United States Court of Appeals
For the First Circuit
No. 06-2287
UNITED STATES OF AMERICA,
Appellee,
v.
BENJAMIN PRATT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cudahy,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Jane Elizabeth Lee, for appellant.
Renee M. Bunker, Assistant United States Attorney, with whom
F. Mark Terison, Senior Litigation Counsel, and Paula D. Silsby,
United States Attorney, were on brief, for appellee.
July 14, 2008
*
Of the Seventh Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On April 13, 2006, Benjamin
Pratt pleaded guilty to three counts of conspiracy: to import
marijuana, to possess with the intent to distribute marijuana, and
to commit money laundering. He was sentenced to eighty-four
months' incarceration. Pratt now challenges his plea and sentence
with respect to only the money laundering conspiracy charge. We
conclude, however, that his appeal is barred by the waiver of
appeal to which he consented in his plea agreement.
I. Background
In September 2005, Pratt sold approximately 150 pounds of
marijuana to an undercover agent in Bangor, Maine. On October 13,
2005, Pratt was indicted, as part of a multi-defendant indictment,
on three counts: (1) conspiracy to import marijuana, (2)
conspiracy to possess with the intent to distribute marijuana, and
(3) conspiracy to commit money laundering. See 28 U.S.C. §§
952(a), 960(a)(1) and (b)(2), 963, 846, 841(a)(1) and (b)(1)(B),
and 18 U.S.C. § 1956(h). Pursuant to a written agreement, Pratt
entered a guilty plea to all three counts on April 13, 2006.1
At the Rule 11 hearing, the Government submitted its
version of the offense. Specifically, the Government stated that
it would establish that between the fall of 2003 and June 2005, the
defendant and others were importing marijuana into the United
1
The original change of plea hearing had been continued from
March 20, 2006, to allow Pratt an opportunity to further
investigate the money laundering count.
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States from Canada. The marijuana was allegedly manufactured in
the Montreal area and then shipped to the border, where couriers
would pick up the drugs and bring them into the United States.
Pratt was among those who paid for, received, and then distributed
the drugs when they arrived in the United States, knowing that they
were coming from Canada. Pratt admitted that the information was
true and that the evidence would lead a properly instructed jury to
find him guilty beyond a reasonable doubt.
The court then asked the Government to address the
factual basis for the conspiracy to commit money laundering.2 The
Government responded:
The 1956(h), Your Honor, is a conspiracy to
launder money. Simply for the defendant in
this case, the money laundering conspiracy
involved his receiving marijuana, selling the
marijuana and the proceeds of the marijuana
and then delivering that to the courier who
would get the next load. The delivery of
those drug proceeds is money laundering
activity, and that would constitute a 1956(h)
offense.
Defense counsel agreed that case law from other circuits supported
the Government's claim that the transfer of cash for drugs
qualified as money laundering. Pratt reaffirmed that he understood
the charges against him. The court also expressly inquired whether
2
The Government's money laundering theory rested on 18 U.S.C.
§ 1956(a)(1)(A)(i), which criminalizes engaging "in a financial
transaction . . . involv[ing] the proceeds of specified unlawful
activity with the intent to promote the carrying on of specified
unlawful activity."
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Pratt had reviewed the plea agreement and whether he understood
that in the agreement he was waiving his right to appeal. He
answered in the affirmative. The court then accepted the guilty
plea, reserving acceptance of the plea agreement until after
considering the Presentence Report ("PSR").
At sentencing, Pratt made varied objections to the
Probation Department's Guideline calculation, but to no avail.
After hearing from both sides, the court concluded that the PSR's
calculations were correct as to both the quantity of drugs and the
appropriate Guidelines range. The court then accepted the
Government's recommendation of an eighty-four month term of
imprisonment and a four-year term of supervised release on each
count, to be served concurrently. At the end of the sentencing,
the court again reminded Pratt that his plea agreement gave up his
right to appeal the sentence. Nevertheless, Pratt now appeals.
II. Discussion
Pratt makes several arguments as to why the district
court erred in accepting his guilty plea. Before we can entertain
any of those arguments, however, Pratt must first overcome an
initial hurdle: the waiver of appeal provision contained in his
plea agreement.
Under our case law, we make three inquiries to determine
the appropriateness of enforcing the waiver: (1) whether the plea
clearly outlined the waiver; (2) whether the court adequately
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questioned the defendant about his or her understanding of the
waiver; and (3) whether the enforcement of the waiver would
constitute a miscarriage of justice. United States v. Teeter, 257
F.3d 14, 25 (1st Cir. 2001). After reviewing the Rule 11
transcript, we conclude that there is no question that the first
two inquiries are satisfied here. Not only was the plea agreement
clear in its statement of the waiver, but the record reveals that
both counsel and the district judge discussed the waiver with
Pratt, not only during the change of plea hearing, but also at
sentencing. Indeed, Pratt does not make any argument that the
waiver should be deemed unenforceable on the basis of the first two
inquiries.
Pratt argues that his case falls within the rare
exception carved out by the last part of the Teeter test --
enforcement of the waiver would work a miscarriage of justice.
Specifically, he argues that the plea, with respect to the money
laundering count, lacked a sufficient factual basis, subjected him
to double jeopardy, and was the result of ineffective assistance of
counsel.3
In arguing that enforcement of the waiver would amount to
a miscarriage of justice, Pratt faces an uphill challenge. On
3
In his appeal, Pratt argues that he received ineffective
assistance of counsel in connection with his Rule 11 proceedings.
Our review of the record assures us this claim does not raise
concerns regarding a miscarriage of justice and we decline to
discuss the argument further.
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several occasions, we have emphasized the reluctance with which we
are likely to deem this exception appropriate; "the miscarriage of
justice reservation 'will be applied sparingly and without undue
generosity.'" United States v. De-la-Cruz Castro, 299 F.3d 5, 13
(1st Cir. 2002) (quoting Teeter, 257 F.3d at 26); accord United
States v. Cardona-Díaz, 524 F.3d 20, 23 (1st Cir. 2008). The
appropriateness of the exception turns on our consideration of
several factors: "the clarity of the alleged error, its character
and gravity, its impact on the defendant, any possible prejudice to
the government, and the extent to which the defendant acquiesced in
the result." Cardona-Díaz, 524 F.3d at 23 (quoting United
States v. Gil-Quezada, 445 F.3d 33, 37 (1st Cir. 2006)). After
considering those factors in the context of this case, we cannot
conclude that enforcement of the waiver will constitute a
miscarriage of justice.
Section 1956 imposes criminal liability on one who
knowingly conducts a financial transaction involving the proceeds
of some unlawful activity with the intent to promote the carrying
on of unlawful activity. 18 U.S.C. § 1956(a)(1)(A)(i). A
"transaction" is defined as including any "purchase, sale, loan,
pledge, gift, transfer, delivery, or other disposition." Id. §
1956(c)(3). In its statement of the offense, the Government
outlined the means by which Pratt would sell marijuana and then use
the proceeds from those sales to further additional and ongoing
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unlawful activity, namely to promote the conspiracy to import,
distribute, and possess with an intent to distribute marijuana.
Pratt conceded that those facts were true: he admitted that he
knowingly paid a drug courier in Canada with proceeds obtained from
other drug sales, with the intent to further marijuana trafficking.
On appeal, Pratt argues that the district court erred
because the Government was required to establish more than the fact
that at least some of the proceeds from the illegal marijuana sales
were intended for the purchase of more marijuana in Canada. During
the plea hearing, however, Pratt's counsel had agreed that the
Government had established a sufficient factual basis for
promotional money laundering, stating that she had discovered
several cases from other circuits supporting the Government's
position. See, e.g., United States v. Dovalina, 262 F.3d 472, 476
(5th Cir. 2001) (finding promotional money laundering where
"evidence establishes that a dealer used the proceeds of an illegal
transaction to pay for the drugs"); United States v. King, 169 F.3d
1035, 1039 (6th Cir. 1999) ("Payment for drugs may constitute
'promotion' for the purposes of the money laundering statute when
such payment encourages further drug transactions."); United States
v. Baker, 63 F.3d 1478, 1494 (9th Cir. 1995) (finding that payment
to suppliers was laundering that promotes the illegal drug
trafficking activity); United States v. Torres, 53 F.3d 1129, 1137
n.6 (10th Cir. 1995) (similar). Furthermore, Pratt affirmed to the
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court that he understood the issue and had discussed it with
counsel. Thus, not only was the waiver itself entered into
knowingly and voluntarily, but the specific error that Pratt now
alleges the court committed, is based on a legal argument that was
discussed and resolved by all parties during the hearing. Given
this record and the cases that support the Government's argument,
we cannot conclude that the alleged error was so clear that
enforcement of the waiver would amount to a manifest injustice in
this case.
Likewise, we find no merit in Pratt's double jeopardy
argument. Two offenses are not the same offense for double
jeopardy purposes if "each provision requires proof of an
additional fact which the other does not." See Blockburger v.
United States, 284 U.S. 299, 304 (1932); accord United States v.
Patel, 370 F.3d 108, 114 (1st Cir. 2004). In this case, the
elements of Counts Two and Three differ from one another: the drug
conspiracy charge requires the intent to distribute or possession
with the intent to distribute a controlled substance, which is not
part of the money laundering statute. Conversely, the money
laundering charge requires proof of a financial transaction, and an
intent to promote further unlawful activity, neither of which is
required to prove the drug conspiracy charge.
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III. Conclusion
For the foregoing reasons, we find no miscarriage of
justice in the enforcement of the waiver in this appeal.
Accordingly, the appeal is dismissed.
It is so ordered.
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