) that the
defendant had knowledge of the conspiracy; and (3) that the
defendant knowingly and voluntarily participated in the
conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014) (ellipsis, brackets, and internal quotation marks
omitted). “Given the clandestine and covert nature of
conspiracies, the government can prove the existence of a
conspiracy by circumstantial evidence alone.”
Id. (internal
quotation marks omitted). “Evidence of continuing relationships
and repeated transactions can support the finding that there was
a conspiracy, especially when coupled with substantial
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quantities of drugs.” Id. at 526 (brackets and internal
quotation marks omitted).
To obtain a money laundering conspiracy conviction under 18
U.S.C. § 1956(h), the government must prove:
(1) the existence of an agreement between two or more
persons to commit one or more of the substantive money
laundering offenses proscribed under 18 U.S.C.
§ 1956(a) . . . ; (2) that the defendant knew that the
money laundering proceeds had been derived from an
illegal activity; and (3) the defendant knowingly and
voluntarily became part of the conspiracy.
United States v. Green, 599 F.3d 360, 371 (4th Cir. 2010). As
relevant to this case, a defendant commits a money laundering
violation under § 1956(a) if he conducts or attempts to conduct
a financial transaction: (1) “intending to promote the carrying
on of specified unlawful activity (‘promotion money
laundering’)”; or (2) “knowing that the financial transaction is
designed to conceal the nature of the proceeds of specified
unlawful activity (‘concealment money laundering’).” United
States v. Bolden,
325 F.3d 471, 486-87 (4th Cir. 2003).
Having thoroughly reviewed the trial transcript, we
conclude that there was more than sufficient evidence (both
direct and circumstantial) to convict Molina-Sanchez of both
conspiracy offenses. Specifically, the evidence establishes
that Molina-Sanchez knowingly participated in a large-scale drug
trafficking operation and that he conspired to conduct financial
transactions to both promote the drug trafficking operation and
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conceal the nature of the proceeds. Although Molina-Sanchez
argues that the coconspirators who testified at his trial are
inherently untrustworthy, “[i]n evaluating the sufficiency of
the evidence, we do not review the credibility of the
witnesses.” United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007).
II.
Next, Molina-Sanchez contends that the district court
abused its discretion in admitting certain evidence. “We review
a trial court’s rulings on the admissibility of evidence for
abuse of discretion, and we will only overturn an evidentiary
ruling that is arbitrary and irrational.” United States v.
Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal quotation
marks omitted).
We conclude that the district court did not abuse its
discretion by admitting the challenged evidence, as it was
relevant to the charges and not unduly prejudicial. See Fed. R.
Evid. 402, 403. Notably, the district court took care to issue
limiting instructions when appropriate. See United States v.
Lespier, 725 F.3d 437, 448 (4th Cir. 2013) (holding that “any
risk of unfair prejudice was effectively mitigated by the
court’s carefully framed limiting instructions regarding proper
consideration of [the] evidence”).
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III.
Molina-Sanchez argues that his sentence is procedurally and
substantively unreasonable. We review a sentence for
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Lymas,
781 F.3d 106, 111 (4th Cir. 2015).
A.
Molina-Sanchez first raises several challenges to the
district court’s calculation of his advisory Sentencing
Guidelines range. When evaluating Guidelines calculations, we
review the district court’s legal conclusions de novo and its
factual findings for clear error. United States v. Cox, 744
F.3d 305, 308 (4th Cir. 2014). “Clear error occurs when the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
Id.
(ellipsis and internal quotation marks omitted).
Molina-Sanchez contends that he should not be held
accountable for all of the drugs in the conspiracy because the
evidence does not establish his involvement in the conspiracy.
This argument fails for the same reason that his sufficiency
argument fails: there was more than adequate evidence
establishing Molina-Sanchez’s participation in the large-scale
drug trafficking operation.
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Molina-Sanchez next asserts that the district court erred
in applying the three-level enhancement for his role as a
manager or supervisor in the conspiracy and in denying his
request for a mitigating role reduction. See U.S. Sentencing
Guidelines Manual §§ 3B1.1(b), 3B1.2(b) (2013). A three-level
enhancement is warranted “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(b). “The enhancement is appropriate
where the evidence demonstrates that the defendant controlled
the activities of other participants or exercised management
responsibility.” United States v. Slade, 631 F.3d 185, 190 (4th
Cir. 2011) (internal quotation marks omitted).
We discern no clear error in the district court’s
application of the three-level enhancement and its denial of a
mitigating role reduction. The conspiracy involved more than
five participants and the evidence presented a trial establishes
that Molina-Sanchez was at least a manager or supervisor of the
drug trafficking operation.
Molina-Sanchez next contends that the district court erred
in applying the criminal-livelihood enhancement. The Guidelines
provide for a two-level enhancement if the defendant received a
leadership enhancement under USSG § 3B1.1 and “committed the
offense as part of a pattern of criminal conduct engaged in as a
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livelihood.” USSG § 2D1.1(b)(14)(E). ““Engaged in as a
livelihood” means that, for any 12-month period, “the totality
of circumstances shows that . . . criminal conduct was the
defendant’s primary occupation.” USSG § 4B1.3 cmt. n.2
(internal quotation marks omitted); see USSG § 2D1.1(b)(14)(E)
cmt. n.19(C) (referencing § 4B1.3). This may be proven, for
example, by demonstrating that “the defendant engaged in
criminal conduct rather than regular, legitimate employment; or
the defendant’s legitimate employment was merely a front for the
defendant’s criminal conduct.” USSG § 4B1.3 cmt. n.2.
We conclude that the district court did not clearly err in
applying the criminal-livelihood enhancement. By 2009, Molina-
Sanchez and his brother were receiving 11-kilogram shipments of
cocaine every other month and each shipment yielded $80,000 in
profit. Thus, even if Molina-Sanchez earned some money by other
means, the primary source of his income for several years was
the drug trafficking operation. Moreover, the court could have
reasonably concluded that the lawn-mowing business was a front
for the brothers’ criminal conduct, considering that the lawn-
mowing equipment was hardly used.
We also discern no clear error in the district court’s
denial of Molina-Sanchez’s request for a two-level downward
adjustment for acceptance of responsibility. See USSG
§ 3E1.1(a). Except in rare circumstances not applicable here,
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“[t]his adjustment is not intended to apply to a defendant,”
like Molina-Sanchez, “who puts the government to its burden of
proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses
remorse.” USSG § 3E1.1 cmt. n.2.
B.
Finally, Molina-Sanchez challenges the substantive
reasonableness of his sentence. “Any sentence that is within or
below a properly calculated Guidelines range is presumptively
[substantively] reasonable. Such a presumption can only be
rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.) (citation
omitted), cert. denied,
135 S. Ct. 421 (2014).
We conclude that Molina-Sanchez has not met this burden.
The district court carefully considered the § 3553(a) factors
before imposing a sentence well below Molina-Sanchez’s advisory
Guidelines range of life plus 60 months’ imprisonment. Indeed,
the downward variance was generous considering that the court
stated that this was one of the largest drug trafficking
conspiracies it had ever witnessed. Moreover, the court
considered Molina-Sanchez’s arguments for a 180-month sentence
but concluded that the seriousness of the offenses outweighed
any mitigating factors. Finally, the court did not err in
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concluding that the difference between the postarrest conduct of
Molina-Sanchez and his brother warranted a disparity in the
their sentences.
IV.
We affirm the district court’s judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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