United States of America v. Mauricio Azcarate

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-2269
UNITED STATES OF AMERICA
v.
MAURICIO AZCARATE,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cr-00661)
District Judge: Hon. John C. Lifland
Submitted Under Third Circuit LAR 34.1(a)
February 4, 2002
Before: SLOVITER, AMBRO, Circuit Judges, and POLLAK, District Judge*
(Filed: February 7, 2002 )
MEMORANDUM OPINION OF THE COURT
___________________________
* Hon. Louis H. Pollak, Senior United States District Judge for the Eastern District of
Pennsylvania, sitting by designation. SLOVITER, Circuit Judge.
Mauricio Azcarate appeals from the judgment of sentence. After indictment in the
United States District Court for the District of New Jersey, Azcarate pleaded guilty to
exporting monetary instruments of more than $10,000 in violation of 31 U.S.C. 5316
and 5324. His appeal challenges the District Court’s two level sentencing enhancement
under 2S1.3(b)(1) of the U.S. Sentencing Guidelines. We will affirm.
The District Court had jurisdiction under 18 U.S.C. 3231. This court enjoys
jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a).
I.
Azcarate argues that the District Court erred by enhancing his sentence under
U.S.S.G. 2S1.3(b)(1), which provides for a two level enhancement for a failure to report
monetary transactions where the defendant "knew or believed that the funds were
proceeds of unlawful activity." According to Azcarate, the government did not prove by
a preponderance of the evidence that he "knew or believed that the funds were proceeds
of unlawful activity."
Facts upon which sentencing determinations are made must be proven by a
preponderance of the evidence. United States v. Dorsey, 174 F.3d 331, 332 (3d Cir.
1999). This court reviews a District Court’s factual findings for clear error. United
States v. Jarvis, 258 F.3d 235, 239 (3d Cir. 2001). "’Under the clearly erroneous
standard, a finding of fact may be reversed on appeal only if it is completely devoid of a
credible evidentiary basis or bears no rational relationship to the supporting data.’"
United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997) (quoting American Home

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Products Corp. v. Barr Laboratories, Inc., 834 F.2d 368, 370-71 (3d Cir. 1987)).
On March 5, 1998, Azcarate attempted to board a non-stop flight from Newark
Airport to Panama City, Panama with $133,576 in United States currency and $9,984 in
unendorsed money orders hidden in his computer bag and shoes. Following his arrest,
United States Customs officials repeatedly questioned him where the money he was
transporting came from. At his sentencing hearing, Azcarate testified that in response to
these inquiries he ultimately replied, "It probably came from drugs, it probably came from
something illegal." App. at 25. The District Court found that, "Mr. Azcarate’s testimony
supports a belief that the funds were proceeds of illegal activity." App. at 29.
Azcarate argues that his testimony is insufficient to support a determination that he
knew or believed the money came from unlawful activity. According to Azcarate, he was
speculating about the money’s origin at the behest of Customs agents. Thus, at the
sentencing hearing, Azcarate testified, "I do not know where [the money] actually came
from. I could not prove it." App. at 23.
At the outset, we note that our clearly erroneous review is "’more deferential with
respect to determinations about the credibility of witnesses.’" Newark Branch, NAACP
v. City of Bayonne, 134 F.3d 113, 120 (3d Cir. 1998) (quoting United States v. Igbonwa,
120 F.3d 437, 441 (3d Cir. 1997)). To the extent the District Court’s finding was based
on Azcarate’s testimony at the sentencing hearing, the District Court may simply have
disbelieved Azcarate because of his demeanor or tone of voice.
A sentencing court may also consider evidence contained in a noticed pre-sentence
report. See, e.g., United States v. Hart, 273 F.3d 363, 379 (3d Cir. 2001). According to
the pre-sentence report, which Azcarate reviewed, App. at 23, upon his arrest Azcarate
stated that he "knew the confiscated cash/money orders represented proceeds from drug-
trafficking activity." Pre-sentence Report, 11. Azcarate also admitted that he was
commissioned to transport the money in exchange for $10,000. Pre-sentence Report,
11. Furthermore, the currency Azcarate transported was in small denominations, Pre-
sentence Report, 17, and his activity was commissioned by a contact he made while
traveling in Colombia.
All of these facts support the trial court’s determination that Azcarate believed the
money he carried was from unlawful activity. Courts have considered large amounts of
small denomination bills in connection with travel to Colombia to support a determination
that the defendant believed the money was derived from an illicit source. See, e.g.,
United States v. Berrio, 77 F.3d 206, 209 (7th Cir. 1996). That Azcarate’s "employer"
was willing to reward him so generously for his efforts despite the availability of
considerably more economical and secure means of transferring funds internationally
further bolsters the District Court’s determination.
Based on the evidence before the sentencing court, and the deferential stance we
adopt in applying the clearly erroneous standard of review, we cannot say the District
Court’s finding was reversible error.
II.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
___________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Delores K. Sloviter
Circuit Judge

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