United States v. Juan Giraldo

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 30, 2008
No. 07-14301 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-20023-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GIRALDO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(July 30, 2008)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Juan Giraldo appeals his 70-month sentence for conspiracy to launder the
proceeds of the sale of a controlled substance, in violation of 18 U.S.C.

§ 1956(a)(2)(B)(i), (h). Giraldo pled guilty to the § 1956(h) conspiracy charge,

and challenges only his sentence in this appeal.

Giraldo argues that the district court erred in finding that a prior drug

trafficking conviction was not related to the money laundering conspiracy, and that

he is entitled to resentencing in light of the November 2007 Guideline

Amendments clarifying what constitutes related prior offenses under U.S.S.G.

§ 4A1.2(a)(2). Giraldo’s counsel filed objections to the computation of criminal

history points and to the probation department’s failure to find that the prior

offense and the instant offense were related. However, Giraldo explicitly stated at

sentencing that he wished to withdraw those objections. Where a defendant raises

and then knowingly withdraws an objection to his sentence, we deem the objection

waived and will not review it on appeal. United States v. Masters, 118 F.3d 1524,

1526 (11th Cir.1997). Because Giraldo knowingly withdrew his objections, he is

bound by the district court’s ruling as to his criminal history computation, and the

conclusion that his prior offenses were neither related to one another, nor to the

instant offense. See Masters, 118 F.3d at 1526.

Giraldo next argues that the district court erred in enhancing his guideline

sentence by two levels under U.S.S.G. § 2S1.1(b)(2)(B) because the object of the

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conspiracy was not drug trafficking but failure to report the money. We review de

novo the interpretation and application of the Guidelines, and review underlying

factual findings for clear error. United States v. McVay, 447 F.3d 1348, 1352-53

(11th Cir. 2006).

According to the Guidelines, the guideline calculation for an offense under

18 U.S.C. § 1956(h) is found in U.S.S.G. § 2S1.1. See U.S.S.G., Appendix A.

Section 2S1.1 contains the following specific offense characteristics: “If the

defendant was convicted under 18 U.S.C. § 1957, increase by 1 level . . . if the

defendant was convicted under 18 U.S.C. § 1956, increase by 2 levels.” U.S.S.G.

§ 2S1.1(b)(2)(A), (B). However, the two-level enhancement for conviction under

§ 1956 “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.” U.S.S.G. § 2S1.1, cmt. (n. 3(c)). The difference

between § 1956 and § 1957 is that § 1957 “criminalizes money laundering where

the proceeds derive from an unlawful activity . . . while § 1956 criminalizes money

laundering where the defendant knows that the proceeds derived from an unlawful

activity . . . .” United States v. Torres-Valesquez, 480 F.3d 100, 104 n.1 (1st Cir.

2007).

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 The record clearly demonstrates that the offense for which Giraldo pled

guilty involves a conviction under 18 U.S.C. § 1956(h), the object of which was an

offense involving a violation of 18 U.S.C. § 1956(a)(2)(B)(i) and not 18 U.S.C.

§ 1957. Under these facts, the court did not err when in concluded that the

enhancement under U.S.S.G. § 2S1.1(b)(2)(B) was applicable to Giraldo.

Giraldo also contends that the district court erred in applying the two-level

enhancement for aggravated role under U.S.S.G. § 3B1.1(c) because there was no

competent evidence presented of his aggravated role. We review a district court’s

upward adjustment of a defendant’s guidelines offense due to his status as a leader

or manager for clear error. United States v. Phillips, 287 F.3d 1053, 1055 (11th

Cir. 2002).

Although Giraldo contends that he is no more culpable than the others

involved in the conspiracy, the record indicates that Giraldo convinced Vasquez to

participate in his plan to launder money from the sale of his drugs from the United

States to Colombia. The influence over one individual is enough to apply the two-

level enhancement, and Giraldo exercised control over Vasquez. See Phillips, 287

F.3d at 1058 (“[T]he assertion of control or influence over only one individual is

enough to support a §3B1.1(c) enhancement.”). Furthermore, by his own

statement, Giraldo was responsible for getting the money and meeting up with

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Vasquez and Muriel so it could be taped to their bodies. In light of the record in

this case, the district court did not clearly err by applying the aggravating role

enhancement to Giraldo.

Finally, Giraldo argues that the district court erred when it chose to impose

the 70-month sentence consecutively to the sentence he is serving on his drug

trafficking conviction, and that his sentence is unreasonable because the district

court failed to adequately consider the § 3553(a) factors.

Imposition of consecutive rather than concurrent sentences is subject to

plenary review. United States v. Ballard, 6 F.3d 1502, 1505 (11th Cir. 1993).

“Multiple terms of imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a).

However, in determining whether to impose a concurrent or consecutive term, the

district court must consider the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C.

§ 3584(b).

Prior to imposing the consecutive sentence, the district court stated that it

had considered the § 3553(a) factors and the arguments that had been presented

from both Giraldo and the government regarding whether the sentence should run

consecutively. There is nothing in the record to suggest that the district court

abused its discretion when it ordered Giraldo’s sentence to run consecutively to his

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sentence for the drug trafficking offense.

We review the final sentence imposed by the district court for

reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).

The Supreme Court recently clarified that the reasonableness standard is

synonymous with the abuse of discretion standard. Gall v. United States, __ U.S.

__, __, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). The district court must

impose a sentence that is both procedurally and substantively reasonable. See

United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006)

Here, the district court imposed a procedurally reasonable sentence. The

district court correctly calculated the Guidelines range, the sentence imposed falls

within the guideline range of 70-87 months’ imprisonment, nothing in the record

indicates that the district court treated the Guidelines as mandatory, and the record

demonstrates that the district court considered the facts in the pre-sentence

investigation report and took into account the § 3553(a) factors. Based upon the

record, Giraldo’s sentence is not procedurally unreasonable.

Giraldo’s sentence is also substantively reasonable. Giraldo was not only

involved in the sale and distribution of drugs, he was using various individuals to

get the proceeds from those sales from the United States to Colombia. There was a

large of sum of money involved in this case, well over $200,000. Further, Giraldo

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admitted to conspiring with others for approximately four months to accomplish

his goals. Nothing in the record undermines our ordinary expectation of

reasonableness for a within-guideline-range sentence, and Giraldo has not

established that his sentence is unreasonable in light of the record and the

§ 3553(a) factors.

Upon careful review of the record on appeal and consideration of the parties’

briefs, we discern no error. Accordingly, we affirm.

AFFIRMED.

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