United States of America v. Aletsys Calderón-Lozano

Boston, MA - Criminal defense lawyer represented defendant with a conspiracy to launder monetary instruments charge. He now challenges the procedural and substantive reasonableness of his sentence

Between February 25 and 26, 2016, Calderón-Lozano and an

undercover Homeland Security Investigations ("HSI”) agent arranged

a meeting to deliver money. As agreed, Calderón-Lozano sent his

associate (and co-defendant) to deliver $80,000 to the agent. The

$80,000 was then deposited into a bank account and divided between

two accounts in the amount of $52,000 and $23,080 respectively.

On March 23, 2016, Calderón-Lozano arranged another money delivery

with the undercover agent. This time, Calderón-Lozano himself

delivered $100,000. The money was again deposited and divided

between two bank accounts, in the amount of $59,951 and $34,067

respectively. After his arrest, Calderón-Lozano told

investigative agents that "his job in Puerto Rico is to collect

money from drug sales and deliver it to people.” When CalderónLozano entered a straight guilty plea to the conspiracy count, his

lawyer stated that the defendant was not pleading guilty to the

specific unlawful activity of drug importation. The district

court, although noting that the defendant had admitted to his

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involvement in the drug trafficking deliveries to agents,

indicated that it would decide the issue at sentencing.

The third and final amended presentence report ("PSR”)

provided an imprisonment range of 87 to 108 months under the U.S.

Federal Sentencing Guidelines ("Guidelines”). This calculation

included a six-level enhancement for knowing or believing that the

laundered funds were drug proceeds pursuant to U.S.S.G.

§ 2S1.1(b)(1).

In his sentencing memorandum, Calderón-Lozano discussed

his difficult childhood and current familial ties. He also

requested a variant sentence, stating that "[a]lthough there is no

cooperation agreement in this case, the Court should consider the

information [he] provided to federal agents when he was arrested.”

Calderón-Lozano did not object to the PSR's six-level increase for

knowing or believing that the laundered funds were drug proceeds

pursuant to U.S.S.G. § 2S1.1(b)(1).

At sentencing, Calderón-Lozano again argued for a

variant sentence. Calderón-Lozano urged the district court to

disregard his statements to HSI agents in assessing whether he

knew that the money was from drug trafficking. Calderón-Lozano

conceded that he told the agents that "his job in Puerto Rico is

to collect money from drug sales and deliver it to people.” He

also conceded that he does not have a proffer letter, that the

"government is legally and rightfully using” his "post-arrest,

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pre-counsel statements, and that these statements are sufficient

to prove the six-point enhancement.” He later clarified that he

was "not objecting to the fact that there is a factual basis for

the six point enhancement [as] [t]here clearly is,” but instead

was "making an equity argument.” He argued for a sentence within

the total offense level ("TOL”) of 17 for a guideline range of 24

to 30 months.

The United States ("the government”) opposed a variance.

The government argued that Calderón-Lozano failed to object to the

six-level enhancement in the PSR and that the statements are postarrest statements, not part of a cooperation agreement. Noting

that "Mr. Calderón[-Lozano] was approached on numerous times to

see if he wanted to sit down and cooperate, and on each occasion,

he declined,” the government asserted that "[t]here is simply just

no authority to argue that a post-arrest statement should qualify

for a variant sentence.” Finally, the government argued that

Calderón-Lozano's statements were not useful and "led to nothing.”

Accordingly, the government recommended a sentence of 46 to 57

months, within the guideline range for a TOL of 23.

Ultimately, the district court followed the guideline

calculations in the PSR and calculated a TOL of 23, which included

the six-level drug-trafficking enhancement. The district court

found specifically that "[b]ecause Mr. Calderón[-Lozano] knew or

believed that the laundered funds were the proceeds of or were

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intended to promote an offense involving the manufacture,

importation, or distribution of controlled substances, the offense

level is increased by another six levels pursuant to sentencing

guideline section 2S1.1(b)(1).” With a TOL of 23 and a criminal

history category of I, the district court calculated CalderónLozano's guideline sentencing range to be 46 to 57 months of

imprisonment. Before imposing his sentence, the district court

expressly stated that it considered the relevant 18 U.S.C.

§ 3553(a) sentencing factors. Reiterating that the six-level

enhancement applied because Calderón-Lozano's statements were

merely unhelpful post-arrest statements, the district court

sentenced Calderón-Lozano to a low-end guideline sentence of 46

months of imprisonment. Calderón-Lozano objected to the district

court's denial of his variance request and objected to the sentence

as procedurally and substantively unreasonable. This appeal

ensued.

I.

Calderón-Lozano argues that the district court abused

its discretion by applying a six-level enhancement pursuant to

U.S.S.G. § 2S1.1(b)(1) when it was not proven that he knew that

his crime involved drug trafficking proceeds.

This Court reviews criminal sentences for abuse of

discretion. United States v. Flores-Machicote, 706 F.3d 16, 20

(1st Cir. 2013). "[W]here there is more than one plausible view

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of the circumstances, the sentencing court's choice among

supportable alternatives cannot be clearly erroneous.” United

States v. Dunston, 851 F.3d 91, 101-02 (1st Cir. 2017) (quoting

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)). We

review unpreserved challenges to guideline calculations under the

more daunting plain error standard. United States v. Arsenault,

833 F.3d 24, 28 (1st Cir. 2016). Because Calderón-Lozano twice

failed to object to the factual basis for the enhancement by not

objecting to the PSR and at the sentencing hearing, he did not

preserve his challenge to the guideline calculations, and his claim

can be reviewed under the plain error standard.

In any event, the district court did not err, much less

plainly err, in applying the six-level drug-trafficking proceeds

enhancement pursuant to U.S.S.G. § 2S1.1(b)(1) because there was

sufficient evidence that Calderón-Lozano knew that the sentencing

court is entitled to rely on the uncontested facts in the PSR.

United States v. González, 857 F.3d 46, 61-62 (1st Cir. 2017)

(internal quotations and citations omitted). The PSR included

information that Calderón-Lozano gave to the HSI agents showing he

had knowledge that the laundered funds were proceeds of an offense

involving narcotics. Calderón-Lozano admitted to the HSI agents

"that his job in Puerto Rico . . . was to collect money from drug

sales and deliver it to people that would launder the money and

wire transfer it to different parts of the world.” He also

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"admitted that his roommate in Puerto Rico would coordinate the

drug shipments from Saint Maarten, and that he was present during

said coordination.” He further "admitted that once the drugs came

in, he was responsible for picking up the money and delivering it

to associates with capacity to launder the drug proceeds.” These

uncontested admissions, as listed in the PSR, provided the district

court ample evidence to establish by a preponderance of the

evidence that Calderón-Lozano knew that the laundered funds were

drug-trafficking proceeds.1 See United States v. Dixon, 449 F.3d

194, 200-01 (1st. Cir. 2006).

II.

Calderón-Lozano also asserts that his 46-month sentence

is both procedurally and substantively unreasonable.

We review preserved claims of sentencing error for abuse

of discretion. United States v. Córtes-Medina, 819 F.3d 566, 569

(1st Cir. 2016). "In reviewing a sentence, [this Court] seek[s]

to ensure that it is both procedurally sound and substantively

reasonable.” United States v. Dávila-González, 595 F.3d 42, 47



1

Calderón-Lozano's assertion that "the PSR also states that

[he] made no statements as to the relation of said money with drug

trafficking (PSR29),” is misleading. Paragraph 29 states that

Calderón-Lozano made no such statements during his acceptance-ofresponsibility interview on June 27, 2017, but does not address

the interview that Calderón-Lozano conducted with HSI agents.

According to PSR Paragraph 23, Calderón-Lozano's statements to HSI

agents "showed his knowledge that the laundered funds were proceeds

of an offense involving narcotics.”

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(1st Cir. 2010). Procedural errors include "failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence . . .

.” Gall v. United States, 552 U.S. 38, 45-46 (2007). When

reviewing a sentence, we remain "mindful that deference to the

trial court is a lineament of appellate review of federal criminal

sentences.” United States v. Del Valle-Rodríguez, 761 F.3d 171,

176 (1st Cir. 2014). Because Calderón-Lozano objected to the

district court's denial of his variance request based on its

alleged failure to consider his willingness to cooperate, he

preserved this issue for appeal. Accordingly, this claim is

reviewed for abuse of discretion. See Córtes-Medina, 819 F.3d at

569.

The district court did not abuse its discretion because

it considered all relevant § 3553(a) sentencing factors, including

Calderón-Lozano's alleged attempts to cooperate with the

government. Section 3553(a) requires the sentencing court to

"impose a sentence sufficient, but not greater than necessary,” to

deter criminal conduct, protect the public from the defendant's

future crimes, and meet the defendant's educational and medical

needs. The district court, however, "is not required to address

[each] factor[], one by one, in some sort of rote incantation when

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explicating its sentencing decision.” Dixon, 449 F.3d at 205.

Moreover, "[a] criminal defendant is entitled to a weighing of the

section 3553(a) factors that are relevant to [his] case, not to a

particular result.” United States v. Carrasco-De-Jesús, 589 F.3d

22, 29 (1st Cir. 2009). In imposing the low-end guideline

sentence, the district court expressly stated that it considered

the "nature and circumstances” of the offense as well as "the other

sentencing factors set forth in Title 18, United States Code

section 3553(a).” A district court's explicit statement that it

considered the § 3553(a) factors is "entitled to significant

weight.” United States v. Arroyo-Maldonado, 791 F.3d 193, 199

(1st Cir. 2015) (citing United States v. Santiago-Rivera, 744 F.3d

229, 233 (1st Cir. 2014)). The district court weighed those

mitigating factors against Calderón-Lozano's participation in the

instant offense, which was "the coordination of a $100,000 pickup,

and delivery and pick up of $80,000 [of] . . . laundered funds

which were proceeds of . . . distribution of narcotics.” Noting

Calderón-Lozano's admissions to the HSI agents, the district court

found that he knew the money laundered was the proceeds of drug

trafficking. Rather than viewing his post-arrest statements as

mitigation, as Calderón-Lozano suggests, the district court

properly factored Calderón-Lozano's admissions into his role in

the offense. The district court expressly referenced its

consideration of these statements during its § 3553(a) analysis.

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The district court also considered the government's argument that

although Calderón-Lozano had several opportunities to cooperate,

he declined to do so, and thus declined to take advantage of a

cooperation agreement.

Nor is there any evidence that the district court

misunderstood its discretion to consider Calderón-Lozano's alleged

cooperation. See United States v. Landrón-Class, 696 F.3d 62, 77-

78 (1st Cir. 2012). Calderón-Lozano's post-arrest statements here

were "vehemently argued by [both] counsel[s] and specifically

acknowledged by the court immediately before it imposed sentence.”

United States v. Ruiz-Huertas, 792 F.3d 223, 227 (1st Cir. 2015).

See also Landrón-Class, 696 F.3d at 77-78. Thus, the district

court properly weighed the § 3553(a) sentencing factors and did

not abuse its discretion in imposing a 46-month imprisonment

sentence.

Calderón-Lozano's sentence is also substantively

reasonable because the district court provided "a plausible

sentencing rationale and a defensible result,” United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008), considering the severity

of the instant offense and that Calderón-Lozano's sentence is well

below the statutory maximum of 20 years of imprisonment. Moreover,

because Calderón-Lozano's sentence is at the low end of the

properly calculated guideline sentencing range, it "deserves 'a

presumption of reasonableness.'” United States v. Llanos-Falero,

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847 F.3d 29, 36 (1st Cir. 2017), cert. denied, 137 S. Ct. 2229

(2017) (quoting Cortés-Medina, 819 F.3d at 572). Thus, CalderónLozano's 46-month sentence was "not greater than necessary,”

§ 3553(a), but rather, was "within the wide universe of reasonable

sentences.” See United States v. Rivera-Berríos, 902 F.3d 20, 27

(1st Cir. 2018).

The sentence is affirmed.