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United States v. Calderon-Lozano

United States Court of Appeals, First Circuit

January 10, 2019

UNITED STATES, Appellee,
v.
ALETSYS CALDERÓN-LOZANO, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          Davis Ramos Pagan, was on brief, for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and B. Kathryn Debrason, Assistant United States Attorney, on brief, for appellee.

          Before Lynch and Lipez, Circuit Judges, and Katzmann, [*] Judge.

          KATZMANN, JUDGE.

         Aletsys Calderón-Lozano ("Calderón-Lozano") received a guideline sentence of 46 months of imprisonment for conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). On appeal, Calderón-Lozano challenges the procedural and substantive reasonableness of his sentence. We affirm the district court's sentence.

         Between February 25 and 26, 2016, Calderón-Lozano and an undercover Homeland Security Investigations ("HSI") agent arranged a meeting to deliver money. As agreed, Calderón-Lozano sent his associate (and co-defendant) to deliver $80, 000 to the agent. The $80, 000 was then deposited into a bank account and divided between two accounts in the amount of $52, 000 and $23, 080 respectively. On March 23, 2016, Calderón-Lozano arranged another money delivery with the undercover agent. This time, Calderón-Lozano himself delivered $100, 000. The money was again deposited and divided between two bank accounts, in the amount of $59, 951 and $34, 067 respectively. After his arrest, Calderón-Lozano told investigative agents that "his job in Puerto Rico is to collect money from drug sales and deliver it to people." When Calderón-Lozano entered a straight guilty plea to the conspiracy count, his lawyer stated that the defendant was not pleading guilty to the specific unlawful activity of drug importation. The district court, although noting that the defendant had admitted to his involvement in the drug trafficking deliveries to agents, indicated that it would decide the issue at sentencing.

         The third and final amended presentence report ("PSR") provided an imprisonment range of 87 to 108 months under the U.S. Federal Sentencing Guidelines ("Guidelines"). This calculation included a six-level enhancement for knowing or believing that the laundered funds were drug proceeds pursuant to U.S.S.G. § 2S1.1(b)(1).

         In his sentencing memorandum, Calderón-Lozano discussed his difficult childhood and current familial ties. He also requested a variant sentence, stating that "[a]lthough there is no cooperation agreement in this case, the Court should consider the information [he] provided to federal agents when he was arrested." Calderón-Lozano did not object to the PSR's six-level increase for knowing or believing that the laundered funds were drug proceeds pursuant to U.S.S.G. § 2S1.1(b)(1).

         At sentencing, Calderón-Lozano again argued for a variant sentence. Calderón-Lozano urged the district court to disregard his statements to HSI agents in assessing whether he knew that the money was from drug trafficking. Calderón-Lozano conceded that he told the agents that "his job in Puerto Rico is to collect money from drug sales and deliver it to people." He also conceded that he does not have a proffer letter, that the "government is legally and rightfully using" his "post-arrest, pre-counsel statements, and that these statements are sufficient to prove the six-point enhancement." He later clarified that he was "not objecting to the fact that there is a factual basis for the six point enhancement [as] [t]here clearly is," but instead was "making an equity argument." He argued for a sentence within the total offense level ("TOL") of 17 for a guideline range of 24 to 30 months.

         The United States ("the government") opposed a variance. The government argued that Calderón-Lozano failed to object to the six-level enhancement in the PSR and that the statements are post-arrest statements, not part of a cooperation agreement. Noting that "Mr. Calderón[-Lozano] was approached on numerous times to see if he wanted to sit down and cooperate, and on each occasion, he declined," the government asserted that "[t]here is simply just no authority to argue that a post-arrest statement should qualify for a variant sentence." Finally, the government argued that Calderón-Lozano's statements were not useful and "led to nothing." Accordingly, the government recommended a sentence of 46 to 57 months, within the guideline range for a TOL of 23.

         Ultimately, the district court followed the guideline calculations in the PSR and calculated a TOL of 23, which included the six-level drug-trafficking enhancement. The district court found specifically that "[b]ecause Mr. Calderón[-Lozano] knew or believed that the laundered funds were the proceeds of or were intended to promote an offense involving the manufacture, importation, or distribution of controlled substances, the offense level is increased by another six levels pursuant to sentencing guideline section 2S1.1(b)(1)." With a TOL of 23 and a criminal history category of I, the district court calculated Calderón-Lozano's guideline sentencing range to be 46 to 57 months of imprisonment. Before imposing his sentence, the district court expressly stated that it considered the relevant 18 U.S.C. § 3553(a) sentencing factors. Reiterating that the six-level enhancement applied because Calderón-Lozano's statements were merely unhelpful post-arrest statements, the district court sentenced Calderón-Lozano to a low-end guideline sentence of 46 months of imprisonment. Calderón-Lozano objected to the district court's denial of his variance request and objected to the sentence as procedurally and substantively unreasonable. This appeal ensued.

         I.

         Calderón-Lozano argues that the district court abused its discretion by applying a six-level enhancement pursuant to U.S.S.G. § 2S1.1(b)(1) when it was not proven that he ...


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