     Case: 18-11149    Document: 00515243823       Page: 1    Date Filed: 12/19/2019




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

                                    No. 18-11149
                                                                          Fifth Circuit

                                                                        FILED
                                                                December 19, 2019

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

EFRAIN SIFUENTES,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Efrain Sifuentes pleaded guilty to a drug-related money laundering
conspiracy. Sifuentes now challenges his below-Guidelines sentence of 160
months as both procedurally incorrect and substantively unreasonable. We
reject his arguments and affirm.
                                         I
      Sifuentes’s     cousin   Pablo     Zavala    sold      large      quantities                of
methamphetamine smuggled in from Mexico to Fernando Obregon in Dallas.
Sifuentes worked with Zavala to launder and return the drug proceeds to
Mexico. He also recruited the help of Aaron Gonzalez to launder the money
and conduct wire transfers to Mexico. Sifuentes let Gonzalez know the money
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                                  No. 18-11149
came from the sale of drugs, telling him that Zavala concealed illegal drugs
inside “candies, soaps, and other items,” which Zavala then shipped to Dallas.
From his recruitment until the time of his arrest, Sifuentes exchanged over
600 electronic communications with Zavala and Obregon, primarily via
WhatsApp and phone calls.
      On at least one occasion, Sifuentes tried to convince Gonzalez to pick up
a load of methamphetamine in Dallas. He explained to Gonzalez that he
needed “some cokes and soap” moved—objects Sifuentes previously told
Gonzalez contained hidden drugs.        Sifuentes could not pick up the drugs
himself because he was busy collecting proceeds of other drug sales in Kansas.
But Gonzalez did not want to leave the drugs in “[his] car for a long time.”
Sifuentes then asked Gonzalez to transport the drugs to a nearby hotel on his
behalf, stating he could pick up the drugs later. Gonzalez again refused,
claiming he was “spooked,” and worried Zavala would not “have [his] back in
jail . . . .” Two weeks later, the FBI arrested Sifuentes.
      In February 2018, Sifuentes proceeded to a jury trial on the indictment
alleging a money laundering conspiracy. In March, the trial ended in a hung
jury. The court set a second trial date, but before trial, Sifuentes pleaded guilty
without a plea agreement. He admitted he knowingly conspired to conduct
financial transactions with proceeds he knew were exclusively derived from
drug trafficking.
      The probation officer writing the Presentence Investigation Report (PSR)
for Sifuentes’s sentence included the attempted drug pickup with Gonzalez in
his calculation. U.S.S.G. § 2S1.1(a). The Sentencing Guidelines establish two
different methods for calculating a sentence for a money laundering conviction,
depending on whether the defendant also committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused the substantive
underlying offense, or laundered money only. See U.S.S.G. §§ 2S1.1(a)(1)–(2).
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The PSR here applied the former method, relying on an underlying drug
conspiracy to calculate the base offense level.
      Sifuentes objected, claiming that his one abortive attempt to facilitate
drug distribution should not lead to culpability under section 2S1.1(a)(1). The
Government countered that his “near constant contact” with leaders in the
drug conspiracy, as well as his acts of money laundering and attempt on at
least one occasion to direct another person to pick up drugs, showed a pattern
of engaging in the underlying and ongoing criminal activity.
      The district court overruled Sifuentes’s objection to his base offense level
and calculated a preliminary Guidelines imprisonment range of 262 to 327
months, capped by statute at 240 months. To get to that range, the PSR
applied section 2S1.1(a)(1), which determined the base level for the underlying
offense through cross-reference to section 1B1.3(a)(1)(A). Applying section
1B1.3(a)(1)(A) led the district court by cross-reference to section 2D1.1.
Finding Sifuentes laundered $93,974 in drug proceeds, the PSR found
Sifuentes accountable for 14.91 kilograms of methamphetamine.             A drug
offense involving between five and fifteen kilograms of methamphetamine
leads to a base offense level of 34. After final adjustments, the district court
found an offense level of 38, with a criminal history category of II.
      Sifuentes made several arguments for a downward departure.               He
requested a sentence of 60 months.           The district court acknowledged
Sifuentes’s arguments and ultimately decided on a sentence of 160 months—
an 80-month reduction below the statutory cap and Guidelines-suggested
range. Sifuentes objected to the procedural and substantive reasonableness of
this sentence.
                                       II
      We review the district court’s factual findings for clear error and its
application of the Guidelines de novo. United States v. Ruiz, 621 F.3d 390, 394
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(5th Cir. 2010). We review the substantive reasonableness of the sentence for
an abuse of discretion. United States v. Diehl, 775 F.3d 714, 724 (5th Cir.
2015).
      Both Sifuentes and the Government agree that section 2S1.1(a) should
be used to calculate Sifuentes’s sentence. But they disagree about which of the
two subsections should apply.
      Section 2S1.1(a)(1) applies the offense level for the underlying offense
from which the laundered funds were derived if (A) the defendant committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused
the underlying offense, and (B) the offense level can be determined. See United
States v. Torres, 856 F.3d 1095, 1098–99 (5th Cir. 2017); United States v.
Charon, 442 F.3d 881, 887 (5th Cir. 2006). In this case, the underlying offense
from which the funds were derived is the sale of with intent to distribute a
controlled substance, not conspiracy to possess with intent to distribute a
controlled substance.    The government needs to show a likelihood the
underlying conduct occurred by a preponderance of the evidence to include
relevant facts in sentencing. United States v. Harper, 448 F.3d 732, 735 (5th
Cir. 2006).
      By contrast, section 2S1.1(a)(2) is used to calculate the sentence if the
defendant either is not responsible for the underlying offense or if the proper
offense level for the underlying offense cannot be calculated.     Under this
subsection, the court determines the offense level based on the value of the
laundered funds. U.S.S.G. § 2S1.1(a)(2).
      Sifuentes argues that the court should have applied section 2S1.1(a)(2)
because he was not involved in the underlying drug offense. His calculation
under section 2S1.1(a)(2) leads to an offense level of 26. The Guidelines range
for an offense level of 26 and Criminal History Category II is 70 to 87 months.


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                                    No. 18-11149
      To support his claim, Sifuentes invokes a commentary to the Guidelines,
which explains that a person who is hired to help unload a single drug
shipment is not culpable for all of the shipments in a given conspiracy. See
U.S.S.G. § 1B1.3 cmt. n.4(c)(III). But that commentary does not apply here.
Sifuentes was not a one-time unloader. Unlike a stevedore hired to unload a
single shipment      of    drugs,   and   nothing   more,     Sifuentes repeatedly
communicated with and moved money for higher ranking members in a broad
drug and money laundering conspiracy. So there is sufficient evidence from
which the district court concluded that Sifuentes at least aided and abetted the
distribution of drugs from which the laundered funds were derived. See United
States v. Mata, 409 F. App’x 740, 743 (5th Cir. 2011). His attempt to convince
Gonzalez to take drugs and move them to a hotel for safekeeping is merely one
illustration of his continued involvement in the drug distribution and money
laundering conspiracy. See United States v. Barfield, 941 F.3d 757, 763 (5th
Cir. 2019) (“Particularly in drug cases, this circuit has broadly defined what
constitutes ‘the same course of conduct’ or ‘common scheme or plan.’”) (quoting
United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993)).
      The Government argued, and district court agreed, that because the
district court found Sifuentes not only tried to convince Gonzalez to move the
methamphetamine, but also consistently communicated with and coordinated
with senior individuals in the ongoing drug distribution and money-laundering
conspiracy, he is responsible for the substantive conduct underlying the money
laundering. As such, he is eligible to be sentenced under section 2S1.1(a)(1).
The PSR’s Guidelines range of 240 months, due to the statutory cap, is correct.
      Sifuentes’s challenge to the substantive reasonableness of the sentence
also fails. Recognizing that the sentencing court is in a better position to find
facts and judge their import under section 3553(a), substantive reasonableness
of a sentence is reviewed for an abuse of discretion. Diehl, 775 F.3d at 724.
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We apply a presumption of reasonableness to a below-Guidelines sentence.
United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). To rebut this
presumption, Sifuentes must demonstrate that the sentence: “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Id. at 558.
      Sifuentes reprises the arguments and resubmits the evidence arguing
for a downward departure at the district court. The district court took account
of the evidence and, consistent with section 3553, issued a downward variance
of 80 months. Mere disagreement with the sentence is insufficient to rebut the
presumption of reasonableness. See United States v. Rodriguez, 660 F.3d 231,
235 (5th Cir. 2011). Sifuentes has not offered any sufficient grounds to rebut
the presumption of reasonableness for a below-Guidelines sentence.
      The sentence is affirmed.




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