United States v. Smirna Ortiz ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0016n.06
Nos. 18-6055/6218/6242
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Jan 13, 2020
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CIRO MACIAS MARTINEZ, SMIRNA ORTIZ, ) COURT FOR THE EASTERN
and RENE RAMOS CAMPOS, ) DISTRICT OF KENTUCKY
)
Defendants-Appellants. )
Before: SUTTON, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Ciro Macias Martinez, Rene Ramos Campos, and Smirna
Ortiz appeal their convictions and sentences in connection with a drug and money-laundering
conspiracy. We reject all their arguments and affirm.
I.
In 2015, a farmhand named Ciro Macias Martinez began laundering Mexican drug-cartel
money for a man known as “Jalisco,” whom Macias had met in prison. At first Macias wired
small amounts of money to Mexico—$3,000 or less. He eventually gained the cartel’s trust and
began laundering larger amounts. To do so, he enlisted the help of his wife, Brizeida Sosa, who
in turn asked her sister, Arlenne, and a coworker, Laura, to participate. Laura then recruited her
own sister, Smirna Ortiz.
Nos. 18-6055/6218/6242, United States v. Ciro Macias Martinez, et al.
To begin the laundering process, Jalisco would send account numbers and directions to
Macias, who would pick up the drug money. Macias or Sosa would then divide the money
(sometimes hundreds of thousands of dollars) into stacks that each totaled less than $10,000. Then
Sosa, Arlenne, Laura, and Ortiz (or some combination of that group) would travel to banks in
Kentucky, Tennessee, or North Carolina to deposit each stack separately, using the account
numbers provided by Macias. The women would make deposits at multiple banks per trip, and
later sent photos of the deposit slips to Macias, who sent them on to Jalisco. For every $10,000 in
structured deposits, the women received $200.
Macias also shipped cash in bulk for the cartel. At Jalisco’s direction, Macias would
contact a courier, specify a meeting time and place, and deliver money for the courier to smuggle
into Mexico. To that end, in November 2016, Macias met Rene Ramos Campos at a gas station
and handed him a duffel bag with $575,440. Campos then hid the money in two compartments in
the cab of his tractor trailer and drove off. Soon thereafter, an “interdiction team” stopped Campos
and seized the cash, which Campos admitted was drug money.
Macias also distributed methamphetamine and other drugs for the cartel. Jalisco’s
couriers would deliver drugs to Macias, who passed them on to street-level dealers. Macias would
decide whether the dealers paid for the drugs up front or after they sold the drugs. Then Macias
would launder the proceeds. Eventually Macias was distributing 40 kilograms of drugs per week.
In April 2017, DEA agents arrested Macias and Ortiz, among others. Their cases were
later consolidated with Campos’s case. Macias thereafter pled guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy to commit
money laundering with the intent to promote a specified unlawful activity, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i) and 1956(h). Campos also pled guilty to conspiracy to commit money
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laundering to promote a specified unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(A)(i)
and 1956(h). Ortiz went to trial, where a jury convicted her of conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(ii) and 1956(h).
Macias’s guidelines range was 324 to 405 months’ incarceration; the district court
sentenced him to 372 months. Campos’s range was 121 to 151 months; the district court sentenced
him to 136 months. Ortiz’s range was 97 months to 121 months; the district court sentenced her
to 97 months.
These appeals followed.
II.
A.
Macias appeals only his sentence, specifically the district court’s application of a four-level
enhancement for what the court found to be Macias’s leadership role in the conspiracy. See
generally U.S.S.G. § 3B1.1. We review that finding for clear error, and otherwise review
deferentially the court’s legal conclusion that Macias was an organizer or leader. See United States
v. Sexton, 894 F.3d 787, 794 (6th Cir. 2018).
As described above, Macias was the hub of conspiracies to sell drugs and to launder the
proceeds of those sales. Macias received drugs from the cartel, passed the drugs on to street-level
dealers, and dictated the terms on which the dealers paid for the drugs. Macias also recruited
participants in the money-laundering conspiracy and directed the conspiracy’s operations, based
in part on Jalisco’s instructions to Macias. Plainly he played a leadership role in the conspiracies
here.
Macias is mistaken, moreover, to argue that Jalisco’s instructions to him, or Sosa’s
instructions to her co-conspirators, precluded a finding that Macias was a leader or organizer. A
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conspiracy can have multiple leaders or organizers, see U.S.S.G. § 3B.1.1 cmt. n.4; and that Macias
had participants above him (Jalisco) and beneath him (Sosa) does nothing to diminish the
leadership role that he in fact played in these conspiracies. The district court had ample grounds
for the enhancement.
B.
Campos likewise challenges only his sentence, specifically the district court’s refusal to
reduce Campos’s offense level based on what Campos says was his acceptance of responsibility
for his offense. See generally U.S.S.G. § 3E1.1. The district court initially granted that reduction,
but revoked it during Campos’s sentencing hearing. There, Campos’s attorney argued that Campos
had laundered only $275,000—rather than the $575,440 that agents seized from his truck—
because, Campos asserted, he planned to steal about $300,000 of that amount rather than pass it
on to the cartel. The district court thought that assertion was factually frivolous—stealing
$300,000 from a drug cartel usually leads to consequences not worth the $300,000—and that the
assertion amounted to a denial in substantial part of the money-laundering conduct to which
Campos had pled. Hence the court revoked the reduction.
Whether we review the district court’s revocation of the § 3E1.1 reduction deferentially or
de novo is less than clear. United States v. Thomas, 933 F.3d 605, 611 (6th Cir. 2019) (collecting
cases). But that difference in the standard does not make any difference to the outcome here. “A
defendant who falsely denies, or frivolously contests, relevant conduct that the court determines
to be true has acted in a manner inconsistent with acceptance of responsibility[.]” U.S.S.G. § 3E1.1
cmt. n.1(A). Here, Campos pled guilty to conspiring to launder money, in violation of 18 U.S.C.
1956(a)(1)(A)(i) and 1956(h). The value of the money he laundered is “relevant conduct” under
the Sentencing Guidelines. See U.S.S.G. § 1B1.3, 2S1.1(a)(2)–(b)(1), 2B1.1(b). Campos
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substantially denied that relevant conduct when he asserted at his sentencing hearing that he
intended to launder only $275,000. To a significant extent, therefore, Campos sought to evade
responsibility for the very conduct to which he pled guilty. And he did so on grounds that the
district court emphatically found to be false. Admittedly, we have our doubts that Campos’s
assertion that he intended to steal the $300,000 was “frivolous,” given that Campos had hidden
that amount separately from the other $275,000 in the cab of his truck. But we see no basis to set
aside the court’s more modest conclusion that Campos’s assertion was simply false.
Moreover, Campos is mistaken to argue that the district court revoked the acceptance-of-
responsibility reduction solely on the basis of a “legal argument” made by his counsel. That legal
argument, as shown above, was based upon a factual premise that itself amounted to a substantial
denial (rather than acceptance) of responsibility. And Campos himself vouched for that factual
premise when the district court pressed him on the point. Thus, in sum, the court did not err when
it found that Campos was not entitled to an offense-level reduction under § 3E1.1.
Campos separately challenges the district court’s finding that Campos was engaged “in the
business of money laundering.” See generally U.S.S.G. § 2S1.1(b)(2)(C). We review that finding
for clear error. See United States v. Anderson, 526 F.3d 319, 323 (6th Cir. 2008). There was none:
Campos admitted that he typically received $10,000–$15,000 for transporting drug proceeds and
that agents had seized $400,000 from him in similar circumstances in 2013; and Campos was a
passenger in another vehicle stop during which officers seized $140,000. Campos’s argument is
meritless.
C.
Ortiz appeals both her conviction and her sentence. She first argues that the government
lacked sufficient evidence to convict her. We must affirm her conviction if, based on the evidence
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at trial, any rational jury could find that she conspired to launder money in violation of 18 U.S.C.
§ 1956(a)(1)(B)(ii). See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Ortiz challenges the
government’s proof as to two elements in particular: first, that she knew the money that she and
her co-conspirators deposited was drug proceeds; and second, that she knew the deposits were
structured (by keeping them below $10,000) “to avoid a transaction reporting requirement under
State or Federal law.” 18 U.S.C. § 1956(a)(1)(B)(ii).
That the money that Ortiz and others deposited was the proceeds of unlawful activity
should have been obvious to any sentient member of the conspiracy. Macias was employed at a
horse farm and his wife, Sosa, was a waitress; yet at Macias’s direction Ortiz and her co-
conspirators deposited more than a half-million dollars in cash (which typically smelled like
marijuana) before they were arrested. Ortiz also saw Sosa count into separate piles as much as
$250,000 in cash on a single occasion. Moreover, Sosa testified that she told Ortiz that Macias
“got a nicer truck because he was dealing with the drugs, you know, he was taking [a] bigger risk
than us with the money.” Trial Tr., R. 333 at PageID # 1928–29. And two of the women who
deposited money along with Ortiz—including Ortiz’s sister, Laura—thought that it was “obvious”
that the money came from drugs. (For the same reasons, we reject Ortiz’s argument that the district
court erred when it enhanced her guidelines range on the ground that the cash she deposited was
drug proceeds.)
The government also presented sufficient evidence that Ortiz knew or was willfully blind
to the fact that the deposits were structured to avoid a reporting requirement under state or federal
law. Every one of the more than 50 deposits that Ortiz made (and every one of her co-conspirators’
deposits) was made in an amount less than $10,000, even though—as Ortiz well knew—every one
of those deposits came from a pile of cash much greater than $10,000. Ortiz also knew that she
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and her conspirators went to great lengths—by separating the cash into smaller amounts, and by
making multiple deposits at multiple banks each trip—to keep each deposit under $10,000, even
though the total amount deposited was often about ten times that amount. Ortiz was also told to
use a cover story when making the deposits; she was often nervous about making them; and she
did not want to use her own identification card when doing so. And Ortiz herself said that she
“knew that something wasn’t right” with the deposits. Trial Tr., R. 334 at PageID # 2006. Thus,
considering the evidence in the light most favorable to the government, a rational jury could infer
that Ortiz knew or chose to remain willfully blind to the fact that her deposits were structured to
avoid a state or federal reporting requirement.
Ortiz responds that the testimony of her co-conspirators was not credible, but credibility
was an issue for the jury to decide. See United States v. Graham, 622 F.3d 445, 449 (6th Cir.
2010). Ortiz also says that she did not know what money laundering was until an agent explained
it to her after her arrest; but § 1956(a)(1)(B)(ii) “does not require that the defendant know that
structuring or money laundering is a crime.” United States v. Hill, 167 F.3d 1055, 1070 (6th Cir.
1999). Sufficient evidence therefore supported her money-laundering conviction.
For the same reasons, we reject Ortiz’s argument that the district court abused its discretion
when it instructed the jury that it could find the knowledge requirements of § 1956(a)(1)(B)(ii)
met if it was “convinced that [Ortiz] deliberately ignored a high probability” that the cash she
deposited “represented the proceeds of some form of unlawful activity[,]” that the deposits were
structured “to avoid a transaction requirement[,]” and that Ortiz had “deliberately closed her eyes
to what was obvious.” Trial Tr., R. 468 at PageID # 3048. To the contrary, we agree with the
district court that Ortiz’s case was “a prime example of when [the deliberate ignorance instruction]
should be given.” Id. at 3030.
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Ortiz next argues that the district court erred in its determination of the amount of cash that
Ortiz laundered (a determination that increased her offense level by 14 for purposes of computing
her guidelines range). We review that determination for clear error. See United States v. Donadeo,
910 F.3d 886, 893 (6th Cir. 2018).
A DEA agent testified that Ortiz made deposits on seven money-laundering trips with her
co-conspirators. Together, the group laundered between $70,000 and $100,000 on each trip. On
each of the seven trips, the group coordinated their activities (e.g., no two women deposited money
into the same account at the same bank branch) and used the same scheme (they made deposits at
multiple banks into accounts identified by Sosa). Thus, the district court properly included the
money laundered by Ortiz’s co-conspirators in the amount for which Ortiz was responsible. See
Donadeo, 910 F.3d at 893–94. And the district court estimated that the group deposited $85,000
for each of the seven laundering trips—the midpoint between $70,000 and $100,000. The resulting
calculation, $595,000, is a reasonable estimate of the amount deposited by the group, and thus the
amount for which Ortiz was responsible. Hence the court did not clearly err.
Finally, Ortiz argues that she was entitled to a four-level reduction because, she says, she
was a minimal participant in the conspiracy. See U.S.S.G. § 3B1.2(a). Again, we review the
district court’s determination only for clear error. United States v. Randolph, 794 F.3d 602, 616
(6th Cir. 2015). A defendant is a minimal participant when she is “plainly among the least culpable
of those involved in the conduct of a group.” U.S.S.G. § 3B1.2 cmt. n.4. Moreover, the relevant
comparison is not with members of the cartel, as Ortiz suggests, but with her money-laundering
co-conspirators: Laura, Arlenne, and Sosa. See id. True, by that measure Sosa had a leadership
role; but—as the district court correctly pointed out—that does not mean that “everyone else gets
a minor role reduction.” Sentencing Tr., R. 447 at PageID # 2889. Moreover, Ortiz made seven
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money-laundering trips in only five months before she was arrested; and at her suggestion the
group expanded its deposits to banks in North Carolina. The district court therefore did not clearly
err in finding that Ortiz was an average participant in the conspiracy rather than a minimal one.
* * *
The district court’s judgments are affirmed.
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