United States v. Monteiro

United States Court of Appeals
For the First Circuit

No. 02-2396

UNITED STATES OF AMERICA,

Appellee,

v.

SHAWN MONTEIRO, a/k/a Shiz, a/k/a Sean Thomas,
a/k/a John Grant,

Defendant, Appellant.

No. 02-2397

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM JOHNSON,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Lipez, and Howard, Circuit Judges.
 George H. Murphy, was on brief for appellant, Shawn Monteiro.
Jay Markell, was on brief for appellant, William Johnson.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

August 9, 2005
 HOWARD, Circuit Judge. William Johnson and Shawn

Monteiro pleaded guilty to charges stemming from their

participation in drug distribution and money laundering

conspiracies. Johnson received a 97-month sentence, and Monteiro

received a 70-month sentence. Both defendants appeal their

sentences. We affirm.

I.

The facts are derived from the plea and sentencing

hearings and the presentence reports. See United States v. Tejada-

Beltran, 50 F.3d 105, 107 (1st Cir. 1995). In the late 1990s, the

defendants, who were old friends, cooperated in extensive drug

distribution and money laundering conspiracies. The drug

conspiracy involved arranging for shipments of marijuana from

California to Massachusetts and Rhode Island, where it could be

divided and sold to individuals for profit.

Johnson engaged Andre Turner, an acquaintance of his to

whom he introduced Monteiro as a "drug associate[]," to ship the

drugs from California. Turner sent the marijuana to locations in

Massachusetts and Rhode Island identified by Johnson, where it

usually was retrieved by Robert Bukin, one of the defendants'

associates (though occasionally the defendants retrieved the drugs

themselves). After the marijuana arrived, the defendants and

others divided it and distributed it to local customers.

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 The defendants earned substantial cash sums from their

drug enterprise and devised a scheme to launder the money by wiring

it through Western Union. Johnson personally made 29 wire

transfers and received many others from conspiracy members. He

also recruited other individuals, including Christopher Spaulding

and Johnson's cousin, Charles Vaughn to make transfers on his

behalf. Monteiro engaged in similar conduct. He personally wired

over $10,000 to people in California. He also recruited Courtney

Wooten, Leah Texeira Baez, Ana Monteiro, and Lori Pierce to wire

money for him. There was evidence that approximately $1.8 million

was wired through Western Union during the course of the

conspiracy.

On these facts, Johnson pleaded guilty to conspiring to

possess marijuana with the intent to distribute, 21 U.S.C. § 846,

conspiring to launder money, 18 U.S.C. § 1956(h), and possessing

marijuana with the intent to distribute, 21 U.S.C. § 841(a)(1).

Monteiro pleaded guilty to conspiring to possess marijuana with the

intent to distribute, 21 U.S.C. § 846, and conspiring to launder

money, 18 U.S.C. § 1956(h).

At the sentencing hearing, the district court heard from

Drug Enforcement Administration Agent John O'Donoghue, who was

assigned to investigate the defendants' activities. He testified

to several statements made to him during the course of his

investigation that implicated the defendants and demonstrated that

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they were working together as part of a single conspiracy to

distribute drugs and to launder the cash generated by their illicit

enterprise.

After O'Donoghue's testimony, the district court

announced its sentencing calculation for each defendant.

Concerning Johnson, the court based the sentence on the money

laundering conviction because it yielded the highest offense level

under the Sentencing Guidelines. See U.S.S.G. § 3D1.2 (2001). The

base offense level for money laundering conducted in connection

with drug offenses is defined as the base offense level for the

underlying drug offenses. See U.S.S.G. § 2S1.1(a)(1). The base

offense level for Johnson's drug offenses was 26. The court added

two levels because Johnson was convicted of money laundering under

18 U.S.C. § 1956, see U.S.S.G. § 2S1.1(b)(2)(B), and four more

levels because Johnson led or organized a money laundering

conspiracy which included at least five people, see U.S.S.G. §

3B1.1(a).1 The court then subtracted three levels because Johnson

accepted responsibility, see U.S.S.G. § 3E1.1. Johnson's total

offense level was 29 which, because of his category II criminal

history, yielded a sentencing range between 97 and 121 months.

Johnson moved for a downward departure based on his poor health and

1
In applying the enhancement, the court acknowledged that
there was some "degree of decentralization," but concluded that
there was credible evidence of "an overarching agreement" among
five or more people to recruit others to launder money through wire
transfers.

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presentence rehabilitation. The court denied the motions and

sentenced Johnson to 97 months in prison.

The court conducted a similar calculation for Monteiro.

His sentence was also based on the money laundering conviction.

Because the court attributed smaller amounts of marijuana to

Monteiro than to Johnson, the base offense level was 24. The court

then applied the same adjustments made to Johnson's offense level

to arrive at a total offense level of 27. Because Monteiro had a

category I criminal history, the sentencing range was 70 to 87

months' imprisonment. The court sentenced Monteiro to 70 months in

prison.

II.

The defendants' primary contention is that the district

court erred in applying the four-level role-in-the-offense

enhancement. They also argue that they are entitled to

resentencing under United States v. Booker, 125 S. Ct. 738 (2005).

Additionally, Johnson challenges the district court's denial of his

motions for a downward departure.

A. Role-in-the-Offense Enhancement

The defendants challenge the application of the role-in-

the-offense enhancement on two grounds. First, they argue that the

evidence was insufficient for the court to conclude that there was

an overarching conspiracy to launder money involving five or more

people. At most, they contend, the evidence showed that Monteiro

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and Johnson each led his own separate conspiracy, neither of which

contained the five-person minimum. Second, they argue that, to the

extent there was evidence of a single conspiracy, it came from the

hearsay testimony of the agent who investigated the crime and

therefore was unreliable.

The enhancement applies where the government

demonstrates, by a preponderance of the evidence, that "the

defendant was an organizer or leader of criminal activity that

involved five or more participants or was otherwise extensive."

U.S.S.G. § 3B1.1(a); United States v. Cruz, 120 F.3d 1, 3 (1st Cir.

1997) (en banc). The determination that a given set of facts

justifies application of the enhancement is "entitled to

considerable deference and must stand unless clearly erroneous."

United States v. Brown, 298 F.3d 120, 122 (1st Cir. 2002). Thus,

the battle over the enhancement "will almost always be won or lost

in the district court." United States v. Santos, 357 F.3d 136, 142

(1st Cir. 2004). Whether a set of crimes can be attributed to one

conspiracy is a question of fact, see United States v. Glaum, 356

F.3d 169, 176 (1st Cir. 2004), vacated on other grounds by 125 S.

Ct. 1030 (2005), the resolution of which typically depends on

evidence of common purpose, interdependence among the elements of

the plan, and overlap among the participants, see United States v.

Portela, 167 F.3d 687, 695 (1st Cir. 1999). But these factors

serve only as a guide; "[n]o magic formula exists for determining

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when a set of jointly committed crimes adds up to an overarching

conspiracy or enterprise." United States v. Shea, 211 F.3d 659,

665 (1st Cir. 2000).

The court heard testimony that the defendants were

partners in a drug distribution ring, including testimony that

Johnson introduced Monteiro as his "drug associate[]." The ring

generated significant sums of cash which provided the defendants

with a common motive to launder money. There also was substantial

testimonial and documentary proof of overlap among conspiracy

participants. Andre Turner not only received Western Union wires

from Johnson, but also from Wooten and Baez (who were recruited by

Monteiro). Spaulding was introduced to both Monteiro and Johnson

and proceeded to wire approximately $75,000 on their behalf. And

the record is replete with evidence of individuals recruited by

each defendant wiring money to common recipients. The court was

justified in concluding that this overlap in method and

participants was not a coincidence, but rather evidence of an

agreement between the defendants to launder the money that they

obtained from their drug conspiracy.

The challenge to the reliability of Agent O'Donoghue's

testimony fares no better. The defendants claim that the district

court could not rely on the agent's testimony because the

government did not produce the declarants whose statements

O'Donoghue relayed. But there is no obligation on the part of the

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government to produce the declarants so long as the court has a

basis for measuring the reliability of the testifying officer.

See, e.g., United States v. Phaneuf, 91 F.3d 255, 261-62 (1st Cir.

1996); United States v. Rojo-Alvarez, 944 F.2d 959, 971 (1st Cir.

1991).

The record demonstrates such a basis. Agent O'Donoghue's

testimony was consistent with information in the presentence

reports, which included summaries of interviews with the

declarants. The district court also had before it documentary

evidence, in the form of a summary of Western Union receipts, which

showed the defendants and their associates wiring money to many of

the same recipients. See Phaneuf, 91 F.3d at 261-62 (stating that

reliability of hearsay at sentencing can be demonstrated by

reference to other evidence in the case). Furthermore, the court

did not adopt the agent's testimony wholesale; it declined to

credit the statements of witnesses who may have had reason to

depict the defendants in an unflattering light.2

2
Monteiro also argues that the district court's application of
the role-in-the-offense enhancement was clearly wrong because the
court's finding of a single conspiracy conflicted with its decision
not to attribute to him all of the money laundered by the
conspiracy. According to Monteiro, this shows that there was not
a single money laundering conspiracy. We disagree. The court used
the amount of money laundered in the conspiracy as a factor in
estimating drug quantity. The district court indicated that it
relied on a reduced amount of money laundered through the
conspiracy to arrive at a conservative drug quantity estimate.
See United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004)
(stating that in choosing between plausible estimates of drug
quantity district courts are "to err on the side of caution"). It

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 B. Downward Departure

Johnson contends that the district court erroneously

concluded that it did not have the legal authority to depart

downward based on his poor health and his presentence

rehabilitation. The government counters that the court understood

that it could depart on both of these grounds, but that it declined

to do so as a matter of discretion. Therefore, the government

argues we do not have jurisdiction to review Johnson's claims.

Although a district court's discretionary denial of a

departure is not appealable, see United States v. Dewire, 271 F.3d

333, 337 (1st Cir. 2001), a refusal to depart based on a

misunderstanding of the law is reviewed de novo, see United States

v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991). The line between

discretionary and legal denials of downward departure requests has

not always been clear. See United States v. Saldana, 109 F.3d 100,

simply does not follow that the court's conservative drug quantity
estimate (which benefitted Monteiro) necessarily precluded the
court from finding a single conspiracy.

In addition, Monteiro contends that the court violated his due
process rights by applying the role-in-the-offense enhancement to
the money laundering conviction instead of the drug conviction. He
claims prejudice because applying the enhancement to the drug
conviction would have resulted in a lower total offense level.
There is no merit to this argument. The district court must
separately evaluate the defendant's leadership role for each count.
See United States v. Thiongo, 344 F.3d 55, 62 n.5 (1st Cir. 2003).
As set forth above, the court's determination that Monteiro was an
organizer or leader of the money laundering conspiracy was based on
reliable evidence, and therefore it was appropriate for the court
to apply the enhancement.

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103 (1st Cir. 1997). We explained the distinction in United States

v. Pierro:

If the judge sets differential factfinding and
evaluative judgment to one side, and says, in
effect, "the circumstance of which you speak,
even if it exists, does not constitute a
legally sufficient basis for departure," then
the correctness of that quintessentially legal
determination may be tested on appeal. But if
the judge says, in effect, either that "this
circumstance of which you speak has not been
shown to exist in this case" or, alternatively
that "while this circumstance of which you
speak might exist and might constitute a
legally cognizable basis for a departure in a
theoretical sense, it does not render this
particular case sufficiently unusual to
warrant departing," then, in either such
event, no appeal lies.

32 F.3d 611, 619 (1st Cir. 1994).

Under this standard, the government's jurisdictional

arguments achieve mixed results. With regard to the requested poor

health departure, the court reasoned that Johnson would receive

adequate health care in prison; it did not evince an understanding

that it was legally constrained from granting a health-related

departure. This, then, was a discretionary decision which we will

not review. See United States v. Teeter, 257 F.3d 14, 30 (1st Cir.

2001).

The requested presentence rehabilitation departure

presents a different situation. The district court ruled that the

"degree of discretion" afforded by the caselaw did not extend to

the circumstances of this case. This is a legal ruling infected,

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Johnson contends, by the court's misunderstanding of the amount of

discretion it possessed. We review this claim de novo.

Johnson presented the court with information that, after

he learned about the investigation into his criminal conduct, "he

began . . . to earn a living through honest hard work as a

carpenter." He also began to address his substance abuse problem

by agreeing to remain in custody where he could participate in a

drug rehabilitation program pending the resolution of the criminal

charges.

The district court accurately perceived the narrow

parameters within which it was empowered to grant a downward

departure for presentence rehabilitation. See United States v.

Craven, 239 F.3d 91, 99 (1st Cir. 2001) (stating that "downward

departures for presentence rehabilitation are hen's-teeth rare").

In United States v. Rushby, 936 F.2d 41, 42-43 (1991), we concluded

that a defendant was not entitled to a downward departure for

presentence rehabilitation based on proof that the defendant had

enrolled in a substance abuse treatment program, was attending to

his family responsibilities, and was holding gainful employment.

Similarly, in United States v. Sklar, 920 F.2d 107, 114 (1st Cir.

1990), we set aside a downward departure grounded on presentence

rehabilitation where the defendant entered a halfway house,

remained substance-free, and found employment. The court was

correct in concluding that these cases precluded a downward

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departure based on Johnson's procuring employment and beginning a

drug treatment program.

C. Booker Claim

Finally, we consider the defendants' claim that they

were entitled to resentencing under Booker. See Booker, 125 S. Ct.

738 (declaring the Guidelines advisory in preserving their

constitutionality). The defendants essentially recast their

argument concerning the role-in-the-offense enhancement as a Booker

claim. They argue that the district court's imposition of the

role-in-the-offense enhancement was dubious because it was based on

hearsay.

To support this argument, the defendants invoke Crawford

v. Washington, 541 U.S. 36 (2004) (holding that certain types of

hearsay are not admissible at a criminal trial under the

Confrontation Clause). They suggest that the logic of Crawford

(which was decided after the district court imposed sentence) may

encourage the court to rely less heavily on hearsay if given an

opportunity to resentence. The defendants did not raise a Booker

argument below, so our review is for plain error.3 See United

States v. Antonakopoulos, 399 F.3d 68, 76-77 (1st Cir. 2005).

3
The defendants argue that they had no obligation to object
below to preserve their Booker claim because their claim
"involve[s] a constitutional principle that had not been previously
recognized." We already have rejected this argument. See
Antonakopoulos, 399 F.3d at 76.

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 A prerequisite for this court to order resentencing based

on an unpreserved Booker claim is a demonstration by the defendant

that there is a "reasonable probability" that the district court

would impose a more favorable sentence under the now advisory

Guidelines. Id. at 75. We are not "overly demanding as to proof

of [such] probability where, either in the existing record or by

plausible proffer, there is reasonable indication that the [court]

might well have reached a different result under advisory

guidelines." United States v. Heldeman, 402 F.3d 220, 224 (1st

Cir. 2005).

The defendants have not satisfied this burden. Crawford

does not apply to sentencing, see United States v. Luciano, --F.3d-

-, 2005 WL 1594576, at *4-*5 (1st Cir. July 8, 2005), and there is

nothing (but the defendants' assertions) to suggest that Crawford's

rationale would have any impact on the sentences imposed in this

case. Besides Crawford, the defendants have not identified

anything in the record from which we can conclude that the court

shared the defendants' doubt about the appropriateness of the role-

in-the-offense enhancement simply because the evidentiary basis for

the enhancement was comprised of hearsay. We therefore have no

basis for ordering a remand.

III.

For the reasons stated, the defendants' sentences are

affirmed.

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