                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10237

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00061-HDM-WGC-2
 v.

EDWARD SMITH, AKA Smitty,                       MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                             Submitted July 17, 2020**
                             San Francisco, California

Before: SILER,*** LEE, and BUMATAY, Circuit Judges.

      Edward Smith appeals from the district court’s judgment and sentence

following his trial, where the jury convicted him on six counts pertaining to money



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
laundering and a conspiracy to distribute methamphetamine. Smith raises a

sufficiency of the evidence challenge to his money laundering conviction and

contests three aspects of his sentence. We affirm.

1.    With regard to his sufficiency of the evidence claim, Smith alleges that no

rational jury could have convicted him of money laundering because the

government failed to prove that the $1,500 transfer to his coconspirator, Andres

Rodriguez, constituted proceeds of unlawful activity. Where the defendant fails to

renew his motion for a judgment of acquittal after the presentation of all the

evidence, his sufficiency of the evidence challenge is deemed forfeited and is

reviewed for plain error. See United States v. Flyer, 633 F.3d 911, 917 (9th Cir.

2011). To sustain a conviction for money laundering under 18 U.S.C. §

1956(a)(1), the government must prove beyond a reasonable doubt that the

defendant “(1) engaged in a financial transaction which involved proceeds from

specified illegal activity, (2) knew the proceeds were from illegal activity, and (3)

intended the transaction either to promote the illegal activity or to conceal the

nature, source, or ownership of the illegal proceeds.” United States v. Marbella,

73 F.3d 1508, 1514 (9th Cir. 1996). Under the money laundering statute, the term

“proceeds” means “any property derived from or obtained or retained, directly or

indirectly, through some form of unlawful activity, including the gross receipts of

such activity.” 18 U.S.C. § 1956(c)(9).



                                           2                                     19-10237
      While Smith was not the person who executed the $1,500 wire transfer to

Rodriguez, he was the person who called Rodriguez with the information needed to

retrieve the money from Wells Fargo, told Rodriguez the transfer was to reimburse

him for drugs he smuggled to Smith in prison, and gave Rodriguez the identity of

the person transferring the money. There is sufficient evidence to support the

jury’s finding that Smith was the source of the money sent via wire transfer.

Further, with regard to Smith’s argument that the government failed to prove the

wire transfer constituted proceeds from unlawful activity under § 1956, we have

explained that “[i]t is permissible to infer from [evidence that the defendant was

involved in a drug conspiracy], along with the lack of any evidence demonstrating

a legitimate source of income, that the funds were drug proceeds.” United States v.

Arteaga, 117 F.3d 388, 390 n.2 (9th Cir. 1997). Smith was a prison inmate who

did not have a legitimate source of income and was involved in a drug distribution

conspiracy.

2.    Turning to Smith’s sentence, he challenges two of the enhancements

imposed by the district court and argues that his sentence of 235 months’

imprisonment is substantively unreasonable. “We review the district court’s

interpretation of the sentencing guidelines de novo, its application of the guidelines

to the facts of the case for abuse of discretion, and its factual findings for clear

error.” United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007).



                                            3                                     19-10237
      Smith first argues that the district court erred in applying the

leader/organizer enhancement to him under USSG § 3B1.1(c) because he did not

exercise control or influence over Rodriguez in the execution of the drug deals

with “Javier.”1 The district court applied the two-level enhancement because it

found that Smith was “certainly an organizer” with respect to the drug conspiracy.

For a defendant to qualify as an “organizer” under § 3B1.1(c), there must be

“evidence that [1] the defendant exercised some control over others involved in the

commission of the offense or [2] was responsible for organizing others for the

purpose of carrying out the crime.” United States v. Whitney, 673 F.3d 965, 975

(9th Cir. 2012) (citation omitted). Smith coordinated the deal, set the price, and

convinced Rodriguez to sell to Javier. Therefore, the district court did not commit

clear error in finding Smith to be an organizer under USSG § 3B1.1(c).

      Next, Smith asserts that the district court erred in applying the USSG §

2D1.1(b)(4) enhancement to him. Under the guidelines, a two-level increase is

added to the base offense level “[i]f the object of the offense was the distribution of

a controlled substance in a prison, correctional facility, or detention facility.”

USSG § 2D1.1(b)(4). Smith asked Rodriguez to provide him with illegal narcotics

for distribution while he was imprisoned. Nevertheless, Smith argues that the



      1
      Unbeknownst to Smith and Rodriguez, Javier was a Drug Enforcement
Administration informant named Roberto Contreras.

                                           4                                     19-10237
object of his conspiracy was for Rodriguez to sell methamphetamine to Javier

outside of prison. But the record confirms that the object of the conspiracy was for

Smith to organize the drug deals between Rodriguez and Javier so that Rodriguez

would smuggle methamphetamine to Smith in prison. The district court did not

abuse its discretion in applying the § 2D1.1(b)(4) enhancement.

      Finally, Smith challenges his sentence as substantively unreasonable because

of the large disparity between his sentence of 235 months’ imprisonment and the

sentence of 156 months’ imprisonment of his coconspirator Rodriguez. The

district court noted that it had considered all of the 18 U.S.C. § 3553(a) factors,

compared Smith’s and Rodriguez’s roles in the conspiracy, and discussed the

potential disparity between Smith’s sentence and Rodriguez’s sentence.

Ultimately, because of the disparity between the sentences, the district court

sentenced Smith to 235 months’ imprisonment—a sentence at the bottom of the

guidelines range. Rodriguez’s cooperation with the government and acceptance of

responsibility are what created the sentencing disparity. We have held that “so

long as there is no indication the defendant has been retaliated against for

exercising a constitutional right,” the government may offer leniency to those who

enter pleas and cooperate with prosecutors. United States v. Carter, 560 F.3d

1107, 1121 (9th Cir. 2009) (citation omitted). Smith does not argue that his

sentence was imposed in retaliation for exercising his constitutional rights. “The



                                           5                                     19-10237
difference in sentences, therefore, does not establish that [Smith’s] sentence was

substantively unreasonable.” United States v. Laurienti, 731 F.3d 967, 976 (9th

Cir. 2013). Accordingly, the district court did not abuse its discretion in imposing

Smith’s sentence.

      AFFIRMED.




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