                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3732
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Sirree Muhammed Riza,                    *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: May 15, 2001

                                   Filed: October 2, 2001
                                    ___________

Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           ___________

LOKEN, Circuit Judge.

       Sirree Muhammad Riza stole nineteen checks totaling $124,262.49 from his
employer, a health care provider in Edina, Minnesota. He deposited the checks in an
account he had secretly opened at TCF Bank, using the assumed name Mandel Tyler.
Riza then withdrew the money, using cashiers checks drawn on the TCF account, and
redeposited it into a Norwest Bank account in the name of his fiancé’s business, L&D
Consulting. When the scheme was discovered, Riza was charged with nineteen
counts of embezzlement from a health care provider and fourteen counts of
concealment money laundering in violation of 18 U.S.C. §§ 669(a) and
1956(a)(1)(B)(i). He pleaded guilty to one count of each.
      At sentencing, the district court1 applied the base offense level for money
laundering, the offense with the higher base offense level. See U.S.S.G. §§ 2S1.1,
3D1.4. The court declined to group the embezzlement and money laundering
offenses under U.S.S.G. § 3D1.2, which resulted in a one-level increase to the total
offense level. The court determined that Riza’s prior convictions placed him in
criminal history category three, which produced a Guidelines sentencing range of 41-
51 months in prison. The court denied Riza’s motion for a downward departure and
sentenced him to 41 months in prison. He appeals that sentence, arguing the district
court erred by denying a downward departure and by refusing to group the money
laundering and embezzlement offenses under the Sentencing Guidelines. We affirm.

       Riza moved for a downward departure under U.S.S.G. § 5K2.0. Citing United
States v. Woods, 159 F.3d 1132 (8th Cir. 1998), in which we affirmed a downward
departure from the money laundering guideline, Riza argued that his conduct fell
outside the heartland of money laundering offenses because it was simple theft
accompanied by a “receipt-and-deposit” diversion to conceal the theft, rather than the
type of large scale drug trafficking and professional money laundering that Congress
had in mind when it enacted the money laundering statutes. The district court denied
that motion, explaining:

      I agree with the position that the defense takes, that this was not
      particularly the intent of the Congress in enacting the money laundering
      statute. . . .

             [But] the Eighth Circuit has not construed it that way. In part, but
      not entirely that way. And the Court is going to deny the motion in this
      case, because I believe that this is the type of case that the Eighth Circuit
      has looked at, and the Court must follow its dictates.


      1
       The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.

                                          -2-
            The . . . purpose of setting up this separate [TCF Bank] account
      was, for lack of a better term, to launder this money. . . .

            And therefore, I think the Court is required in this instance to
      deny the motion for a downward departure.

             The creation of the separate account . . . I think creates a separate
      crime of money laundering in this case, despite the Court’s general
      feelings concerning what the Congress may have intended or not.

       On appeal, Riza argues that the district court erred in denying his motion for
a downward departure. Our scope of review of this issue is exceedingly narrow.
“[W]e have consistently held that the district court’s decision not to depart downward
is unreviewable so long as the court was aware of its authority to depart.” United
States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000); see 18 U.S.C.
§ 3742(a), (b); Koon v. United States, 518 U.S. 81, 96 (1996). Citing the district
court’s expression of sympathy for his position as to the intent of Congress, Riza
contends that the court misunderstood its departure authority. We disagree.

        Riza argued to the district court that a downward departure from the money
laundering guideline is appropriate for money laundering offenses other than large
scale, professional or narcotics-related money laundering operations. That argument
is inconsistent with the money laundering guideline because the Sentencing
Commission took those factors into account by providing for increases to the money
laundering base offense level when illegal drug proceeds or large amounts of money
have been laundered. See U.S.S.G. § 2S1.1(b)(1), (2). If a sentencing factor is
“already taken into account by the applicable Guideline, the court should depart only
if the factor is present to an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present.” Koon v. United States,
518 U.S. 81, 96 (1996). Accordingly, in United States v. Morris, 18 F.3d 562, 569
(8th Cir. 1994), we reversed a downward departure from the money laundering


                                          -3-
guideline granted to defendants convicted of relatively simple bank fraud, rejecting
the district court’s determination “that neither Congress nor the Sentencing
Commission intended the [money laundering offense] to be punished more severely
than the [fraud offense].”

       However, in support of his downward departure motion, Riza submitted a
memorandum of law that correctly cited Eighth Circuit cases for the proposition that
district courts may depart downward from the money laundering guideline in atypical
cases. In Woods, we carefully traced the legislative history of the money laundering
guideline and concluded that the district court did not abuse its discretion in
determining that the specific offense in question lay outside the heartland of this
guideline. 159 F.3d at 1134-36. Following Woods, we reversed a downward
departure that the district court had based on the disparity between the fraud and
money laundering guidelines, but we specifically noted that the court on remand “may
find [the] case presents additional unique or atypical features that take it outside the
money laundering guideline heartland.” United States v. Ross, 210 F.3d 916, 928
(8th Cir.), cert. denied, 531 U.S. 969 (2000). Woods and Ross establish that a district
court has discretion to depart downward from the money laundering guideline in a
truly atypical case.

       “A district court is presumed to be aware of the scope of its ability to depart
downward.” United States v. Walker, 191 F.3d 326, 338 (2d Cir.), cert. denied, 529
U.S. 1080 (2000). Here, Riza brought our prior decisions in Woods and Ross to the
district court’s attention. In this context, when the court observed that it agreed with
Riza’s position as to the intent of Congress but was “required” by Eighth Circuit
precedent to deny a downward departure, it obviously meant that a departure based
solely on the disparity between the money laundering and embezzlement guidelines
would be reversed as an abuse of discretion, as in Ross. We decline to interpret these
cryptic remarks as completely misconstruing the departure authority reflected in our



                                          -4-
decision in Woods and in our remand in Ross.2 Accordingly, the district court’s
decision to deny Riza a downward departure is unreviewable on appeal.

       Riza further argues that the district court erred in refusing to group the money
laundering and embezzlement offenses under U.S.S.G. § 3D1.2(b). This argument
is foreclosed by our prior decisions in United States v. Green, 225 F.3d 955 (8th Cir.
2000), cert. denied, 121 S. Ct. 884, and cert. denied, 121 S. Ct 893 (2001), and United
States v. O’Kane, 155 F.3d 969, 972 (8th Cir. 1998). Only the court en banc may
overrule these prior panel opinions. See Brown v. First National Bank in Lenox, 844
F.2d 580 (8th Cir.), cert. dismissed, 487 U.S. 1260, 1261 (1988).

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        We note there was ample basis in the sentencing record for the district court
to distinguish this case from Woods. This is by no means a simple receipt and deposit
case. While repeatedly stealing funds from his employer, Riza opened an account at
TCF bank in an assumed name, deposited the stolen checks into the TCF account,
withdrew the funds with TCF cashier’s checks, and then deposited the funds in a
Norwest Bank account belonging to his fiancé’s business. Moreover, Riza committed
the offense while on supervised release from an Illinois conviction for stealing money
from a social service agency serving mentally ill and disabled adults and children.

                                         -5-
