United States v. Adorno-Molina

United States Court of Appeals
For the First Circuit

No. 13-1065

UNITED STATES,

Appellee,

v.

MARVA ADORNO-MOLINA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan Pérez-Giménez, U.S. District Judge]

Before

Howard, Selya, and Lipez,
Circuit Judges.

Raymond L. Sanchez Maceira for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

December 19, 2014
 LIPEZ, Circuit Judge. Appellant Marva Adorno-Molina

("Adorno") was convicted on drug trafficking conspiracy and money

laundering charges related to her involvement in a wide-ranging

drug trafficking organization led by Angel Ayala-Vazquez ("Ayala").

Adorno challenges her drug conspiracy conviction on sufficiency

grounds. She also argues that her money laundering conviction

should be vacated pursuant to United States v. Santos, 553 U.S. 507

(2008), because the government failed to prove that the monies

laundered were "net profits" of drug-trafficking, not merely "gross

revenues." Additionally, she contends that the district court

erred when it gave a willful blindness instruction to the jury, and

when it relied on the money laundering proceeds to establish a base

offense level at sentencing. We reject Adorno's arguments and

affirm the convictions and sentence.

I.

Because Adorno's appeal follows the jury's finding of

guilt, and she challenges the sufficiency of the evidence, we view

the facts in the light most favorable to the verdict. United

States v. Rodríguez, 731 F.3d 20, 23 (1st Cir. 2013).

Ayala was the leader of a drug trafficking organization

("DTO") using as its base the Jose Celso Barbosa Public Housing

Project and the Sierra Linda Public Housing Project in Bayamón,

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Puerto Rico.1 Ayala's DTO required many vehicles to transport

drugs and firearms, secure proceeds from drug sales, and elude

authorities. Alberto Meléndez-Sáez ("Meléndez") was in charge of

procuring vehicles for Ayala's DTO.

In 2007, Adorno was a financing manager for Bella

International's Honda and Acura dealership on Kennedy Avenue in San

Juan, Puerto Rico. During her time at Bella International, Adorno

befriended Meléndez and assisted him with procuring many vehicles.

Meléndez and Adorno would use "straw owners" to conceal the fact

that the vehicles were being purchased for Ayala's DTO. Adorno and

Meléndez would recruit prospective straw owners by seeking out

individuals in need of extra money. They would tell the straw

owners that professionals with bad credit required assistance

purchasing vehicles. Adorno and Meléndez paid the straw owners

$2,000 to $5,000 per vehicle once they signed the purchase

documents and became the registered owner of a vehicle.

For example, one straw owner, Mary Soto, testified that

Adorno convinced her to act as a straw owner for five vehicles from

July to September 2007 by using the professionals with bad credit

1
Ayala was convicted of multiple charges relating to his
leadership of the drug trafficking organization and is serving a
life sentence. See United States v. Ayala-Vazquez, 751 F.3d 1, 6
(1st Cir. 2014).

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rationale. In exchange for signing the purchase documents,

Meléndez paid Soto $4,000 to $5,000 per vehicle.

Although the cars were technically titled in the straw

owners' names, they never drove the cars. Instead, Meléndez or

individuals who worked with him would pick up the vehicles directly

from the dealership lot. Meléndez and Adorno also paid for all

vehicle-related expenses, including the down payment, monthly loan

payments, and insurance.

Meléndez and Adorno procured cars from both Bella

International and other dealerships in Puerto Rico. At Bella

International, they usually worked with the same salesperson, Luis

Martínez. Martínez testified that whenever Meléndez wanted to

purchase a vehicle, the transaction was "very easy" and was

"squared away" by Adorno and Meléndez ahead of time. All Martínez

had to do was find the requested vehicle from the dealership lot.

Instead of delivering the vehicle to the straw owner who signed the

purchase documents, Martínez would give the car directly to

Meléndez.

Meléndez would visit Adorno at Bella International at

least three times per week. Adorno liked to conduct business with

Meléndez in private. Whenever they would exchange money in her

office, Adorno would ask Martínez to leave them alone.

Nevertheless, at times, Martínez saw Meléndez deliver cash to

Adorno, either from his pockets or in a paper bag.

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 Top management at Bella International became concerned

about Adorno's business practices. The accounts receivable for

many of her clients were not paid on time, and many payments were

more than 30 days late. Bella International had difficulty when it

tried to collect on those accounts because the documentation

completed by Adorno contained inaccurate information. Her

supervisor, José Colon Ayala, investigated her sales and discovered

that many of Adorno and Martínez's clients would purchase multiple

cars in a brief one-to-two month period as straw owners for other

individuals. As a result of the investigation, Bella International

fired both Adorno and Martínez in October 2007. After her

dismissal from Bella International, Adorno continued to help

Meléndez procure cars from other dealerships. For example, in

December 2007, she helped straw owner Agustín Treviño purchase five

cars from the Autocentro, Autogermana, Lexus de San Juan, and

Triangle Honda dealerships.

Many of the vehicles purchased through Adorno and

Meléndez's scheme were later used in criminal activity, some of

which was linked to Ayala's DTO. For example, in May 2009, a white

BMW with license plate HFQ 548 was involved in a murder and

shootout at Pájaros Park. The same vehicle had been purchased by

Treviño in December 2007. After the shootout, the police stopped

the white BMW, arrested its three occupants, and seized the vehicle

and four Glock pistols found inside. Police Sergeant Benjamín

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Burgos-Del Toro testified that members of Ayala's DTO were involved

in the shootout.

Other vehicles purchased through the scheme were driven

by members of Ayala's DTO. On May 11, 2009, the police stopped

Diego Cardona while he was driving a white Acura MDX with license

plate HAC 284. Earlier that morning, FBI Special Agent Joseph

González observed Ayala himself driving the same vehicle. The

Acura MDX had been purchased at Bella International by straw owner

Arenymar Ortíz-Valle under Adorno's direction.

Some straw owners became concerned when they learned that

the vehicles they had purchased were connected to criminal

activity. For example, in 2008, an agent from the U.S. Drug

Enforcement Administration ("DEA") contacted Treviño after the DEA

had confiscated a black Toyota Highlander he had purchased.

Treviño subsequently contacted Adorno, who told him that the

vehicle was confiscated because "[the driver] got stopped for

something . . . and the person was carrying I think more than

$10,000.00 and he couldn't prove that it was from his business."

Adorno instructed Treviño to retrieve the vehicle. She arranged

for Treviño to meet with an individual at Toyota Credit, where the

DEA had transferred the black Highlander. The individual paid

Toyota Credit approximately $40,000 to pay off the remainder of the

loan amount and obtain the vehicle.

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 A few weeks later, Treviño learned from the newspaper

that a gray Toyota Highlander, similar to one that he had purchased

under Adorno's direction, had been involved in a crime. Treviño

again contacted Adorno, who instructed him to report the car as

stolen. Treviño refused and asked Adorno to return to him all of

the vehicles he had purchased. In response, Adorno said: "[Y]ou

know what, if I was you I would just be quiet because this thing is

bigger than what you think it is, and there is a lot of people

involved in this." Scared by Adorno's warning, Treviño agreed to

be quiet and did not bring up the issue again.

In addition to acquiring vehicles, Adorno also procured

an apartment used by Ayala's DTO. In June 2009, she helped obtain

a lease on an apartment located at the Astralis Condominium complex

in Isla Verde. She personally paid the apartment's $2,050 monthly

rent from June to October 2009. In February 2010, the DEA executed

a search warrant for the apartment and found drug packing

materials, loaders for semiautomatic weapons, ammunition boxes, and

$240,260 in cash. The apartment also contained several documents,

including a DEA investigation report about Ayala's DTO and a

vehicle registration for a BMW M5 registered in Adorno's name.

Adorno was arrested on October 2, 2009. She was charged

with conspiracy to possess with intent to distribute controlled

substances in violation of 21 U.S.C. § 846 (count one) and

conspiracy to launder money in violation of 18 U.S.C. § 1956 (count

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nine), as one of 65 defendants in a multi-defendant, eleven-count

indictment relating to Ayala's drug trafficking activities. After

a ten-day trial, in which she was tried alone, Adorno was found

guilty on both counts. The district court sentenced Adorno to 121

months' imprisonment as to each count, to be served concurrently.

This timely appeal followed.

II.

Adorno raises three challenges to her convictions:

sufficiency challenges to the drug trafficking and money laundering

conspiracy convictions as well as a claim of instructional error.

We review each in turn.

A. Drug Trafficking Conspiracy

We review preserved challenges to the sufficiency of

evidence de novo. United States v. Ihenacho, 716 F.3d 266, 279

(1st Cir. 2013). In analyzing such claims, we consider "'whether

any rational factfinder could have found that the evidence

presented at trial, together with all reasonable inferences, viewed

in the light most favorable to the government, established each

element of the particular offense beyond a reasonable doubt.'"

United States v. Willson, 708 F.3d 47, 52 (1st Cir. 2013) (quoting

United States v. Poulin, 631 F.3d 17, 22 (1st Cir. 2011)).

To sustain a conspiracy conviction under § 846, "the

evidence must show that: (1) a conspiracy existed; (2) the

defendant had knowledge of the conspiracy; and (3) the defendant

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knowingly and voluntarily participated in the conspiracy." United

States v. Maryea, 704 F.3d 55, 73 (1st Cir. 2013). To prove the

third element, the government must establish "that the defendant

both intended to join the conspiracy charged and intended to

effectuate the objects of that conspiracy." Id. The defendant's

specific intent "may be established through circumstantial evidence

alone." United States v. Cortés-Cabán, 691 F.3d 1, 15 (1st Cir.

2012).

Adorno concedes that the evidence presented at trial was

sufficient to establish a drug trafficking conspiracy led by Ayala,

and that Meléndez participated in the conspiracy by procuring cars

through straw owners. Adorno also admits that the government

established that she knew or was willfully blind "that something

illegal was afoot" in her scheme for procuring vehicles. However,

Adorno argues that the government failed to prove that she

knowingly participated in the conspiracy because the evidence did

not show that she was aware that the cars she helped Meléndez

acquire were being used for Ayala's DTO.

Adorno's argument is unavailing. The record contains

ample circumstantial evidence to demonstrate that Adorno knew she

was assisting Ayala's DTO through her actions. First, Adorno had

a close working relationship with Meléndez, who visited her at

least three times per week at Bella International to purchase cars

through straw owners for Ayala's DTO. Because of their close

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working relationship involving matters essential to the operations

of the DTO, the jury could, in the circumstances of this case,

reasonably infer that Adorno knew that the vehicles she obtained

with Meléndez -- an Ayala associate -- were in furtherance of a

drug-trafficking conspiracy led by Ayala. Cf. United States v.

Azubike, 564 F.3d 59, 64-65 (1st Cir. 2009) (finding that a jury

could infer that defendant knew that drugs were inside his

briefcase because of his close relationship with drug trafficker).

The fact that Meléndez entrusted Adorno to facilitate the

acquisition of vehicles for Ayala's DTO further supports this

conclusion. See id. at 65 ("[D]rug organizations do not usually

take unnecessary risks by trusting critical transactions to

outsiders." (internal quotation marks omitted)).

Second, vehicles obtained through Adorno were

subsequently involved in criminal activity linked to Ayala's DTO

and were seen driven by Ayala and his associates. When straw owner

Agustín Treviño contacted Adorno after discovering that a gray

Toyota Highlander he had purchased was involved in a crime, she

warned him to be quiet because "this thing is bigger than what you

think it is, and there is a lot of people involved in this."

Adorno's statement creates a reasonable inference that she not only

knew "that something illegal was afoot" but also the specific

nature of the underlying criminal activity, a wide-ranging drug

trafficking conspiracy involving Ayala, Meléndez, and others.

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 Finally, Adorno obtained a lease on an apartment at the

Astralis Condominium complex used by Ayala's DTO. The apartment

directly connects Adorno to the drug trafficking conspiracy. She

paid for the apartment every month until her arrest in October

2009. When DEA agents searched the apartment, they found drug

packing materials, weapons, $240,260 in cash, a car registration

document in Adorno's name, and a DEA investigation report about

Ayala's DTO. Adorno's relationship with Meléndez, the vehicles'

involvement in crimes linked to Ayala's DTO, and Adorno's

connection to the Astralis Condominium apartment are sufficient

circumstantial evidence to permit a reasonable jury to conclude

that Adorno knew she was assisting Ayala's DTO with her actions.2

B. Money Laundering Conspiracy

Adorno challenges her conviction for money laundering in

violation of 18 U.S.C. § 1956 on the ground that the government did

not prove that the money she laundered was the "net profits" of

2
Adorno also contends that the trial evidence regarding her
drug trafficking conspiracy conviction prejudicially varied from
the allegations in her indictment. While the government may have
proven a conspiracy between Adorno and Meléndez, she argues that it
failed to connect Adorno to Ayala's DTO. The parties dispute
whether Adorno properly preserved this argument in the district
court and whether we should apply de novo or a more deferential
standard of review. We do not need to resolve this dispute
because, even under de novo review, Adorno's argument has no merit.
Adorno's variance argument simply rehashes her sufficiency argument
and fails for the same reasons. See Maryea, 704 F.3d at 73
(rejecting "[a] claim that the Government’s proof varied
impermissibly from the charges contained in the indictment" where
it "is essentially a challenge to the sufficiency of the evidence"
(internal quotation marks omitted)).

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drug-trafficking in accordance with United States v. Santos, 553

U.S. 507 (2008). The government argues that, properly read, Santos

only requires it to demonstrate that the laundered funds were

"gross revenues" from the sale of illicit drugs. We review this

preserved question of law de novo. See United States v. Troy, 618

F.3d 27, 31 (1st Cir. 2010).

Section 1956 makes it a crime to engage in a "financial

transaction" involving "the proceeds of specified unlawful

activity" with the intent either to "promote the carrying on" of

that activity, or to "conceal or disguise" the proceeds of that

activity. 18 U.S.C. § 1956. In Santos, the Supreme Court had to

determine whether "proceeds" should be interpreted broadly to mean

"receipts" of specified unlawful activity or narrowly to include

only the "profits" of such activity. 553 U.S. at 509. Santos had

been convicted of operating an illegal lottery in violation of 18

U.S.C. § 1955, as well as conspiracy to launder money and money

laundering involving funds derived from the lottery. Id. at

509–10. The transactions underlying Santos's money laundering

conviction involved his payments to employees who collected bets

from gamblers, as well as payments to the lottery winners. Id.

Applying the rule of lenity, a four-Justice plurality held that the

word "proceeds" in § 1956 means "profits."3 Id. at 510–14. The

3
In response to the plurality's opinion in Santos, Congress
amended § 1956 in 2009 to define "proceeds" as "gross receipts" in
all cases. See Fraud Enforcement and Recovery Act of 2009, Pub. L.

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plurality was concerned that "[i]f 'proceeds' meant 'receipts,'

nearly every violation of the illegal-lottery statute would also be

a violation of the money laundering statute." Id. at 515. That

would be so because "paying a winning bettor is a transaction

involving receipts that the defendant intends to promote the

carrying on of the lottery." Id. This would create a "merger"

problem -- prosecutors could charge money-laundering, with its

twenty-year maximum sentence, in any lottery case, even though the

lottery statute carried a maximum of five years. Id. at 516.

Justice Stevens delivered the tie-breaking vote. He

concurred in the judgment that "proceeds" means "profits" where the

specified unlawful activity is illegal gambling because the

legislative history of § 1956 was silent as to this type of

activity, and, therefore, the rule of lenity should apply. Id. at

524–28 (Stevens, J., concurring). However, Justice Stevens

reasoned that the definition of "proceeds" could vary depending on

which unlawful activity formed the predicate for the money

laundering charge. Id. at 525. Justice Stevens agreed with the

four dissenting Justices that "the legislative history of § 1956

makes it clear that Congress intended the term 'proceeds' to

include gross revenues from the sale of contraband and the

No. 111–21, § 2(f)(1), 123 Stat. 1617, 1618 (2009) (codified at 18
U.S.C. § 1956(c)(9)). The amendment is not retroactive and,
therefore, has no effect on this case because Adorno's charges stem
from her conduct in 2007 and 2008. See United States v. Grasso,
724 F.3d 1077, 1092 (9th Cir. 2013).

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operation of organized crime syndicates involving such sales." Id.

at 525–26; see also id. at 532 n.1 (Alito, J.,

dissenting)("not[ing] that five Justices agree with the position

taken by Justice Stevens on [this] matter").

Justice Stevens's concurrence is the controlling law.

See Santos, 553 U.S. at 523 (plurality opinion) ("Since [Justice

Stevens's] vote is necessary to our judgment, and since his opinion

rests upon the narrower ground, the Court's holding is limited

accordingly."); see also Marks v. United States, 430 U.S. 188, 193

(1977) ("When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices,

the holding of the Court may be viewed as that position taken by

those Members who concurred in the judgments on the narrowest

grounds." (internal quotation marks omitted)).

In Santos, a majority of the Supreme Court (Justice

Stevens and the four dissenting Justices) reasoned that "proceeds"

means "gross revenues" -- not "profits" -- when the predicate

offense involves the "sale of contraband and the operation of

organized crime syndicates involving such sales." 553 U.S. at 526.

Drug trafficking is one such offense. Therefore, Adorno's argument

fails because the government needed to prove only that the

laundered funds were gross revenues of Ayala's DTO, which Adorno

concedes that it did. Our sister circuits have uniformly come to

the same conclusion. See, e.g., United States v. Richardson, 658

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F.3d 333, 340 (3d Cir. 2011) (holding that "'proceeds' means gross

receipts" in drug trafficking case); Wilson v. Roy, 643 F.3d 433,

436-37 (5th Cir. 2011) (finding that "when the laundered money is

derived from the sale of drugs and other contraband, Congress used

'proceeds' in § 1956 to mean receipts rather than profits" because

"five Justices agree with the position taken by Justice Stevens on

the matter"); United States v. Quinones, 635 F.3d 590, 600 (2d Cir.

2011) (holding that "'proceeds' under 18 U.S.C. § 1956 are not

limited to 'profits' at least where, as here, the predicate offense

involves the sale of contraband"); Brace v. United States, 634 F.3d

1167, 1170 n.3 (10th Cir. 2011) ("Santos does not hold that

'proceeds' means 'profits' in the context of drug sales. Justice

Stevens, the critical fifth vote in Santos, explicitly departed

from the plurality's conclusion that 'proceeds' means 'profits' in

the context of drug sales.") (emphasis in original); United States

v. Webster, 623 F.3d 901, 906 (9th Cir. 2010) ("We . . . read

Santos as holding that where, as here, a money laundering count is

based on transfers among co-conspirators of money from the sale of

drugs, 'proceeds' includes all 'receipts' from such sales.");

United States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010) ("As

Justice Stevens made clear in his concurring opinion in Santos, the

predicate offense of conspiracy to distribute cocaine does not fall

within the category of offenses for which 'proceeds' means

'profits.'"); United States v. Spencer, 592 F.3d 866, 879 (8th Cir.

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2010) ("[T]his court agrees . . . that Santos does not apply in the

drug context."); United States v. Demarest, 570 F.3d 1232, 1242

(11th Cir. 2009) (concluding that "the narrow holding in Santos"

does not apply when "the laundered funds were the proceeds of an

enterprise engaged in illegal drug trafficking").

C. Willful Blindness Instruction

Adorno contends that the district court erred when it

gave a willful blindness instruction to the jury on the money

laundering count. She has preserved her challenge to the giving of

the instruction. Although "[w]e have not definitively resolved

what standard of review we apply to the district court’s decision

to give a willful blindness instruction," United States v. Appolon,

695 F.3d 44, 63 (1st Cir. 2012) (internal citation omitted), we do

not need to resolve that issue here because Adorno's claim fails

even under de novo review.

A willful blindness instruction is appropriate if "(1) a

defendant claims a lack of knowledge, (2) the facts suggest a

conscious course of deliberate ignorance, and (3) the instruction,

taken as a whole, cannot be misunderstood as mandating an inference

of knowledge." Azubike, 564 F.3d at 66. Adorno argues that the

facts presented at her trial were insufficient to justify the

instruction. Specifically, she contends that the trial evidence

could not prove that Adorno knew or was willfully blind to the fact

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that the money she laundered through car sales came from Ayala's

DTO.

The district court did not err in giving the willful

blindness instruction. As demonstrated above, see Part II.A supra,

there was sufficient circumstantial evidence that Adorno either

knew or deliberately ignored that the laundered proceeds originated

from Ayala's DTO. The instruction was warranted because "the

record evidence reveals 'flags' of suspicion that, uninvestigated,

suggest willful blindness." Azubike, 564 F.3d at 66 (quoting

United States v. Epstein, 426 F.3d 431, 440 (1st Cir. 2005)). The

use of straw owners to purchase vehicles, the frequent cash

transfers between Adorno and Meléndez, and the vehicles'

involvement in crimes linked to Ayala's DTO were "sufficient

warning signs [to Adorno] that call out for investigation or

evidence of [her] deliberate avoidance of knowledge" of the money

laundering conspiracy. Id.

III.

Adorno also challenges her 121-month sentence. She

argues that the district court erred when it relied on the money

laundering proceeds to establish a base offense level at

sentencing. Adorno's argument has two parts. First, she contends

that the district court failed to give advance notice under Federal

Rule of Criminal Procedure 32(h) that it intended to use the value

of the laundered funds -- instead of the quantity of drugs -- to

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calculate a base offense level under the advisory Sentencing

Guidelines. Second, she contends that the district court's

calculation of $1,153,137.30 in laundered funds was inaccurate.

Both contentions fail.

Because Adorno did not raise these sentencing challenges

in the district court, we review for plain error. See United

States v. Fernández-Hernández, 652 F.3d 56, 71 (1st Cir. 2011)

("When a defendant fails to preserve an objection below, the plain

error standard supplants the customary standard of review."

(alteration omitted)). To succeed on plain error review, Adorno

must show: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Ahrendt, 560 F.3d 69, 76 (1st Cir. 2009) (internal quotation marks

and citation omitted). In the sentencing context, a defendant must

demonstrate that, but for the error, there is a reasonable

probability that the court would have imposed a more favorable

sentence. See id. at n.5.

A. Notice Under Federal Rule of Criminal Procedure 32(h)

Prior to Adorno's sentencing, the probation officer

prepared a presentence investigation report ("PSR") that calculated

Adorno's base offense level using the quantity of drugs underlying

her drug-trafficking conspiracy conviction. Adorno challenged the

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probation officer's determination on the ground that the government

failed to prove the exact quantity of drugs that was attributable

to, or foreseeable by, Adorno. See Fernández-Hernández, 652 F.3d

at 71; United States v. Colón-Solís, 354 F.3d 101, 103-04 (1st Cir.

2004). At sentencing, the district court did not resolve the

dispute. The court ignored the probation officer's recommendation

to determine Adorno's base offense level using the quantity of

drugs, and instead relied on the amount of laundered funds, which

it calculated to be $1,153,137.30.

Adorno does not dispute that the district court was

permitted to rely on the value of the laundered funds to calculate

her base offense level under the Sentencing Guidelines.4 See

U.S.S.G. § 2S1.1(a)(2). However, she argues that the court should

have given her advance notice under Fed. R. Crim. P. 32(h) that it

was planning to do so. Rule 32(h) states that "[b]efore the court

may depart from the applicable sentencing range on a ground not

identified for departure either in the presentence report or in a

party's prehearing submission, the court must give the parties

reasonable notice that it is contemplating such a departure." In

Irizarry v. United States, the Supreme Court interpreted Rule 32(h)

4
Section 2S1.1(a) of the Sentencing Guidelines states that
when an defendant is convicted of money laundering, the base
offense level can either be established using "[t]he offense level
for the underlying offense from which the laundered funds were
derived" -- in this case, the quantity of drugs underlying Adorno's
drug-trafficking conspiracy conviction -- or "the number of offense
levels . . . corresponding to the value of the laundered funds."

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narrowly, holding that the rule applies only to authorized

"departures" under the Sentencing Guidelines and not to

"variances," non-Guidelines sentences that result from the

sentencing judge's consideration of factors under 18 U.S.C. § 3553.

See 553 U.S. 708, 714 (2008) (holding that Rule 32(h) "does not

apply to 18 U.S.C. § 3553 variances by its terms. 'Departure' is

a term of art under the Guidelines and refers only to

non-Guidelines sentences imposed under the framework set out in the

Guidelines."). In this case, the district court sentenced Adorno

to 121 months, which was within the Guideline range of 121 to 151

months. Therefore, Rule 32(h) is inapplicable to Adorno's

sentence.

B. Amount of Laundered Funds

In a money laundering conspiracy, the amount of laundered

funds attributable to a defendant "includes not only that which he

handled but also the amount he could reasonably have foreseen would

be laundered through the conspiracy." United States v.

Rivera-Rodríguez, 318 F.3d 268, 273 (1st Cir. 2003) (citing

U.S.S.G. § 1B1.3(a)(1)). When calculating the amount of loss to

determine an offense level for sentencing purposes, a district

court "need only make a reasonable estimate of the loss."

Ihenacho, 716 F.3d at 278 (citing U.S.S.G. § 2B1.1, cmt. n.3(C)).

The court's calculation is entitled to deference because it "is in

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a unique position to assess the evidence and estimate the loss

based upon that evidence." U.S.S.G. § 2B1.1, cmt. n.3(C).

Adorno argues that the district court erred in

calculating the amount of laundered funds attributed to her as

$1,153,137.30, producing a base offense level of 24. See id.

§§ 2S1.1(b)& 2B1.1. However, she has not offered an alternative to

the district court's tally. Although the court did not provide

any explanation for its calculation, the government argues that the

trial record shows twenty car purchases, eighteen car insurance

payments, and two cash deposits attributable to Adorno, which

totaled $1,155,948.91. The government's figure would also have

established a base offense level of 24. See id.

Based upon our own detailed review of the record, the

district court's calculation appears to be a "reasonable estimate"

of the amount of laundered funds attributable to Adorno. Id.

§ 2B1.1, cmt. n.3(C). Therefore, there was no plain error.

Affirmed.

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