                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 14 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30330

               Plaintiff - Appellee,             D.C. No. 2:01-cr-00108-RSM-5

  v.
                                                 MEMORANDUM *
STEVEN CRAIG MORELAND,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                              Submitted July 11, 2012 **
                              San Francisco, California

Before:        HUG, McKEOWN, and W. FLETCHER, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         Steven Craig Moreland appeals from the 216-month sentence imposed for

various offenses associated with his role in a Ponzi scheme. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

         Relying on a merger theory and United States v. Santos, 553 U.S. 507

(2008), Moreland contends that, notwithstanding the fact that we previously upheld

four of his convictions for money laundering, the district court was not permitted

to consider those convictions when calculating the applicable Sentencing

Guidelines range. He is incorrect. The Sentencing Guidelines required the district

court to consider Moreland’s money laundering convictions when calculating the

Guidelines range. See U.S.S.G. § 2S1.1 (1998). Moreover, Santos did not change

the Sentencing Guidelines. See Santos, 553 U.S. 507.

         Moreland argues that the district court erred by failing to group his fraud and

money laundering counts together under U.S.S.G. § 3D1.2(b) and (d) (1998). This

argument is foreclosed by United States v. Syrax, 235 F.3d 422, 424-26 (9th Cir.

2000).

      Moreland also argues that the district court erred when it included a ten-level

enhancement under U.S.S.G. § 2S1.1(b)(2)(K) (1998) based on the value of the



         1
      Because the parties are familiar with the facts and the procedural history,
we do not recount them here.

                                            2                                    11-30330
funds involved in the foreign promotional money laundering. Relying on United

States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009), Moreland contends that the

funds involved in these money laundering transactions may not be used to enhance

his sentence because these transactions were integral to the underlying fraud.

Contrary to Moreland’s contentions, Van Alstyne does not stand for the proposition

that courts never may base money laundering enhancements on funds associated

with payments integral to an underlying fraud scheme. Rather, Van Alstyne holds

that “the Guidelines do not contemplate a base level enhancement on account of

transactions that do not constitute money laundering within the meaning of the

statute.” Id. at 816. Because the district court based the enhancement on

transactions that constituted foreign promotional money laundering under 18 U.S.C.

§ 1956(a)(2)(A), the district court did not err when it included the enhancement.

      Next, Moreland contends that the district court erroneously determined the

amount of the money laundering enhancement because the court included in its

calculations a $10 million dollar transfer from a place outside of the United States

to a place inside the United States. According to Moreland, it was impermissible to

include this transaction in the calculations because he was charged and convicted

only of transferring funds from a place inside the United States to a place outside of

the United States; he was not charged with transferring funds from a place outside


                                           3                                     11-30330
the United States to a place inside the United States. Van Alstyne forecloses this

argument. See Van Alstyne, 584 F.3d at 816 (explaining that a district court may

rely on uncharged conduct when calculating the enhancement for a money

laundering conviction).

      The district court included adjustments for Moreland’s leadership role in the

offense under U.S.S.G. § 3B1.1(a) (1998) and his abuse of a position of trust under

U.S.S.G. § 3B1.3 (1998) when calculating the adjusted offense level for the fraud

group. The court then also included adjustments for role in the offense and abuse of

trust when calculating the adjusted offense level for the money laundering group.

Moreland contends that it was impermissible double counting for the court to rely

on all of these adjustments when determining the total offense level. However,

because the two adjustments for leadership roles were based on different conduct,

wrongs, and victims, it was permissible to impose both leadership adjustments. See

Syrax, 235 F.3d at 428-29. Similarly, the court did not err by imposing the two

adjustments for abuse of a position of trust because the two adjustments result from

different conduct, wrongs, and victims. See id.

      Moreland next argues that the district court erroneously decided that the law

of the case doctrine and the rule of mandate precluded the court from considering

his merger arguments during resentencing. However, the record shows that the


                                          4                                    11-30330
court rejected Moreland’s merger argument rather than prohibiting him from raising

it.

      Finally, Moreland contends that the district court erred by failing to grant his

motion to dismiss Counts 33-36 to the extent they were based on 18 U.S.C.

§ 1956(a)(2)(B). However, the amended judgment accurately states that Moreland

was convicted of violating 18 U.S.C. § 1956(a)(2), and the district court properly

based the sentence on foreign promotional money laundering, not foreign

concealment money laundering.

      AFFIRMED.




                                           5                                    11-30330
