                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 24 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50458

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01172-DDP-30

  v.
                                                 MEMORANDUM*
LEONARDO MELGAREJO, AKA Largo,
AKA Stranger,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                       Argued and Submitted January 6, 2014
                               Pasadena, California

Before: KOZINSKI, Chief Judge, and REINHARDT and CLIFTON, Circuit
Judges.

       Leonardo Melgarejo pleaded guilty to conspiring to participate in a racketeer

influenced and corrupt organization (“RICO”) in violation of 18 U.S.C. § 1962(d),

and was sentenced to 262 months’ imprisonment. He appeals his sentence on a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
number of grounds, none of which he raised below. We review all of his claims for

plain error, except his claim that his sentence is substantively unreasonable, which

we review for abuse of discretion. See United States v. Autery, 555 F.3d 864, 871

(9th Cir. 2009). We have jurisdiction under 28 U.S.C. § 1291 and affirm.



1. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” United

States v. Booker, 543 U.S. 220, 244 (2005). RICO violations are punishable by a

maximum of 20 years’ imprisonment unless the violation is based on a

racketeering activity for which the maximum penalty is life, in which case life is

the maximum penalty. See 18 U.S.C. § 1963(a). Melgarejo’s RICO conspiracy

conviction was based on an activity with a maximum sentence of life: conspiring to

distribute over 280 grams of cocaine. See 21 U.S.C. § 841(b)(1)(A). Because

Melgarejo admitted that he was guilty of this offense, his 262 month sentence does

not violate Apprendi. Moreover, there is no “reasonable probability” that, had the

district court made particular findings as to the quantity of cocaine for which




                                          2
Melgarejo could be sentenced, it would have reached a different result. See United

States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008).



2. Melgarejo explicitly agreed, in his plea colloquy, that he “joined the [Colombia

Lil’ Cycos (CLCS)] organization’s racketeering conspiracy by no later than 2002;

and in doing so, agreed to advance the interest of the CLCS organization by

ensuring the continued operation of its long standing drug trafficking and money

laundering operations.” This plea establishes, beyond a reasonable doubt, that two

of the underlying racketeering acts were drug distribution and money laundering.



3. The district court did not err in applying a 1-level enhancement pursuant to

Sentencing Guidelines § 2S1.1(b)(2)(A) for a conviction for money laundering

under 18 U.S.C. § 1957. First, the drug distribution guideline was used to

determine only the base offense level for the purposes of § 2S1.1(a); therefore the

Specific Offense Characteristics of § 2S1.1(b), including the enhancement at issue

here, were still applicable. Second, the RICO guideline makes clear that underlying

racketeering offenses in RICO cases are to be treated as “convictions” for the

purposes of the Guidelines; thus the fact that Melgarejo was not in fact convicted

of 18 U.S.C. § 1957 is not relevant to whether the enhancement applies. See

                                          3
U.S.S.G. § 2E1.1 cmt. n.1. Third, Melgarejo pleaded guilty to having “agreed to

advance the interest of the CLCS organization by ensuring the continued operation

of its long standing . . . money laundering operations,” and the government

introduced evidence that the amount of money laundered by CLCS was at least

$10,000; therefore there is no reasonable probability that, had the district court

made explicit findings as to the applicability of § 2S1.1(b)(2)(A), it would have

reached a different result. See Waknine, 543 F.3d at 554.



4. Melgarejo’s sentence is not substantively unreasonable. Contrary to Melgarejo’s

argument, the district court decided not to apply a 2-level role enhancement under

Sentencing Guidelines § 3B1.1. Moreover, “in the overwhelming majority of cases,

a Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.” United States v. Treadwell,

593 F.3d 990, 1015 (9th Cir. 2010) (quoting United States v. Carty, 520 F.3d 984,

994 (9th Cir. 2008)). Melgarejo gives us no reason to find otherwise here.

      AFFIRMED.




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