                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2002

USA v. Azcarate
Precedential or Non-Precedential:

Docket 1-2269




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"USA v. Azcarate" (2002). 2002 Decisions. Paper 114.
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                                                                         NOT
PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                               No. 01-2269



                        UNITED STATES OF AMERICA

                                   v.

                          MAURICIO AZCARATE,
                                                    Appellant


          On Appeal from the United States District Court
                   for the District of New Jersey
                       (D.C. No. 00-cr-00661)
               District Judge: Hon. John C. Lifland


               Submitted Under Third Circuit LAR 34.1(a)
                            February 4, 2002

Before:   SLOVITER, AMBRO, Circuit Judges, and POLLAK, District Judge*

                     (Filed:   February 7, 2002 )



                   MEMORANDUM OPINION OF THE COURT


___________________________

* Hon. Louis H. Pollak, Senior United States District Judge for the
Eastern District of
   Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.
     Mauricio Azcarate appeals from the judgment of sentence. After
indictment in the
United States District Court for the District of New Jersey, Azcarate
pleaded guilty to
exporting monetary instruments of more than $10,000 in violation of 31
U.S.C.     5316
and 5324. His appeal challenges the District Court's two level sentencing
enhancement
under    2S1.3(b)(1) of the U.S. Sentencing Guidelines. We will affirm.
     The District Court had jurisdiction under 18 U.S.C.    3231. This
court enjoys
jurisdiction pursuant to 28 U.S.C.    1291 and 18 U.S.C.   3742(a).
                                I.
     Azcarate argues that the District Court erred by enhancing his
sentence under
U.S.S.G.    2S1.3(b)(1), which provides for a two level enhancement for a
failure to report
monetary transactions where the defendant "knew or believed that the funds
were
proceeds of unlawful activity." According to Azcarate, the government did
not prove by
a preponderance of the evidence that he "knew or believed that the funds
were proceeds
of unlawful activity."
     Facts upon which sentencing determinations are made must be proven by
a
preponderance of the evidence. United States v. Dorsey, 174 F.3d 331, 332
(3d Cir.
1999). This court reviews a District Court's factual findings for clear
error. United
States v. Jarvis, 258 F.3d 235, 239 (3d Cir. 2001). "'Under the clearly
erroneous
standard, a finding of fact may be reversed on appeal only if it is
completely devoid of a
credible evidentiary basis or bears no rational relationship to the
supporting data.'"
United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997) (quoting American
Home
Products Corp. v. Barr Laboratories, Inc., 834 F.2d 368, 370-71 (3d Cir.
1987)).
     On March 5, 1998, Azcarate attempted to board a non-stop flight from
Newark
Airport to Panama City, Panama with $133,576 in United States currency and
$9,984 in
unendorsed money orders hidden in his computer bag and shoes. Following
his arrest,
United States Customs officials repeatedly questioned him where the money
he was
transporting came from. At his sentencing hearing, Azcarate testified
that in response to
these inquiries he ultimately replied, "It probably came from drugs, it
probably came from
something illegal." App. at 25. The District Court found that, "Mr.
Azcarate's testimony
supports a belief that the funds were proceeds of illegal activity." App.
at 29.
     Azcarate argues that his testimony is insufficient to support a
determination that he
knew or believed the money came from unlawful activity. According to
Azcarate, he was
speculating about the money's origin at the behest of Customs agents.
Thus, at the
sentencing hearing, Azcarate testified, "I do not know where [the money]
actually came
from. I could not prove it." App. at 23.
     At the outset, we note that our clearly erroneous review is "'more
deferential with
respect to determinations about the credibility of witnesses.'" Newark
Branch, NAACP
v. City of Bayonne, 134 F.3d 113, 120 (3d Cir. 1998) (quoting United
States v. Igbonwa,
120 F.3d 437, 441 (3d Cir. 1997)). To the extent the District Court's
finding was based
on Azcarate's testimony at the sentencing hearing, the District Court may
simply have
disbelieved Azcarate because of his demeanor or tone of voice.
     A sentencing court may also consider evidence contained in a noticed
pre-sentence
report. See, e.g., United States v. Hart, 273 F.3d 363, 379 (3d Cir.
2001). According to
the pre-sentence report, which Azcarate reviewed, App. at 23, upon his
arrest Azcarate
stated that he "knew the confiscated cash/money orders represented
proceeds from drug-
trafficking activity." Pre-sentence Report,    11. Azcarate also admitted
that he was
commissioned to transport the money in exchange for $10,000. Pre-sentence
Report,
11. Furthermore, the currency Azcarate transported was in small
denominations, Pre-
sentence Report,   17, and his activity was commissioned by a contact he
made while
traveling in Colombia.
     All of these facts support the trial court's determination that
Azcarate believed the
money he carried was from unlawful activity. Courts have considered large
amounts of
small denomination bills in connection with travel to Colombia to support
a determination
that the defendant believed the money was derived from an illicit source.
See, e.g.,
United States v. Berrio, 77 F.3d 206, 209 (7th Cir. 1996). That
Azcarate's "employer"
was willing to reward him so generously for his efforts despite the
availability of
considerably more economical and secure means of transferring funds
internationally
further bolsters the District Court's determination.
     Based on the evidence before the sentencing court, and the
deferential stance we
adopt in applying the clearly erroneous standard of review, we cannot say
the District
Court's finding was reversible error.
                              II.
     For the foregoing reasons, we will affirm the District Court's
judgment of
sentence.
___________________
TO THE CLERK:
          Please file the foregoing opinion.

              /s/ Delores K. Sloviter
               Circuit Judge
