Opinion
No. 00 Cr. 1260 (RWS)
April 25, 2002
SENTENCING OPINION
Defendant Juan Pablo Arbelaez ("Arbelaez") pleaded guilty on December 26, 2001 to conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). For the reasons set forth below, Arbelaez's sentence will consist of 24 months in federal custody, to be followed by a two-year term of supervised release, subject to the sentencing hearing now set for April 25, 2002. A special assessment fee of $100 is mandatory and will be due immediately.
The Defendant
Arbelaez was born on April 2, 1975 in Colombia. His parents separated when he was a teenager, at which time his father left the household. Arbelaez's parents, as well as his two siblings, who are students, continue to live in Colombia.
In 1996, Arbelaez graduated from Colegio Liceo Quindio, a high school located in Colombia. However, he has worked since at least the age of 16, when he began to support his mother and siblings as a salesman at Comite Caferos, Colombia. After that job, Arbelaez was self-employed as a party planner and promoter. For the three-and-a-half years prior to his arrest on November 22, 2000, he bought clothing in the U.S. and returned to Colombia to sell it at a profit, earning approximately $1,000 to $2,000 per month.
Arbelaez has no prior convictions. He has never been married and has no children. However, in 1998, he met Martha Agudelo, a co-defendant with whom he began to have a relationship. It was through Agudelo that Arbelaez became involved in the money laundering conspiracy to which he has pleaded guilty.
The Offense
Arbelaez was arrested on November 22, 2000, following an investigation by the U.S. Drug Enforcement Administration (DEA) into a money laundering organization headed by Myriam Nudell in the New York City area. The organization collected narcotics proceeds in the New York area from co-conspirators acting on behalf of Colombian drug traffickers. The cash would then be laundered by forwarding the proceeds to traffickers or their representatives in Colombia, either by physically transporting pesos or by depositing them in Colombian bank accounts.
Arbelaez helped move pesos between cities in Colombia on two occasions in November 1999. On the first instance (November 17-18, 1999), at Agudelo's request, Arbelaez allowed his bank account to be used to transfer funds from Bogota to Pereira. On the second instance (November 24, 1999), again at Agudelo's request, Arbelaez transported funds by airplane from Bogota to Pereira, hiding the money in his suitcase. Arbelaez received no payment for allowing his bank account to be used, and received less than $50 for his transport of funds on November 24.
At his plea allocution, Arbelaez stated that during the first transaction he did not suspect anything was wrong when the money was co-signed to his account. By the second occurrence, however, Arbelaez stated that he closed his eyes to what was obvious, that the money he was transporting was illegal money. At a hearing held by this Court on February 11, 2001, it was found that the total amount of laundered money attributed to Arbelaez was less than $100,000. It was further revealed that Arbelaez continued to associate with Nudell and Agudello as late as November 2000, when they continued to engage in criminal acts.
The Guidelines
Section 2S1.1(a)(2) of the United States Sentencing Guidelines (the "Guidelines") provides the base offense level for the offense for which Arbelaez has been convicted. Pursuant to this section, the base offense level is 20. Because Arbelaez believed that the funds were the proceeds of an unlawful activity involving narcotics trafficking, a three-level increase is warranted pursuant to § 2S1.1(b)(1). However, three levels are deducted based on Arbelaez's acceptance of responsibility for the offense. See U.S.S.G. § 3E1.1(a), (b).
The 2000 Guidelines Manual in effect at the time the offense was committed is more advantageous to Arbelaez, and was used for calculating his sentence in accordance with Guidelines § 1B1.11(b)(1).
Pursuant to Guidelines § 3B1.2, a further three-level downward adjustment is warranted given Arbelaez's limited role in the offense. See United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) ("If the defendant falls in between being classified as a minimal participant and a minor participant, he is entitled to a three-level downward adjustment."). He became involved in the conspiracy at the request of his girlfriend, Agudelo, and the only transactions for which he was directly responsible took place during the span of one week in November 1999. Further, Arbelaez received virtually no payment for his participation. His culpable conduct, which principally involved his being a delivery boy outside the United States and for which he received virtually no remuneration, makes him far less culpable than the average participant in a money laundering crime. See United States v. Neils, 156 F.3d 382, 383 (2d Cir. 1998) ("Under U.S.S.G. § 3B1.2, the district court is required to gauge [a defendant's] culpability relative to the elements of the offense of conviction as well as in relation to the co-conspirators.").
Arbelaez argues that he is also entitled to a two-level downward departure for aberrant conduct. The Court of Appeals recently clarified the circumstances warranting such a departure. In United States v. Gonzalez, 281 F.3d 38, 46 (2d Cir. 2002), the court concluded that the aberrant conduct guideline adopted by the Sentencing Commission in § 5K2.20, which became effective on November 1, 2000, was applicable to conduct that occurred prior to that date because the new guideline and its commentary "served to clarify an already existing basis for downward departure" and was not "more severe or more onerous" than the previously existing standard. See also U.S.S.G. § 1B1.11(b)(2) ("[I]f a court applies an earlier edition of the Guidelines manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.").
The new provision defines aberrant conduct to mean "a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from on otherwise law-abiding life." U.S.S.G. § 5K2.20, Application Note 1. In determining whether a departure is warranted, the Guidelines state that the court "may consider the defendant's (A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense." Id., Application Note 2.
Under this standard, a downward departure for aberrant conduct is not warranted. Although the two transactions in November 1999 in which Arbelaez directly participated may have been sufficiently linked to constitute the "single criminal transaction" contemplated by the Guidelines, see, e.g., U.S.S.G. Suppl. to App. C, at 79 ("The Commission intends that the phrases `single criminal occurrence' and `single criminal transaction' will be somewhat broader than `single act.'");United States v. Grandmaison, 77 F.3d 555, 562-64 (1st Cir. 1996) ("[T]he Commission intended the word `single' to refer to the crime committed and not to the various acts involved"), the record indicates that Arbelaez continued to be involved with the Nudell organization as late as the fall of 2000. His involvement was limited, in that he was not responsible for any illegal transactions in 2000. However, his associations with Agudelo at that time, and his comments to Nudell, demonstrate that Arbelaez had knowledge of the transactions taking place. Given this evidence, it cannot be said that Arbelaez's involvement was limited to a single occurrence of limited duration, as required by the Guidelines.
Given a three-level reduction for Arbelaez's limited role, his adjusted offense level is 17. Because Arbelaez has no criminal history, his Criminal History Category under the Guidelines is I. According to the Guidelines, the range for a defendant with a total offense level of 17 and a criminal history category of I is 24 to 30 months.
The Sentence
Pursuant to the above discussion, Arbelaez will be sentenced to 24 months imprisonment, to be followed by two years of supervised release. Arbelaez is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Arbelaez shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; and (3) not possess a firearm or destructive devise. Arbelaez shall also abide by the standard conditions of supervision (1-13)
In addition, as a special condition, Arbelaez will comply with the directives of the Immigration and Naturalization Service and obey all U.S. immigration laws.
No fine will be imposed due to Arbelaez's lack of financial resources at this time. However, a special assessment fee of $100 will be due immediately.
This sentence is subject to modification at the sentencing hearing now set for April 25, 2002.