           Case: 16-16979    Date Filed: 12/15/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16979
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket Nos. 1:15-cv-22093-JEM,
                         1:09-cr-21010-JEM-2


CARLOS RODRIGUEZ,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (December 15, 2017)

Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Carlos Rodriguez, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate. This Court granted a

certificate of appealability (“COA”) on the following issue:

            Whether the district court committed an error under
            Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc),
            by failing to address Mr. Rodriguez’s constitutional
            claim that counsel and appellate counsel were ineffective
            for failing to challenge the sufficiency of the evidence as
            to the count of conspiracy to commit money-laundering.

On appeal, Rodriguez maintains that the district court violated Clisby.          The

government responds that no Clisby error occurred because the court adequately

addressed the claims Rodriguez presented. After careful review, we agree with the

government and therefore affirm the denial of Rodriguez’s § 2255 motion.

                                         I.

      After a jury trial, Rodriguez was convicted of numerous offenses arising

from a kickback scheme involving an instrumentality of the Haitian government.

The offenses included conspiracy to violate the Foreign Corrupt Practices Act

(“FCPA”) and commit wire fraud, in violation of 18 U.S.C. § 371; multiple

substantive violations of the FCPA, 15 U.S.C. § 78dd-2; conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956; and multiple substantive acts

of concealment money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

      We affirmed Rodriguez’s convictions and sentences on direct appeal.

United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014). According to the
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evidence presented at trial, Rodriguez and his codefendant, Joel Esquenazi, co-

owned Terra Telecommunications Corp. (“Terra”), a Florida company that bought

phone time from foreign vendors and resold the minutes to customers in the United

States. Id. at 917. Rodriguez was the company’s minority owner and served as

Executive Vice President of Operations. Id.

      One of Terra’s main vendors was Telecommunications D’Haiti, S.A.M.

(“Teleco”), which was an instrumentality of the Haitian government. Id. at 917.

By October 2001, Terra owed Teleco over $400,000. Id. at 918. So, in 2001,

Esquenazi asked Antonio Perez, Terra’s comptroller, to negotiate a deal with

Teleco’s Director of International Relations, Robert Antoine, to ease the debt. Id.

The gist of the deal was that Teleco “would shave minutes from Terra’s bills to

Teleco in exchange for receiving from Terra fifty percent of what the company

saved.” Id. Antoine suggested that Terra disguise the payments by making them

to sham companies, which Terra ultimately did. Id.

      Perez testified that, after the deal was made, he met with Rodriguez,

Esquenazi, and one other person to inform them that Antoine had agreed to accept

side payments in exchange for reducing Terra’s bills. Id. During that meeting,

Perez testified, Rodriguez congratulated him on “a job well done.”              Id.

Subsequently, Rodriguez authorized payments to Antoine’s associates, both of

whom testified that they would in turn transfer the money to Antoine. Id. at 918–


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19. After Jean Duperval replaced Antoine as Director General, Rodriguez made

payments to Duperval through a shell corporation that Duperval formed with

Esquenazi’s assistance. Id. at 919.

      In his direct appeal, Rodriguez raised, among other issues, whether the

district court improperly gave the jury a “deliberate-ignorance instruction.” Id. at

930. He maintained that he lacked knowledge of Terra’s illegal activity and that

such an instruction was proper only when there was evidence that the defendant

avoided knowledge of the illegality of the payment. Id. at 930–31. Although we

agreed with Rodriguez that the instruction was improper, we found the error

harmless “in light of the overwhelming evidence Mr. Rodriguez had actual

knowledge he was authorizing unlawful payments.” Id. at 931 (emphasis omitted).

      After we decided his direct appeal, Rodriguez filed in June 2015 a pro se 28

U.S.C. § 2255 motion and a supporting memorandum raising several claims of

ineffective assistance of trial and appellate counsel. In relevant part, Rodriguez

alleged that trial and appellate counsel were ineffective for failing to challenge the

sufficiency of the evidence that he (1) knowingly and voluntarily participated in an

agreement to commit money laundering and (2) knew the transactions were

designed to conceal the nature, location, source ownership, or control of the

proceeds. In the section of his memorandum discussing his claim against appellate

counsel, Rodriguez asserted that “[t]he complete lack of evidence demonstrating


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that Movant had any knowledge of the true purpose of the check or wire

payments” precluded a finding that Rodriguez “had any knowledge of such a

scheme” or that he “was guilty of the concealment money laundering counts.”

      The government, in response, argued that “there was copious evidence that

Rodriguez had knowledge that the transactions were designed to conceal the

nature, location, source, ownership, and control of the proceeds and that Rodriguez

knowingly joined this conspiracy.” Rodriguez replied that the evidence cited by

the government was inadequate to prove that he knowingly and voluntarily joined

a money-laundering conspiracy.

      A magistrate judge issued a report and recommendation (“R&R”)

recommending that Rodriguez’s § 2255 motion be denied. The magistrate judge

described the relevant claim as whether “both trial and appellate counsel were

ineffective for failing to argue that the evidence was insufficient to show that he

had knowledge that the financial transactions were designed to conceal unlawful

activity.”   The magistrate judge did not expressly address whether Rodriguez

knowingly and voluntarily joined a scheme to commit money laundering.

      The magistrate judge found that trial counsel was not deficient because the

record showed that counsel argued at trial that there was insufficient evidence that

Rodriguez had knowledge of the illegal nature of the payments or that he

“knowingly, intentionally engaged in a monetary transaction with the intent to


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conceal the funds.” As for appellate counsel, the magistrate judge found that

Rodriguez had not shown prejudice because, on direct appeal, this Court, in

addressing a related claim, found overwhelming evidence that Rodriguez had

actual knowledge of the unlawful nature of his payments. The magistrate judge

reasoned that, in light of this Court’s finding, “it is clear that had the issue been

raised, the court would have rejected it.”

      Over Rodriguez’s objections, the district court adopted the magistrate

judge’s R&R and denied Rodriguez’s § 2255 motion. Rodriguez now brings this

appeal, for which we granted the COA set out above.

                                         II.

      When reviewing the district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo. Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004). Because Rodriguez filed his § 2255

motion pro se, we construe his allegations liberally. Winthrop-Redin v. United

States, 767 F.3d 1210, 1215 (11th Cir. 2014).

      District courts must resolve all claims for relief raised in a § 2255 motion,

regardless of whether habeas relief is granted or denied. See Clisby v. Jones, 960

F.2d 936, 935–36 (11th Cir. 1992) (en banc); Rhode v. United States, 583 F.3d

1289, 1291 (11th Cir. 2009) (extending Clisby to § 2255 motions). A claim for

relief is “any allegation of a constitutional violation.” Clisby, 960 F.2d at 936.


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Multiple alleged constitutional violations may arise out of the same set of operative

facts. Id. A defendant presents a claim for relief when he alleges that counsel

provided ineffective assistance in violation of his Sixth Amendment rights. See

Strickland v. Washington, 466 U.S. 668, 685–86 (1984).

      We cannot consider claims that the district court has not resolved in the first

instance. See Clisby, 960 F.2d at 935 (“[R]espondent urged us to consider the

ineffective assistance claims not addressed by the district court. This we clearly

cannot do.”). Instead, when a district court fails to address all claims in a motion

to vacate, we “will vacate the district court’s judgment without prejudice and

remand the case for consideration of all remaining claims.” Id. at 938.

      As relevant here, to sustain a conviction for concealment money laundering

under 18 U.S.C. § 1956(a)(1)(B)(i), the government must prove, among other

things, that the defendant “knew a purpose of the [financial] transaction was to

conceal or disguise the nature, location, source, ownership, or control of” proceeds

of unlawful activity. United States v. Miles, 290 F.3d 1341, 1355 (11th Cir. 2002).

      To sustain a conviction for conspiracy to commit money laundering under

18 U.S.C. § 1956(h), the government must prove that (1) an agreement existed

between the defendant and another to violate § 1956(a)(1)(B)(i); and (2) the

defendant, knowing the unlawful plan, voluntarily joined the conspiracy. See

United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005). “The existence of


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an agreement may be proven by circumstantial evidence, including inferences from

the conduct of the alleged participants or from circumstantial evidence of a

scheme.” Id. (internal quotation marks omitted).

                                         III.

      Here, we conclude that the district court did not violate Clisby. As we have

noted, Rodriguez’s § 2255 motion alleged in relevant part two sets of ineffective-

assistance claims (against both trial and appellate counsel), based on the failure to

challenge the sufficiency of the evidence that he (1) knowingly and voluntarily

participated in an agreement to commit money laundering; and (2) knew the

transactions were designed to conceal the nature, location, source ownership, or

control of the proceeds. The magistrate judge’s R&R, later adopted by the district

court, expressly addressed the second set of these claims but not the first.

      Nevertheless, Rodriguez’s filings below show that the contention underlying

both sets of claims was that the evidence failed to prove that he had knowledge that

the transactions were designed to conceal illegal activity. For instance, in the

memorandum filed along with his § 2255 motion, Rodriguez argued that appellate

counsel was ineffective for failing to argue evidentiary sufficiency on appeal

because “[t]he complete lack of evidence demonstrating that Movant had any

knowledge of the true purpose of the check or wire payments” precluded findings

that Rodriguez “had any knowledge of such a scheme” and that he “was guilty of


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the concealment money laundering counts.” And it makes sense for Rodriguez to

focus on his knowledge of the purpose of the transactions, because a conspiratorial

agreement could be inferred from the fact that he made the payments with

knowledge that they were designed to conceal the proceeds of unlawful activity.

See Silvestri, 409 F.3d at 1328.

       Because the crux of Rodriguez’s ineffective-assistance claims was that he

lacked knowledge that the financial transactions he engaged in were designed to

conceal the unlawful source of the proceeds, the district court did not violate

Clisby by treating that issue as effectively dispositive of both sets of claims. While

the district court did not go further and expressly address the conspiracy count, we

infer from the context that the court intended to and did resolve Rodriguez’s

constitutional claim that counsel and appellate counsel were ineffective for failing

to challenge the sufficiency of the evidence as to the count of conspiracy to

commit money laundering.1

       Accordingly, we answer the COA in the negative and conclude that the

district court did not violate the rule of Clisby. We therefore affirm the denial of

Rodriguez’s § 2255 motion.

       AFFIRMED.

       1
          The merits of the magistrate judge’s determination are not before us because they are
outside the scope of the COA, which is limited to whether Clisby error occurred. See Murray v.
United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (“Appellate review is limited to the issues
specified in the COA.”).
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