US v. Jorge Molina-Sanchez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00316-FDW-DSC-2 Copies to all parties and the district court/agency. [999694410].. [14-4880]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4880

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE MOLINA-SANCHEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:12-cr-00316-FDW-DSC-2)

Submitted:

September 29, 2015

Decided:

November 6, 2015

Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

David Jonathon Joffe, JOFFE LAW, P.A., Fort Lauderdale, Florida,
for Appellant.
Jill Westmoreland Rose, Acting United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A

jury

distribute
kilograms

convicted
and

or

detectable

to

more

amount

Jorge

Molina-Sanchez

possess
of
of

a

with

mixture

cocaine

and

intent

of

to

conspiracy

distribute

and

substance

one

kilogram

five

containing
or

more

to

of

a
a

mixture and substance containing a detectable amount of heroin,
in violation of 21 U.S.C. § 846 (2012) (Count 1); conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h)
(2012) (Count 2); possession with intent to distribute a mixture
and

substance

containing

a

detectable

amount

of

cocaine,

in

violation of 21 U.S.C. § 841(a)(1) (2012) (Count 3); and using
firearms during and in relation to, and possessing firearms in
furtherance

of,

drug

trafficking

crimes,

U.S.C. § 924(c)(1) (2012) (Count 4).
raises

several

challenges

downward variant sentence.

to

his

in

violation

of

18

On appeal, Molina-Sanchez
convictions

and

420-month,

Finding no error, we affirm.
I.

Molina-Sanchez first argues that the district court erred
in denying his motions for judgment of acquittal on the drug
trafficking
and 2.

and

money

laundering

conspiracy

offenses—Counts

1

We review de novo the district court’s denial of a

motion for judgment of acquittal.
F.3d 405, 419 (4th Cir. 2012).

United States v. Engle, 676

In assessing the sufficiency of

the evidence, we determine whether there is substantial evidence
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to

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support

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the

favorable

to

the

evidence

that

convictions

a

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when

government.
reasonable

viewed

Id.

in

the

“Substantial

finder

of

fact

light

most

evidence

is

accept

as

could

adequate and sufficient to support a conclusion of guilt beyond
a

reasonable

doubt.”

Id.

Thus,

“[a]

defendant

bringing

a

sufficiency challenge must overcome a heavy burden, and reversal
for

insufficiency

must

be

confined

prosecution’s failure is clear.”

to

cases

where

the

Id. (internal quotation marks

and citation omitted).
To obtain a drug trafficking conspiracy conviction under 21
U.S.C. § 846, “the government must prove that (1) the defendant
entered into an agreement with one or more persons to engage in
conduct

that

defendant

had

defendant

2014)

21

knowledge

knowingly

conspiracy.”
Cir.

violated

U.S.C.

of

and

the

§

841(a)(1);

conspiracy;

voluntarily

and

(2)

that

the

(3)

that

the

in

the

participated

United States v. Howard, 773 F.3d 519, 525 (4th
(ellipsis,

omitted).

“Given

brackets,

the

clandestine

conspiracies,

the

conspiracy

circumstantial

by

government

quotation marks omitted).

and

can

internal
and

prove

evidence

quotation

covert
the

nature

existence

alone.”

marks

Id.

of

of
a

(internal

“Evidence of continuing relationships

and repeated transactions can support the finding that there was
a

conspiracy,

especially

when

3

coupled

with

substantial

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quantities

of

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drugs.”

Id.

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at

526

(brackets

and

internal

quotation marks omitted).
To obtain a money laundering conspiracy conviction under 18
U.S.C. § 1956(h), the government must prove:
(1) the existence of an agreement between two or more
persons to commit one or more of the substantive money
laundering
offenses
proscribed
under
18
U.S.C.
§ 1956(a) . . . ; (2) that the defendant knew that the
money laundering proceeds had been derived from an
illegal activity; and (3) the defendant knowingly and
voluntarily became part of the conspiracy.
United States v. Green, 599 F.3d 360, 371 (4th Cir. 2010).

As

relevant to this case, a defendant commits a money laundering
violation under § 1956(a) if he conducts or attempts to conduct
a financial transaction: (1) “intending to promote the carrying
on

of

specified

unlawful

activity

(‘promotion

money

laundering’)”; or (2) “knowing that the financial transaction is
designed

to

conceal

unlawful

activity

the

nature

of

(‘concealment

the

money

proceeds

of

specified

laundering’).”

United

States v. Bolden, 325 F.3d 471, 486-87 (4th Cir. 2003).
Having
conclude
direct

thoroughly

that

and

conspiracy

there

reviewed

was

more

circumstantial)
offenses.

to

the

than

sufficient

convict

Specifically,

trial

transcript,
evidence

Molina-Sanchez

the

evidence

of

we

(both
both

establishes

that Molina-Sanchez knowingly participated in a large-scale drug
trafficking operation and that he conspired to conduct financial
transactions to both promote the drug trafficking operation and
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conceal the nature of the proceeds.

Although Molina-Sanchez

argues that the coconspirators who testified at his trial are
inherently
the

untrustworthy,

evidence,

witnesses.”

we

do

“[i]n

not

evaluating

review

the

the

sufficiency

credibility

of

of
the

United States v. Foster, 507 F.3d 233, 245 (4th

Cir. 2007).
II.
Next,

Molina-Sanchez

contends

that

the

district

abused its discretion in admitting certain evidence.

court

“We review

a trial court’s rulings on the admissibility of evidence for
abuse of discretion, and we will only overturn an evidentiary
ruling
Cole,

that
631

is

arbitrary
146,

F.3d

and
(4th

153

irrational.”

United

States

Cir.

2011)

(internal

district

court

did

v.

quotation

marks omitted).
We

conclude

discretion

by

that

the

admitting

the

challenged

not

evidence,

relevant to the charges and not unduly prejudicial.
Evid. 402, 403.

abuse
as

it

its
was

See Fed. R.

Notably, the district court took care to issue

limiting instructions when appropriate.

See United States v.

Lespier, 725 F.3d 437, 448 (4th Cir. 2013) (holding that “any
risk

of

unfair

prejudice

was

effectively

mitigated

by

the

court’s carefully framed limiting instructions regarding proper
consideration of [the] evidence”).

5

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III.
Molina-Sanchez argues that his sentence is procedurally and
substantively

unreasonable.

We

review

a

sentence

for

reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Lymas, 781 F.3d 106, 111 (4th Cir. 2015).
A.
Molina-Sanchez
district

court’s

Guidelines range.

first

raises

calculation

several

of

his

challenges
advisory

to

the

Sentencing

When evaluating Guidelines calculations, we

review the district court’s legal conclusions de novo and its
factual findings for clear error.
F.3d 305, 308 (4th Cir. 2014).

United States v. Cox, 744
“Clear error occurs when the

reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”

Id.

(ellipsis and internal quotation marks omitted).
Molina-Sanchez

contends

that

he

should

not

be

held

accountable for all of the drugs in the conspiracy because the
evidence does not establish his involvement in the conspiracy.
This argument fails for the same reason that his sufficiency
argument

fails:

there

was

more

than

adequate

evidence

establishing Molina-Sanchez’s participation in the large-scale
drug trafficking operation.

6

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Molina-Sanchez next asserts that the district court erred
in

applying

manager

or

the

three-level

supervisor

in

enhancement

the

for

his

role

conspiracy

and

in

denying

request for a mitigating role reduction.

as

a

his

See U.S. Sentencing

Guidelines Manual §§ 3B1.1(b), 3B1.2(b) (2013).

A three-level

enhancement is warranted “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.”

USSG § 3B1.1(b).

“The enhancement is appropriate

where the evidence demonstrates that the defendant controlled
the

activities

responsibility.”

of

other

participants

or

exercised

management

United States v. Slade, 631 F.3d 185, 190 (4th

Cir. 2011) (internal quotation marks omitted).
We

discern

no

clear

error

in

the

district

court’s

application of the three-level enhancement and its denial of a
mitigating role reduction.

The conspiracy involved more than

five participants and the evidence presented a trial establishes
that Molina-Sanchez was at least a manager or supervisor of the
drug trafficking operation.
Molina-Sanchez next contends that the district court erred
in applying the criminal-livelihood enhancement.

The Guidelines

provide for a two-level enhancement if the defendant received a
leadership enhancement under USSG § 3B1.1 and “committed the
offense as part of a pattern of criminal conduct engaged in as a
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livelihood.”

USSG

§

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2D1.1(b)(14)(E).

““Engaged

in

as

a

livelihood” means that, for any 12-month period, “the totality
of

circumstances

defendant’s

shows

primary

that

.

.

.

occupation.”

criminal
USSG

conduct

§ 4B1.3

was

cmt.

the
n.2

(internal quotation marks omitted); see USSG § 2D1.1(b)(14)(E)
cmt. n.19(C) (referencing § 4B1.3).
example,

by

demonstrating

that

This may be proven, for

“the

defendant

engaged

in

criminal conduct rather than regular, legitimate employment; or
the defendant’s legitimate employment was merely a front for the
defendant’s criminal conduct.”

USSG § 4B1.3 cmt. n.2.

We conclude that the district court did not clearly err in
applying the criminal-livelihood enhancement.

By 2009, Molina-

Sanchez and his brother were receiving 11-kilogram shipments of
cocaine every other month and each shipment yielded $80,000 in
profit.

Thus, even if Molina-Sanchez earned some money by other

means, the primary source of his income for several years was
the drug trafficking operation.

Moreover, the court could have

reasonably concluded that the lawn-mowing business was a front
for the brothers’ criminal conduct, considering that the lawnmowing equipment was hardly used.
We
denial

also
of

adjustment
§ 3E1.1(a).

discern

no

clear

Molina-Sanchez’s
for

acceptance

error

request
of

in
for

the
a

district

two-level

responsibility.

court’s
downward

See

USSG

Except in rare circumstances not applicable here,
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“[t]his adjustment is not intended to apply to a defendant,”
like Molina-Sanchez, “who puts the government to its burden of
proof

at

trial

by

denying

the

essential

factual

elements

of

guilt, is convicted, and only then admits guilt and expresses
remorse.”

USSG § 3E1.1 cmt. n.2.
B.

Finally,

Molina-Sanchez

challenges

reasonableness of his sentence.

the

substantive

“Any sentence that is within or

below a properly calculated Guidelines range is presumptively
[substantively]

reasonable.

rebutted

by

measured

against

States

v.

showing

that

the

18

U.S.C.

the

Louthian,

Such

756

F.3d

a

presumption

sentence
§

295,

is

3553(a)
306

can

only

unreasonable
factors.”

(4th

Cir.)

be

when

United
(citation

omitted), cert. denied, 135 S. Ct. 421 (2014).
We conclude that Molina-Sanchez has not met this burden.
The district court carefully considered the § 3553(a) factors
before imposing a sentence well below Molina-Sanchez’s advisory
Guidelines range of life plus 60 months’ imprisonment.

Indeed,

the downward variance was generous considering that the court
stated

that

conspiracies

this
it

was
had

one
ever

of

the

largest

witnessed.

drug

Moreover,

trafficking
the

court

considered Molina-Sanchez’s arguments for a 180-month sentence
but concluded that the seriousness of the offenses outweighed
any

mitigating

factors.

Finally,
9

the

court

did

not

err

in

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concluding that the difference between the postarrest conduct of
Molina-Sanchez

and

his

brother

warranted

a

disparity

in

the

their sentences.
IV.
We affirm the district court’s judgment.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

10