NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 24 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EDGAR MOSQUERA GAMBOA, No. 09-55431
Petitioner - Appellant, D.C. No. 2:09-cv-00656-DSF-RC
v.
MEMORANDUM*
JOSEPH NORWOOD, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted May 6, 2010
Pasadena, California
Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**
Edgar Mosquera Gamboa appeals the district court’s dismissal of his habeas
corpus petition under 28 U.S.C. § 2241 for lack of jurisdiction. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
In 1993, a jury in the Southern District of Texas convicted Gamboa and his
co-defendants of various crimes related to their involvement in a cocaine
trafficking operation. Among the charges of which the jury found Gamboa guilty
was money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). In 2001,
Gamboa filed a habeas corpus petition under 28 U.S.C. § 2255 in the Southern
District of Texas, which was denied. On January 28, 2009, Gamboa filed the
instant habeas corpus petition under 28 U.S.C. § 2241 in the Central District of
California, the district in which Gamboa is serving his life sentence.
We review de novo whether the district court had jurisdiction over
Gamboa’s 28 U.S.C. § 2241 petition. Stephens v. Herrera, 464 F.3d 895, 897 (9th
Cir. 2006). Jurisdiction over Gamboa’s petition is appropriate if he (1) makes a
claim of actual innocence and (2) shows he has not had an unobstructed procedural
shot at presenting that claim. Id. at 898. Gamboa argues that he is “actually and
factually innocent” of the money laundering charge because of a change in the law
under United States v. Santos, 553 U.S. 507, 128 S. Ct. 2020 (2008). He claims he
did not use the illegal profits from the cocaine operation for anything except
operating expenses and that, therefore, under Santos, the profits are not “proceeds.”
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The Santos case involved an interpretation of the federal money laundering
statute in the context of an illegal lottery. Santos, 128 S. Ct. at 2022-23. The
Court considered “whether the term ‘proceeds’ in the federal money-laundering
statute, 18 U.S.C. § 1956(a)(1), means ‘receipts’ or ‘profits.’” Id. at 2022. No
opinion in Santos, however, garnered a majority of votes. Id.
We interpreted Santos in United States v. Van Alstyne, 584 F.3d 803 (9th
Cir. 2009), concluding that “[o]nly the desire to avoid a ‘merger problem’ united
the five justices who held that Santos’ payments to winners and runners did not
constitute money laundering.” Van Alstyne, 584 F.3d at 814. Thus, “the holding
that commanded five votes in Santos [was] 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.” Id.
Our interpretation of Santos in Van Alstyne precludes Gamboa’s argument of
factual innocence. Gamboa was convicted of conspiracy to possess with intent to
distribute cocaine and aiding and abetting possession with intent to distribute
cocaine along with the money laundering conviction. These crimes do not merge
and thus the narrow definition of “proceeds” as “profits” does not apply. See
United States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010) (“[T]he predicate offense
of conspiracy to distribute cocaine does not fall within the category of offenses for
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which ‘proceeds’ means ‘profits.’”); see also Santos, 128 S. Ct. at 2032 (Stevens,
J., concurring) (“[T]he legislative history of § 1956 makes it clear that Congress
intended the term ‘proceeds’ to include gross revenues from the sale of
contraband.”).
Because Gamboa cannot make a claim of actual innocence, the district court
correctly dismissed the petition for lack of jurisdiction. See Harrison v. Ollison,
519 F.3d 952, 961 (9th Cir. 2008).
AFFIRMED.
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