                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             Sept. 10, 2009
                              No. 08-17209                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 08-00084-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RAMANA RAO SURANENI,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                            (September 10, 2009)

Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Ramana Rao Suraneni appeals his 24-month sentence, imposed
following his guilty plea to conspiracy to commit visa fraud, in violation of 18

U.S.C. §§ 1546(a) and 371; conspiracy to commit money laundering, in violation

of 18 U.S.C. §§ 1956(a)(1)(A)(i), (B)(i) and (h); and visa fraud, in violation of 18

U.S.C. §§ 1546(a) and 2. On appeal, Suraneni raises three challenges to his

sentence.

       Suraneni first argues that the district court committed reversible error by

improperly relying on U.S.S.G. § 2L2.1 in calculating his base offense level under

U.S.S.G. § 2S1.1(a)(1), the guidelines provision applicable to money-laundering

offenses. Suraneni contends that the money-laundering charge was based on the

earnings that he derived from working in violation of his own immigration status

and, thus, the district court should not have relied on § 2L2.1, which relates to

offenses involving trafficking or assisting others in the fraudulent acquisition of

immigration credentials.

       With respect to guidelines issues, we review “purely legal questions de novo,

a district court’s factual findings for clear error, and, in most cases, a district

court’s application of the guidelines to the facts with ‘due deference.’” United

States v. Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir. 2004). When

reviewing a district court’s application of a guidelines provision to the facts, we

have held that “due deference” is tantamount to clear-error review. See United



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States v. White, 335 F.3d 1314, 1318-19 (11th Cir. 2003). For a finding to be

clearly erroneous, we “must be left with a definite and firm conviction that a

mistake has been committed.” Rodriguez-Lopez, 363 F.3d at 1137 (internal

quotation marks omitted).

      Under the Sentencing Guidelines, a court determining the appropriate

offense level must employ a two-step process. United States v. Saavedra, 148 F.3d

1311, 1314 (11th Cir. 1998). The court must first determine the applicable

guidelines section based on “the offense of conviction.” Id.; U.S.S.G. § 1B1.2(a).

The offense of conviction denotes “the offense conduct charged in the count of the

indictment . . . of which the defendant was convicted.” U.S.S.G. § 1B1.2(a). Once

the correct guidelines provision has been identified, the sentencing court must then

select the appropriate base offense level from among those specified within that

guideline. Saavedra, 148 F.3d at 1314-15 ; U.S.S.G. §§ 1B1.2(b), 1B1.3. Only

then may a court consider relevant conduct which did not comprise an element of

the offense of conviction. Saavedra, 148 F.3d at 1314, 1316-17.

      Where multiple counts of conviction have been adjudged, the district court

must group together all counts involving substantially the same harm. U.S.S.G.

§ 3D1.2(b). The applicable offense level for groups of closely related counts is the

“highest offense level of the counts in the Group.” U.S.S.G. § 3D1.3(a).



                                          3
Ordinarily, the court must calculate the offense level for each constituent count to

ensure that the appropriate offense level has been identified. United States v.

Kuku, 129 F.3d 1435, 1438 (11th Cir. 1997); U.S.S.G. § 3D1.3, comment. (n.2).

      Suraneni first alleges that the district court committed reversible error by

using U.S.S.G. § 2L2.1 to establish Suraneni’s base offense level at 11. Suraneni

argues that the district court should have used U.S.S.G. § 2L2.2 for a base offense

level of 8. We conclude from the record that the district court properly utilized

U.S.S.G. § 2L2.1 because the evidence established that Suraneni not only

laundered the proceeds of his own visa fraud through Data Group’s bank accounts,

but also laundered the proceeds of Maduhsudhan Koduru’s visa fraud through

Suraneni’s company Sumach Business Solutions.

      The guidelines contain a provision for “Money Laundering and Monetary

Transaction Reporting.” This provision states:

      (a)    Base Offense Level:

             (1) The offense level for the underlying offense from which the
             laundered funds were derived, if (A) the defendant committed the
             underlying offense . . .; and (B) the offense level for that offense can
             be determined; or

             (2) 8 plus the number of offense levels from the table in § 2B1.1
             (Theft, Property Destruction, and Fraud) corresponding to the value of
             the laundered funds, otherwise.

U.S.S.G. § 2S1.1(a) (emphasis added).

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Suraneni argues that the district court should have used U.S.S.G. § 2L2.2 because

the $132,500 laundered by Suraneni with Data Group represented proceeds of his

personal visa fraud. However, the uncontroverted evidence established that

Suraneni not only laundered the proceeds of his personal visa fraud, but also

laundered the funds of visa fraud committed by another person by running payrolls

for Madhusudhan Koduru, pursuant to § 2L2.1. (R160-38-39).

      Application note 2 of the commentary to U.S.S.G. § 2S1.1 provides

guidance for the application of subsection (a)(1). Relevant for the purposes of this

case is application note 2(A) which states,

      Multiple Underlying Offenses.- In cases in which subsection (a)(1)
      applies and there is more than one underlying offense, the offense
      level for the underlying offense is to be determined under the
      procedures set forth in Application Note 3 of the Commentary to §
      1B1.5 (Interpretation of References to Other Offense Guidelines).

U.S.S.G. § 2S1.1, comment. (n.2(A)).

Application note 3 of the U.S.S.G. § 1B1.5 provides in relevant part,

      A reference may direct that, if the conduct involved another offense,
      the offense guideline for such other offense is to be applied . . . .
      Where there is more than one such other offense, the most serious
      such offense (. . .) is to be used.

U.S.S.G. § 1B1.5, comment. (n.3).

The evidence in this case demonstrates that Suraneni engaged in a conspiracy to

launder funds for his own visa fraud and the visa fraud of another, that is,

                                           5
Madhusudhan Koduru; therefore, we conclude that the district court properly used

the higher offense level of 11 found in U.S.S.G. § 2L2.1, which was the offense

level for the “most serious such offense.”

      Suraneni next argues on appeal that the district court erred in applying a

two-level sentencing increase under § 2S1.1(b)(3) for sophisticated laundering

because the evidence did not support the district court’s finding that his money-

laundering scheme was committed in a sophisticated manner.

      Section 2S1.1(b)(3) of the Guidelines provides a two-level increase if an

offense involved “sophisticated laundering.” U.S.S.G. § 2S1.1(b)(3). The

guidelines commentary explains that sophisticated laundering “means complex or

intricate offense conduct pertaining to the execution or concealment of the 18

U.S.C. § 1956 offense,” and it typically involves the use of “fictitious entities,”

“shell corporations,” “two or more levels (i.e. layering) of transactions,” or

“offshore financial accounts.” U.S.S.G. § 2S1.1, comment. (n.5(A)).

      Since Suraneni’s money-laundering scheme involved two or more layers of

transactions and the use of a shell corporation to conceal the source of his illicitly

derived funds, we conclude Suraneni’s conduct was committed in a sophisticated

manner and, therefore, the district court properly applied the enhancement.

      Finally, Suraneni argues on appeal that the district court erred in applying a



                                             6
two-level role enhancement under U.S.S.G. § 3B1.1(c) for being an organizer of

criminal activity.

      The district court initially imposed a four-level § 3B1.1(a) enhancement for

being an organizer of criminal activity involving five or more participants. At

Suraneni’s resentencing hearing, the role enhancement was subsequently reduced

to two levels because the district court feared that the application of

§ 2L2.1(b)(2)(A), under the auspices of § 2S1.1(a)(1), would result in

impermissible double counting. As such, the district court applied the two-level §

3B1.1(c) enhancement, though it did not explicitly determine whether Suraneni’s

role in the offense was more akin to an organizer or a mere supervisor of criminal

conduct.

      Suraneni claims the district court’s finding that he was an organizer, leader,

manager, or supervisor, pursuant to U.S.S.G. § 3B1.1(c), was improper. In support

of his argument, Suraneni describes his conduct as merely referring others and

assisting some with clerical tasks. The record demonstrates that Suraneni’s

conduct was much more. The evidence demonstrated that Suraneni exercised

decision making authority, recruited accomplices, and claimed a right to a larger

share of the fruits of the crime. Therefore, we conclude that the district court

properly applied U.S.S.G. § 3B1.1(c) .



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For the above-stated reasons, we affirm Suraneni’s sentence.

AFFIRMED.




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