     Case: 15-40765      Document: 00513438941         Page: 1    Date Filed: 03/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40765
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 25, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN ANGULO MORA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-362-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Juan Angulo Mora (Angulo) was convicted of one count of bulk cash
smuggling in violation of 31 U.S.C. § 5332 and received a within-guidelines
sentence of 18 months of imprisonment and a three-year term of supervised
release. Angulo challenges the $160,000 forfeiture order, arguing that the
district court erred by rejecting his argument that the U.S.S.G. § 2S1.3(b)(3)




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-40765

safe harbor provision applied and by concluding that the forfeiture did not
violate the Excessive Fines Clause of the Eighth Amendment.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. See United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Under § 2S1.3(b)(3),
the offense level will be decreased to six if: (1) “subsection (a)(2) applies and
subsections (b)(1) and (b)(2) do not apply;” (2) Angulo “did not act with reckless
disregard of the source of the funds; (3) “the funds were the proceeds of lawful
activity; and” (4) “the funds were to be used for a lawful purpose.” Angulo’s
total offense level was 15, which included a two-level increase pursuant to
§ 2S1.3(b)(1)(B) because the offense involved bulk cash smuggling.            The
application of the § 2S1.3(b)(1)(B) enhancement means that the safe harbor
provision cannot apply. See § 2S1.3(b)(3)(A). As Angulo does not challenge the
application of the § 2S1.3(b)(1)(B) enhancement, he cannot demonstrate that
the district court erred in denying his request for a reduction under
§ 2S1.3(b)(3).   See Cisneros-Gutierrez, 517 F.3d at 764; United States v.
Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010) (concluding that the failure to
brief an argument sufficiently results in its waiver).
      “[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly
disproportional to the gravity of a defendant’s offense.”       United States v.
Bajakajian, 524 U.S. 321, 334 (1998).       Among the factors that the Court
considered in Bajakajian in making the proportionality determination were:
(a) the essence of the defendant’s crime and its relationship to other criminal
activity; (b) whether the defendant was within the class of people for whom the
statute of conviction was principally designed; (c) the maximum sentence,
including the fine that could have been imposed; and (d) the nature of the harm
resulting from the defendant’s conduct. See id. at 337-39; see also United



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                                 No. 15-40765

States v. Wallace, 389 F.3d 483, 485-88 (5th Cir. 2004). We review de novo the
district court’s proportionality determination and for clear error the district
court’s factual findings. Bajakajian, 524 U.S. at 336-37 & n.10; United States
v. Wyly, 193 F.3d 289, 303 (5th Cir. 1999).
      With respect to the first Bajakajian factor, the essence of Angulo’s crime
was bulk cash smuggling in violation of § 5332(a), not a reporting offense like
the defendant in Bajakajian, and the $160,000 at issue was the
instrumentality of his crime. See USA PATRIOT Act, Pub. L. No. 107―56,
§ 371(a)(6), 115 Stat. 272 (2001). Congress has stated that cash smuggling is
related to other criminal activity, as it “is one of the most reliable warning
signs of drug trafficking, terrorism, money laundering, racketeering, tax
evasion and similar crimes.” PATRIOT ACT § 371(a)(3), 115 Stat. 272.
      As to the second Bajakajian factor, the district court found that Angulo
was within the class of individuals targeted by the statute. Emphasizing the
manner of Angulo’s transportation of the money, the district court stated that
Angulo fit the profile of a bulk cash courier. The district court discounted
Angulo’s assertion that the money was his life savings which he withdrew over
time, noting that the series of $100 bills found dated back only to 1996; that
Angulo’s claim of savings was somewhat fantastic given that he claimed from
seven to nine dependents on his tax returns; and the fact that Angulo had a
serious drinking problem.     Other testimony from the forfeiture hearing
supported the district court’s conclusion that the money was not Angulo’s life
savings. Angulo had a negative monthly cash flow and owed medical, child
support, and credit card debts. Further, in contravention of his claim that he
withdrew his paychecks after they were deposited, Angulo had two receipts in
his possession demonstrating that he had deposited a total of $14,300 in
September 2013 and January 2014, but possessed no bank documents



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                                 No. 15-40765

indicating the money was subsequently withdrawn. The district court did not
clearly err in making the finding that Angulo was within the class of
individuals targeted by the statute. See Wyly, 193 F.3d at 393.
      As to the third Bajakajian factor, the maximum statutory fine that could
be imposed was $250,000, 31 U.S.C. § 5322(a), and the maximum Guidelines
fine for a total offense level of 15 was $40,000, U.S.S.G. § 5E1.2(c)(3) (2014).
While the $160,000 forfeited was four times the maximum guidelines fine, the
amount forfeited was well within the statutory maximum fine of $250,000. See
§ 5E1.2(c)(3); § 5322(a). We have cited with approval an Eleventh Circuit case
which stated that “if the value of the forfeited property is within the range of
fines prescribed by Congress, a strong presumption arises that the forfeiture
is constitutional.” Wallace, 389 F.3d at 486 (quoting United States v. 817 N.E.
29th Drive, 175 F.3d 1304, 1309 (11th Cir. 1999)). Angulo has not rebutted
this presumption. See id. at 486-88. Finally, as to the fourth Bajakajian factor,
the nature of the harm caused by Angulo’s conduct, Congress has emphasized
the seriousness of bulk cash smuggling and its relationship to other types of
criminal activity such as terrorism, tax evasion, money laundering, and drug
trafficking. See PATRIOT ACT § 371(a)(5), 115 Stat. 272.
      The district court did not clearly err in its factual findings with respect
to the proportionality determination, nor did the district court err in
concluding that the forfeiture was not grossly disproportionate.              See
Bajakajian, 524 U.S. at 337 n.10; Wyly, 193 F.3d at 303.
      AFFIRMED.




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