United States v. DeSantis

18‐2233‐cr United States v. DeSantis

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

¹ At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 16th day of October, two thousand nineteen. 4 5 PRESENT: GERARD E. LYNCH, 6 RAYMOND J. LOHIER, JR., 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 18‐2233‐cr 15 16 JAMES DESANTIS, 17 18 Defendant‐Appellant. 19 20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

 The Clerk of Court is directed to amend the caption as set forth above.

1 FOR APPELLANT: Molly Corbett, James P. Egan, 2 Assistant Federal Public 3 Defenders, for Lisa A. Peebles, 4 Federal Public Defender for 5 the Northern District of New 6 York, Albany, NY. 7 8 FOR APPELLEE: Thomas R. Sutcliffe, Assistant 9 United States Attorney, for 10 Grant C. Jaquith, United States 11 Attorney for the Northern 12 District of New York, 13 Syracuse, NY.

14 Appeal from a judgment of the United States District Court for the 15 Northern District of New York (Mae A. D’Agostino, Judge). 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 17 AND DECREED that the judgment of the District Court is AFFIRMED. 18 James DeSantis appeals from a judgment of the District Court (D’Agostino, 19 J.) convicting him, after a guilty plea, of one count of conspiracy to commit 20 money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (a)(2)(A), and (h), 21 and sentencing him principally to a term of imprisonment of 37 months. On 22 appeal, DeSantis argues that the District Court erred in applying a six‐level 23 enhancement under § 2S1.1(b)(1) of the Sentencing Guidelines and in applying a

1 minor role adjustment under § 3B1.2, rather than a minimal role adjustment. 2 We assume the parties’ familiarity with the underlying facts and the record of 3 prior proceedings, to which we refer only as necessary to explain our decision to 4 affirm. 5 1. Section 2S1.1(b)(1) 6 The Guidelines provide for a six‐level enhancement under § 2S1.1(b)(1) 7 when it is more likely than not that a defendant “knew or believed that any of 8 the laundered funds were the proceeds of, or were intended to promote . . . an 9 offense involving the manufacture, importation, or distribution of a controlled 10 substance or a listed chemical[.]” U.S. Sentencing Guidelines Manual 11 § 2S1.1(b)(1) (U.S. Sentencing Comm’n 2016); see United States v. Salazar, 489 12 F.3d 555, 557–58 (2d Cir. 2007). We review the District Court’s finding that 13 DeSantis knew or believed the laundered funds were intended to promote drug 14 trafficking for clear error. See United States v. Menendez, 600 F.3d 263, 266 (2d 15 Cir. 2010). 16 Here, the District Court properly relied on the following evidence to 17 support its finding: DeSantis exchanged large amounts of cash on both

1 September 16 and 25, 2014; the exchange involved two individuals who had 2 never previously met and who used a pre‐arranged code; the cash was stored in 3 heat‐sealed vacuum bags; and DeSantis admitted that he knew the money was 4 for some illegal purpose. Moreover, DeSantis was familiar with the drug 5 trade—he was involved in a marijuana and fentanyl transaction on September 6 16, 2014, and he made two similar transactions during the summer of 2014.1 7 Taken together, this evidence supports the District Court’s finding that DeSantis 8 knew or believed the funds were related to drug trafficking, and we reject 9 DeSantis’s claim of clear error. 10 2. Section 3B1.2 11 Next, DeSantis argues that the District Court erred in applying a two‐level 12 minor role adjustment under § 3B1.2(b), rather than a four‐level minimal role 13 decrease under § 3B1.2(a). A minimal role adjustment is appropriate for 14 defendants “who are plainly among the least culpable of those involved in the

1 conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4; accord United States v. Kirk 2 Tang Yuk, 885 F.3d 57, 88 (2d Cir. 2018). 3 The District Court concluded that “DeSantis was less culpable than most 4 other participants in the criminal activity” because he acted as a courier on only 5 two occasions. Joint App’x 216. But the Court declined to describe DeSantis’s 6 role as minimal given the substantial amount of cash—close to a quarter of a 7 million dollars—he delivered and the fact that DeSantis knew the funds were 8 involved in drug trafficking. We find no error in the District Court’s decision 9 not to accord a four‐level decrease for a minimal role. See United States v. 10 Finkelstein, 229 F.3d 90, 97–98 (2d Cir. 2000). 11 We have considered DeSantis’s remaining arguments and conclude that 12 they are without merit. For the foregoing reasons, the judgment of the District 13 Court is AFFIRMED.

14 FOR THE COURT: 15 Catherine O=Hagan Wolfe, Clerk of Court 16

Footnotes

[1] Although DeSantis argues the District Court erred in relying on these transactions, they need not be “relevant conduct” under § 1B1.3 for the District Court to consider them as evidence of DeSantis’s knowledge. See United States v. Finkelstein, 229 F.3d 90, 96 (2d Cir. 2000); U.S.S.G. § 6A1.3(a) (2016).