United States Court of Appeals
For the First Circuit
No. 05-2747
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS TORRES-VELAZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Luis R. Rivera-González by Appointment of the Court for
appellant.
Timothy R. Henwood, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Germán A. Rieckehoff, Assistant United States
Attorney, were on brief for appellee.
March 23, 2007
STAHL, Senior Circuit Judge. Appellant Luis Torres-
Velasquez ("Torres") raises two objections to his criminal
sentence. Finding no ground for reversal, we affirm the sentence
imposed by the district court.
Torres pled guilty, in a straight plea, to one count of
conspiracy to commit money laundering, under 18 U.S.C. § 1956(h),
and one count of criminal forfeiture, under 18 U.S.C. § 982(a)(1).
Torres's base offense level was calculated at 22, which included a
14-point enhancement corresponding to the value of the laundered
funds. At sentencing, the district court accepted the Presentence
Investigation Report's (PSR) recommendation of a two-level
reduction for playing a minor role in the offense, and a three-
level reduction for acceptance of responsibility.
The court also imposed several enhancements. First,
finding that Torres knew the laundered funds were intended to
promote offenses involving the manufacture, importation, or
distribution of controlled substances, the court added a six-level
enhancement under U.S.S.G. § 2S1.1(b)(1). Second, the court added
a two-level enhancement under U.S.S.G. § 3C1.2 for obstruction of
justice, based on the high-speed car chase that Torres instigated,
prior to his arrest. Third, a two-level enhancement was imposed
pursuant to the requirements of U.S.S.G. § 2S1.1(b)(2)(B). Torres
was sentenced at the lower end of the guideline range, to 120
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months in prison, three years' supervised release, and a $100
special assessment.
As there was no plea bargain or stipulated version of the
facts in this case, we draw the following facts about Torres's
criminal conduct from the government's proffer at the change-of-
plea hearing, the evidence presented at the sentencing hearing, and
the facts relayed in the PSR.
In 2003, the U.S. Immigration and Customs Enforcement
(ICE) began investigating the Colombian-based Juan Isidro Toloza-
Peña drug trafficking organization. As part of this investigation,
ICE targeted the organization's system of transferring drug
proceeds from Puerto Rico to the drug bosses in Colombia. On
August 17, 2004, Torres drove his two co-defendants, Jaime Mendoza-
Medina and Emilio Mata-Soto, to a meeting with an undercover agent
in a parking lot in Caguas, Puerto Rico. At the meeting, the co-
defendants agreed that they would return to Caguas the next day to
hand off the currency to the undercover agent, who would then
launder the money and remit the funds to Colombia. Torres remained
in the car during the meeting and did not participate in the
discussions with the ICE agent regarding the plan. On the
following day, August 18, 2004, Torres again drove his two co-
defendants to the appointed location for the hand-off. Noticing
police activity in the area, the co-defendants proposed moving the
hand-off to a different town, Las Piedras. The undercover agent
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agreed to the change, and Torres began driving his co-defendants in
that direction. At that point, a marked police patrol unit,
working with the ICE investigators, attempted to stop Torres's
vehicle. As an officer approached the vehicle, Torres drove off.
The police pursued Torres, who led them on an extended high-speed
chase that ended when the vehicle crashed into a bakery in the town
of Juncos. A search of the vehicle turned up two large bags
containing $751,330 in U.S. currency of various denominations.
The supervising undercover ICE agent testified at the
sentencing hearing that the procedures followed by Torres and his
co-defendants followed the modus operandi for "pick up" operations
for laundering drug proceeds in Puerto Rico. According to the
agent, typical features present in this case included: the
arrangement to transfer a large amount of money to a broker for
laundering; the request to conduct the transfer in a public place;
the extensive negotiations over where to transfer the money; and
the presence of several people at the hand-off, to provide
security.
Torres's admitted involvement in the conspiracy was
limited to his driving of the co-defendants to the meeting on
August 17 and to the scheduled hand-off location on August 18.
There was no evidence that he spoke with the undercover agent or
otherwise arranged for the money's transfer. However, because he
pled guilty under 18 U.S.C. § 1956, he admitted that he knew that
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the conspiracy was to launder the proceeds of illegal activity.
See 18 U.S.C. § 1956(a)(1) ("Whoever, knowing that the property
involved in a financial transaction represents the proceeds of some
form of unlawful activity, conducts or attempts to conduct such a
financial transaction which in fact involves the proceeds of
specified unlawful activity.").
In this appeal, Torres objects to two sentencing
enhancements. First, he contends that the six-level enhancement,
under U.S.S.G. § 2S1.1(b)(1), was based on an erroneous factual
finding by the district court that he knew the laundered funds were
intended to promote offenses involving the manufacture,
importation, or distribution of controlled substances. Second, he
argues that the two-level enhancement under U.S.S.G. §
2S1.1(b)(2)(B) was applied to him in violation of the sentencing
guideline commentary.
As to the six-level enhancement, we review for clear
error the district court's factual finding that Torres knew the
money was related to the drug trade. See United States v. Brown,
450 F.3d 76, 80 (1st Cir. 2006). The district court's findings of
fact are conclusive on appeal unless we form "'a strong, unyielding
belief that a mistake has been made.'" United States v.
Singleterry, 29 F.3d 733, 740 (1st Cir. 1994) (quoting Williams v.
Poulos, 11 F.3d 271, 278 (1st Cir. 1993)). As to the two-level
enhancement imposed under U.S.S.G. § 2S1.1(b)(2)(B), because Torres
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failed to preserve this objection for appeal, we review that
enhancement only for plain error. See United States v. Rivera-
Rodriguez, 318 F.3d 268, 278 (1st Cir. 2003). We will correct a
plain error only where it "seriously affects the fairness,
integrity or public reputation of judicial proceedings." United
States v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005).
Torres argues that the six-level enhancement is clearly
erroneous because there was no "direct or circumstantial evidence
of knowledge" on his part. The sentencing guidelines direct a six-
level enhancement where a person convicted of conspiracy to commit
money laundering "knew or believed that any of the laundered funds
were the proceeds of, or were intended to promote (i) an offense
involving the manufacture, importation, or distribution of a
controlled substance or a listed chemical." U.S.S.G. §
2S1.1(b)(1). Contrary to Torres's assertion, sentencing courts are
not limited to considering only the facts that the appellant has
admitted. See United States v. Bierd, 217 F.3d 15, 23 (1st Cir.
2000). Rather, courts may draw upon a broad range of evidence for
sentencing purposes, including factual findings set forth in a PSR
and testimony offered at the sentencing hearing. See id.
Here, the evidence before the district court was
sufficient to support the finding that Torres possessed the
requisite knowledge for the six-level enhancement. The district
court noted that the evidence showed that the procedures followed
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by Torres and his co-defendants were typical of the modus operandi
of drug organizations operating in Puerto Rico. In addition, the
court found that Torres had "prior knowledge of the drug business"
because he had two previous drug convictions, for conspiracy to
distribute controlled substances and possession with intent to
distribute controlled substances. Finally, the court was persuaded
that the large quantity of cash involved in the scheme further
indicated that Torres knew the funds were related to the drug
trade. Given this suggestive evidence, we conclude that the
district court's finding of knowledge was reasonable and easily
survives our clear error review.
Torres's second sentencing objection is that the court
erred in imposing a two-level enhancement under U.S.S.G. §
2S1.1(b)(2)(B), which advises that: "If the defendant was convicted
under 18 U.S.C. § 1956, increase by 2 levels." Torres was indeed
convicted under 18 U.S.C. § 1956, because he pled guilty to
conspiracy to launder money, under 18 U.S.C. § 1956(h). However,
Torres argues that the two-level enhancement should not be applied
in his case based on Application Note 3(c) of the commentary to
U.S.S.G. § 2S1.1, which reads: "Subsection (b)(2)(B) shall not
apply if the defendant was convicted of a conspiracy under 18
U.S.C. § 1956(h) and the sole object of that conspiracy was to
commit an offense set forth in 18 U.S.C. § 1957." Torres's
argument that the exception in Note 3(c) applies to him is plainly
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incorrect. Granted, he meets the note's first requirement because
he was convicted under 18 U.S.C. § 1956(h). However, Torres does
not meet the note's second requirement because the sole object of
the conspiracy was not violation of 18 U.S.C. § 1957.1 Instead,
the object of the conspiracy, as laid out in Count One of the
indictment, was to violate the money laundering provisions codified
at 18 U.S.C. §§ 1956(a)(1)(A)(i) and (a)(1)(B)(i). Therefore, the
exception contained in Note 3(c) does not apply to Torres, see
United States v. Adargas, 366 F.3d 879, 883 (10th Cir. 2004), and
the district court did not commit plain error in imposing the two-
level enhancement under § 2S1.1(b)(2)(B).
Finding no merit in either of Torres's objections, we
affirm the sentence imposed on appellant by the district court.
1
Section 1957 criminalizes money laundering where the proceeds
derive from an unlawful activity, see 18 U.S.C. § 1957, while §
1956 criminalizes money laundering where the defendant knows that
the proceeds derived from an unlawful activity, see 18 U.S.C. §
1956.
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