                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 16-1244
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                FRANCISCO LOPEZ
                              aka Luis Armando Garcia

                                    Francisco Lopez,
                                             Appellant
                                   _____________


                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        District Court No. 2-11-cr-00684-003
                   District Judge: The Honorable Paul S. Diamond

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 19, 2018

        Before: SMITH, Chief Judge, HARDIMAN, and ROTH, Circuit Judges

                                (Filed: July 24, 2018)

                              _____________________

                                     OPINION*
                              _____________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.

                                              I.

       Francisco Lopez was convicted of marijuana distribution and money laundering

offenses. On appeal, he argues that: (1) his Sixth Amendment right to confrontation was

violated when a government agent presented testimonial statements from an out-of-court

declarant; (2) hearsay was admitted in violation of Federal Rule of Evidence

801(d)(2)(E); and (3) the District Court erroneously applied an “organizer/leadership

role” enhancement at sentencing. We conclude that neither the Confrontation Clause nor

Rule 801 was violated, and that the District Court did not commit plain error in imposing

the sentencing enhancement.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because we write for

the parties only, we need not recite the facts or procedural history of this case.

                                             III.

       Lopez argues that, at trial, the Government introduced statements from a

cooperating co-defendant, Jorge Murillo, through the in-court testimony of Special Agent

William Crogan. Lopez posits that Murillo’s statements were “testimonial” under

contemporary Confrontation Clause doctrine, and that because Murillo himself did not

testify, Lopez had no opportunity to confront Murillo’s statements. We exercise plenary

review over Confrontation Clause challenges. United States v. Berrios, 676 F.3d 118,

125 (3d Cir. 2012).
                                              2
      Lopez fails to identify which of Murillo’s statements, exactly, were introduced at

trial. However, Lopez does argue that “allowing Murillo’s statements made to Special

Agent Crogan, that Lopez was a high level distributor who coordinated deliveries of

tractor trailer truckloads of marijuana from Mexico . . . violated [Lopez’s] Sixth

Amendment right to confront the witnesses against him.” Lopez Br. 17. As an example

of testimony that violated his Confrontation Clause right, Lopez cites the testimony of

Special Agent Crogan, in which he testified to the “significance” of a label on a bale of

marijuana. Id. at 20 (citing JA 187–88).

      Special Agent Crogan noted that the label could be used to track the bale, “just

like a [sic] UPS package,” and that he “kn[e]w in—in going through this investigation

that most marijuana—this marijuana came from Mexico and a lot of marijuana that

comes from Mexico is smuggled in bulk form on tractor trailer commercial trucks.” JA

187–88. This testimony was relevant because Lopez was alleged to have smuggled

marijuana on tractor trailers that originated from Mexico. Notably missing from Special

Agent Crogan’s testimony is any mention of statements made by Murillo. Special Agent

Crogan did not, for example, testify that Murillo told him about the label on the

marijuana. Rather, Special Agent Crogan mentions twice that his knowledge of the label

stemmed from his “training and experience.”1



1
  JA 188 (“I know based on my training and experience that this tracks the type of
marijuana this is and perhaps the owner that delivered it and—and also the
customer who’s—who’s ultimately going to take control of it.”); id. (“[I]n my
training and experience, I’ve been involved in investigations that marijuana can be
transported a bunch of different ways, it depends on where it comes from. I know
                                           3
      Lopez essentially argues that Special Agent Crogan lied. Specifically, Lopez

argues that Special Agent Crogan did not connect the marijuana to Mexico and tractor

trailers because of his training, but rather because he knew of Murillo’s statements to

Government investigators indicating such a connection. But at trial Lopez had the

opportunity to confront Special Agent Crogan and test his veracity before the finder of

fact by asking Crogan to explain the basis for his statements. Had Special Agent Crogan

said, for example, that “Murillo told me this marijuana was from Mexico,” then our

analysis would be different, since the Government would have been introducing

testimonial statements by Murillo without providing Lopez the opportunity to confront

those testimonial statements.2 No such statements by Murillo were admitted. In light of

Lopez’s opportunity to confront Special Agent Crogan at trial, we hold that the

Confrontation Clause was not violated.



in—in going through this investigation that most marijuana—this marijuana came
from Mexico and a lot of marijuana that comes from Mexico is smuggled in bulk
form on tractor trailer commercial trucks and you can fit a lot of contraband or
drugs on—on a tractor trailer. This is what—this is all what this—this label means
to me.”).
2
  Murillo’s statements were made to government investigators during interrogation
and pre-trial proceedings. They therefore qualify as “testimonial” statements under
contemporary Confrontation Clause doctrine, Ohio v. Clark, 135 S. Ct. 2173, 2180
(2015), and would have required confrontation had the Government sought to
introduce them at trial. See Berrios, 676 F.3d, at 127 (“[O]ur Confrontation Clause
inquiry is twofold. First, a court should determine whether the contested statement
by an out-of-court declarant qualifies as testimonial under Davis[ v. Washington,
547 U.S. 813 (2006)] and its progeny. Second, the court should apply the
appropriate safeguard. If the absent witness’s statement is testimonial, then the
Confrontation Clause requires “unavailability and a prior opportunity for cross-
examination.” Crawford [v. Washington], 541 U.S. [36,] 68 [(2004)]. If the
                                          4
                                            IV.

       Lopez next argues that statements made to Karla Leon by non-testifying co-

defendants Jorge Murillo and Cesar Vega-Castro should have been excluded from

evidence because those statements were hearsay statements that were not made in

furtherance of the conspiracy. The admissibility of such evidence is governed by Federal

Rule of Evidence 801(d)(2)(E), which provides:

              Rule 801. Definitions That Apply to This Article;
              Exclusions From Hearsay
              ...
              (d) Statements That Are Not Hearsay. A statement that
              meets the following conditions is not hearsay:
              ...
              (2) An Opposing Party’s Statement. The statement is
              offered against an opposing party and:
              ...
                      (E) was made by the party’s coconspirator during and
                      in furtherance of the conspiracy.
              The statement must be considered but does not by itself
              establish the . . . existence of the conspiracy or participation
              in it under (E).

Fed R. Evid. 801(d)(2)(E). This Court has previously made clear that a coconspirator

statement may be admitted under Rule 801(d)(2)(E) if it meets three conditions: “(1)

there must be independent evidence establishing the existence of the conspiracy and

connecting the declarant and defendant to it; (2) the statement must have been made in

furtherance of the conspiracy; and (3) it must have been made during the course of the

conspiracy.” United States v. Ammar, 714 F.2d 238, 245 (3d Cir. 1983). Lopez takes

issue with the Government’s ability to satisfy the second prong of this three-pronged test,


statement is nontestimonial, then admissibility is governed solely by the rules of
                                             5
arguing that “the statements regarding [his] alleged role in the offense or the alleged

source and size of the marijuana deliveries were not statements made ‘in furtherance of’

any conspiracy.” Lopez Br. 30.

       The heart of Lopez’s argument is that, while two conspiracies were at play at trial

(i.e., the drug distribution conspiracy and the money laundering conspiracy) Karla Leon

was only charged with participation in the latter conspiracy, but nonetheless testified to

the first. Lopez argues, for example, that “Leon testified that Murillo identified Lopez as

‘the boss’ of the drug conspiracy,” as well as “that Murillo told her the drugs came from

Mexico in tractor trailers,” and that “she was told by Vega-Castro that people in Mexico

were very upset that Murillo was talking to law enforcement after his arrest.” Lopez Br.

28.

       Lopez’s argument proves unpersuasive. To start, “[t]he law is well settled that out-

of-court statements may be admissible under Rule 801(d)(2)(E) even if the defendant is

not formally charged with any conspiracy in the indictment.” United States v. Ellis, 156

F.3d 493, 497 (3d Cir. 1998). Further, “[s]tatements are admissible under [Rule

801(d)(2)(E)] even if the basis for admission is a conspiracy different from the one

charged.” United States v. Turner, 718 F.3d 226, 231 (3d Cir. 2013) (internal quotation

marks omitted). Our Rule 801 analysis is therefore unaffected by the Government’s

decision to refrain from formally charging Leon with participating in both of the relevant

conspiracies.



evidence.” (footnote omitted)).
                                            6
       Although the Government did not charge Leon regarding the drug distribution

conspiracy, the Government argues that she played “an integral role” in that conspiracy

by “moving a huge amount of proceeds obtained by” that conspiracy. Gov’t Br. 27. It

follows, according to the Government, that Leon “certainly participated in the drug

conspiracy.” Id. We agree with the Government.3 As an un-charged member of the drug

distribution conspiracy, the would-be hearsay included in Leon’s statements qualified

under the coconspirator exception of Rule 801(d)(2)(E). The statements were therefore

not hearsay, and were properly admitted into evidence. The fact that Leon was not

charged for participating in both conspiracies does not mean that she was not a member

of both conspiracies. It just means that, in light of Leon’s value as a cooperating witness,

the Government chose not to charge her for all of the crimes that she was alleged to have

committed. JA 323–27 (referring to plea agreement).

       Although Lopez argues that Leon’s statements were not “in furtherance” of the

conspiracy, this Court has made clear that “[s]tatements between conspirators which . . .

inform each other of the current status of the conspiracy further the ends of the

conspiracy.” Amar, 714 F.2d, at 252. Knowing who “the boss” of the conspiracy was,


3
 See, e.g., JA 335–37 (Q. So, what did he, what did Mr. Murillo tell you that he
and Cesar were doing? A. They were the ones making deposits at the banks here
and in New York. . . . Q. And did there come a time when he told you what the
money was from? A. Yes. Q. And when was that approximately? A. That was
when he came—he went to Tucson and we met in person . . . . [H]e kind of told me
everything and he said that they were doing drugs or they were selling drugs or
getting loads of drugs here . . . Q. So, I’m going to back you up a little bit back to
when he was asking to use your account. So, did you agree to let your account be
used? A. I did.”).
                                             7
where the drugs came from, and that those near the source of the drugs were “very upset”

about law enforcement snooping around into the conspiracy are all statements made in

furtherance of the drug distribution conspiracy.

       But whether or not Leon was a member of the drug distribution conspiracy, her

statements were also in furtherance of the money laundering conspiracy with which she

was formally charged. As the Government argues, “a person engaged in [the type of]

extensive money laundering asked of [Leon] certainly needed to know where the money

was coming from, and who the other participants and leaders were.” Gov’t Br. 27. We

agree. Having this information allowed Leon to “kn[o]w who to trust and also

underst[and] the vital need for secrecy in the endeavor.” Id. We hold that the statements

referred to by Leon were therefore made in furtherance of both conspiracies, and were

properly admitted under Rule 801(d)(2)(E).4




4
  Importantly, Lopez only objected to one co-conspirator statement made by Leon.
The factual determinations underlying whether that statement that is statement of a
coconspirator under Rule 801 is therefore reviewed under the clear error standard
of review. United States v. Vega, 285 F.3d 256, 264 (3d Cir. 2002). By
comparison, unpreserved objections are reviewed for plain error. United States v.
Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002). Lopez argues that he only objected
once because after his first objection the District Court told him that it would be
“pointless.” Lopez Br. 27. This explanation does not excuse trial counsel from
failing to make objections when appropriate and in the best interest of their client.
Moreover, when considered in its proper context, the District Court’s actual
statement appears far less ominous than Lopez would have us believe. JA 282
(“Indeed, all of these writings are statements in furtherance—furtherance of a
conspiracy, which is why I assume [defense counsel] didn’t object, because it
would have been a pointless objection.”). We conclude that under either standard
of review, the statements were properly admitted.
                                              8
                                             V.

       Finally, Lopez also contends that the District Court “erroneously applied an

‘organizer/leadership role’ enhancement” under § 3B1.1(a) of the United States

Sentencing Guidelines. Lopez Br. 32. We disagree.

       In his opening brief, Lopez argues that we should review this argument de novo.

The Government responds that plain error review applies. In reply, Lopez acknowledges

that “counsel did not cite the application note in his objections to the Presentence

Report.” Lopez Reply Br. 3. Nevertheless, Lopez insists that de novo review applies

because he made “the identical factual arguments” in the District Court. Id. Lopez’s

attempt to salvage a more favorable standard of review is unpersuasive. In the District

Court he challenged the application of the leadership enhancement of § 3B1.1(a) by

arguing that the evidence was insufficient to support it. Because this is an entirely

different argument than the one he raises on appeal, plain error review applies.

       In support of his claim that § 3B1.1(a) does not apply to him, Lopez relies heavily

on United States v. Salgado, 745 F.3d 1135 (11th Cir. 2014), where the Eleventh Circuit

reversed the district court’s application of § 3B1.1 to a defendant who had been convicted

on both drug conspiracy and money laundering conspiracy charges. Id. at 1136. The

Eleventh Circuit reasoned that the district court ran afoul of Application Note 2(c) to §

2S1.15 of the Sentencing Guidelines because the district court based the enhancement on

conduct related to the “heroin deal” at the heart of the conspiracy. Id. at 1137-38, 1140.


5
 That application notes provides: “Notwithstanding § 1B1.5(c), in cases in which
subsection (a)(1) applies, application of any Chapter Three adjustment shall be
                                              9
       But unlike in Salgado, where the enhancement was based solely on the

defendant’s role in the drug conspiracy, id. at 1137, Lopez acknowledges that the District

Court applied the enhancement for his leadership role in “both” the drug and money

laundering conspiracies. Lopez Br. 34–35. His conduct with respect to the money

laundering conspiracy was sufficient on its own to support the application of the

leadership enhancement of § 3B1.1. See, e.g., JA 568 (deposits intended to avoid

detection were made “at defendant’s direction”); JA 571 (money-laundering operation

“was directed by the defendant [and] employed sophisticated means to avoid detection”).

       Even assuming, arguendo, that the District Court committed error by referencing

both conspiracies instead of the money laundering conspiracy alone, we conclude that

any such error was not “plain.” Lopez has not demonstrated a reasonable probability that

the result would have been different had he properly raised this objection before the

District Court. See United States v. Marcus, 560 U.S. 258, 262 (2010). If he had, the

District Court would have likely clarified that Lopez’s leadership of the money-

laundering conspiracy justified the § 3B1.1 enhancement. Further, these circumstances do

not rise to the level of a “miscarriage of justice.” See United States v. Young, 470 U.S. 1,

15 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).6



determined based on the offense covered by this guideline (i.e., the laundering of
criminally derived funds) and not on the underlying offense from which the
laundered funds were derived.” U.S.S.G. § 2S1.1, Comment., App. Note 2(C).
6
  In a letter written pursuant to Federal Rule of Appellate Procedure 28(j), Lopez
argues that the Supreme Court’s recent Rosales-Mireles v. United States opinion
requires recalculation of his sentence. Although Rosales-Mireles provides guidance
as to when a court of appeals should exercise its discretion to correct sentencing
                                             10
                                        VI.

      We hold that neither the Confrontation Clause nor Federal Rule of Evidence 801

was violated. We further hold that the District Court did not commit plain error in

calculating Lopez’s guideline range. The District Court’s judgment will therefore be

affirmed.




errors, Rosales-Mireles is inapplicable because the three preconditions “that must
be met before a court may consider exercising its discretion to correct the error”
have not been met in this appeal. Rosales-Mireles v. United States, No. 16-9493,
2018 WL 3013806, at *5 (U.S. June 18, 2018). Namely, Lopez has failed to
establish that the alleged sentencing error was plain. Id. (“[T]he error must be
plain—that is to say, clear or obvious.”) (quoting Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016)).
                                        11
