APPEALS COURT VACATES MONEY LAUNDERING SENTENCE OF ATTORNEY MARCO DELGADO

Delgado under arrest

The Fifth Circuit Court of Appeals, after having heard oral argument in the money laundering conspiracy case of prominent El Paso attorney Marco Delgado, has vacated, in part, his 20-year sentence, and remanded the case back to the District Court for the Western District of Texas, for re-sentencing. The Court did not reverse his conviction.

Delgado's case has been the subject of much press coverage, due to number of facts that generated a lot of public interest.

(1) A prominent lawyer, he reportedly became a confidential informant (CI) for a US law enforcement agency, after a co-conspirator/courier was found to have $1m in cash in his automobile.
(2) Delgado was allegedly working for the ex-wife of Mexican President Vicente Fox, in his capacity as a money launderer.
(3) The defendant was said to be an adviser to the Mexican Government.
(4) After being enrolled as a CI, he diverted millions of dollars, intended for a Mexican utility project, to an account he controlled in the Turks & Caicos Islands. He failed to notify his handlers of these new crimes.
(5) Delgado refused to plead out prior to trial, and his attorneys had the Court check his mental status, reasoning that no sane person would fail to enter into a plea agreement, when the evidence was clearly sufficient to convict him at trial. was he afraid of retribution from the Mexican Cartel he worked for ?

The 5th Circuit's decision turned upon whether the base offense level, and several enhancements adopted by the District Judge, were appropriate. Here is the breakdown:

(A) His basic offense level, which was set at 38, a 30-level enhancement, because he intended to launder $600m, was improper, because the evidence indicated that he did not have the capability to move more than a small sum. There was substantial evidence of his unskilled manner: his cash courier was arrested, in an automobile carrying Mexican Licenses, on an Interstate well known to be a route targeted by law enforcement. The $1m cash he was carrying included small currency : $1 & $5 bills.
(B)  A 4-level increase, added because the defendant was alleged to be in the business of laundering funds, was not supported by the evidence adduced at trial. He had no prior, successful, money laundering experience.
(C) A 2-level enhancement, for abuse of trust, or use of special skills was error, because the Court failed to apply the two-step inquiry case law requires, citing a Fifth Circuit Decision, US vs. Ollison, 555 F.3d 152 (5th Cir.2009).
(D) The 4-level enhancement, for being an organizer or leader was improper, because it cannot be imposed, unless the defendant also receives an enhancement for use of special skills, which was imposed. [see C above].

The net result, for sentencing, was a level that required a life sentence, but the District Court set it at the maximum permitted for money laundering, 20 years. The case will now, on remand, return to the trial judge, for re-sentencing.

Delgado's other case, the one involving the illegal diversion of money intended for a Mexican utility project, has been delayed several time, but will eventually go to trial. Will he eventually plead out in that one, I wonder ?