U.S. v. Monem

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before ESCHBACH, FLAUM, and KANNE; FLAUM
• Citation: U.S. v. Monem, 104 F.3d 905 (7th Cir. 1997)
• Decision Date: 13 January 1997
• Docket Number: No. 96-2663,96-2663
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hanafi MONEM, Defendant-Appellant.

Page 905

104 F.3d 905

UNITED STATES of America, Plaintiff-Appellee, v. Hanafi MONEM, Defendant-Appellant.

No. 96-2663.

United States Court of Appeals Seventh Circuit.

Argued Dec. 3, 1996.

Decided Jan. 13, 1997.

Matthew L. Jacobs (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Lew A. Wasserman, Wasserman Law Office, Milwaukee, WI, for Defendant-Appellant.

Before ESCHBACH, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Defendant-appellant Hanafi Monem was charged in twenty-three counts of the twenty-eight count indictment entered against the appellant and four others. The indictment charged Monem with fifteen counts of using interstate facilities to carry on a prostitution business in violation of 18 U.S.C. § 1952(a)(3), seven counts of laundering money in violation of 18 U.S.C. § 1956(a)(1)(A), and conspiracy to commit these offenses in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1956(h), respectively. Monem pled guilty to Count Twenty-one of the indictment, conspiracy to violate 18 U.S.C. § 1956(a)(1)(A). Appellant raises five issues on appeal, all of which involve his sentencing. He contends that the district court (1) applied an incorrect base offense level in computing his sentence, (2) improperly assessed a two-level increase for obstruction of justice, (3) incorrectly denied him a three level decrease for acceptance of responsibility, and (4) improperly imposed a fine despite his indigence. Monem also argues that trial counsel's failure to advise him of the proper application of the United States Sentencing Commission Guidelines and counsel's failure to object to the incorrect application of the Guidelines at sentencing amounted to ineffective assistance of counsel. We conclude that the district court did not err in calculating Monem's offense level and that Monem received effective assistance of counsel with respect to his sentencing. Nevertheless, we remand this case to the district court to make factual findings supporting the fine imposed.

I.

We first address Monem's claims that the district court applied an incorrect base offense level in computing his sentence and incorrectly increased his offense level by two points for obstruction of justice. Appellant concedes that he has waived these issues by failing to raise them before the district court. See United States v. Price, 988 F.2d 712, 722 (7th Cir.1993) ("[Appellant] has waived this argument because he failed to timely object either to the probation officer's recommendation or to the district court's finding at the sentencing hearing...."); United States v. Bafia, 949 F.2d 1465, 1476 (7th Cir.1991) (same). Our review of these issues is therefore limited to an examination for plain error. See United States v. Livingston, 936 F.2d 333, 336 (7th Cir.1991), cert. denied, Livingston v. United States, 502 U.S. 1036, 112 S.Ct. 884, 116 L.Ed.2d 787 (1992). Our plain error analysis excludes those errors in sentencing which are "subtle, obscure, [or] debatable." See United States v. Caputo, 978 F.2d 972, 975 (7th Cir.1992) ("Both the existence of injustice and the ease of its correction depend on certainty that error has been committed," id. at 974).

The argument in favor of finding these issues waived is especially strong in this case, as appellant did more than fail to make a contemporaneous objection to the manner in which the district court applied the Sentencing Guidelines: Monem expressly recommended to the district court that the Guidelines be applied in the manner of which he now complains. The Plea Agreement provided that the parties would "jointly recommend to the Probation Department and the sentencing court" that a base offense level of twenty-three be applied and that Monem receive a two-level enhancement for obstruction of justice. ¹

We turn first to appellant's claim that the district court erred in calculating his base offense level. Monem pled guilty to the offense of conspiring to commit money laundering in violation of 18 U.S.C. § 1956(h). Section 1956(h) provides that "[a]ny person who conspires to commit any offense defined in this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." The judgment entered by the district court indicates that the object of the conspiracy to which Monem pled guilty was money laundering in violation of 18 U.S.C. § 1956(a)(1)(A). Appellant's plea agreement likewise indicates that he pled guilty to conspiring to violate section 1956(a)(1)(A). A plain reading of section 1956(h) therefore indicates that Monem was subject to the same penalty as that prescribed for section 1956(a)(1)(A), which covers the substantive offense of money laundering.

We turn then to the Guidelines to determine the base offense level applicable to a violation of section 1956(a)(1)(A). The parties correctly stipulated in the Plea Agreement that the applicable provisions of the Sentencing Guidelines are sections 2X1.1(a) and 2S1.1(a)(1). Section 2X1.1(a) of the Guidelines provides that the appropriate base offense level for a conspiracy that is not covered by a specific offense guideline is "[t]he base offense level from the guideline for the substantive offense." This provision, like 18 U.S.C. § 1956(h), points us to the base offense level for the substantive offense that was the object of the conspiracy, in this case 18 U.S.C. § 1956(a)(1)(A). The base offense levels for substantive offenses of money laundering are provided by section 2S1.1, which requires a base offense level of twenty-three if the defendant is convicted under 18 U.S.C. §§ 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A) and a base level of twenty if the defendant is "otherwise" convicted of money laundering. Monem's base offense level was therefore correctly calculated as twenty-three. Counsel for the appellant likewise agreed at the time the Plea Agreement was entered that this was a correct reading of the Guidelines, as the Plea Agreement stipulated that twenty-three was the proper base offense level.

Appellant now argues, however, that the Plea Agreement was the result of an erroneous reading of the Sentencing Guidelines. Monem contends that, because he was convicted of violating section 1956(h), he was "otherwise" convicted of money laundering under section 2S1.1 of the Guidelines and that the appropriate base offense level is therefore twenty. We cannot agree with the appellant that a plain reading of the Guidelines supports this result. Section 2S1.1(a) provides the base offense levels applicable to substantive offenses of money laundering; it does not speak to the appropriate base offense level for conspiring to commit these offenses. The Commentary to section 2S1.1, which explains the justification for the two different base offense levels, supports this reading of the statute. The Commentary states:

A higher base offense level is specified if the defendant is convicted under 18 U.S.C. § 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A) because those subsections apply to defendants who encouraged or facilitated the commission of further crimes.

U.S.S.G. § 2S1.1, comment. (backg'd). It is clear that the "otherwise" convicted language of section 2S1.1 distinguishes the enumerated money laundering violations, thought to be more serious offenses, from other types of substantive money laundering violations; it does not distinguish the enumerated substantive violations from conspiracy to commit money laundering. Appellant's reading of the statute would also fail to give effect to the command of 18 U.S.C. § 1956(h) that a person who engages in conspiracy under this section be subjected to the same penalty as that prescribed for the commission of the offense that was the object of the conspiracy.

Other circuits addressing this issue have likewise concluded that the appropriate base offense level for conspiring to violate section 1956(a)(1)(A) is twenty-three. See United States v. Acanda, 19 F.3d 616, 618-19 (11th Cir.1994) (holding that proper base offense level for violating 18 U.S.C. § 371 (conspiracy) by conspiring to violate § 1956(a)(1)(A) is 23 as determined by reference to 2X1.1 and 2S1.1); United States v. Restrepo, 936 F.2d 661, 665 (2d Cir.1991) (holding that sections 2X1.1 and 2S1.1 indicate that base offense level of 23 applies both to substantive violations of 18 U.S.C. § 1956(a)(1)(A) as well as to conspiracy to violate § 1956(a)(1)(A)). This approach is consistent with the overall treatment of conspiracy offenses in the Guidelines, which provide that the base offense levels for various types of conspiracies should be determined by reference to the underlying offenses that are the objects of the conspiracies. ² Appellant's suggestion would therefore create an anomaly: a defendant convicted of conspiracy to commit money laundering would receive a more lenient sentence than a defendant charged with the substantive offense of money laundering. We therefore conclude that the district court applied the correct base offense level in sentencing the appellant.

We summarily reject appellant's claim that the district court's assessment of a two-level increase for obstruction of justice was plain error. The appellant admitted in the Plea Agreement that, after having been served with a subpoena, he failed to appear before the grand jury and prevented his wife from appearing as well. Appellant argues only that failing to appear before a grand jury cannot constitute obstruction of justice. Appellant points to the Application Note to section 3C1.1, which lists the failure to appear for "a judicial proceeding" as an example of the type of conduct that constitutes obstruction of justice. See U.S.S.G. § 3C1.1, comment. (n.3(e)). He argues that a grand jury proceeding is not technically a "judicial proceeding" and that his conduct therefore does not amount to obstruction of justice.

Appellant's argument is without merit. Putting to...