United States v. Alejandro Sotelo

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 16-3599
_____________

UNITED STATES OF AMERICA

v.

ALEJANDRO SOTELO,
a/k/a “Alex”

Alejandro Sotelo,
Appellant
_____________

No. 16-3648
_____________

UNITED STATES OF AMERICA

v.

FRANCISCO GONZALEZ JOSE,
a/k/a Franci, a/k/a Francisco Morales,

Francisco Gonzalez Jose,
Appellant
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 2-14-cr-00652-006 & 2-14-cr-00652-010)
District Judge: Mark A. Kearney
_____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 6, 2017
 Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

(Filed: September 26, 2017)
____________

OPINION*
____________

CHAGARES, Circuit Judge.

Alexander Sotelo and Francisco Gonzalez Jose were convicted by a jury of

conspiracy, drug trafficking, and money laundering charges. The District Court

sentenced Sotelo to 210 months of imprisonment and Gonzalez Jose to 220 months of

imprisonment. Sotelo and Gonzalez appeal the District Court’s judgments of conviction

and sentence on various bases. For the reasons that follow, we will affirm in all respects.

I.

A.

We write solely for the parties’ benefit and thus recite only the facts necessary to

our disposition. On May 6, 2015, a grand jury returned a superseding indictment

charging Sotelo, Gonzalez Jose, and others with conspiracy, drug trafficking, money

laundering, and related crimes.1 The charges were related to the activities of a drug

trafficking organization led by Antonio and Ismael Laredo. The organization imported

heroin from Mexico into the United States. The heroin would be sent to Philadelphia,

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Citations to the Government’s Supplemental Appendix are labeled as “Supp. App.”
Citations to Sotelo’s Appendix are labeled as “Sotelo App.” Citation to Gonzalez Jose’s
Appendix are labeled as “Gonzalez Jose App.”

2
where it was eventually distributed to other dealers. The proceeds would be laundered

back to Mexico via, inter alia, physical bulk cash shipments secreted in vehicles and

suitcases, small Western Union wire transfers, and structured deposits into funnel

accounts at banks.

The indictment alleged that Sotelo received shipments of heroin in Chicago and

coordinated the transportation of the drugs to Philadelphia. The indictment further

alleged that Gonzalez Jose served as a Philadelphia-based distributer of the heroin.

Finally, the indictment asserted that Sotelo and Gonzalez Jose took steps to conceal and

transport the proceeds of the Laredo organization’s drug distribution.

The indictment charged both Sotelo and Jose on Count 1 (conspiracy to distribute

one kilogram or more of heroin in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)), Count 2

(conspiracy to import one kilogram or more of heroin in violation of 21 U.S.C. §§ 963,

960(b)(1)(A)), and Count 44 (conspiracy to commit money laundering in violation of 18

U.S.C. § 1956(h)). They each faced two other counts: Sotelo was charged with Counts

14 and 20 (distribution of one kilogram or more of heroin in violation of 18 U.S.C. § 2

and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)), and Gonzalez Jose was charged with Counts

13 and 36 (possession with intent to distribute one kilogram or more of heroin in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)). See Supp. App. 2-

120.

B.

Sotelo and Gonzalez Jose were the only charged defendants to go to trial. An

eight-day jury trial took place in April 2016. Neither defendant testified at trial. The

3
Government presented the testimony of agents who investigated the Laredo organization

and cooperating witnesses who participated in the organization’s criminal activities.

These witnesses implicated Sotelo and Gonzalez Jose as major players in the Laredo

organization.

Among the most salient pieces of evidence presented were ledgers of drug

transactions created by members of the Laredo organization. Law enforcement officers

recovered ledgers from a search of the apartment of Joseph Torres and Bertin Torres

Sanchez, cooperating witnesses who were among Antonio Laredo’s point-men in

Philadelphia. At trial, United States Drug Enforcement Agency (“DEA”) Special Agent

Patrick Moynihan testified that their electronic devices contained ledgers, which denoted

“proceeds from the sale of their heroin, plus distribution amounts [Torres and Torres

Sanchez] would receive from the organization in Mexico. They also kept track of which

distributors in Philadelphia they gave or distributed heroin to and collected money from.”

Sotelo App. 186; see also Sotelo App. 187. Moreover, the ledgers contained a “supply

distribution sheet” that “tracked the bulk amount of heroin that was being moved into

Philadelphia.” Sotelo App. 190. That information contained entries indicating that

“proceeds generated from the sale of heroin in Philadelphia . . . was laundered back to

Mexico.” Sotelo App. 190-91; see also Sotelo App. 194. Special Agent Moynihan

testified that the ledgers indicated that Sotelo transported drugs and cash for the

organization. See Sotelo App. 188-89. Torres, who was a cooperating witness for the

Government, corroborated the agent’s testimony. He also explained that some of the

ledger entries recorded bulk cash transfers to Sotelo or couriers who worked for him, who

4
would transport the money to Mexico. See Sotelo App. 331-32, 339-40; 355. Torres

Sanchez, who also created ledgers, discussed entries involving Sotelo and noted that

Sotelo would send heroin deliveries with couriers. See Sotelo App. 466.

The ledgers also implicated Gonzalez Jose by detailing various transactions in

which he transferred large amounts of cash to the Laredo organization and received

heroin to distribute. Moreover, another set of ledgers was uncovered from a search of

Gonzalez Jose’s home. Special Agent Moynihan testified as to the contents of the

ledgers, which covered drug transactions from 2010 to 2014 and documented weights of

heroin, the date of distribution, the price per kilogram, payments to members of the

Laredo organization, and the ongoing balance with the Laredo organization.

In addition to the ledgers, testimony from cooperating witnesses also linked both

defendants to the Laredo organization. The witnesses testified that Sotelo was

responsible for delivering heroin from Chicago to Philadelphia and for transporting the

proceeds back and eventually sending them to Mexico. Torres testified that he personally

saw Sotelo transporting hundreds of thousands of dollars of drug proceeds from

Philadelphia. See Sotelo App. 308-09, 319, 332, 349, 357. He added that Sotelo was

uniquely able to “move a lot more money because he had construction equipment in his

van . . . [h]e liked to use that equipment in the work vehicle to transport the money in.”

Sotelo App. 319. Torres testified that Sotelo provided him with the cash to physically

transfer to Mexico, which he did approximately ten times. See Sotelo App 320, 343.

Torres Sanchez also testified that he knew Sotelo would “receive the drugs in Chicago

[from Mexico], and he would send it over [to Philadelphia] with his driver.” Sotelo App.

5
449. Torres Sanchez testified that he understood individuals who arrived from Chicago

— to whom he would give thousands of dollars of cash each time — were drivers who

worked for Sotelo. Sotelo App. 455-56. He also testified that on one such occasion, he

saw a driver and Sotelo in the car together, Sotelo App. 449, and that he once supplied

Sotelo with a vehicle containing a secret compartment, Sotelo App. 448.

Witnesses described Gonzalez Jose as a key distributor of heroin in Philadelphia.

Torres testified that he first met Gonzalez Jose around late 2009, when Antonio Laredo

asked Torres to meet Gonzalez Jose in Philadelphia to vet him as a potential drug

distributor. He noted that Gonzalez Jose became a trusted distributor for the Laredo

organization and that the two became better acquainted over time. Torres explained that

Gonzalez Jose took on more quantities of heroin, and that there was a procedure in place

for bringing the proceeds back to the Laredo organization. Torres and Gonzalez Jose

agreed to use “food saver machines to vacuum seal drugs and money” in order to create

“proof that the money was complete.” Sotelo App. 313. Moreover, Gonzalez Jose would

hide the sealed money bags in designer shoeboxes, which were then placed in shopping

bags.2 He would deliver these hidden proceeds to Torres and other couriers. Sotelo App.

370, 474, 476.

Other cooperating witnesses testified that Gonzalez Jose was a consistent

distributor for the Laredo organization in Philadelphia and that he would routinely deliver

hundreds of thousands of dollars in drug proceeds to these witnesses, who would then be

2
Other members of the conspiracy used this identical method. Sotelo App. 161, 174,
350.

6
responsible for taking the proceeds and depositing or wire-transferring them according to

Laredo’s instructions. For example, one witness, Edwin Vidal, testified that he

laundered drug proceeds for Antonio Laredo from 2012 to 2014. Vidal’s associate

Leandro Rodriguez would receive sums of money from Gonzalez Jose in the form of

compressed sealed packages placed in large shopping bags. Vidal and Rodriguez would

then go to multiple Western Union locations to conduct wire transfers. See Sotelo App.

399-401. Torres Sanchez also testified that he met Gonzalez Jose several times in

Philadelphia for the purpose of drug transactions, and that each time he did so he would

coordinate with either Antonio Laredo or Gonzalez Jose. See Sotelo App. 453-55.

Another witness, Frank Felix-Herrera, testified that he delivered Gonzalez Jose heroin

and deposited the proceeds from Gonzalez Jose at Laredo’s instruction at Bank of

America and Wells Fargo. See Sotelo App. 500.

Torres further testified that Gonzalez Jose laundered money in other ways, for

example once completing “a bank deposit for Antonio [Laredo].” Sotelo App. 370.

Torres testified he knew this occurred because when he was recording transactions in the

ledgers, Gonzalez Jose told him he had deposited money for Laredo and Torres then

“subtracted the amount from my ledger.” Id.

Other physical evidence also implicated Gonzalez Jose. Special Agent Moynihan

also testified that he conducted investigations outside and at the home of Gonzalez Jose,

including general surveillance and “trash pulls” (collection of trash from the street curb).

During those “trash pulls,” he recovered deposit slips from Bank of America and drug

paraphernalia containing heroin residue. See Sotelo App. 200, 202-03. The deposit slips

7
indicated that $20 bills in sequential order of their serial numbers were deposited in

quantities that represented the maximum deposit amount that would not trigger further

scrutiny. See Sotelo App. 231. The trash pulls also revealed a shoebox with notations

written on it. Sotelo App. 203, 294.

On June 19, 2014, Special Agent Moynihan executed a search warrant on

Gonzalez Jose’s house. During that search, the agents recovered drug paraphernalia, a

wrapped plastic bag containing about $24,000 in cash, a number of different bank cards

(including an ID card with a photo that “looks like the defendant but . . . is not actually

the defendant” and a different name), and several notebook ledgers. Sotelo App. 204-06.

Gonzalez Jose was not arrested that day and was apprehended in December 2015 while

using a false driver’s license. Special Agent Moynihan also testified that Sotelo and

other members of the organization were arrested on June 2, 2015 in and near Chicago.

While the jury was deliberating, one of the jurors became ill. As a result, the

District Court dismissed that juror and substituted an alternate juror. The Judge then

instructed the jury panel:

Ladies and gentlemen, I -- I appreciate your extraordinary efforts. As you
may know, we have replaced one Juror Number 10 with an alternate and I
appreciate the alternate’s service.

Under the law the selection of a foreperson remains. I don’t need to know
that. The selection of a foreperson remains, but with a new alternate that
person has to be brought up to speed on any decisions, determinations and
you have to, sort of -- so I don’t want to know this.

But by way of example if you had a sheet of paper and you went through
Questions 1 and 2 or 1(A) or whatever you did, you’d have to ask that
person their view just like -- just like they were in the room.

8
 So you have to start over at one and say -- I don’t know the person’s name -
- I don’t know the person’s name, let’s say it’s Bill or Sue -- Sue, you
know, what do you think about what do you think about one? What do you
think about two? You know that kind of thing you have review. And then if
your minds change because of what Bill or Sue says then you have to
revisit the issue.

And if you’ve taken a vote -- this is the most important -- if you’ve taken a
vote on any issue already that has resulted in a number -- that resulted in
something on the piece of paper then you have to revote that number. Okay.

Sotelo App. 681-82. The jury convicted Sotelo and Gonzalez Jose of all counts charged

against them,3 except that Sotelo was acquitted on Count 20 (one of the two heroin

distribution charges).4

C.

The United States Probation Office prepared presentence reports for both

defendants, and concluded that each had an advisory Guidelines sentence of life

imprisonment. Both defendants also faced mandatory minimum terms of imprisonment

of 10 years.

At Sotelo’s sentencing, his counsel argued to the District Court that the mandatory

minimum sentence of 10 years is unconstitutional as applied to Sotelo because of his

3
The jury deliberated for approximately an hour and a half before the District Court was
notified that one juror was feeling ill. After the alternate was empaneled, the jury
deliberated for about two hours and fifteen minutes before reaching a verdict.
4
The District Court denied Sotelo and Gonzalez Jose’s motions for judgment of acquittal
under Rule 29 and for a new trial under Rule 33 of the Federal Rules of Criminal
Procedure.

9
advanced metastatic gastrointestinal liver cancer. See Sotelo App. 743, 745, 753-55.5

The District Court ultimately rejected the constitutional challenge to the mandatory

minimum. Sotelo App. 769-71. He also denied the defendant’s objections to the

advisory Guidelines sentence calculated by the United States Probation Department,

concluding that the enhancement under U.S.S.G. § 1B1.3 was applicable. Sotelo App.

771-72. The District Court also denied the motion for a departure from the advisory

Guidelines sentence of life, Sotelo App. 773-74, but concluded that after considering the

relevant 18 U.S.C. § 3553(a) factors, the appropriate sentence is 210 months of

incarceration, Sotelo App. 791.

At Gonzalez Jose’s sentencing, his counsel objected, inter alia, to the application

of U.S.S.G. § 2S1.1 for sophisticated money laundering, arguing that his personal

conduct regarding the drug proceeds was not sophisticated money laundering. The

District Court overruled the objection. Gonzalez Jose App. 636. The court ultimately

sentenced Gonzalez Jose to 220 months of imprisonment. Gonzalez Jose App. 660.

Sotelo and Gonzalez Jose timely appealed.

5
Sotelo’s counsel also asserted that Sotelo will not receive “compassionate release” from
the Bureau of Prisons because “their regulations under the CFR . . . [do not] give
compassionate release to any individual, who at the time of the sentencing, the conditions
of that individual’s sickness and/or disability was made aware to the Court.” Sotelo App.
754.

10
 II.6

A.

We will first address Sotelo and Gonzalez Jose’s argument that the District Court

erred in its instructions after replacing one juror with an alternate by failing to instruct the

jury to “begin its deliberations anew,” as required by Rule 24 of the Federal Rules of

Criminal Procedure.

Because neither appellant raised this issue before the District Court, we review it

for plain error.7 United States v. Miller, 527 F.3d 55, 60 (3d Cir. 2008). Under plain

error review, we will “grant relief only if we conclude that (1) there was an error, (2) the

error was ‘clear or obvious,’ and (3) the error ‘affected the appellant’s substantial

rights.’” United States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (quoting Puckett v.

United States, 556 U.S. 129, 135 (2009)). When these three prongs have been satisfied,

we may exercise our discretion to correct the forfeited error if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (alterations omitted).

We have held that “a violation of the established criminal procedure is not

sufficient in itself to create a constitutional violation” and that the specific wording of

Rule 24 does not hold “talismanic” value. Claudio v. Snyder, 68 F.3d 1573, 1576-77 (3d

6
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
7
The defense did not object when the District Court gave its instruction, or at any point
thereafter. Sotelo App. 681-85. The District Court also previewed its instruction without
objection from defense counsel. Sotelo App. 666 (“I’d have to direct the jury . . . to
begin, you know, their consideration or at least bring him – bring him up so he can
appreciate or be involved in any of the questions they’ve already addressed . . . .”).

11
Cir. 1995), as amended (Dec. 1, 1995). So long as the district court’s instruction to the

jury upon the substitution of an alternate is the “functional equivalent” of an instruction

to begin deliberations anew, there is no violation of the defendant’s constitutional rights.

Id. at 1577. The parties contest whether the District Court’s instructions in the instant

case qualified as the “functional equivalent” of an instruction to begin deliberations

anew.

The District Court instructed the jury that it would have to “ask [the alternate]

their view just like -- just like they were in the room.” He further instructed: “[Y]ou

have to start over at one and say . . . Sue [the alternate juror], you know, what do you

think about what do you think about one? What do you think about two?” He also

directed the jury: “[I]f your minds change because of what [the alternate juror] says then

you have to revisit the issue.” Sotelo App. 681-82. We need not determine whether the

District Court’s statements, taken as a whole, were the functional equivalent of “begin

your deliberations anew,” because even if the court had erred, such error was not “clear

or obvious . . . rather than subject to reasonable dispute.” Puckett, 556 U.S. at 135.

Moreover, the appellants have not proffered anything to show that any error would have

affected the outcome of the proceedings. For these reasons, this claim does not survive

plain error review.

B.

Sotelo next argues that the testimony of Special Agent Moynihan and cooperating

witness Torres Sanchez constituted inadmissible hearsay. Sotelo did not preserve this

issue at trial. In his post-trial briefing, he alluded to this argument but failed to identify

12
any specific statement as hearsay. On appeal, the only specific citations to hearsay that

Sotelo identifies at any point are: 1) a short excerpt from Moynihan’s testimony, Sotelo

Br. 9 (citing Sotelo App. 189), and 2) Torres Sanchez’s testimony that he transferred

money to drivers who he understood worked for Sotelo, Sotelo Br. 10 (citing Sotelo App.

455-56.) We review only these specific instances of alleged hearsay for plain error.8

The testimony of Special Agent Moynihan that Sotelo challenges as hearsay

contains a discussion of a drug ledger that was seized from an apartment of Torres and

Torres Sanchez. Special Agent Moynihan testified as to contents recorded in the ledger.

Sotelo App. 189. Sotelo provides us with little direction as to what aspect of this

testimony is hearsay. To the extent that he argues that the contents of the ledgers are

inadmissible hearsay, we disagree, as the ledgers were prepared by Torres and Torres

Sanchez and are thus the statements of co-conspirators in furtherance of the conspiracy

and business records. See Fed. R. Evid. 801(d)(2)(E), 803(6)(B).

The Government does acknowledge that Special Agent Moynihan’s statement that

“Alex” in the ledger referred to Sotelo was hearsay. Government Br. 57. Yet to prevail

under plain error review, Sotelo would have to demonstrate that admission of this

statement was “clear or obvious” error, affected his substantial rights, and merits our

discretionary action to reverse. We conclude that he has not met that standard, as Special

8
Any other allegations of hearsay are forfeited. “An appellant’s brief must contain his or
her argument, which must incorporate ‘appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies . . . . ’” United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (quoting Fed.
R. App. P. 28(a)(9)(A)).

13
Agent Moynihan’s identification of the notation “Alex” as referring to Sotelo did not

“affect[] the outcome of the district court proceedings.” Puckett, 556 U.S. at 135

(quoting United States v. Olano, 507 U.S. 725, 734 (1993)). There was ample alternative

evidence at trial to support the linking of the “Alex” notation to Sotelo. For example,

Torres Sanchez testified about the contents of the ledger that he created and stated that

“Alex” referred to Sotelo and there was “just the one” Alex in the Laredo organization.

Sotelo App. 458. Other witnesses consistently testified that “Alex” referred to Sotelo.

There is no evidence in the record to the contrary.

The District Court’s admission of Torres Sanchez’s testimony that he transferred

drug proceeds to drivers who worked for Sotelo was also not in error. Statements from

third parties who told Torres Sanchez the drivers worked for Sotelo were admissible for

non-hearsay purposes because they were not introduced for the truth of the matter, but

rather to show the effect on Torres Sanchez. Fed. R. Evid. 801(c)(2). Torres Sanchez

testified that he would meet the drivers knowing that Sotelo “would receive the drugs in

Chicago, and he would send it over with his driver.” 9 Sotelo App. 449. Finally, these

statements are also subject to the co-conspirator declaration hearsay exception. See Fed.

9
Moreover, Torres Sanchez had encountered Sotelo personally in the past and knew that
his own job was to provide drug proceeds to Sotelo or Sotelo’s couriers. Torres Sanchez
testified that on at least one such occasion, Sotelo was sitting in the vehicle as he
delivered the cash to the driver. Sotelo App. 449 (“I saw the driver, the driver that had
brought the drugs here . . . there was a driver and there was Alex there also.”). Torres
Sanchez also testified that on one occasion (it is unclear if it was a different instance), he
saw Sotelo “at a hotel where drugs were found later. I gave him a green pickup to him
and to a woman . . . The vehicle had a secret compartment in the rear.” Sotelo App. 448.
He testified that another co-conspirator, Luis Deheza Laredo, instructed him to deliver
the car, and he complied and gave the keys to Sotelo. Sotelo App. 448.
14
R. Evid. 801(d)(2)(E). Thus, Sotelo has not identified error in admitting this testimony

from Torres Sanchez and his hearsay claims fail.

C.

Sotelo also asserts that he was deprived of his Sixth Amendment Confrontation

Clause rights because the Court admitted the physical ledgers seized from Gonzalez

Jose’s home despite the fact that Gonzalez Jose did not testify. This argument is

foreclosed by our precedent.

First, we note that we again review for plain error because the defense did not

object at trial. Stinson, 734 F.3d at 184. We conclude that Sotelo has identified no error

at all. In Bruton v. United States, 391 U.S. 123, 126 (1968), the Supreme Court held that

the Confrontation Clause of the Sixth Amendment bars the introduction of a confession

from a co-defendant who does not testify if such testimony directly implicates the

defendant at issue. See United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012). The

protections under Bruton, which stem from the Confrontation Clause, do not extend

beyond testimonial statements. Id. Sotelo recognizes this limitation, but asserts that

Gonzalez Jose’s ledgers “should be considered testimonial because the author of the drug

ledger knew or should have known [that] at some point, if discovered, the ledger would

have been used in a criminal prosecution thereby implicating the legal notion of

‘testimonial.’” Sotelo Br. 12-13. This position is implausible. Gonzalez Jose’s ledger of

his drug transactions cannot be construed as testimonial — a “solemn declaration or

affirmation made for the purpose of establishing or proving some fact.” Crawford v.

Washington, 541 U.S. 36, 51 (2004) (citation omitted).

15
 In Melendez-Diaz v. Massachusetts, the Supreme Court held that the affidavits of

drug laboratory analysts were “testimonial” under the Sixth Amendment because the

“analysts were aware of the affidavits’ evidentiary purpose” — to provide “prima facie

evidence” regarding the drugs at a criminal proceeding. 557 U.S. 305, 311 (2009)

(citation omitted); see also Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011).

Sotelo appears to argue that Gonzalez Jose’s ledgers should be viewed similarly in the

sense that Gonzalez Jose might have known that if he were arrested, and if the ledgers

were seized, they may be introduced at trial. This is a far stretch from the laboratory

analyst who prepares a report for court. It is simply illogical to conclude that a drug

distributor’s records of illicit transactions made prior to being apprehended by law

enforcement were created for the purpose of providing evidence of such illegality. Sotelo

therefore cannot avail himself of the protections under Bruton.10

D.

Gonzalez Jose argues that there was insufficient evidence at trial to convict him of

conspiracy to commit money laundering. Because this appeal comes to us following a

jury’s guilty verdict, we “review the record in the light most favorable to the prosecution

to determine whether any rational trier of fact could have found proof of guilt beyond a

reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir.

2013) (en banc) (alterations omitted) (quoting United States v. Brodie, 403 F.3d 123, 133

10
Moreover, Sotelo has not advanced any argument regarding the prejudicial impact of
Gonzalez Jose’s ledger. Indeed, there is no indication in the record that Gonzalez Jose’s
ledgers referenced Sotelo. See Sotelo App. 797-858.

16
(3d Cir. 2005)). In so doing, we must not “usurp the role of the jury by weighing

credibility and assigning weight to the evidence,” but rather must uphold the verdict “as

long as it does not fall below the threshold of bare rationality.” Id. at 430-31 (quotation

marks and citations omitted).

Gonzalez Jose was convicted of violating 18 U.S.C. § 1956(h), which provides:

Any person who conspires to commit any offense defined in this section or
section 1957 shall be subject to the same penalties as those prescribed for
the offense the commission of which was the object of the conspiracy.

Hence, to prove a violation of § 1956(h), the Government must prove: “(1) that an

agreement was formed between two or more persons; and (2) that the defendant

knowingly became a member of the conspiracy.” United States v. Greenidge, 495 F.3d

85, 100 (3d Cir. 2007). The underlying substantive crime, 18 U.S.C. § 1957(a), requires

the Government to prove: “(1) the defendant engage[d] or attempt[ed] to engage (2) in a

monetary transaction (3) in criminally derived property that is of a value greater than

$10,000 (4) knowing that the property is derived from unlawful activity, and (5) the

property is, in fact, derived from ‘specified unlawful activity.’” United States v.

Sokolow, 91 F.3d 396, 408 (3d Cir. 1996) (quoting United States v. Johnson, 971 F.2d

562, 567 n.3 (10th Cir. 1992)). Gonzalez Jose challenges the verdict by arguing that his

payments to the Laredo organization were “merely for the purpose of meeting his

financial obligations” incurred from receiving heroin, and not with the intent to join the

“conspiracy to hide or conceal these funds so that they could be unlawfully delivered to

Antonio Laredo in Mexico.” Gonzalez Jose Br. 19.

17
 Yet the evidence at trial shows that a reasonable jury could have determined that

Gonzalez Jose knowingly agreed to participate in that precise conspiracy. Gonzalez Jose

sought to become a major distributor for the Laredo organization, and he succeeded.

Sotelo App. 312. By 2012, the Laredo organization was supplying him with 25 to 30

kilograms of heroin per month. Sotelo App. 308, Supp. App. 314. At times, he was the

Laredo organization’s exclusive distributor in Philadelphia. Sotelo App. 307, 311-33.

Moreover, the evidence demonstrated that Gonzalez Jose was not an arms-length

client of the Laredo organization, but rather a trusted member who participated in

decisionmaking processes to advance the goals of the organization. Torres, who was “in

charge of the money [operation]” for a period of time in Philadelphia, Sotelo App. 314,

testified that after Gonzalez Jose demonstrated his ability to distribute drugs for the

Laredo organization, the two became close, Sotelo App. 307-08. In fact, it was Gonzalez

Jose who recommended to Torres to “find a house where he [Gonzalez Jose] could

specifically go to and where we could do business where everything would be safer than

my current situation, which I was staying at a different distributor’s house and ultimate

competitor’s house.” Sotelo App. 308.

One method in which the Laredo organization laundered money was through bulk

transfers, sometimes in vehicles with hidden compartments. Sotelo App. 319. The

methods of transporting bulk cash were agreed upon in advance. Torres and Gonzalez

Jose agreed to use “food saver machines to vacuum seal drugs and money” in order to

create “proof that the money was complete.” Sotelo App. 313. Moreover, Gonzalez Jose

would hide the sealed money bags in designer shoeboxes, which were then placed in

18
shopping bags. He would deliver these hidden proceeds to Torres and other couriers,

who would then use wire transfers or structured deposits to funnel the money to the

Laredo organization in Mexico. Sotelo App. 370. That the shoebox method was a

standard procedure was shown through Torres’s testimony that other members of the

conspiracy, including himself, used this identical method. He explained, “these boxes

were reused over and over, and that’s why you will see the scratched out number on top.”

Sotelo App. 350; see also Sotelo App. 476 (Frank Christian Peralta testifying he also

received drug proceeds from Gonzalez Jose hidden in sneaker boxes). Arrests of other

members of the conspiracy also yielded shoe boxes containing large amounts of cash,

similar to Gonzalez Jose’s arrest. Sotelo App. 161, 174.

The evidence also showed that Gonzalez Jose took direction from Antonio Laredo

directly. Torres testified that Antonio Laredo would direct members of the organization

to complete bank deposits in amounts under $10,000 to avoid a cash transaction report.

Torres explained, “[a]s I deposited the money, [members of the organization] would

withdraw the money, and they would either take it down to [Laredo] in Mexico or also

send Western Unions from their location.” Sotelo App. 319. Torres testified that Laredo

frequently called distributors and money launderers with instructions on bank deposits.

Sotelo App. 342. Torres testified that he knew that Gonzalez Jose personally participated

in one such bank deposit for Laredo, because “when we did the ledgers, [Gonzalez Jose]

said that he did a bank deposit for Antonio, so I subtracted the amount from my ledger.”

Sotelo App. 370. A reasonable jury could have found that Gonzalez Jose communicated

with Laredo directly and that he knew the proceeds were to make their way to the

19
Laredos in Mexico. For example, he told a co-conspirator, Frank Felix-Herrera, that “I

have been working with these people before you were,” referring to Antonio and Ismael

Laredo. Sotelo App. 498. Felix-Herrera delivered Gonzalez Jose heroin and deposited

cash at the Laredos’ instruction at Bank of America and Wells Fargo. Sotelo App. 500.

Because a reasonable jury could have determined that the evidence supported

Gonzalez Jose’s conviction on the conspiracy to commit money laundering charge, his

attack on the verdict fails.

E.

Gonzalez Jose further asserts that the sentencing enhancement for sophisticated

money laundering under U.S.S.G § 2S1.1(b)(3) did not apply to him. “We review a

District Court’s interpretation of the Sentencing Guidelines de novo and its application of

the Guidelines to the facts for clear error.” United States v. Woronowicz, 744 F.3d 848,

850 (3d Cir. 2014).

Section 2S1.1(b)(3) of the advisory Sentencing Guidelines provides for a two-

level enhancement if “the offense involved sophisticated [money] laundering.” The

application notes accompanying the Guidelines provides: “‘[S]ophisticated laundering’

means complex or intricate offense conduct pertaining to the execution or concealment of

the 18 U.S.C. § 1956 offense” and “typically involves the use of . . . fictitious entities; . . .

shell corporations; . . . two or more levels (i.e., layering) of transactions, transportation,

transfers, or transmissions, involving criminally derived funds that were intended to

appear legitimate; or . . . offshore financial accounts.” U.S.S.G. 2S1.1, App. Note 5(A).

20
We have held that these factors are not exhaustive. United States v. Fish, 731 F.3d 277,

280 (3d Cir. 2013).

Gonzalez Jose argues the District Court should have only examined whether

Gonzales Jose’s own conduct was sophisticated money laundering, and not whether the

entire money laundering scheme was sophisticated. Gonzalez Jose’s position is

untenable in light of our holding in Fish. There, we concluded:

It is clear from the reasoning of the District Court that the elements of
complexity and intricacy of the scheme that the District Court found to be
relevant were the duration of the scheme, the difficulty in uncovering it
because of the use of multiple outlets for cash exchanges, multiple couriers
and other participants, and multiple locations; the secrecy of the underlying
aspects of the scheme; the efforts to evade detection by the use of codes and
untraceable electronic devices; and the multiple sources of cash.

Id. at 280. In Fish, we cited the district court’s conclusions regarding the sophistication

of the scheme, not of the individual’s specific role in the scheme. See id. (“[T]he District

Court appropriately considered the factors that make a scheme sophisticated and that it

did not err in establishing that the facts of the scheme supported the determination of

sophistication.” (emphasis added)). Gonzalez Jose’s position is also untenable because it

would mean a sophisticated money laundering enterprise that intentionally breaks down

its complex operations into a series of discrete straightforward tasks would escape this

sentencing exposure by the mere fact that each participant plays a limited,

“unsophisticated” role. We therefore agree with the District Court’s conclusion that

“because the offense involves sophisticated money laundering,” and Gonzalez Jose

participated in the scheme by transporting concealed bulk payments and by transferring

21
bulk drug proceeds to the Laredo organization, the enhancement was appropriate.

Gonzalez Jose App. 636.

F.

Sotelo contends that the District Court erred in sentencing him to 210 months of

imprisonment. He asserts that the District Court erred in calculating his advisory

Guidelines sentence by finding him responsible for 90 kilograms or more of heroin and

by finding that he was a leader or organizer under U.S.S.G. § 3B1.1. Sotelo also argues

that the sentence violated his constitutional right against cruel and unusual punishment,

the District Court should have granted his downward departure motion, and that the

sentence is substantively unreasonable.

1.

We first turn to Sotelo’s arguments challenging the District Court’s calculation of

his advisory Guidelines sentence, which are attacks on the procedural reasonableness of

the sentence. We conclude that these challenges are without merit. As discussed above,

we review the District Court’s legal interpretations of the Guidelines de novo and the

application of the Guidelines to the facts for clear error. Woronowicz, 744 F.3d at 850.

First, the District Court did not clearly err in determining that Sotelo was

responsible for 90 or more kilograms of heroin by a preponderance of the evidence and

thus subject to a base offense level of 38 under U.S.S.G. § 2D1.1(a)(5) and (c)(1). Sotelo

argues that this quantity of drug distribution was not reasonably foreseeable to him.

Sotelo Br. 22. The District Court, however, considered the fact that the Laredo

organization distributed “about twelve to fifty kilograms a month” totaling “more than a

22
thousand kilograms of heroin” and the extensiveness of Sotelo’s involvement in such an

enterprise. Sotelo App. 772, 783. Sotelo’s couriers delivered at least twenty-eight

kilograms of heroin in a two-month period in 2013 alone. Sotelo App. 345-47. The

District Court did not clearly err in concluding that, considering all reasonably

foreseeable acts in furtherance of the jointly undertaken criminal activity, U.S.S.G. §

1B1.3(a)(1)(B), the heroin trafficking attributable to Sotelo was 90 kilograms or more.

Second, the District Court did not clearly err in applying a four-level enhancement

pursuant to U.S.S.G. § 3B1.1(a) for Sotelo’s role as a manager, leader, or organizer.11

The District Court found by a preponderance of the evidence that Sotelo directed couriers

to deliver heroin to Philadelphia and to collect the proceeds of the heroin’s subsequent

distribution. This was amply supported by the evidence, which demonstrated that Sotelo,

along with other members of the Laredo organization, led and organized others in the

conspiracy.

2.

We will next address Sotelo’s arguments regarding the constitutionality of his

sentence. In limited circumstances, a sentence can be challenged on the basis that it is

“grossly disproportionate to the severity of the crime.” Rummel v. Estelle, 445 U.S. 263,

271 (1980). Sotelo does not argue that his crime of participating in a large international

heroin distribution and money laundering enterprise is “grossly disproportionate” to his

11
In determining that the § 3B1.1 enhancement is proper, we must also reject Sotelo’s
argument that this prerequisite for a two-level enhancement pursuant to U.S.S.G. §
2D1.1(b)(15)(C) for Sotelo’s direct involvement in importation of heroin was not met.

23
below-Guidelines, 210-month sentence. Rather, Sotelo argues only that his advanced

terminal illness makes his punishment cruel and unusual under the Eighth Amendment.

We cannot agree. Where, as here, “the defendant fails to demonstrate a gross imbalance

between the crime and the sentence, a court’s analysis of an Eighth Amendment

challenge is at an end.” United States v. Burnett, 773 F.3d 122, 137 (3d Cir. 2014). We

have also rejected arguments that sentences that effectively mean the defendant will die

in prison are unreasonable. See id. at 137 n.4; United States v. Watson, 482 F.3d 269,

273 (3d Cir. 2007) (upholding 15-year term of imprisonment for a robbery defendant who

suffered from HIV).

We must also reject Sotelo’s argument that the District Court erred in denying his

motion for a downward departure under U.S.S.G. § 5H1.4, which allows for a departure

for “[a]n extraordinary physical impairment . . . ; e.g., in the case of a seriously infirm

defendant[.]” We lack jurisdiction to review a discretionary denial of a motion for

departure under the advisory Guidelines except when “the District Court was unaware of

its discretion to grant the motion.” United States v. King, 604 F.3d 125, 141 n.9 (3d Cir.

2010). Here, the District Court considered all of the arguments raised by Sotelo and

exercised its discretion in denying the motion for a departure. Sotelo App. 773-74, 791

(denying the motion for a downward departure but considering Sotelo’s health in

reviewing the 18 U.S.C. § 3553(a) factors).

Finally, Sotelo’s sentence was not substantively unreasonable. We only overturn a

sentence as unreasonable when “no reasonable sentencing court would have imposed the

same sentence on that particular defendant for the reasons the district court provided.”

24
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Here, the District

Court thoroughly considered Sotelo’s individual characteristics in reviewing the 18

U.S.C. § 3553(a) factors and has undoubtedly “considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007). The District Court considered the enormity of the

Laredo organization’s enterprise and the sizable role that Sotelo played in it, including his

role in supervising others and in recruiting members of the organization. The court

reviewed Sotelo’s personal history, including his upbringing and current family

obligations as well as Sotelo’s legitimate work. The court noted that Sotelo has never

shown remorse for his crimes. Finally, the District Court considered the facts relating to

Sotelo’s illness, noting that it “would never suggest . . . that we do not have great

compassion for you and for your family” as a result of the disease. Sotelo App. 786. The

court added that factors such as deterrence, promoting respect for the law, protecting the

public from further criminal activity, and preventing unwarranted sentencing disparities

all militate in favor of a sentence above the mandatory minimum. The court ultimately

imposed a sentence that was significantly below the advisory Guidelines sentence of life

imprisonment. Because the District Court’s consideration of the relevant § 3553(a)

factors was “rational and meaningful,” United States v. Grier, 475 F.3d 556, 571 (3d Cir.

2007) (en banc), and because a “reasonable sentencing court [c]ould have imposed [this]

sentence,” Tomko, 562 F.3d at 568, we conclude that the sentence was not substantively

unreasonable.12

12
We have considered all other arguments made by the appellants and conclude that they
25
 III.

For the foregoing reasons, we will affirm the District Court’s judgments of

conviction and sentence.

are without merit.
26