FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50458
Plaintiff - Appellee, D.C. No. 2:07-cr-01172-DDP-30
v.
MEMORANDUM*
LEONARDO MELGAREJO, AKA Largo,
AKA Stranger,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted January 6, 2014
Pasadena, California
Before: KOZINSKI, Chief Judge, and REINHARDT and CLIFTON, Circuit
Judges.
Leonardo Melgarejo pleaded guilty to conspiring to participate in a racketeer
influenced and corrupt organization (“RICO”) in violation of 18 U.S.C. § 1962(d),
and was sentenced to 262 months’ imprisonment. He appeals his sentence on a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
number of grounds, none of which he raised below. We review all of his claims for
plain error, except his claim that his sentence is substantively unreasonable, which
we review for abuse of discretion. See United States v. Autery, 555 F.3d 864, 871
(9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” United
States v. Booker, 543 U.S. 220, 244 (2005). RICO violations are punishable by a
maximum of 20 years’ imprisonment unless the violation is based on a
racketeering activity for which the maximum penalty is life, in which case life is
the maximum penalty. See 18 U.S.C. § 1963(a). Melgarejo’s RICO conspiracy
conviction was based on an activity with a maximum sentence of life: conspiring to
distribute over 280 grams of cocaine. See 21 U.S.C. § 841(b)(1)(A). Because
Melgarejo admitted that he was guilty of this offense, his 262 month sentence does
not violate Apprendi. Moreover, there is no “reasonable probability” that, had the
district court made particular findings as to the quantity of cocaine for which
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Melgarejo could be sentenced, it would have reached a different result. See United
States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008).
2. Melgarejo explicitly agreed, in his plea colloquy, that he “joined the [Colombia
Lil’ Cycos (CLCS)] organization’s racketeering conspiracy by no later than 2002;
and in doing so, agreed to advance the interest of the CLCS organization by
ensuring the continued operation of its long standing drug trafficking and money
laundering operations.” This plea establishes, beyond a reasonable doubt, that two
of the underlying racketeering acts were drug distribution and money laundering.
3. The district court did not err in applying a 1-level enhancement pursuant to
Sentencing Guidelines § 2S1.1(b)(2)(A) for a conviction for money laundering
under 18 U.S.C. § 1957. First, the drug distribution guideline was used to
determine only the base offense level for the purposes of § 2S1.1(a); therefore the
Specific Offense Characteristics of § 2S1.1(b), including the enhancement at issue
here, were still applicable. Second, the RICO guideline makes clear that underlying
racketeering offenses in RICO cases are to be treated as “convictions” for the
purposes of the Guidelines; thus the fact that Melgarejo was not in fact convicted
of 18 U.S.C. § 1957 is not relevant to whether the enhancement applies. See
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U.S.S.G. § 2E1.1 cmt. n.1. Third, Melgarejo pleaded guilty to having “agreed to
advance the interest of the CLCS organization by ensuring the continued operation
of its long standing . . . money laundering operations,” and the government
introduced evidence that the amount of money laundered by CLCS was at least
$10,000; therefore there is no reasonable probability that, had the district court
made explicit findings as to the applicability of § 2S1.1(b)(2)(A), it would have
reached a different result. See Waknine, 543 F.3d at 554.
4. Melgarejo’s sentence is not substantively unreasonable. Contrary to Melgarejo’s
argument, the district court decided not to apply a 2-level role enhancement under
Sentencing Guidelines § 3B1.1. Moreover, “in the overwhelming majority of cases,
a Guidelines sentence will fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” United States v. Treadwell,
593 F.3d 990, 1015 (9th Cir. 2010) (quoting United States v. Carty, 520 F.3d 984,
994 (9th Cir. 2008)). Melgarejo gives us no reason to find otherwise here.
AFFIRMED.
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