     Case: 11-10583        Document: 00512029734       Page: 1   Date Filed: 10/23/2012




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

                                                                             FILED
                                                                        October 23, 2012
                                            No. 11-10583
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee

v.

MOHAMMED KHALIL GHALI, also known as Mohammed Ghali,

                                                     Defendant - Appellant


                       Appeal from the United States District Court
                            for the Northern District of Texas



Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
        Mohammed Khalil Ghali was convicted of ten counts of money laundering
under 18 U.S.C. § 1956, which prohibits individuals from laundering the
“proceeds” of certain activities. Several years later, a fractured Supreme Court
held that “proceeds” means “profits” rather than “gross receipts,” at least in
certain circumstances. Ghali timely moved for relief under 28 U.S.C. § 2255 and
now appeals from the district court’s denial of that motion. Because Ghali’s claim
for relief is foreclosed by Garland v. Roy,1 we affirm.




        1
            615 F.3d 391 (5th Cir. 2010).
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                                            No. 11-10583

                                                   I
       Ghali owned and operated two convenience stores and a wholesale
business within the State of Texas. The government suspected him of buying
and selling stolen goods through those operations. It commenced an
investigation of Ghali and some of his associates.
       Ghali was arrested and later charged in a nineteen-count indictment,
which included ten counts of money laundering. Nine of those counts were for
money-laundering “sting”;2 each accused Ghali of purchasing property that an
agent of the government “represented . . . as having been stolen in the State of
Oklahoma.” The tenth alleged conspiracy to commit “concealment” money
laundering; in essence, a conspiracy to conceal the proceeds of illegal activity.3
       Ghali waived his right to a trial by jury. Following a bench trial, he was
convicted on all ten money-laundering counts. The district court sentenced him
to 168 months imprisonment.4 Ghali timely appealed to this Court, which
affirmed the judgment of the court below.5 Soon after, the Supreme Court denied
Ghali’s petition for a writ of certiorari.6
       A fractured Supreme Court later decided United States v. Santos,7
interpreting the word “proceeds” within the money-laundering statute under
which Ghali was convicted. The Justices in Santos, split 4-1-4, disagreed about




       2
           See 18 U.S.C. §§ 1956(a)(3)(A) and 2.
       3
           See id. at § 1956(a)(1)(B)(i).
      4
        Ghali was convicted of several other offenses. The resulting, shorter sentences ran
concurrently with the sentences arising from his money laundering.
      5
           See United States v. Ghali, 184 F. App'x 391 (5th Cir. 2006).
      6
           See Ghali v. United States, 549 U.S. 1008, 1008 (2006) (denying certiorari).
       7
           553 U.S. 507 (2008).

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                                          No. 11-10583

what holding they had collectively produced.8 Ghali timely moved for relief under
§ 2255, his first such motion. He argued that Santos’s understanding of
“proceeds” required the government to prove that he laundered the “profits” of
certain activities, rather than mere “gross receipts.” The district court disagreed
and denied Ghali’s motion. Ghali filed a notice of appeal, contending that
“[u]nder [Santos], the Appellant is actually innocent of the [money laundering]
convictions[,] rendering the 168 month sentence imposed [on him] to be in excess
of the . . . statutory maximum applicable to the remaining counts of conviction.”
Judge King granted Ghali a COA, and this appeal followed.


                                                II
       When a district court denies a motion under 28 U.S.C. § 2255, we
review its legal conclusions de novo.9 On appeal, Ghali’s claim for relief turns
on a single argument: Under Santos, “proceeds” must always mean “profits”
within the money-laundering statute. That argument is foreclosed.10
       Our interpretation of Santos is settled. In Garland v. Roy, we applied
Marks v. United States to the Supreme Court’s 4-1-4 Santos decision.11 We
concluded that Justice Stevens’s concurrence controls, and summarized his
opinion as follows:
       First, he stated that he was joining the plurality’s rule, that the
       rule of lenity dictates that “proceeds” must be defined as “profits”
       in cases where defining “proceeds” as “gross receipts” would
       result in the “perverse result” of the “merger problem.” In other
       circumstances, however, he could not agree with the plurality


       8
           See id. at 523–24 (plurality opinion), 528 n.7 (Stevens, J., concurring).
       9
           See United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
       10
        Because Ghali’s argument is plainly foreclosed, we need not decide whether the
government forfeited any applicable procedural bar.
       11
         See Garland v. Roy, 615 F.3d 391 (5th Cir. 2010) (quoting Marks v. United States, 430
U.S. 188, 193 (1977)).

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                                         No. 11-10583

      that “proceeds” must have one uniform meaning, “profits.”
      Instead, second, he stated that “in other applications of the
      statute not involving such a perverse result,” he would start from
      the presumption that “proceeds” should be defined as “gross
      receipts,” but he would look to the legislative history of the
      money-laundering statute, 18 U.S.C. § 1956, to challenge this
      presumption. Only if he could locate adequate legislative history
      to rebut this presumption, indicating that “proceeds” should be
      defined as “profits,” would he conclude that Congress meant for
      the narrower definition to apply.12
We elsewhere explained that the “merger problem” exists “when a defendant
could be punished for the same transaction under the money-laundering
statute as well as . . . the [other] statute criminalizing the specified unlawful
activity underlying the money-laundering charge.”13
      Ghali acknowledges that in Garland, we adopted the two-step approach
set out in Justice Stevens’s concurrence. Ghali nevertheless argues that we
should not follow Garland because it is inconsistent with Clark v. Martinez,
in which the Supreme Court explained that judges may not “give the same
statutory text different meanings in different cases.”14
      We cannot agree. “[E]ven if a panel’s interpretation of the law appears
flawed, the rule of orderliness prevents a subsequent panel from declaring it
void” absent “an intervening change in the law.”15 Because the Supreme
Court’s 2005 decision in Martinez existed when this Court decided Garland in
2010, Martinez cannot provide an intervening change in the law. This is not




      12
           Id. at 402 (internal citations omitted).
      13
           Id. (internal quotation marks omitted).
      14
           543 U.S. 376, 386 (2005).
      15
           Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

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                                         No. 11-10583

to say that Martinez and Garland are consistent. It is only to say that we
must faithfully apply Garland regardless.16
       Ghali further argues that Garland is distinguishable because the
criminal defendant in that case did not raise the Martinez issue. It is true
that our opinion in Garland does not cite Martinez. But the Garland opinion
certainly reviewed Santos, in which several Justices suggested that Justice
Stevens’s view was inconsistent with Martinez.17 And—more to the
point—defendant Garland did raise the Martinez issue, citing the case and
claiming that “the meaning of a word in a statute cannot change with the
statute’s application.”18 Accordingly, the rule of orderliness applies here with
full effect. Garland controls this Court’s interpretation of Santos and
forecloses Ghali’s argument.




       16
          Ghali also argues that Garland is inconsistent with the rule of lenity and contends
that the Garland Court misapplied Marks. Even if true, neither claim even colorably presents
an intervening change in law. Ghali does not argue that Santos’s interpretation of proceeds
should be limited to 18 U.S.C. § 1956(a)(1)(A)(i), the specific provision at issue in that case. In
any event, we perceive no reason why that interpretation would not also apply to the word
“proceeds” within Sections 1956(a)(3)(A) and 1956(a)(1)(B)(i), the Sections under which Ghali
was convicted. See United States v. Santos, 553 U.S. 507, 512 (2008) (plurality opinion) (“The
word [‘proceeds’] appears repeatedly throughout the statute, but all of those appearances leave
the [‘profits’ or ‘gross receipts’] ambiguity intact.”).
       17
          See United States v. Santos, 553 U.S. at 522–24 (plurality opinion). The principal
dissent in Santos did not cite Martinez, but expressed support for Martinez’s basic principle.
See id. at 532 (Alito, J., dissenting) (rejecting Justice Stevens’s approach “insofar as it holds
that the meaning of the term ‘proceeds’ varies depending on the nature of the illegal activity
that produces the laundered funds.”); id. at 546 (“I do not see how the meaning of the term
‘proceeds’ can vary depending on the nature of the illegal activity that produced the laundered
funds.”); id. at 548 (“The meaning of the term ‘proceeds’ cannot vary from one money
laundering case to the next.”).
       18
         Appellant’s Br. at 10, Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), (No. 09-40735),
available at http://coa.circ5.dcn/ShowDoc.aspx?dlsId=913378; see also Garland, 615 F.3d at
399 (“Garland argues that he satisfies the third . . . factor because the four-Justice plurality
opinion in Santos held that ‘proceeds’ must always be defined as ‘profits’ . . . [and] argues that
we should ignore Justice Stevens’ analysis.”).

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                                      No. 11-10583

                                            III
       On appeal, Ghali does not argue that he is entitled to relief under the
two-step analysis described in Garland. We therefore need not and do not
resolve those issues. Because Garland prevents us from uniformly defining
“proceeds” as “profits” across the money-laundering statute, we AFFIRM.19




       19
         Because Ghali has not established that it was error to try him on a “gross receipts”
rather than a “profits” definition of “proceeds,” we need not decide whether such an error
would entitle him to relief.

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