     Case: 12-41217      Document: 00512520518         Page: 1    Date Filed: 02/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                      No. 12-41217                           February 3, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee
v.

JUAN LUIS RAMIREZ; ALEJANDRO CABRERA; JORGE SALAS-LEYVA,
also known as Jorge Sala

                                                 Defendants-Appellants




                  Appeals from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:10-CR-140-3


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Juan Luis Ramirez, Alejandro Cabrera, and Jorge Salas-Leyva appeal
their convictions for drug and money laundering conspiracy. Ramirez and
Salas-Leyva also challenge their sentences. The Government concedes error
on the sufficiency of the evidence for the money laundering conspiracy as to
Cabrera.     We agree and find no other error.            We therefore AFFIRM the
convictions for the drug conspiracy as to all defendants and the money


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41217
laundering conspiracy as to Ramirez and Salas-Leyva, but we REVERSE
Cabrera’s conviction for money laundering conspiracy and REMAND for
resentencing.
                                           I.
      Cabrera argues first that his prosecution in the instant case violated his
plea agreement with the Government in a prior case.              “Whether the
Government has breached a plea agreement is a question of law we review de
novo.” United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011).
      In the prior case, Cabrera pleaded guilty to an indictment charging him
with conspiracy to distribute methamphetamine. In return for the plea, the
Government agreed not to prosecute Cabrera in the Eastern District of Texas
for other charges based on conduct underlying the plea.            The instant
prosecution was not a breach of the agreement because, although one of the co-
defendants overlapped in the two cases, the conduct underlying the two
offenses was not the same.     In the methamphetamine case, Cabrera was
charged with a conspiracy lasting from 2007 through July 23, 2009, to
distribute 500 grams or more of a mixture or substance containing
methamphetamine, and that as part of the offense Cabrera possessed one
pound of methamphetamine on July 23, 2009. The factual basis for the offense
showed that Cabrera and another defendant intended for a third individual to
sell the methamphetamine in Longview or Shreveport. In the instant case,
Cabrera was charged with a much larger conspiracy lasting from January 2006
through July 13, 2011, to distribute five kilograms or more of cocaine, and with
conspiracy to commit money laundering, in the Eastern District of Texas.
Given the different time frames, co-defendants, controlled substances, and
general locations of the two offenses, it would not be reasonable for Cabrera to
believe that his plea agreement in the methamphetamine case barred his
prosecution for the instant cocaine offense. See, e.g., United States v. Lewis,
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                                 No. 12-41217
476 F.3d 369, 387-88 (5th Cir. 2007) (an alleged breach of a plea agreement is
determined in part based on defendant’s reasonable understanding of the
agreement). Furthermore, there was no double jeopardy violation in light of
the different elements to be proven in each case. See Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).
                                           II.
      All three defendants argue that venue was improper in the Eastern
District of Texas. They assert that the evidence at trial showed that the drug
operations and activity were in Dallas, that all co-conspirators lived in Dallas,
and that stash houses were located in Dallas. They contend that the evidence
failed to show that the offenses occurred in the Eastern District of Texas. We
disagree.
      We will affirm a conviction where the defendant challenges venue if,
viewing the evidence in the light most favorable to the Government, a rational
jury could find that the Government established venue by a preponderance of
the evidence. United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir.
2009).   In a conspiracy case, venue is proper in any district where the
agreement was formed or an overt act occurred. Id.
      Here, although many acts in the conspiracies occurred in Dallas, which
is in the Northern District of Texas, there was also evidence of significant acts
occurring within the Eastern District of Texas, especially in and around
Lufkin. The evidence showed that two individuals involved in the conspiracy,
Melesio Noyola and Jonathan Beltran, lived in Lufkin, where multiple-
kilogram shipments of cocaine were delivered. Some of the cocaine was then
further distributed to Louisiana. Money was also delivered to and sent from
Lufkin. These acts were all in furtherance of the conspiracies and supported
venue in the Eastern District of Texas. See id. (“Venue can be based on
evidence of any single act that initiated, perpetuated, or completed the
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                                     No. 12-41217
crime.”); see also 18 U.S.C. § 3237(a). The evidence also supported a conclusion
that Ramirez and others traveled through the Eastern District of Texas in
furtherance of the conspiracy as they distributed cocaine and transported drug
proceeds.   See Garcia Mendoza, 587 F.3d at 687 (regularly transporting
contraband through a district “would support venue, for one co-conspirator’s
travel through a judicial district in furtherance of the crime alleged establishes
venue as to all co-conspirators”).
                                              III.
      All defendants also challenge the sufficiency of the evidence to support
their convictions. Because all three defendants timely moved for a judgment
of acquittal, we review the challenge to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the Government, and asking
whether any rational jury could have found all of the essential elements of the
offense beyond a reasonable doubt. United States v. Davis, 735 F.3d 194, 198
(5th Cir. 2013).
      In order to convict the defendants of the conspiracy to distribute cocaine,
the Government had to prove “(1) an agreement between two or more persons
to violate the narcotics laws, (2) the defendant’s knowledge of the agreement,
and (3) the defendant’s voluntary participation in the conspiracy.” United
States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (internal quotation marks
and citation omitted). The Government also had to prove that the overall scope
of the conspiracy involved at least five kilograms of cocaine. See United States
v. Turner, 319 F.3d 716, 721-22 (5th Cir. 2003).
      The evidence here showed that the defendants were part of a wide-
ranging operation involving the Gulf cartel moving large amounts of cocaine
and money between Mexico and the United States. The operation was headed
in Mexico by Salas-Leyva’s cousin, who was known as El Tigre, and involved


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                                 No. 12-41217
numerous drivers, middlemen, and other participants.             The evidence
incriminated all three defendants in the conspiracy.
      Trial testimony showed that a co-conspirator named Gumercindo
Chavarria delivered multiple shipments of cocaine in quantities of seven to
eight kilograms to Ramirez. Ramirez also made introductions allowing Noyola
and Beltran to sell cocaine to a person named Peter Mingo. Ramirez himself
also delivered cocaine to Mingo for resale in Louisiana.      Noyola, Beltran,
Mingo, and Chavarria all testified to transactions implicating Ramirez.
      With respect to Cabrera, co-conspirators Jesus Jaimes and Jorge
Villegas-Jaimes (Villegas) both testified about deliveries of cocaine to Cabrera
and to Cabrera’s partner, Jose Gaona.      Jaimes testified that he delivered
approximately 120 kilograms of cocaine to both men and that approximately
50 kilograms went directly to Cabrera at Cabrera’s home. Villegas believed
that Cabrera received approximately 70 kilograms. Cabrera argues that the
evidence was insufficient because Jaimes and Villegas were criminals and not
credible. A conviction may be based even on uncorroborated testimony of a co-
conspirator, however, as long as the testimony is not incredible as a matter of
law. See United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006). Because
Jaimes’s and Villegas’s testimony did not relate to facts that the witnesses
could not have observed or to events which could not possibly have happened,
the testimony was not incredible as a matter of law and the evidence was
sufficient. See id.
      The evidence was also sufficient to support the conviction of Salas-Leyva.
Contrary to the defendant’s argument, testimony from Fred Gutierrez showed
that Gutierrez purchased cocaine directly from Salas-Leyva on several
occasions and that on multiple occasions he obtained cocaine from Salas-
Leyva’s brothers, who worked for Salas-Leyva.          Another co-conspirator,
Abraham Barragan-Serrato, testified that at least ten shipments of 30
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                                  No. 12-41217
kilograms of cocaine were sent from Mexico through McAllen to Salas-Leyva.
Furthermore, Chavarria testified that beginning in February 2009, he
delivered seven to eight kilograms of cocaine to Salas-Leyva on two or three
occasions. Jesus Davila also testified that he purchased cocaine from El Tigre
and that in 2007 El Tigre sent him to Salas-Leyva, after which Salas-Leyva
delivered cocaine to Davila and collected the proceeds of Davila’s cocaine sales.
Based on the above, we conclude that the evidence was more than sufficient to
show that the defendants knew about the conspiracy and intentionally joined
in the agreement to distribute five kilograms or more of cocaine.
      In order to convict the defendants of money laundering, the Government
had to prove “(1) that there was an agreement between two or more persons to
commit money laundering; and (2) that the defendant[s] joined the agreement
knowing its purpose and with the intent to further the illegal purpose.” United
States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999). Proof of an overt act is
not required. United States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006). The
indictment here alleged four objects of the conspiracy involving the promotion
of unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (a)(2)(A),
and the concealment of the proceeds of unlawful activity, in violation of 18
U.S.C. § 1956(a)(1)(B)(i) and (a)(2)(B)(i). We will affirm the convictions if the
evidence was sufficient as to one of the objects. Fuchs, 467 F.3d at 906.
      The defendants contend that the evidence was insufficient because it
showed merely that money was transported hidden in vehicles as part of the
drug offense, without the use of wires, financial institutions, or financial
transactions.   They argue that the money was payment for past drug
shipments and that their conduct involved merely concealing the money itself
during transportation rather than transporting money to conceal the nature,
location, source, ownership, or control of the funds. See, e.g., Cuellar v. United
States, 553 U.S. 550, 568, 128 S. Ct. 1994, 2006 (2008); see also
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                                 No. 12-41217
§ 1956(a)(2)(B)(i). The Government contends that, at the least, the evidence
was sufficient to prove promotion money laundering. We agree.
      The sufficiency of the evidence with respect to promotion money
laundering is necessarily a fact-intensive inquiry, dependent on the
circumstances of each case. See United States v. Trejo, 610 F.3d 308, 315 (5th
Cir. 2010). To prove a conviction for money laundering under § 1956(a)(1)(A),
the government must prove that “(1) the financial transaction in question
involves the proceeds of unlawful activity, (2) the defendant had knowledge
that the property involved in the financial transaction represented proceeds of
an unlawful activity, and (3) the financial transaction was conducted with the
intent to promote the carrying on of a specified unlawful activity.” United
States v. Valuck, 286 F.3d 221, 225 (5th Cir. 2002).
      The evidence and circumstances here showed that Ramirez personally
participated in the transportation of multiple shipments of both cocaine and
money concealed in vehicles.     Ramirez was directly compensated for the
transportation. On more than one occasion, he turned the money over to
another co-conspirator for further transportation into Mexico. Ramirez further
directed other participants, such as Noyola and Beltran, on where to deliver
cocaine.   The evidence showed that Salas-Leyva similarly received and
delivered numerous shipments of cocaine. On multiple occasions Salas-Leyva
collected money on behalf of El Tigre and delivered the funds to other co-
conspirators for transportation. Salas-Leyva regularly handled funds in excess
of a quarter million dollars, and at one point he gave Noyola $180,000 to
transport to El Tigre. Ramirez and Salas-Leyva were clearly involved in
multiple financial transactions when they delivered drug proceeds to others.
See United States v. Garcia Abrego, 141 F.3d 142, 161 (5th Cir. 1998)
(transferring over $100,000 to the care or possession of another was a
transaction for purposes of establishing a money laundering offense).
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                                 No. 12-41217
      To show that the defendants had the specific intent to promote unlawful
activity, the Government had to show more than the defendants’ knowing
promotion, but rather that the defendants acted intentionally to promote the
unlawful activity. See Trejo, 610 F.3d at 314. Here, the evidence did more
than show that funds were frequently transported in a manner designed to
prevent detection while en route to Mexico, which undoubtedly promoted the
conspiracy.   More than that, the evidence of Ramirez’s and Salas-Leyva’s
extensive participation in the drug operation, and their leadership roles in the
activity by directing others, supports a conclusion that both knew the funds
were drug proceeds, knew they were being transported out of the United
States, and intended the transactions to further the progress of the unlawful
drug conspiracy. See, e.g., id. at 315 (defendant’s knowledge of inner workings
of drug organization or extensive involvement in the operation may be
sufficient to show intent to promote unlawful purpose of money laundering).
We are satisfied based on the circumstances here that the Government proved
the essential elements of money laundering with respect to Ramirez and Salas-
Leyva.
      The Government concedes on appeal that the evidence was insufficient
to show that Cabrera joined an agreement to commit money laundering
knowing the purpose of the agreement and with intent to further that purpose.
Cabrera’s conviction on the money laundering count is therefore reversed and
the case is remanded for the district court to resentence Cabrera.
                                           IV.
      Ramirez and Salas-Leyva both challenge sentencing enhancements
applied when determining their sentencing ranges under the Sentencing
Guidelines. “We review a district court’s interpretation and application of the
sentencing guidelines de novo and its findings of fact for clear error.” United
States v. Reagan, 725 F.3d 471, 493 (5th Cir. 2013).
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                                 No. 12-41217
                                            A.
      Ramirez contends that the district court erred by overruling six
objections to the presentence report (PSR). He does not specify in his brief how
the court erred in its analysis, however. An appellant may not incorporate by
reference arguments made in his district court pleadings, and conclusional and
inadequately briefed arguments are waived. See, e.g., Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). Moreover, we discern no clear error in the
district court’s determinations based on the drug quantity attributed to
Ramirez or Ramirez’s role in the offense.
      Ramirez also argues for the first time on appeal that the district court
erred when determining his offense level for money laundering by applying
Chapter 3 enhancements along with the cross-reference of § 2S1.1.            The
Government concedes that the court’s determination of the money laundering
offense level was erroneous but argues that the error was harmless and did not
affect Ramirez’s substantial rights. We agree.
      The district court used the adjusted offense level for the drug conspiracy
(which included Chapter 3 enhancements) as the base offense level for money
laundering and then added two levels pursuant to § 2S1.1(b)(2)(B) to arrive at
a total offense level of 42. This offense level, along with Ramirez’s criminal
history category of III, yielded an advisory guideline range of 360 months to
life. Under the grouping rules, this was Ramirez’s guideline range because the
money laundering offense level was higher than the offense level for the drug
offense. See U.S.S.G. § 3D1.1.
      However, the base offense level for money laundering should have been
determined from the drug quantity alone without considering any Chapter 3
enhancements applicable to the drug offense. See U.S.S.G. § 2S1.1, cmt. 2(C).
That procedure would have yielded a total offense level for money laundering
of 38.   Nevertheless, Ramirez’s guideline range would not have changed
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                                  No. 12-41217
because his total offense level for the drug conspiracy was 40, which yielded
the same range of 360 moths to life under the guidelines’ grouping rules. See
U.S.S.G. § 3D1.1 & Sentencing Table. Therefore, Ramirez cannot show a
reasonable probability that he would have received a lesser sentence. See, e.g.,
United States v. Lopez, 923 F.2d 47, 51 (5th Cir. 1991) (“[W]here the sentence
imposed falls within a guideline range that remains unaffected regardless of
the merits of the appeal, no substantial rights of the defendant are
implicated.”).
                                              B.
      With respect to Salas-Leyva, the jury specifically found that the drug
conspiracy involved “5 kilograms or more” of cocaine. This finding exposed
Salas-Leyva to a statutory maximum sentence of not less than ten years or
more than life.     See 21 U.S.C. § 841(b)(1)(A).         The district court then
determined for guidelines purposes that Salas-Leyva was responsible for at
least 150 kilograms.    Salas-Leyva argues that this finding was erroneous
because the court relied on evidence of drug quantities from a different and
unrelated conspiracy.      Salas-Leyva is incorrect.          Numerous witnesses,
including Chavarria, Noyola, Robles, Fernandez-Olver, Gutierrez, and
Barragan-Serrato,    testified   about    Salas-Leyva’s       involvement   with    a
voluminous amount of cocaine and large amounts of money. Gutierrez and
Barragan-Serrato both testified that Salas-Leyva handled approximately 300
to 400 kilograms of cocaine. The context of the testimony shows that the
witnesses were discussing the instant conspiracy. The district court discussed
all of the above witnesses at sentencing.            The court’s drug quantity
determination was not implausible in light of the record as a whole, and the
court did not clearly err in its determination. See United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005).


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                                 No. 12-41217
      Salas-Leyva also argues that the district court improperly applied a four-
level enhancement to the drug offense for a leadership role pursuant to
U.S.S.G. § 3B1.1(a) because the evidence showed only that he was involved in
selling cocaine without any managerial role. The district court specifically
found, and the evidence showed, however, that Salas-Leyva occupied a high-
level position within El Tigre’s drug organization. He received well over 300
kilograms of cocaine for further distribution and delivered six-figure cash
amounts to others to take back to Mexico. The evidence also showed that he
recruited other participants and directed their activity because inter alia he
instructed his brothers to deliver cocaine to other co-conspirators. The district
court’s conclusion that Salas-Leyva recruited accomplices and exercised
control was plausible in light of the evidence as a whole, and the enhancement
was not clearly erroneous. See United States v. Brown, 727 F.3d 329, 341 (5th
Cir. 2013).
      Like Ramirez, Salas-Leyva argues, also for the first time on appeal, that
the district court misapplied the cross-reference in § 2S1.1 by including
Chapter 3 enhancements for the drug offense as part of the offense level for the
money laundering conspiracy, specifically the leadership role. See § 2S1.1, cmt.
2(C). Because this argument was not raised in the district court, our review is
limited to plain error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th
Cir. 2009). We disagree with the defendant that the district court misapplied
the enhancement. Unlike the determination for Ramirez, the district court
here did not apply the adjusted offense level for the drug offense as the base
offense level for the money laundering offense. Instead, the PSR shows that
the base offense level for money laundering was determined solely from the
underlying drug quantity before the leadership role enhancement was applied,
as contemplated by § 2S1.1, cmt. 2(C). The PSR then notes that the leadership
enhancement applied because Salas-Leyva was in charge of the operation in
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                                 No. 12-41217
the Dallas area and had subordinates working for him. The trial evidence
supported the enhancement because several witnesses, including Chavarria,
Noyola, and Cruz, testified that they delivered drugs and money to Salas-
Leyva and were also given money to take back to Mexico. The money ranged
in amounts from $180,000 to $260,000. It was not implausible to find that
Salas-Leyva occupied a leadership role in the money laundering, and the
district court’s sentence enhancement was not a clear or obvious error.
Because there was no error in applying the leadership role enhancement, there
is no merit in Salas-Leyva’s argument that he should have received a safety
valve reduction. See U.S.S.G. § 5C1.2(a)(4).
      Finally, Salas-Leyva argues that the district court should have granted
his request, made during the sentencing hearing, for a continuance so that he
could call his brothers as witnesses to rebut Gutierrez’s testimony that Salas-
Leyva exercised control over them in directing the delivery of cocaine. In
denying the continuance, the district court noted that Salas-Leyva knew about
the probation department’s position when the PSR was distributed several
months before the sentencing hearing but he did not subpoena the witnesses.
Moreover, as noted by the Government, the district court’s leadership role
enhancement for the drug offense was based on the testimony of other
witnesses, in addition to Gutierrez. Salas-Leyva fails to show that the district
court’s denial of the continuance was arbitrary or unreasonable or that he
suffered serious prejudice. See United States v. Barnett, 197 F.3d 138, 144 (5th
Cir. 1999); United States v. Peden, 891 F.2d 514, 519-20 (5th Cir. 1989).
                                           V.
      For the foregoing reasons, the convictions and sentences of Ramirez and
Salas-Leyva are AFFIRMED.          The conviction of Cabrera for the drug
conspiracy is AFFIRMED, but Cabrera’s conviction for the money laundering
conspiracy is REVERSED and the case is REMANDED for resentencing.
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