U.S. v. Mourning, 89-7005
| Citation | 914 F.2d 699 |
| Decision Date | 01 October 1990 |
| Docket Number | No. 89-7005,89-7005 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Sidney Francis MOURNING, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dick DeGuerin, Houston, Tex., for defendant-appellant.
LeRoy Morgan Jahn, Asst. U.S. Atty. and Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, REAVLEY and KING, Circuit Judges.
The defendant, Sidney F. Mourning, appeals the sentence imposed by the district court after conviction based upon his guilty plea to money laundering charges, in violation of 31 U.S.C. Secs. 5316(a), 5322(b). He challenges the findings of the district court concerning base level and specific offense characteristics, leadership role, acceptance of responsibility, and the upward departure from the guidelines. We vacate the sentence and remand for resentencing.
Mourning's conviction and sentence arise from what the United States Drug Enforcement Agency (DEA) termed a "reverse sting" operation. According to the presentence investigative report (PSI), a government informant, acting as intermediary, introduced Mourning to an undercover DEA agent. Mourning and two confederates were to meet with the DEA agent and others to discuss the purchase of 600 pounds of marijuana from the agent.
During the preceding three months, Mourning had traveled from Mexico to the United States on an occasion when he transported more than $10,000 in monetary instruments into the United States without filing the appropriate reports. The record on appeal is not clear regarding the derivation of these funds, but they totalled approximately $55,000. This was to serve as a down payment on the purchase of the marijuana, which Mourning planned to distribute. Mourning kept this money in his home.
The PSI states that Mourning, as the potential buyer of the marijuana, took the lead during discussions with the DEA agent. After inspecting a sample of the marijuana, he offered to buy all the agent had to sell. Mourning insists that no agreement as to price and quantity occurred at that meeting. However, at a meeting the next day, Mourning instructed one confederate to go to the "stash house" to help load the marijuana. He instructed another confederate to go to Mourning's house to retrieve the $55,000 purchase money down payment.
Mourning was originally charged with conspiracy to possess with intent to distribute more than 100 kilograms of marijuana; possession with intent to distribute less than 10 kilograms of hashish, less than 500 grams of marijuana, less than 500 grams of cocaine, and an unspecified amount of methaqualone, all in violation of 21 U.S.C. Secs. 841(a)(1), 846. Superseding indictments followed, which partially revised these original charges.
The government made a plea agreement with Mourning under which the indictments would be dismissed if Mourning would waive indictment and plead guilty to an information charging him with money laundering. Mourning signed a factual basis statement declaring that he had "transported more than $10,000 in monetary instruments at one time when he entered the United States from Mexico," and that he "willfully and knowingly failed to file a report of his transportation into the United States of these monetary instruments ... Thereafter, said monetary instruments were used to facilitate a conspiracy to possess with intent to distribute a quantity of marijuana...." The district court accepted his guilty plea.
At sentencing, the district court overruled all of Mourning's objections to the PSI. The PSI calculated Mourning's total offense level as 20 and his criminal history category as II, which dictated a guideline range of 37 to 46 months imprisonment. The judge departed upward by imposing a 120-month sentence, along with supervised release for three years, a $50,000 fine, and a $50 special assessment.
Mourning challenges the sufficiency of the criminal information and the factual basis to support his conviction and sentence. He asserts that an essential element of the punishment statute applied to him was omitted from the charging instrument and was neither pleaded nor proven before the district court.
Section 5322 sets out the criminal penalties for violations of the money laundering statutes. Section 5322(a) provides in pertinent part that "[a] person willfully violating this subchapter or a regulation prescribed under this subchapter ... shall be fined not more than $250,000, or imprison[ed for] not more than five years, or both." 31 U.S.C. Sec. 5322(a). Section 5322(b), to which Mourning pleaded guilty, provides in pertinent part that "[a] person willfully violating this subchapter or a regulation prescribed under this subchapter ... while violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period, shall be fined not more than $500,000, imprisoned for not more than ten years, or both. 31 U.S.C. Sec. 5322(b) (emphasis added).
Mourning argues that neither the information nor the factual basis demonstrate a concurrent violation of another law or any pattern of illegal activity placing his conduct within the ambit of 5322(b). Therefore, he contends that he can only be subject to the five-year maximum sentence provided under section 5322(a). Mourning raises the issue for the first time in his supplemental brief. We adhere to the rule that "issues raised for the first time on appeal 'are not reviewable by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.' " United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990) (quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.1985).
Mourning's argument presents a mixed question of law and fact. To the extent this challenge presents a question of law, e.g. whether section 5322(b) covers his admitted actions, we note that Mourning intended to plead guilty to a violation punishable under section 5322(b). He never raised any contention in the district court "while that court still had the case under its jurisdiction or to then express [his] dissatisfaction with the sentence." Id. Since this case will be remanded, there clearly is no manifest injustice in treating him as bound by his plea agreement on the present appeal.
To the extent this challenge presents a question of fact, e.g. whether he concurrently violated another law during his money laundering scheme, it is foreclosed. Had Mourning challenged the factual basis for the plea in the district court, that court could have made factual findings on this issue. We could then review those findings. Mourning requests that we restrict the district court upon remand to a sentence not exceeding five years. We refuse to do so. This issue is not properly before us. On remand, the district court is not foreclosed from considering the issue.
We note that application of section 5322(b) is not inapposite. A portion of the PSI to which Mourning did not object states that he was aware that this large sum of money was directly related to illegal drug activities and that what he did was wrong and illegal. The district court could find that his conduct fell within the charging instrument.
Mourning challenges the findings of the district court regarding application of the guidelines for money laundering offenses. See U.S.S.G. Sec. 2S1.3. This guideline provides that the base offense level will be "(1) 13, if the defendant: (A) structured transactions to evade reporting requirements; (B) made false statements to conceal or disguise the activity; or (C) reasonably should have believed that the funds were the proceeds of criminal activity; (2) 5, otherwise." Id. Sec. 2S1.3(a). The specific offense characteristics of this guideline provides: "[i]f the defendant knew or believed that the funds were criminally derived, increase by 5 levels." Id. at Sec. 2S1.3(b)(1).
The application note indicates that funds or other property are the "proceeds of criminal activity" or are "criminally derived" if they are property derived from or constitute proceeds obtained from a criminal offense. Id. Sec. 2S1.3, application note 1. See 18 U.S.C. Sec. 1957(f)(2). The background notes make clear that 13 will be the base level "for the great majority of cases." The base offense level of 5 is reserved only "for those cases in which these offenses may be committed with innocent motives and the defendant reasonably believed that the funds were from legitimate sources." U.S.S.G. Sec. 2S1.3, background (emphasis in original).
The district court accepted the PSI recommendation that the base offense level be 13 in this case because the defendant reasonably should have believed that the funds he laundered were the proceeds of criminal activity. The district court further accepted the PSI recommendation that a specific offense characteristic existed to warrant a five-level increase, namely that the defendant actually knew or believed that the funds were criminally derived. Mourning argues that his base offense level should be five, without any specific offense enhancement.
"District courts are accorded no deference for legally incorrect applications of the sentencing guidelines, although their findings of fact merit considerable deference under the 'clearly erroneous' standard of review." United States v. Barbontin, 907 F.2d 1494, 1497 (5th Cir.1990). We review the application of the guidelines fully for errors of law. United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). Sentences imposed as a result of incorrect application of guidelines must be reversed. United States v. Mejia-Orosco, 868 F.2d 807 (5th...
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