NOT RECOMMENDED FOR PUBLICATION File Name: 20a0568n.06
Case No. 19-6345
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 06, 2020 ) DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY ALBERTO LOPEZ PANIAGUA, ) Defendant-Appellant. ) ) OPINION
BEFORE: COLE, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. After assisting a large drug-trafficking organization with
transporting drug money into and out of the United States for years, Alberto Lopez Paniagua was
arrested and indicted for conspiracy to commit money laundering. Lopez Paniagua admitted to
his role in this conspiracy, pled guilty, and was sentenced to 130 months in prison. He claims
various procedural errors in the district court’s sentencing decision and also argues that the district
court abused its discretion in fining him $3,000.
We find these arguments to be without merit and AFFIRM Lopez Paniagua’s sentence. Case No. 19-6345, United States v. Lopez Paniagua
I
During an investigation into a large drug-trafficking organization, the DEA learned that
Lopez Paniagua would be transporting drug proceeds between Ohio and Kentucky. After further
investigation, the DEA concluded that Lopez Paniagua had been involved in money laundering
since at least 2014. A tip from a confidential informant led to a traffic stop and Lopez Paniagua’s
arrest, where the police recovered $173,480 in currency.
But Lopez Paniagua’s involvement in the drug-trafficking organization was far more
involved than that. After pleading guilty to conspiracy to commit money laundering, Lopez
Paniagua admitted to promoting and concealing drug-trafficking activity, brokering agreements
on behalf of the organization, and collecting and transferring proceeds from the United States to
Mexico for nearly two years. During 2017 and 2018, Lopez Paniagua was involved in the transfer
of over $1.5 million in drug proceeds.
For this conduct, Lopez Paniagua’s Sentencing Guidelines range was 108 to 135 months
and the recommended fine ranged between $30,000 and $3,003,080. At a sentencing hearing on
November 22, 2019, the district court sentenced Lopez Paniagua to 130 months’ imprisonment
and imposed a fine of $3,000, one-tenth of the minimum Guidelines-recommended amount. Lopez
Paniagua did not object to his fine or sentence at the sentencing hearing.
This appeal followed.
II
A. Procedural Error
We review sentences for an abuse of discretion, regardless of whether they are within or
outside of the advisory Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).
Additionally, “we review the district court’s factual findings for clear error and its legal
-2- Case No. 19-6345, United States v. Lopez Paniagua
conclusions de novo.” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). After
announcing its sentence, a district court must “ask the parties whether they have any objections to
the sentence just pronounced that have not previously been raised.” United States v. Bostic,
371 F.3d 865, 872 (6th Cir. 2004). If a defendant does not raise a procedural objection at that time,
the claim is reviewed only for plain error. Id. at 872–73; see also United States v. Herrera-Zuniga,
571 F.3d 568, 578 (6th Cir. 2009).
Here, Lopez Paniagua raises three challenges to the district court’s sentence: 1) he claims
that the district court improperly relied upon his likelihood to recidivate based on his age and
involvement with organized crime, 2) he claims that the district court improperly considered facts
outside the record, and 3) he claims that the district court failed to identify aggravating factors in
explaining its sentence. All of these arguments challenge the procedural reasonableness of Lopez
Paniagua’s sentence, and Lopez Paniagua made none of them at the sentencing hearing below.
Therefore, we review all of them for plain error. See Bostic, 371 F.3d at 872.
The first stage of review focuses on the procedure that the district court followed. We
determine whether the sentence was procedurally reasonable by examining whether “the trial court
follow[ed] proper procedures and [gave] adequate consideration to [the 18 U.S.C. § 3553(a)]
factors.” United States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020)). Procedural reasonableness focuses on
“the propriety of the factors that go into a sentence.” Id.
First, Lopez Paniagua claims that the district court relied on a clearly erroneous fact that
“individuals involved in cartel activity were more likely to recidivate despite being over 65 years
of age.” In Lopez Paniagua’s sentencing memorandum, he noted a publication by the United States
Sentencing Commission that discussed aging and recidivism for federal offenders. In considering
-3- Case No. 19-6345, United States v. Lopez Paniagua
this material, the district court stated that “an individual that’s older . . . is less likely, statistically,
to engage in criminal conduct” while also speculating “[t]hat may not be the case for individuals
that are engaged in organized criminal activity.” There is no indication in the record that this
passing remark had any impact on the district court’s sentencing decision. Indeed, the court
specifically identified Lopez Paniagua’s age as a mitigating factor. Thus, no plain error occurred
here.
Second, Lopez Paniagua claims that the district court relied on information from the
government that was outside the record. Not so. The district court properly considered
information from the presentence report as well as the plea agreement and remained “free to make
reasonable inferences from facts in the record when fashioning a sentence.” Parrish, 915 F.3d at
1048. Here, the presentence report and plea agreement both clearly show that Lopez Paniagua’s
“primary role in the conspiracy was to broker agreements on behalf of the Drug Trafficking and
Money Laundering Organization (DTMLO) to collect drug proceeds in the United States.” The
government’s discussion of Lopez Paniagua’s involvement with the drug trafficking organization
was foreseeable and permissible argument from the record, and the district court’s stray remark
that “[i]t’s for another day to decide how high the defendant was within the organization itself” is
far too thin of a reed to claim the court improperly relied on extra-record evidence. To the extent
that the district court relied on information not from the record, the court clarified that it was
considered only “as it relate[d] to the length of the conspiracy that” was outlined in the record
documents and “only . . . for that purpose.” So, no plain error occurred.
Finally, Lopez Paniagua claims that the district court failed to sufficiently explain the
aggravating factors used in deciding his sentence. But the transcript reveals precisely the opposite.
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0568n.06
Case No. 19-6345
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 06, 2020 ) DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY ALBERTO LOPEZ PANIAGUA, ) Defendant-Appellant. ) ) OPINION
BEFORE: COLE, Chief Judge; McKEAGUE and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. After assisting a large drug-trafficking organization with
transporting drug money into and out of the United States for years, Alberto Lopez Paniagua was
arrested and indicted for conspiracy to commit money laundering. Lopez Paniagua admitted to
his role in this conspiracy, pled guilty, and was sentenced to 130 months in prison. He claims
various procedural errors in the district court’s sentencing decision and also argues that the district
court abused its discretion in fining him $3,000.
We find these arguments to be without merit and AFFIRM Lopez Paniagua’s sentence. Case No. 19-6345, United States v. Lopez Paniagua
I
During an investigation into a large drug-trafficking organization, the DEA learned that
Lopez Paniagua would be transporting drug proceeds between Ohio and Kentucky. After further
investigation, the DEA concluded that Lopez Paniagua had been involved in money laundering
since at least 2014. A tip from a confidential informant led to a traffic stop and Lopez Paniagua’s
arrest, where the police recovered $173,480 in currency.
But Lopez Paniagua’s involvement in the drug-trafficking organization was far more
involved than that. After pleading guilty to conspiracy to commit money laundering, Lopez
Paniagua admitted to promoting and concealing drug-trafficking activity, brokering agreements
on behalf of the organization, and collecting and transferring proceeds from the United States to
Mexico for nearly two years. During 2017 and 2018, Lopez Paniagua was involved in the transfer
of over $1.5 million in drug proceeds.
For this conduct, Lopez Paniagua’s Sentencing Guidelines range was 108 to 135 months
and the recommended fine ranged between $30,000 and $3,003,080. At a sentencing hearing on
November 22, 2019, the district court sentenced Lopez Paniagua to 130 months’ imprisonment
and imposed a fine of $3,000, one-tenth of the minimum Guidelines-recommended amount. Lopez
Paniagua did not object to his fine or sentence at the sentencing hearing.
This appeal followed.
II
A. Procedural Error
We review sentences for an abuse of discretion, regardless of whether they are within or
outside of the advisory Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).
Additionally, “we review the district court’s factual findings for clear error and its legal
-2- Case No. 19-6345, United States v. Lopez Paniagua
conclusions de novo.” United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019). After
announcing its sentence, a district court must “ask the parties whether they have any objections to
the sentence just pronounced that have not previously been raised.” United States v. Bostic,
371 F.3d 865, 872 (6th Cir. 2004). If a defendant does not raise a procedural objection at that time,
the claim is reviewed only for plain error. Id. at 872–73; see also United States v. Herrera-Zuniga,
571 F.3d 568, 578 (6th Cir. 2009).
Here, Lopez Paniagua raises three challenges to the district court’s sentence: 1) he claims
that the district court improperly relied upon his likelihood to recidivate based on his age and
involvement with organized crime, 2) he claims that the district court improperly considered facts
outside the record, and 3) he claims that the district court failed to identify aggravating factors in
explaining its sentence. All of these arguments challenge the procedural reasonableness of Lopez
Paniagua’s sentence, and Lopez Paniagua made none of them at the sentencing hearing below.
Therefore, we review all of them for plain error. See Bostic, 371 F.3d at 872.
The first stage of review focuses on the procedure that the district court followed. We
determine whether the sentence was procedurally reasonable by examining whether “the trial court
follow[ed] proper procedures and [gave] adequate consideration to [the 18 U.S.C. § 3553(a)]
factors.” United States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020)). Procedural reasonableness focuses on
“the propriety of the factors that go into a sentence.” Id.
First, Lopez Paniagua claims that the district court relied on a clearly erroneous fact that
“individuals involved in cartel activity were more likely to recidivate despite being over 65 years
of age.” In Lopez Paniagua’s sentencing memorandum, he noted a publication by the United States
Sentencing Commission that discussed aging and recidivism for federal offenders. In considering
-3- Case No. 19-6345, United States v. Lopez Paniagua
this material, the district court stated that “an individual that’s older . . . is less likely, statistically,
to engage in criminal conduct” while also speculating “[t]hat may not be the case for individuals
that are engaged in organized criminal activity.” There is no indication in the record that this
passing remark had any impact on the district court’s sentencing decision. Indeed, the court
specifically identified Lopez Paniagua’s age as a mitigating factor. Thus, no plain error occurred
here.
Second, Lopez Paniagua claims that the district court relied on information from the
government that was outside the record. Not so. The district court properly considered
information from the presentence report as well as the plea agreement and remained “free to make
reasonable inferences from facts in the record when fashioning a sentence.” Parrish, 915 F.3d at
1048. Here, the presentence report and plea agreement both clearly show that Lopez Paniagua’s
“primary role in the conspiracy was to broker agreements on behalf of the Drug Trafficking and
Money Laundering Organization (DTMLO) to collect drug proceeds in the United States.” The
government’s discussion of Lopez Paniagua’s involvement with the drug trafficking organization
was foreseeable and permissible argument from the record, and the district court’s stray remark
that “[i]t’s for another day to decide how high the defendant was within the organization itself” is
far too thin of a reed to claim the court improperly relied on extra-record evidence. To the extent
that the district court relied on information not from the record, the court clarified that it was
considered only “as it relate[d] to the length of the conspiracy that” was outlined in the record
documents and “only . . . for that purpose.” So, no plain error occurred.
Finally, Lopez Paniagua claims that the district court failed to sufficiently explain the
aggravating factors used in deciding his sentence. But the transcript reveals precisely the opposite.
The district court discussed “the seriousness of this particular offense,” the “connection with . . .
-4- Case No. 19-6345, United States v. Lopez Paniagua
organized criminal activity,” the amount of money “in excess of $1.5 million,” and the “dangerous
and deadly” effects of white collar crime in connection with drug trafficking organizations. And
an explanation for a within-Guidelines sentence like this one “need not be lengthy.” United States
v. Wilms, 495 F.3d 277, 280 (6th Cir. 2007) (citing Rita v. United States, 551 U.S. 338, 356–57
(2007)). Here, the explanation was more than sufficient to satisfy plain-error review.
B. Lopez Paniagua’s Fine
At sentencing, the court must impose a fine in all cases where the defendant has not shown
“that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a).
In deciding whether to impose a fine, and the amount of that fine, the district court must assess
“(1) the defendant’s income and earning capacity, (2) [his] financial resources, (3) the burden on
the defendant and [his] dependents, (4) whether restitution is ordered and the amount of restitution,
(5) the need to deprive the defendant of illegal gains, and (6) the need to promote respect for the
law.” United States v. Jackson-Randolph, 282 F.3d 369, 387 (6th Cir. 2002). But detailed findings
regarding the above factors are unnecessary “where it can be inferred that the district court
considered the defendant’s ability to pay and other factors required by law.” United States v.
Lumbard, 706 F.3d 716, 726 (6th Cir. 2013) (quoting United States v. Powell, 423 F. App’x 602,
610–11 (6th Cir. 2011)). “The burden of showing that a defendant is unable to pay a fine rests
ultimately on the defendant.” United States v. Lantz, 443 F. App’x 135, 146 (6th Cir. 2011). We
review the district court’s imposition of a fine for an abuse of discretion. United States v.
Blackwell, 459 F.3d 739, 770 (6th Cir. 2006). Finally, “the district court’s determination regarding
the defendant’s ability to pay a fine is a factual finding that is subject to clear error review.” United
States v. May, 430 F. App’x 520, 527 (6th Cir. 2011).
-5- Case No. 19-6345, United States v. Lopez Paniagua
Lopez Paniagua was ordered to pay a fine of $3,000, a mere one-tenth of the bottom of the
Guidelines-recommended amount of $30,000. In arguing that this was an abuse of discretion,
Lopez Paniagua relies heavily on the presentence report, which noted his net worth at the time of
sentencing was $3,300 and his monthly cash flow was negative $370. However, more must be
considered than the defendant’s present net worth. See United States v. Stone, 218 F. App’x 425,
440 (6th Cir. 2007) (“Current assets are not determinative of an ability to pay a fine.”). The report
did not address future inability to pay while incarcerated, and the burden of showing an inability
to pay rested with Lopez Paniagua, not the government. The court expressed that Lopez Paniagua
“would be able to pay that amount through the Bureau of Prisons Inmate Responsibility Program.”
Indeed, Lopez Paniagua will be able to pay in installments with prisoner wages while incarcerated
and could also make further payments upon release. See United States v. Sydnor, 762 F. App’x
284, 287 (6th Cir. 2019). At the sentencing hearing, Lopez Paniagua did not offer any reason as
to why he would not be able to pay a fine that was only one-tenth of the Guideline-recommended
range. Accordingly, there was no abuse of discretion in the imposition of a fine here.
III
For the foregoing reasons, we AFFIRM the judgment of the district court.
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