United States v. Vu Anh Le

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

__________________________ FILED

December 21, 2007

No. 05-21007

__________________________ Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

VU ANH LE

Defendant-Appellant

___________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

___________________________________________________

Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit

Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Vu Anh Le was convicted of one count of being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Le was sentenced to

120 months imprisonment, and he now appeals his conviction and sentence. We

affirm.

FACTS AND PROCEEDINGS

The relevant events revolve around a series of altercations that occurred

during the evening of July 30, 2003, and the early morning of July 31, 2003.

Two groups of people arrived at Star Karaoke in Houston, Texas. One group

included Le, Le’s girlfriend, a man nicknamed Flavor, and Flavor’s girlfriend.

The other group included Ty Nguyen, Nguyen’s girlfriend, Dat Dao, Thong Dao,

and Nien Kao.

In the lobby of Star Karaoke, witnesses saw Le and Flavor playfighting

against each other with firearms. One gun was described as black and the other

as silver or black and silver. Later, in one of the karaoke rooms, Nguyen’s

girlfriend and Flavor’s girlfriend got into a physical altercation. Witnesses from

Nguyen’s group observed Le pull a silver gun from his waistband and fire it into

the ceiling. One of those witnesses, Dat Dao, then saw Le place a silver gun in

his pants. The club manager told everyone to leave. Outside, the two women

continued their physical altercation. Nguyen tried to stop the fight.

At this point, there was some disagreement as to what occurred.

Witnesses stated that Le drew a firearm and either aimed it at the back of

Nguyen’s head or held it out while telling Flavor to leave and go home. Without

firing the gun, Le walked away. Witnesses stated that Flavor then walked over

to Nguyen and shot him in the head, killing him. A bullet also hit another

person at the scene. Flavor then fled the scene.

Police subsequently arrived and discovered a silver gun in the trash can

of the men’s restroom of Star Karaoke. The police found a cartridge case whose

location suggested that it was the case from the bullet that went through the

ceiling of the karaoke room, where a hole was found. No DNA evidence or

fingerprints were recovered from the gun.

Le was convicted of being a felon in possession of a firearm. Because there

was no physical evidence tying Le to the firearm, the government’s case relied

on the testimony of various individuals who saw him with a gun during the

evening. Le appeals, raising four points of error.1

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Le also argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face or as

applied. He concedes that these issues are foreclosed by United States v. Daugherty,

264 F.3d 513, 518 (5th Cir. 2001). Le raises the claims here to preserve them for

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DISCUSSION

I. Supplemental jury instructions

During deliberations, the jury sent a note to the judge asking: “Are we

allowed to consider the statements made to police as evidence, or only to

impeach statements made in court?” Le argued that the judge should simply

instruct the jurors to read the instructions that were given to them before they

retired to their deliberations. Instead, the judge gave the jury various

instructions on the rules of evidence which dealt with bases on which to treat the

testimony as substantive, rather than only impeachment, evidence. Le renewed

his objection to the supplemental jury instructions.

The government argues for plain error review on the basis that defense

counsel’s objection at trial was only to the actual giving of supplemental

instructions and did not refer to the specific issues raised on appeal. The

defendant argues that his objection to the giving of supplemental instructions

preserved all of his arguments relating to those instructions. Because we reject

the defendant’s arguments under either standard of review, we will assume that

the defendant preserved these issues for appeal.

With respect to supplemental jury instructions, “appellate courts are

guided by lofty, but very general, propositions and admonitions.” United States

v. Carter, 491 F.2d 625, 633 (5th Cir. 1974). This court, in considering

supplemental jury instructions, considers whether “the court’s answer was

reasonably responsive to the jury’s questions and whether the original and

supplemental instructions as a whole allowed the jury to understand the issue

presented to it.” United States v. Cantu, 185 F.3d 298, 306 (5th Cir. 1999)

further review. See McKnight v. Gen. Motors Corp., 511 U.S. 659, 659–60 (1994) (per

curiam).

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(internal quotation omitted). The Supreme Court has cautioned about the

impact of supplemental charges to the jury. “Particularly in a criminal trial, the

judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital

issue and misleading, the error is not cured by a prior unexceptional and

unilluminating abstract charge.” Bollenbach v. United States, 326 U.S. 607, 612

(1946). Fifth Circuit caselaw has suggested that when giving a supplemental

instruction the district court should either refer the jury back to the original

instructions, “remind them that all instructions must be considered as a whole[,

o]r take other appropriate steps to avoid any possibility of prejudice to the

defendant.” United States v. L’Hoste, 609 F.2d 796, 809 (5th Cir. 1980) (internal

quotation omitted).

“[W]hen the jury requests further instructions on points which are

favorable to the Government, the trial judge should repeat instructions favorable

to the defense where the requested information taken alone might leave an

erroneous impression in the minds of the jury.” Carter, 491 F.2d at 634 (internal

quotation omitted). The district court must meet “the high standard of balance

and fairness necessary to assure [the] defendant a fair trial.” Id. at 633.

Accordingly, the touchstone of the inquiry might be described as whether there

was prejudice to the defendant. See L’Hoste, 609 F.2d at 809.

On appeal, Le challenges the supplemental jury instructions on two

grounds: (1) the district court gave impermissibly government-favored

instructions, and (2) the district court failed to refer to the original instructions.2

(1) Impermissibly government-favored supplemental instructions

2

Le asserts vaguely that the supplemental instructions contained misstatements

of the law, but he does not clearly explain this argument. His argument is deemed

waived for inadequate briefing. See United States v. Freeman, 434 F.3d 369, 374 (5th

Cir. 2005).

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The theory of the defense was that the witnesses were lying because they

had feelings of acrimony towards Le due to the altercations between the two

groups at Star Karaoke. In order to discredit these witnesses, Le attempted to

show inconsistencies between their testimony to the police and their testimony

at trial. Accordingly, Le argues that by giving supplemental instructions that

referred only to the admissibility of these statements as substantive evidence,

the district court prejudiced his defense by directing the jury’s attention away

from the impeachment value of these statements.

The supplemental jury instructions did not prejudice Le’s defense. While

the emphasis of the supplemental instructions was admittedly on bases for

admission of testimony that did not favor Le’s theory of the case, the jury

question indicated by its own terms that the jury already understood that this

testimony was admissible for impeachment purposes. The jury asked, “Are we

allowed to consider the statements made to police as evidence, or only to

impeach statements made in court?” The jury therefore demonstrated its

knowledge and awareness that these statements were admissible to impeach the

witnesses’ credibility, which goes to Le’s theory of the case. As such, the giving

of supplemental jury instructions was not reversible error.

(2) Failure to refer to original instructions

The district court did not refer back to the original instructions after

giving the supplemental instructions. While Le’s counsel did not request that

the court do so, this court has stated that a reference to the original jury

instructions is necessary when the supplemental instructions “taken alone might

leave an erroneous impression in the minds of the jury.” Carter, 491 F.2d at 634

(internal quotation omitted). The caselaw indicates substantial concern with the

possibility of prejudice in such situations. See L’Hoste, 609 F.2d at 809. As

noted, however, the jury’s question itself indicated that it understood that the

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prior statements were admissible to show impeachment. The failure to refer to

the original instructions while giving the supplemental instructions did not

prejudice the defendant. We reject this basis for reversal.

II. Parole status statements

This court reviews for abuse of discretion the district court’s denial of a

motion for a mistrial based on the admission of prejudicial testimony. United

States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998). In situations where the jury

hears prejudicial information, “a new trial is required only if there is a

significant possibility that the prejudicial evidence had a substantial impact

upon the jury verdict, viewed in light of the entire record.” Id.

Le and the government agreed prior to trial to stipulate to Le’s prior felony

conviction. After the close of the government’s case-in-chief, a statement was

read to the jury which indicated that the parties “agree[d] to stipulate that the

defendant had been convicted of a felony punishable by more than one year

imprisonment, prior to July 31st, 2003, the date of the offense at issue.”

During the trial, Le’s parole status was mentioned three times. First,

during opening statements, the government stated that Le knew he needed to

rid himself of the gun because of his parole status. Le did not object. Second, a

police detective testified for the government that Le “said he couldn’t have [a

firearm] because he was on parole.” Le objected, the government did not dispute

the objection, and the court sustained the objection. The court did not, however,

direct the jury to disregard the statement at the time nor did Le request that the

court do so. Third, the government stated during closing argument that Le had

originally wanted to flee the scene because the police were en route and he knew

he should not have the gun because he was on parole. After objection and

discussion at the bench, Le’s counsel decided against a curative instruction but

instead moved for a mistrial, which was denied. Le’s counsel declined the

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opportunity for the court to direct the jury to ignore the statement, stating that

this would draw even more attention to the information. Le argues that the

district court erred in denying his motion for a mistrial after the government

mentioned that he was on parole when he committed the offense.

These three references were a very small part of the trial. The jury heard

testimony from various witnesses that Le brandished a firearm on at least two

occasions during the evening, and the police recovered a gun from a location Le

was seen near after the altercations occurred. Furthermore, the reference to

Le’s parole status during opening statements went by without objection. At this

point the jury had the information. The testimony objection was sustained. Le’s

counsel declined a curative instruction regarding the closing argument

statement. The references to Le’s parole status did not have a “substantial

impact upon the jury’s verdict.” Paul, 142 F.3d at 844. We reject this basis for

reversal.

III. Four-level enhancement under U.S.S.G. § 2K2.1(b)(5)

This court reviews de novo the district court’s guidelines interpretations

and reviews for clear error the district court’s findings of fact. United States v.

Aguirre-Villa, 460 F.3d 681, 682 (5th Cir. 2006). In addition, this court “may

affirm the district court’s judgment on any basis supported by the record.”

United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005). The government

argues that the court should only review for plain error because Le’s objection

on appeal is different from that raised in district court. Because we reject Le’s

argument under either standard of review, we will assume that he preserved the

issue for appeal.

The district court applied a four-level sentencing enhancement based on

a finding that “the defendant used or possessed any firearm or ammunition in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (2004). The

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guidelines define “felony offense” in this enhancement as “any offense (federal,

state, or local) punishable by imprisonment for a term exceeding one year,

whether or not a criminal charge was brought or conviction obtained.” Id. cmt.

n.4. The court at sentencing credited trial testimony indicating that Le

possessed the firearm in connection with another felony offense, namely, the

Texas felony of aggravated assault.

Le’s argument on appeal is that the evidence presented at trial was

insufficient to permit this enhancement because aggravated assault under Texas

law requires the victim to perceive the threat of bodily injury. See McGowan v.

State, 664 S.W.2d 355, 357–58 (Tex. Crim. App. 1984). Le asserts that the

evidence at trial never indicated that the victim of the alleged assault, Nguyen,

perceived that he was being threatened by Le. The government argues that the

evidence was sufficient to conclude that Le committed an attempted aggravated

assault and urges the court to uphold the enhancement on this alternative basis.

See Clay, 408 F.3d at 218.

Under Texas law, “[a] person commits an offense [of attempt] if, with

specific intent to commit an offense, he does an act amounting to more than

mere preparation that tends to but fails to effect the commission of the offense

intended.” TEX. PENAL CODE § 15.01(a). Because the aggravating factor here

was the use of a deadly weapon, the attempt would be an attempted aggravated

assault. Id. § 15.01(b). Texas law treats an attempted aggravated assault as a

third degree felony, which is punishable by between two and ten years

imprisonment. TEX. PENAL CODE §§ 12.34(a), 15.01(a), 22.02(a)(2).

The evidence at trial substantiates the conclusion that Le committed an

attempted aggravated assault, as he pointed the gun at Nguyen in the middle

of a heated situation in which two people, one from each of their respective

groups, were fighting. On this alternative basis, we reject Le’s argument that

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the four-level enhancement was improper.

IV. Base offense level for a prior conviction of a “controlled substance

offense”

Le acknowledges that he did not object to the determination of the base

offense level at trial, and therefore review is for plain error only. United States

v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). On plain error, the defendant

must establish (1) error, (2) that was plain, (3) that affected substantial rights,

and (4) that the court should use its discretion to correct the error because

failure to do so would result in a miscarriage of justice. Id. at 358–59.

The district court determined that Le’s base offense level should be twenty

because “the defendant committed any part of the instant offense subsequent to

sustaining one felony conviction of . . . a controlled substance offense.” U.S.S.G.

§ 2K2.1(a)(4)(A) (2004). The relevant guidelines section defines “controlled

substance offense”:

The term “controlled substance offense” means an offense under

federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance (or a counterfeit

substance) or the possession of a controlled substance (or a

counterfeit substance) with intent to manufacture, import, export,

distribute, or dispense.

U.S.S.G. § 4B1.2(b).3 The government must prove by “a preponderance of the

relevant and sufficiently reliable evidence” that the prior conviction permits the

guidelines classification. United States v. Herrera-Solorzano, 114 F.3d 48, 50

(5th Cir. 1997) (internal quotation omitted).

Generally, courts employ the so-called categorical approach from Taylor

3

Le correctly identifies that this language is the same language used in the

definition of “drug trafficking offense” under U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).

Accordingly, cases discussing these definitions are cited interchangeably.

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v. United States, which instructs “the trial court to look only to the fact of

conviction and the statutory definition of the prior offense.” 495 U.S. 575, 602

(1990). In a narrow range of cases, like the drug offense presented here, courts

may examine “the statutory definition of the offense, the charging paper and

jury instructions.” United States v. Allen, 282 F.3d 339, 343 (5th Cir. 2002)

(referencing Taylor). Under Shepard v. United States, the Supreme Court

defined this inquiry with respect to a case involving a guilty plea to include “the

statutory definition, charging document, written plea agreement, transcript of

plea colloquy, and any explicit factual finding by the trial judge to which the

defendant assented.” 544 U.S. 13, 16 (2005).

The parties agree that the prior conviction was for “Manufacture or

Delivery of Substance in Penalty Group 2” under section 481.113(a) of the Texas

Health & Safety Code. This statute states that “a person commits an offense if

the person knowingly manufactures, delivers, or possesses with intent to deliver

a controlled substance listed in Penalty Group 2.” Id. One can violate this Texas

statute in at least five ways: “1) manufacture, 2) an offer to sell;4 or 3) possession

with intent to deliver; or through knowing delivery by 4) actual transfer; or 5)

constructive transfer.” Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App.

2003).5

Le argues that the guidelines classification was improper because

engaging in an “offer to sell,” the second way to violate the Texas statute, would

not constitute a “controlled substance offense” as defined in the guidelines. The

4

Under this statute, an “offer to sell” is a type of delivery. Id.

5

Lopez actually dealt with section 481.112 of the Texas Health & Safety Code

rather than section 481.113. The only difference in statutory language between these

sections is the penalty group in which the drug is listed. Accordingly, the caselaw

applies interchangeably in analyzing the other elements of both crimes.

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Texas statute of conviction permits a conviction under its “delivery” section by

virtue of an offer to sell without possession, Lopez, 108 S.W.3d at 297, and in

order for Le’s conviction to be classified as a controlled substance offense under

the guidelines, it must involve possession of drugs. See United States v. Garza-

Lopez, 410 F.3d 268, 274 (5th Cir. 2005). But cf. United States v. Palacois-

Quinonez, 431 F.3d 471, 476 (5th Cir. 2005) (distinguishing Garza-Lopez by

holding that “possession with intent to distribute” can include “constructive

possession” attained by one who purchases drugs for future sale).

The materials Le himself attached to the record on appeal indicate that he

possessed the drugs. One of the documents is a guilty plea in which Le said, in

a signed statement, that he “committed the offense of possession of a controlled

substance on June 1, 2000 along with Benjamin Dang and Rathna King who had

joint possession of the ecstasy, knew of it and were also exercising care, custody,

and control over it.” This written plea document is admissible. See Shepard, 544

U.S. at 16; see also United States v. Castillo-Morales, No. 07-40053, 2007 WL

3287531, at *3 (5th Cir. Nov. 8, 2007) (holding that when a defendant stipulates

that a factual basis for his plea is present in court documents, courts may use

any uncontradicted facts in those documents to establish an element of a prior

conviction for sentencing purposes).

The guilty plea document negates the possibility that Le’s conviction was

for conduct that did not involve possession. Le specifically stated that he

pleaded guilty to possession of drugs. It is clear from this document that Le was

not pleading guilty to delivery by an offer to sell without possession. The only

way to violate the Texas statute of conviction by possessing drugs is to do so with

intent to distribute in some way; the Texas statute does not permit a conviction

for possession without intent to manufacture, delivery, or distribute. See Lopez,

108 S.W.3d at 297. Accordingly, the only way for Le to have pleaded guilty to

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violating the Texas statute of conviction by virtue of “possession of a controlled

substance,” is to have “possesse[d] with intent to delivery a controlled

substance.” TEX. HEALTH & SAFETY CODE § 481.113(a). Such a conviction

qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). See

United States v. Ford, No. 06-21042, 2007 WL 4303800, at *3–4 (5th Cir. Dec. 11,

2007) (holding that “possession with intent to deliver” under the Texas statute

is indistinguishable from “possession with intent to distribute,” and thus

qualifies as a “controlled substance offense” under the guidelines). We therefore

reject this basis for reversal of Le’s sentence.

CONCLUSION

We AFFIRM the judgment of the district court.

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