                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4816


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ONESIMO MARCELINO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:12-cr-00077-HEH-4)


Submitted:   June 6, 2013                 Decided:   August 6, 2013


Before SHEDD, DUNCAN and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth W. Ravenell, Milin Chun, MURPHY, FALCON & MURPHY,
Baltimore, Maryland, for Appellant.   Neil H. MacBride, United
States   Attorney,  Alexandria, Virginia,  Richard  D.  Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
       Appellant Onesimo Marcelino pleaded guilty to one count of

conspiracy       to       ship,    transport,           receive,       possess,      sell,

distribute, and purchase contraband cigarettes in violation of

18 U.S.C. § 371 and 18 U.S.C. § 2342 (the “contraband cigarette

count”) and one count of conspiracy to commit money laundering

in   violation       of   18    U.S.C.     §       1956(h)    (the    “money     laundering

count”).       He     now      appeals    various       aspects       of   his   132-month

sentence.      For the reasons that follow, we affirm.



                                               I.

       According to facts read into the record by the government

at Marcelino’s plea hearing and to which he agreed, Marcelino

and others purchased over 1,700 “master cases” of cigarettes

from   undercover         agents   from        the    Bureau    of    Alcohol,     Tobacco,

Firearms,      and    Explosives.              A     master    case    contains     12,000

cigarettes.      Marcelino and his coconspirators paid no tax before

or after purchasing the master cases, and nothing on the master

cases themselves indicated a tax had been paid.                             Each untaxed

master case therefore represented contraband cigarettes.                            See 18

U.S.C.     §   2341(2)         (defining        “contraband       cigarettes”       as   “a

quantity in excess of 10,000 cigarettes, which bear no evidence

of the payment of applicable” taxes).




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      From    June     2010       until      April    2012,     Marcelino       and    his

coconspirators purchased the contraband cigarettes in Virginia

and transported them for resale in New York.                     Marcelino used the

proceeds from the sale of these contraband cigarettes to enable

further purchases of master cases and to continue to operate the

contraband cigarette conspiracy.                     On April 18, 2012, federal

agents arrested Marcelino and three of his coconspirators.                              In

May   2012,      the        government       indicted       Marcelino         and     three

coconspirators.

      After    pleading          guilty,      Marcelino       faced     sentencing      in

September     2012.         The       Presentence     Investigation       Report      (the

“PSR”)   identified         a    Sentencing        Guidelines    (the    “Guidelines”)

range of 51-60 months on the contraband cigarette count and 121-

151 months on the money laundering count.                     Marcelino objected to

the absence of a reduction in his offense level for acceptance

of responsibility under § 3E1.1 of the Guidelines.                        Finding that

Marcelino had not been forthcoming when interviewed by probation

officers      after    his        arrest,     the     district        court    concluded

Marcelino     had     not       met   his    burden    of   clearly      demonstrating

acceptance of responsibility.                  Marcelino also objected to the

PSR’s recommendation of a four-level increase to the offense

level under § 3B1.1(a) for his role as a leader of a criminal

activity     involving       five      or   more    participants.        Finding      that

Marcelino “exercised decision-making authority,” “gave direction

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to   other   people,”    and      supervised          at   least         one    other

coconspirator, and that the conspiracy involved at least five

participants, J.A. 178-79, the district court denied Marcelino’s

objection.    It   sentenced    Marcelino        to    sixty        months     on   the

contraband   cigarette    count      and    132       months        on   the    money

laundering count, to be served concurrently.



                                     II.

      Marcelino raises three issues on appeal.              He first contends

that his conviction on the money laundering count “merged” with

his conviction for contraband cigarettes under the reasoning set

out in United States v. Santos, 553 U.S. 507 (2008), such that

the 132-month sentence imposed on the former count was improper.

Marcelino also asserts two sentencing challenges: (1) he argues

that the district court erred in denying his objections seeking

acceptance   of    responsibility,         and    (2)      he        contests       the

enhancement he received for his leadership role.

      We review Marcelino’s merger argument under our plain error

standard because he did not raise it below.                See United States

v. Smith, 452 F.3d 323, 338 (4th Cir. 2006) (plain error review

of   sentencing   challenge    not   raised      below).       We    consider       his

additional sentencing challenges for clear error.                    United States

v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (district court

determination concerning acceptance of responsibility reviewed

                                     4
for clear error); United States v. Thorson, 633 F.3d 312, 317

(4th Cir. 2011) (where district court findings regarding whether

defendant was organizer or leader are “factual in nature, we

reverse    only    if   the     district       court's   findings      are   clearly

erroneous”).

       Marcelino’s merger argument fails because he has waived it.

Although he purports to raise a sentencing challenge, he in fact

seeks to contest his money laundering conviction.                   In Santos and

in the other cases cited in Marcelino’s brief, including our

post-Santos case law, see United States v. Abdulwahab, 715 F.3d

521 (4th Cir. 2013); United States v. Cloud, 680 F.3d 396 (4th

Cir. 2012); United States v. Halstead, 634 F.3d 270 (4th Cir.

2011), courts have considered the factual record developed at

trial     to   determine      whether   the      same    actions    underlying    a

defendant’s conviction on a predicate offense pertain to his

conviction for money laundering.                We can perform no such fact-

bound inquiry of Marcelino’s convictions here because the record

contains only an indictment sufficiently alleging that Marcelino

used    proceeds   from    an    unlawful       activity   to   promote      further

unlawful activity, and the brief statement of facts read into

the record by the government at Marcelino’s plea hearing.                        See

United    States   v.   Smith,    44    F.3d     1259,   1265   (4th    Cir.   1995)

(“[D]etails about the nature of the unlawful activity underlying

the character of the proceeds [for money laundering] need not be

                                           5
alleged.”).        By pleading guilty to the indictment and agreeing

to   the   government’s      statement    of    facts    at    his   plea   hearing,

Marcelino admitted that he engaged in conduct that satisfied the

elements for convictions under both the contraband cigarettes

count and the money laundering count.                   In so doing, he waived

his merger argument challenging the money laundering conviction.

See United States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004)

(“When      a      defendant       pleads       guilty,        he     waives      all

nonjurisdictional defects in the proceedings conducted prior to

entry of the plea.”). *

      Having thoroughly reviewed the briefs and the record, we

also conclude that the district court did not clearly err when

it   denied     both   of   Marcelino’s       objections      at   sentencing.    It

carefully considered the factual record before it with respect

to the very same arguments Marcelino advances on appeal.



                                      III.

      We therefore affirm the district court’s judgment and the

sentence      it   imposed    on   Marcelino.        We       dispense   with    oral

      *
       To the extent Marcelino’s challenge is to the substantive
reasonableness of his 132-month sentence, we conclude that the
district court did not abuse its discretion in imposing a
sentence well within the 121-151 month range recommended by the
Guidelines. See Rita v. United States, 551 U.S. 338, 347 (2007)
(courts of appeal can apply a presumption of reasonableness to
within-Guidelines sentences).



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argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                       AFFIRMED




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