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In United States v. Diaz-Menera, No. 21-6127, at *1 (10th Cir. Feb. 28, 2023, Diaz-Menera challenged his sentence for money laundering, arguing that the district court erroneously determined his base offense level under § 2S1.1(a)(1) rather than § 2S1.1(a)(2) of the United States Sentencing Guidelines (U.S.S.G. or the Guidelines). Section 2S1.1(a)(1) applies when a defendant convicted of money laundering either committed or was personally involved in the underlying offense, and it calculates the defendant's base offense level using the offense level for the underlying offense. By contrast, if the defendant was not involved in the underlying offense, § 2S1.1(a)(2) applies, the the court generally calculates the defendant's offense level according to the amount of laundered funds. Tyler Criminal Defense Lawyer Blog 

To calculate Diaz-Menera's base offense level, the presentence investigation report (PSR) first looked to the money-laundering guideline in U.S.S.G. § 2S1.1. Concluding that the laundered funds came from drug sales, the PSR applied § 2S1.1(a)(1) and looked to the guideline for drug conspiracy in U.S.S.G. § 2D1.1 to set Diaz-Menera's base offense level. In so doing, the PSR attributed 321 kilograms of methamphetamine to Diaz-Menera, calculated by adding the $1.5 million that Diaz-Menera admitted to laundering, the $99,900 found in his vehicle, and the over $400,000 found at the Oklahoma City residence, then dividing that total by a perkilogram price of methamphetamine in Oklahoma City. The PSR therefore set Diaz-Menera's base offense level under the drug-conspiracy guideline at 38. And after various enhancements and the two- and one-level reductions under § 3E1.1(a) and (b), it set Diaz-Menera's total offense level at 43. The PSR further determined that with a criminal-history score of I, Diaz-Menera's Guidelines sentencing range was life in prison. But because the statutory maximum for Diaz-Menera's moneylaundering conviction was 20 years, the PSR ultimately set his Guidelines range at 240 months. See 18 U.S.C. § 1956(a)(2)(B)(i) and (h).

Diaz-Menera objected to the PSR's calculation of his base offense level, arguing that relying on the drug-conspiracy guideline was improper because (1) he did not personally possess or distribute drugs, (2) he was not a member of the underlying drug conspiracy, and (3) aside from the $99,900 discovered in his vehicle, there was no evidence tying the other laundered funds to drug sales. The district court granted the objection in part. It first concluded that using the drug-conspiracy guideline was appropriate because Diaz-Menera was a member of the underlying drug conspiracy and because "some of the laundered funds were proceeds from the sale of methamphetamine for which he can be accountable." R. vol. 3, 79. But it limited the relevant quantity of methamphetamine attributable to Diaz-Menera to just over 15 kilograms, based on the $99,900 in Diaz-Menera's vehicle that was most strongly and obviously connected to the sale of methamphetamine. The district court declined to connect the other amounts of money to drugs, noting "[t]he government simply ha[d] not presented enough" evidence to conclude that all of the other laundered funds derived from methamphetamine sales. Id. at 93-94. 

In Diaz-Menera, the district court applied § 2S1.1(a)(1) based on its finding that he was a member of the underlying drug conspiracy. Diaz-Menera argues that such finding was insufficient to trigger application of § 2S1.1(a)(1) because he did not personally possess or distribute drugs. 

On appeal, the Tenth Circuit held that: 

Caselaw therefore provides little guidance, leaving us with Diaz-Menera's reliance on the relevant-conduct limitation in § 2S1.1(a)(1)(A) and the guideline's commentary. For the reasons we have explained, we do not find these arguments persuasive. We therefore reject Diaz-Menera's argument that drug conspiracy cannot be the underlying offense from which the laundered funds were derived for purposes of § 2S1.1(a)(1). And because Diaz-Menera does not challenge the district court's factual finding that he was a member of the underlying drug conspiracy, the district court did not err in using the drug-conspiracy guideline to set his base offense level for money laundering.

United States v. Diaz-Menera, No. 21-6127, at *15-16 (10th Cir. Feb. 28, 2023)

The Tenth Circuit essentially held that because a drug conspiracy can be an underlying offense for purposes of applying § 2S1.1(a)(1), they found no error in the district court's sentencing decision. But because the government concedes Diaz-Menera's second argument- agreeing that it breached the plea agreement by failing to move for a one-level reduction under U.S.S.G. § 3E1.1(b)-the Tenth Circuit did vacate Diaz-Menera's sentence and remand for resentencing. 

Although not binding precedent in anyway, there is partial dissent opinion in Diaz-Menera observing that: 

The majority's opinion permits a drug-money launderer to be sentenced for the distribution of drugs even though the money launderer played no part in drug distributions. This cannot be right, nor can it be squared with our precedent. Instead, I would remand this case to the district court for resentencing without this enhancement.

United States v. Diaz-Menera, No. 21-6127, at *18 (10th Cir. Feb. 28, 2023).

This blog post was prepared with the assistance of ChatGPT-4 AI. Nothing in this post should be considered legal advice or the creation of an attorney-client relationship. This blog is strictly for informational purposes only.

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