No. 07-2857-cr.United States Court of Appeals, Second Circuit.
October 14, 2008.
Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Chin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGEDAND DECREED that the judgment of the district court beAFFIRMED.
FOR APPELLEE: CHRISTOPHER L. LAVIGNE (Katherine Polk Failla, on the brief), Assistant United States Attorneys, for Michael J. Garcia, United States Attorney
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for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT: MARY ANNE WIRTH, Bleakley Platt Schmidt, LLP, White Plains, NY.
PRESENT: HON. DENNIS JACOBS, Chief Judge,HON. ROGER J. MINER, HON. SONIA SOTOMAYOR,Circuit Judges.
Hector Manuel Alejo Concepcion appeals from a judgment of conviction entered on June 1, 2007 in the United States District Court for the Southern District of New York (Chin,J.). Concepcion pleaded guilty both to illegal reentry after the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2), and to conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (h). He was sentenced principally to 70 months’ imprisonment on each count to run concurrently. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Concepcion’s primary challenge on this appeal is that there was an insufficient factual basis for his plea to the money laundering count.
Concepcion was arrested after he had arranged with an undercover federal agent to launder $74,900 in United States currency. He was charged with money laundering under 18 U.S.C. § 1956(a)(1)(B)(i), an element of which is “knowing that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.”
Concepcion now argues that his plea and the conviction are flawed because he never attempted to “conceal” the source of the funds by creating the appearance of legitimate wealth. Concepcion acknowledges that the $74,900 in
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currency was drug proceeds but contends that he never tried to pass it off as anything else. His argument is predicated on a decision of the Court of Appeals for the Fifth Circuit, which reversed a defendant’s money laundering conviction because it construed the “concealment” element of 18 U.S.C. § 1956(a)(2)(B)(i) to require that a defendant “create the appearance of legitimate wealth.”[*] United States v.Cuellar, 441 F.3d 329, 333-34 (5th Cir. 2006).
However, the Fifth Circuit adopted the opposite view enbanc. 478 F.3d 282, 290 (5th Cir. 2007) (en banc)(“Although creating the appearance of legitimate wealth is one way of concealing illicit funds, it is not the only way concealment can be established.”). Moreover, since Concepcion filed his brief in this Court, the Supreme Court has affirmed the analysis of the Fifth Circuit’s en banc decision.Regalado Cuellar v. United States, 128 S.Ct. 1994, 2000-01 (2008)(“In addition to concealing or disguising the nature or source of illegal funds, Congress also sought to reach transportation designed to conceal or disguise the location, ownership, or control of the funds.”).
The Supreme Court’s decision in Cuellar thus renders this argument untenable.
Concepcion also argues that his allocution failed to provide enough detailed information to support his guilty plea. This argument is without merit. At his allocution, Concepcion admitted facts sufficient to make out the elements of § 1956(a)(1)(B)(i). The government also proffered evidence supporting the charges. The detail provided in these exchanges is sufficient to support Concepcion’s plea. SeeUnited States v. Andrades, 169 F.3d 131, 136 (2d Cir. 1999)(“The court may rely on defendant’s
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own admissions, information from the government, or other information appropriate to the specific case.”).
For the foregoing reasons, the judgment of the district court is AFFIRMED.