Appellate Case: 21-6127 Document: 010110819034 Date Filed: 02/28/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS February 28, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 21-6127 JOSE DIAZ-MENERA, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:20-CR-00159-JD-4) _________________________________ Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant. Nick Coffey, Assistant United States Attorney (Robert J. Troester, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________ Before MORITZ, SEYMOUR, and EBEL, Circuit Judges. _________________________________ MORITZ, Circuit Judge. _________________________________ Jose Diaz-Menera challenges his sentence for money laundering, arguing that the district court erroneously determined his base offense level under § 2S1.1(a)(1) rather than § 2S1.1(a)(2) of the United States Sentencing Guidelines (U.S.S.G. or the Guidelines). Section 2S1.1(a)(1) applies when a defendant convicted of money Appellate Case: 21-6127 Document: 010110819034 Date Filed: 02/28/2023 Page: 2 laundering either committed or was personally involved in the underlying offense, and it calculates the defendant’s base offense level using the offense level for the underlying offense. But if the defendant was not involved in the underlying offense, § 2S1.1(a)(2) applies, and it calculates the defendant’s offense level according to the amount of laundered funds. Here, the district court applied § 2S1.1(a)(1) based on its finding that Diaz-Menera was a member of the underlying drug conspiracy. Diaz-Menera argues that such finding was insufficient to trigger application of § 2S1.1(a)(1) because he did not personally possess or distribute drugs. However, because we conclude that a drug conspiracy can be an underlying offense for purposes of applying § 2S1.1(a)(1), we find no error in the district court’s sentencing decision. But because the government concedes Diaz-Menera’s second argument— agreeing that it breached the plea agreement by failing to move for a one-level reduction under U.S.S.G. § 3E1.1(b)—we vacate Diaz-Menera’s sentence and remand for resentencing. Background Authorities encountered Diaz-Menera during an investigation of Jose Manual Aveja, an individual suspected of conducting a drug-trafficking operation that involved the shipment of drugs from Michoacán, Mexico, to Oklahoma City, Oklahoma, and the distribution of those drugs in and around Dallas and Fort Worth, Texas. One evening in May 2020, officers observed Aveja meet a white van in a public parking lot in Oklahoma City, remove something from the van, place it in his vehicle, and then leave the parking lot. Officers followed Aveja and eventually 2 Appellate Case: 21-6127 Document: 010110819034 Date Filed: 02/28/2023 Page: 3 stopped him in Texas, discovering four kilograms of methamphetamine in his vehicle.1 The officers also followed the white van, which drove to an Oklahoma City residence. As they surveilled the residence, they watched two other vehicles arrive, stay for a short time, and then leave. Officers conducted traffic stops of those two vehicles and identified their drivers: One was …
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