United States v. Del Toro-Barboza

Under U.S.S.G. § 2S1.3(a)(2), no showing of “loss to the public” is necessary to justify a sentencing enhancement when the underlying offense is a violation of 31 U.S.C. §§ 5332 or 5324.

Adin and Israel Del Toro-Barboza were convicted of “bulk cash smuggling under 31 U.S.C. § 5332 and failure to file reports on exporting monetary instruments under 31 U.S.C. § 5324.” They appealed their convictions and sentences on several grounds. The Ninth Circuit held that (1) there was sufficient evidence of intent because the amount of money was very large, the defendant’s concealed the money and the defendant’s attempted to cross the border late at night; (2) the additional jury instructions were not needed because those given “reasonably covered” the defense’s theories; (3) conviction under both statutes did not violate double jeopardy because both charges were brought in the same trial and Congress intended to “provide for two separate punishments for the same conduct;” and (4) there was no due process violation for destruction of evidence because the evidence destroyed was neither exculpatory nor destroyed in bad faith. Additionally, with regard to sentencing, the Court noted, “[a] sentence for convictions under § 5332 is determined under U.S.S.G. § 2S1.3,” which incorporates “the table in § 2B1.1.” The Ninth Circuit held that a showing of “loss to the public” was not required for the 14-level sentencing enhancement. Finally, the Court held that a “minor role adjustment” was not appropriate for Adin Del Toro-Barboza’s sentence because he did not raise the issue in his defense and because he was the owner of the van, “picked up some of the merchandise on his own”, and received inculpatory phone calls after the border stop. AFFRIMED.