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United States of America v. Marco Manuel Luis (5

January 14, 2013

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
MARCO MANUEL LUIS (5), DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING RESTITUTION

On October 26 and 30, 2012, the Court held a restitution hearing to determine whether and the amount of restitution owed by Defendant Marco Manuel Luis ("Defendant"). For the following reasons, the Court ORDERS restitution in the amount of $329,767 to CitiGroup and $615,935 to JP Morgan.

BACKGROUND

Defendant was arrested on July 9, 2010, along with several co-defendants. [Doc.] Defendant ultimately pleaded guilty to counts 16 and 25 of the indictment for conspiracy to engage in monetary transactions under 18 U.S.C. §§ 1957, 1956(h). [Doc. No. 677, Judgment at 1.] On August 27, 2012, the Court sentenced Defendant to 48 months custody and ordered that he pay $545,024.90 in restitution. [Id. at 2, 5.] The Court ordered that restitution shall be paid immediately and "[j]ointly and severally with co-defendants, per the government's order regarding payment on restitution." [Id. at 5.] The Court also determined that Defendant did have the ability to pay interest, and then waived the interest requirement. [Id.]

Defendant filed a motion to amend/correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a) on September 5, 2012, requesting that the Court (1) vacate the restitution order for further consideration in light of a more complete record; (2) impose a lower custodial sentence to eliminate sentencing disparity amongst co-defendants; and (3) impose a lower custodial sentence to correct for application of an improper burden of proof when imposing a six-level upward adjustment to the sentencing guidelines offense level. [Doc. No. 682-1, Def.'s P. &

A. in Supp. of Mot. at 1.]

On September 10, the Court denied Defendant's request to vacate the restitution order in the judgment. [Doc. No. 690, Tr. of Restitution Hr'g at 9.] The Court also denied Defendant's motion to amend/correct his sentence on all grounds and found that there was no clear error committed by the Court. The Court found by clear and convincing evidence that the plus-six upward adjustment was appropriate and that Defendant knew that the proceeds used to purchase the two properties were derived from the drug business. [Id. at 42-44.] The Court also found that it does not have jurisdiction under Rule 35 to consider whether there was disparate treatment between co-defendants. [Id. at 44-45.]

Finally, the Court ordered that a restitution hearing be set for October 26, 2012 to determine the amount of restitution owed. [Id. at 50.] On October 26 and 30, 2012, the Court held an evidentiary hearing on restitution, and ordered supplemental briefing on the issues. On November 19, 2012, Defendant filed a supplemental brief. [Doc. No. 731.] On December 5, 2012, the Government filed its supplemental brief. [Doc. No. 741.] On December 13, 2012, Defendant filed his response. [Doc. No. 751.]

DISCUSSION

The Court must determine whether restitution is mandatory or discretionary, the victims, and the amount of restitution. [Doc. No. 690, Tr. of Restitution Hr'g at 48-49.]

I. Mandatory Restitution

The Mandatory Victims Restitution Act ("MVRA") requires courts to order restitution to victims of certain criminal offenses. 18 U.S.C. § 3663A(c); see also U.S. v. Hunter, 618 F.3d 1062, 1063 (9th Cir. 2010). Restitution is mandatory if the conviction is for "an offense against property [under Title 18]. . ., including any offense committed by fraud or deceit." 18 U.S.C. § 3663A(c)(1)(ii).Defendant argues that conspiracy to engage in monetary transactions involving criminally derived property valued at greater than $10,000 under 18 U.S.C. §§ 1957, 1956(h) is not a crime against property. [Doc. No. 682-1, Def.'s P. &. A. at 4.]

The Ninth Circuit has found that conspiracy to commit money laundering qualifies as an offense against property under the MVRA. United States v. Lazarenko, 624 F.3d 1247, 1249-50 (9th Cir. 2010). Also, the Seventh Circuit has specifically held that a conviction under 18 U.S.C. § 1957 is a money laundering crime. United States v. Polichemi, 219 F.3d 698, 706-07, 714 (7th Cir. 2000) (holding that the district court must follow the provisions of the MVRA and impose mandatory restitution because the defendant was convicted of money laundering, which is an offense of property as described in 18 U.S.C. § 3663A(c)(1)(A)(ii)). The Court finds the Seventh Circuit's reasoning to be persuasive, that conspiracy to engage in monetary transactions involving criminally derived property is a money laundering offense which qualifies as an offense against property under the MVRA. Therefore, the Court must order restitution.

II. Victims

The MVRA requires a court to order restitution to each victim of an offense. A victim is broadly defined as:

A person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the ...


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