     Case: 09-40965 Document: 00511501309 Page: 1 Date Filed: 06/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 7, 2011
                                       No. 09-40965
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

DELFINO RAMOS,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 2:03-CR-387-2




Before GARWOOD, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Delfino Ramos pleaded guilty of conspiracy to launder the proceeds of the
distribution of controlled substances. He filed a motion to vacate the judgment



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                       No. 09-40965

of conviction pursuant to 28 U.S.C. § 2255, alleging, inter alia, that his counsel
was ineffective for allowing him to enter a guilty plea because (1) the conduct
that he had admitted would not constitute money laundering in light of United
States v. Santos, 553 U.S. 507 (2008), and (2) his counsel should have anticipated
the arguments made in Santos when advising Ramos to plead guilty. The dis-
trict court denied all of Ramos’s claims under § 2255 but issued a limited certifi-
cate of appealability (“COA”) as to the ineffective-assistance claim.
       The federal money-laundering statute, 18 U.S.C. § 1956, prohibits several
activities involving criminal “proceeds.” In Santos, the Court considered wheth-
er “proceeds” in that statute means “receipts” or “profits.” Justice Stevens stated
in his controlling concurrence that the definition of “proceeds” depends on the
underlying criminal activity and must be determined via a bifurcated analysis.
Garland v. Roy, 615 F.3d 391, 401 (5th Cir. 2010).1
       First, a court must determine whether . . . the defendant would face
       the “merger problem” [which occurs when the statute criminalizing
       the underlying activity merges with the money-laundering statute].
       If so, then . . . the rule of lenity governs and “proceeds” must be de-
       fined as “profits”; and the court need not proceed to the second step
       of Justice Stevens’ analysis. However, if, instead, there is no “mer-
       ger problem,” Justice Stevens’ analysis . . . directs that a court must
       look to the legislative history of the money-laundering statute to de-
       termine how to define “proceeds.” A court does so with the default
       presumption that “proceeds” should be defined as “gross receipts,”
       unless the legislative history affirmatively supports interpreting
       “proceeds” to mean “profits.”

Id. (citations omitted). Ramos argues that under Santos, the evidence was insuf-
ficient to support his conviction for money laundering because the government
did not prove that the charged financial transactions were conducted with the


       1
        The government urges us to read Santos as holding that “proceeds” means “profits”
only when the predicate offense is the operation of an illegal gambling business and thus that
Santos is not applicable to other illegal activity, such as drug trafficking. In Garland, how-
ever, 615 F.3d at 403, we expressly rejected that interpretation.

                                              2
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                                        No. 09-40965

“profits” rather than the “gross receipts” of the drug sales.
       Ramos, however, has not shown that the merger problem would occur with
regard to drug trafficking, nor has he pointed to legislative history that supports
interpreting “proceeds” to mean “profits.” The government therefore was not re-
quired to prove that the laundered money constituted “profits” rather than
“gross receipts,” so we affirm.2 We decline to address the other issues Ramos
raises in his brief, because they were not specified in the COA. See United
States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009).
       AFFIRMED.




       2
          In United States v. Huynh, No. 09-20762, 2011 WL 989825 (5th Cir. Mar. 22, 2011)
(per curiam) (unpublished), we reached the same conclusion but relied on what we believed
to be the controlling opinion, Justice Stevens’s concurrence, which stated that “[a]s Justice Ali-
to rightly argued, the legislative history of § 1956 makes it clear that Congress intended the
term ‘proceeds’ to include gross revenues from the sale of contraband.” Id. at *7 (citing Santos,
553 U.S. at 525-26 (Stevens, J., concurring)). Although Justice Stevens’s concurrence was con-
trolling, see Garland, 615 F.3d at 399, that statement was dictum, because the underlying
criminal activity in Santos was an illegal lottery, not drug trafficking. Further, as the plurali-
ty opinion in Santos pointed out, 553 U.S. at 522 n.8, Justice Alito did not actually “cite legis-
lative history addressing the meaning of the word ‘proceeds’ in cases specifically involving
contraband.” But because Ramos has not addressed the merger problem or relevant legislative
history, and we operate under the presumption that “proceeds” means “gross receipts,” we de-
cline to address whether the merger problem might arise in drug trafficking cases.

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