United States v. Peter Thai Hoang

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 06-10487 JUNE 12 2007

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 05-00099-CR-5-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PETER THAI HOANG,

a.k.a. Ti Bo,

a.k.a. Peter Hoang,

Defendant-Appellant.

________________________

No. 06-10488

Non-Argument Calendar

________________________

D. C. Docket No. 05-00101-CR-3-003-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PETER THAI HOANG,

a.k.a. Ti Bo,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Northern District of Florida

_________________________

(June 12, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

In these consolidated appeals, Peter Thai Hoang appeals his 236-month

sentence for conspiring to distribute and to possess with the intent to distribute

methylenedioxymethamphetamine (“MDMA”) and five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 841 and 846, and a concurrent 236-month

sentence for conspiring to launder money, in violation of 18 U.S.C. § 1956(h). On

appeal, Hoang argues the district court erred in calculating his offense level under

the Sentencing Guidelines by (1) imposing a 4-level enhancement, pursuant to

U.S.S.G. § 3B1.1(a), for Hoang’s leadership role in the drug conspiracy; and (2)

imposing a 2-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based on a

co-conspirator’s possession of a firearm. Upon thorough review of the record and

careful consideration of the parties’ brief, we affirm.1

1

Hoang also challenges the district court’s application of § 3B1.1(c) in calculating his

offense level for the money laudering conspiracy. Under the Guidelines, counts which are closely

2

A district court’s sentencing determinations on whether a defendant

qualifies for a minor-role adjustment and whether a defendant possessed a firearm

are findings of fact that we review for clear error. United States v. De Varon, 175

F.3d 930, 934 (11th Cir.) (en banc) (minor-role adjustment), cert. denied, 528 U.S.

976 (1999); United States v. Alred, 144 F.3d 1405, 1420 (11th Cir. 1998)

(possession of a firearm). We have observed,

a trial court’s choice between two permissible views of the evidence is

the very essence of the clear error standard of review. So long as the

basis of the trial court’s decision is supported by the record and does

not involve a misapplication of a rule of law . . . it will be rare for an

appellate court to conclude that the sentencing court’s determination

is clearly erroneous.

De Varon, 175 F.3d at 945 (quotation and citation omitted).

The parties are familiar with the underlying facts of the conspiracies and we

do not recount them again here. According to the facts of the presentence

investigation report (“PSI”), which the district court adopted, and the testimony

presented at Hoang’s sentencing hearing, Hoang was arrested as part of an

related are combined into a single group. See U.S.S.G. § 3D1.2(c). Laundering money is

considered to be closely related to the offense that produced the laundered funds -- in this case, the

drug trafficking conspiracy. See U.S.S.G. § 2S1.1, comment. (n.6). The total offense level for a

group is the highest offense level of the counts in the group. U.S.S.G. § 3D1.3(a). Because Hoang’s

total offense level was determined by grouping his two counts of conviction together and both

counts had the same offense level, any alleged error relating to the scoring of the money laundering

conspiracy count would not affect the application of the Guidelines to Hoang’s case and is,

therefore, harmless error. See U.S.S.G. § 3D1.3(a); Williams v. United States, 503 U.S. 193, 202-03

(1992) (holding that an incorrect application of the Guidelines by the district court does not need

to be remanded when the error was harmless and would not affect the defendant’s sentence).

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international drug trafficking conspiracy that was under Vietnamese leadership and

stretched across several continents. The primary purpose of the international drug

conspiracy involved laundering profits from MDMA sales. To that end, the

conspiracy consisted of local cells, or “franchises,” in various parts of the United

States, including Louisiana, Texas, Mississippi, and Florida.

John Cao, Hoang’s co-defendant, established a local cell in Pensacola,

Florida. Appellant Hoang and his brother, Paul Hoang, were the two “key leaders”

or “first level distributors” in the Pensacola-based cell, and Title III wiretaps2

documented 20 or more conversations between appellant Hoang and Cao regarding

drug distribution and laundering of the proceeds. The PSI noted that appellant

Hoang actively negotiated the price of the drugs with the suppliers and directed the

activities of other. The PSI additionally described distributions from the first-level

distributors to “second or mid-level distributors” of large amounts of MDMA

supplied by Cao and Mike Pham to the Hoangs. In addition to trafficking MDMA

and laundering the proceeds of the scheme, the Pensacola cell also trafficked

kilogram-quantities of cocaine, under the primary leadership of appellant Hoang,

and marijuana, under the primary leadership of Paul Hoang.

2

See Title III of the Omnibus Crime Control and Safe Streets Act, Pub. L. 90-351, 82

Stat. 212 (1968) (codified at 18 U.S.C. § 2510 et seq.).

4

After a jury convicted him of both conspiracy counts, appellant Hoang

proceeded to sentencing. The PSI grouped Hoang’s offenses together, pursuant to

U.S.S.G. § 3D1.2(c), and calculated the base offense level for the money

laundering offense by looking at the offense level for the offense that produced the

laundered funds, which in this case was 34, pursuant to U.S.S.G. § 2D1.1. The PSI

then recommended the following adjustments to Hoang’s offense level: (1) a two-

level increase, pursuant to U.S.S.G. § 2D1.1(b)(1), because a dangerous firearm

was possessed; (2) a two-level increase, pursuant to U.S.S.G. § 2S1.1(b)(2)(B),

because Hoang was convicted under 18 U.S.C. § 1956; (3) a four-level increase,

pursuant to U.S.S.G. § 3B1.1(a), because Hoang was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive; and (4) a three-level downward adjustment, pursuant to U.S.S.G. §

3E1.1(a) and (b), for acceptance of responsibility. With an adjusted offense level

of 39 and a criminal history category I, Hoang faced a Guidelines sentencing range

of 262-327 months’ imprisonment.

At the sentencing hearing, as to the drug trafficking conspiracy, the district

court overruled Hoang’s objection to the § 2D1.1(b)(1) enhancement, finding that

because it was reasonably foreseeable that the conspiracy would involve a gun, the

enhancement applied to Hoang based on his co-conspirator’s possession of a

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firearm. The district court also overruled Hoang’s objection to the assessment of

the § 3B1.1(a) four-level enhancement, noting that the evidence of Hoang’s

leadership activities in the conspiracy was “overwhelming” because there was

evidence that Hoang recruited people, provided drugs on consignment, and

arranged for deliveries. After a three-point adjustment for acceptance of

responsibility, Hoang’s adjusted offense level was 37.

The district court then calculated the money laundering conspiracy as having

a base offense level of 34, and assessed three two-point increases for the use of a

firearm by others, U.S.S.G. § 2D1.1(b)(1); Hoang’s conviction for violating 18

U.S.C. § 1956, U.S.S.G. § 2S1.1(b)(2)(B); and Hoang’s role in the offense,

U.S.S.G. § 3B1.1(c). After a three-point reduction for acceptance of responsibility,

Hoang’s adjusted offense level was 37.

Since the offense level for both conspiracies was 37, the overall offense

level was 37. With a criminal history category I, Hoang’s Guidelines

imprisonment range was 210-262 months. The district court imposed a 236-month

term of imprisonment on each count, with the sentences to run concurrently. This

appeal followed.

First, Hoang argues the district court erred by imposing a four-point

enhancement under U.S.S.G. § 3B1.1(a) based on his aggravating role in the drug

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conspiracy. Hoang claims that all of his interactions with other conspirators

involved merely buying and selling drugs and that he did not have the authority or

control required to be considered an organizer or a leader under the Sentencing

Guidelines.

“The government bears the burden of proving by a preponderance of the

evidence that the defendant had an aggravating role in the offense.” United States

v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). Section 3B1.1(a) states that, “[i]f

the defendant was an organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive, increase [the offense level] by 4

levels.” A participant is “a person who is criminally responsible for the

commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1,

comment. (n.1). In determining the defendant’s role in the offense, the district

court should consider

the exercise of decision making authority, the nature of participation

in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of

participation in planning and organizing the offense, the nature and

scope of the illegal activity, and the degree of control and authority

exercised over others.

U.S.S.G. § 3B1.1, comment. (n.4). “Section 3B1.1 requires the exercise of some

authority in the organization, the exertion of some degree of control, influence, or

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leadership.” United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir.), cert.

denied, 127 S. Ct. 128 (2006) (citation and quotation omitted).

While Hoang is right that the level of control, leadership, or influence

needed to justify an enhancement under § 3B1.1(a) requires more than merely a

buyer/seller relationship, see Alred, 144 F.3d at 1422, the record contains

overwhelming evidence of Hoang’s control and leadership over others, such as

Perry Williams who accepted and processed kilogram-quantities of cocaine at his

house, all at Hoang’s direction. Cf. United States v. Mesa, 247 F.3d 1165, 1169-70

(11th Cir. 2001) (distinguishing Alred based on the presence of evidence that the

defendant directed people who stored and delivered cocaine, who unloaded and

prepacked vehicles, and who translated drug transactions). Moreover, the

government presented abundant evidence concerning Hoang’s efforts to recruit

new members for all levels of the drug trafficking conspiracy, and that his efforts

involved the direction or recruitment of at least five other co-conspirators. Simply

put, a preponderance of the evidence supported the district court’s finding that

appellant Hoang exercised control and leadership over the individuals who bought

drugs from him. Accordingly, the district court’s finding that Hoang was an

organizer or leader of the criminal enterprise was not clearly erroneous. See De

Varon, 175 F.3d at 945.

8

We likewise are unpersuaded by Hoang’s challenge to the district court’s

application of the two-point enhancement under U.S.S.G. § 2D1.1(b)(1) based on

the court’s finding that it was reasonably foreseeable to Hoang that a co-

conspirator would possess a firearm in the course of the drug trafficking

conspiracy. Under § 2D1.1(b)(1), a two-point enhancement is warranted if a

dangerous weapon, including a firearm, was possessed. We have held that, in

order for the § 2D1.1(b)(1) firearm enhancement to be applied based on a

co-conspirator’s gun possession, the government must show the following by a

preponderance of the evidence: “(1) the possessor of the firearm was a

co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the

defendant was a member of the conspiracy at the time of possession, and (4) the

co-conspirator possession was reasonably foreseeable by the defendant.” United

States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999).

Here, one of the firearms attributed to Hoang was possessed by his brother

and co-conspirator, Paul Hoang. Paul Hoang’s possession of a firearm supported

application of the § 2D1.1(b)(1) enhancement to appellant Hoang’s offense level

because it was reasonably foreseeable, given the lucrative and illegal nature of the

drugs involved and the common knowledge that guns are tools of the drug trade, as

well as Hoang’s leadership position in the conspiracy, that a co-conspirator would

9

possess a firearm. See United States v. Pham, 463 F.3d 1239, 1245-46 (11th Cir.

2006). Moreover, as we observed in co-conspirator Mike Pham’s appeal, the large

amounts of drugs and money and the vastness of this particular conspiracy further

support the enhancement. Id. at 1246. The government also presented Title III

phone interceptions in which Hoang actually discussed using a firearm in

connection with settling business. On this record, the four Gallo requirements are

satisfied. Paul Hoang was a co-conspirator who possessed the firearm in

furtherance of the conspiracy at a time when appellant Hoang was a member of the

conspiracy. And the firearm use was reasonably foreseeable to appellant Hoang

because of the nature of the drug conspiracy in which Hoang was involved. See

Pham, 436 at 1246. Therefore, the district court did not clearly err in applying the

§ 2D1.1(b)(1) enhancement. See id.

AFFIRMED.

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