     Case: 10-40510     Document: 00511645677         Page: 1     Date Filed: 10/26/2011




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

                                                                            FILED
                                                                         October 26, 2011

                                      No. 10-40510                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee

v.

TYRONE EUGENE JORDAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-20-3


Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Tyrone Eugene Jordan was convicted of conspiracy to launder money and
conspiracy to transport illegal aliens. He appeals the district court’s calculation
of his money laundering conspiracy offense level and, as a consequence, his
concurrent transport conspiracy sentence. We conclude the district court clearly
erred by including $304,500 in cash in computing the total value of laundered
funds, and we REVERSE that calculation. We further conclude that the district
court’s transport conspiracy sentence may have been influenced by this

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40510

erroneous calculation, and therefore VACATE Jordan’s sentence and REMAND
for re-sentencing on both counts.
      Jordan’s convictions arose from his participation in an alien- and drug-
smuggling enterprise.     Arturo Apac began this enterprise in 2008, using
airplanes to transport drugs, drug proceeds, and illegal aliens. Jordan met Apac
in November 2008, in consultation with Apac about his financial arrangements.
Starting in December 2008, Apac made three payments totaling $114,000 toward
the purchase of a Cessna airplane: $5,000 wired from a bank account under one
of Apac’s front businesses, Global Labor Management; $15,000 delivered in cash
by two of Apac’s pilots; and $94,000 routed through Jordan’s wife’s bank account.
Witnesses testified at trial to Jordan’s presence for the $15,000 payment; Jordan
concedes his involvement as to the $94,000.
      Law enforcement learned of Jordan’s association with Apac during an
airplane seizure in April 2009. Apac planned a trip from Houston to Atlanta to
transport 80 to 90 pounds of cocaine; witness testimony at trial indicated Jordan
knew of the cocaine on the airplane. Jordan traveled with Apac from Houston
to Atlanta and intended to continue to Miami. Apac cancelled the Miami trip
and instead transported $304,500 in concealed cash back to Houston. Federal
authorities searched the Cessna, discovered the $304,500, and confiscated both.
An investigation revealed both Apac’s operation and Jordan’s involvement.
Agents began surveillance on Jordan as a result. Jordan was later identified in
a traffic stop as the driver of a vehicle carrying three illegal aliens.
      Jordan was arrested, tried, and convicted on one count of conspiracy to
knowingly conduct a financial transaction with drug trafficking proceeds in
violation of 18 U.S.C. § 1956(a)(1) and (b), and one count of conspiracy to


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                                  No. 10-40510

transport illegal aliens, violating various sections of 18 U.S.C. § 1324(a). The
district court calculated Jordan’s money laundering offense level at 30, with an
advisory guidelines range of 97 to 121 months. The court sentenced Jordan to
concurrent 120 month sentences in prison for each count. Jordan now appeals
his sentences.
      We review the district court’s sentencing decisions for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). We
review the district court’s application of the Sentencing Guidelines de novo and
its findings of fact for clear error. United States v. Charon, 442 F.3d 881, 887
(5th Cir. 2006). A factual finding is clearly erroneous if a review of all of the
evidence results in our definite and firm conviction that a mistake has been
made. United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).
      Jordan challenges the district court’s offense-level calculation on two
grounds: (1) the district court erred by assigning a six-level increase under
U.S.S.G. § 2S1.1(b)(1) because he had no knowledge the laundered funds were
the proceeds of illegal activity; and (2) the court erroneously included the $5,000,
$15,000, and $304,500 sums in the “value of the laundered funds” for purposes
of § 2S1.1.
      Jordan’s first contention is without merit. The court heard testimony that
Apac informed Jordan the transferred currency belonged to criminals and that
Jordan saw large quantities of cocaine in connection with his work for Apac.
This clearly falls within the ambit of § 2S1.1(b)(1), which authorizes a six-level
increase when a defendant “knew or believed that any of the laundered funds
were the proceeds of . . . the manufacture, importation, or distribution of a




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                                 No. 10-40510

controlled substance.” The district court did not err in applying the six-level
increase.
      Turning to Jordan’s second contention, Section 2S1.1(a)(2) provides a base
money laundering offense level of “8 plus the number of offense levels from the
table in § 2B1.1 corresponding to the value of the laundered funds.”
Section 2B1.1 in turn assigns increasing offense levels for increasingly large
values of laundered funds. Jordan concedes the legitimacy of the district court’s
inclusion of the $94,000 transferred through his wife’s bank account, but he
attacks the $5,000 and $15,000 airplane payments as well as the $304,500 found
in the Cessna as improperly included within the “value of the laundered funds.”
      The government correctly contends that Jordan cannot escape
responsibility for the two Cessna payments. Section 1B1.3(a)(1)(B) provides that
“in the case of a jointly undertaken criminal activity,” an offense level is
calculated based on “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” Jordan admitted he
was present for the handoff of the $15,000 payment, and the district court did
not clearly err in including the $5,000 payment when Jordan’s financial advice
to Apac — and the conspiracy — began prior to the $5,000 payment and Jordan
was personally involved with the bulk of the remaining funds.
      Whereas both of these payments obviously qualify within “the value of the
laundered funds” for purposes of § 2S1.1(a)(2), however, we find no evidence in
the record establishing a “transaction” that includes the $304,500 as laundered
currency. See U.S.S.G. § 251.1(a)(2), cmt. n.1 (definition of “laundered funds”
corresponds with violation of 18 U.S.C. § 1956); 18 U.S.C. § 1956(a)(1) (requires
laundered funds to be “involved in a financial transaction”). While an airplane


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                                 No. 10-40510

purchase is a financial transaction, merely carrying cash proceeds of drug
trafficking on a flight from Atlanta to Houston, absent more, is not.
      Including the $304,500 resulted in a six offense-level increase to a total
offense level of 30, with an advisory sentence of 97–121 months based on
Jordan’s criminal history. The guidelines advise only 51–63 months for a level
24 offense. Jordan further protests this erroneous increase influenced his alien-
transport sentence, and we agree. Jordan’s alien-transport conviction carries a
base offense level of 12, with an advisory sentence of 10–16 months. The
magnitude of the district court’s departure from this advisory sentence, along
with its parallel length to Jordan’s money-laundering sentence, suggest that the
district court might not have sentenced Jordan to 120 months for a level 12
offense had it not calculated the money-laundering offense level at 30.
      For the foregoing reasons, we REVERSE Jordan’s money laundering
conspiracy sentence to the extent it was enhanced by the $304,500 in cash;
VACATE the alien trafficking conspiracy sentence for reconsideration; and
REMAND for resentencing.
                                        SENTENCED REVERSED in Part,
                                       VACATED in Part and REMANDED.




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