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United States v. Lopez , 183 F. App'x 445 ( 2006 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                   June 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-10706
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSICA LIZETTE LOPEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3-04-CR-43-2
--------------------
Before Jolly, Davis, and Owen, Circuit Judges.
PER CURIAM:*
Jessica Lizette Lopez appeals her conviction for conspiracy
to commit money laundering and the 78-month sentences imposed for
the conspiracy money laundering count and the offense of making a
false statement on a credit card application.    Lopez argues that
the jury reached inconsistent verdicts because she was acquitted
of conspiracy to possess with intent to distribute cocaine and
that the evidence was not sufficient to support the money
laundering conviction.
*
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this opinion should not be published and is not precedent except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.
No. 05-10706
-2-
If “a multicount verdict appears inconsistent, the
appellate inquiry is limited to a determination whether the
evidence is legally sufficient to support the counts on which a
conviction is returned.”   United States v. Dubea,
    612 F.2d 950
    ,
951 (5th Cir. 1980).   Lopez failed to move for a judgment of
acquittal at the close of the Government’s case.   Therefore, the
court reviews the sufficiency of the evidence to determine
whether an affirmance will result in a miscarriage of justice.
See United States v. McIntosh,
    280 F.3d 479
    , 483 (5th Cir. 2002);
United States v. Rosalez-Orozco,
    8 F.3d 198
    , 202 (5th Cir. 1993).
There was overwhelming evidence that the income of the
Lopezes was derived from Hector Lopez’s drug trafficking
activities.   The large amount of currency and drugs along with
the weapons, drug wrapping paraphernalia, and drug ledgers found
on the premises reflected that Hector Lopez was a participant in
an ongoing drug trafficking organization.   For the same reasons,
Jessica Lopez’s assertion that she knew nothing of the drug
trafficking activity was incredible.   The evidence also showed
that Lopez made multiple expenditures with the funds provided by
Hector Lopez.   There was no credible evidence that the Lopezes
derived income from a car sales business.   There was sufficient
evidence to support Lopez’s conviction for conspiracy to commit
money laundering.   See United States v. Meshack,
    225 F.3d 556
    ,
573-74 (5th Cir. 2000); United States v. Westbrook,
    119 F.3d 1176
    , 1191 (5th Cir. 1997).   The conviction of Lopez did not
No. 05-10706
-3-
result in a manifest miscarriage of justice.
    McIntosh, 280 F.3d at 483
    ;
    Rosalez-Orozco, 8 F.3d at 202
    .
Lopez’s argument that the indictment did not allege a sum
certain of laundered monetary funds in violation of her Sixth
Amendment rights is without merit.    By rendering the Guidelines
advisory only, United States v. Booker,
    543 U.S. 220 
    (2005)
eliminated the Sixth Amendment concerns that prohibited a
sentencing judge from finding all facts relevant to sentencing.
United States v. Mares,
    402 F.3d 511
    , 519 (5th Cir.), cert.
denied,
    126 S. Ct. 43 
    (2005).
However, in determining the reasonableness of a post-Booker
sentence, the court still must consider whether the district
court correctly determined the applicable sentencing guidelines
range.
    Id. at 518-19. 
      The district court erred in determining
that the $130,000 found in a truck that had departed from the
Lopez residence constituted “laundered funds.”       See U.S.S.G.
§ 2S1.1, comment. (n.1).    Although the source of the funds
appeared to be drug activity, there was no evidence that Lopez
conducted or attempted to conduct a financial transaction in
order to conceal or disguise the nature or source of the funds.
Thus, the district court incorrectly calculated the sentencing
guidelines range.    See id.; 18 U.S.C. § 1915(a).    In light of the
miscalculation of the Guidelines, the court cannot make an
ultimate determination of reasonableness.
    Duhon, 440 F.3d at 716
    .    The case is remanded to the district court for
No. 05-10706
-4-
resentencing.   See United States v. Villegas,
    404 F.3d 355
    , 362
(2005).
Lopez argues that the calculation of her offense level for
making a false statement on a credit card application was
erroneous because there was no loss involved in the transaction.
It is unnecessary to determine whether the loss was properly
calculated because even if the argument was successful, it would
not affect the calculation of the sentencing guidelines range.
See U.S.S.G. § 3D1.3(a); §3D1.4.   Thus, this argument can have no
effect on the sentence imposed.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.