United States v. Mike Linh Pham

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

SEPT 11, 2006

No. 06-10880 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 05-00099-CR-3-002-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKE LINH PHAM,

a.k.a. Mike Pham,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(September 11, 2006)

Before ANDERSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:

Mike Linh Pham appeals his 264-month sentence, imposed after he pled

guilty to conspiracy to distribute and possession with intent to distribute ecstasy,

violations of 21 U.S.C. §§ 841(b)(1)(A)(ii), (b)(1)(C), and 846, as well as his 240-

month sentence, imposed after he pled guilty to conspiracy to commit money

laundering, a violation of 18 U.S.C. § 1956(h). On appeal he argues that (1) the

drug quantity attributed to him at sentencing was derived from information he

provided to the government as part of his plea agreement in violation of U.S.S.G.

§ 1B1.8, and (2) the district court erred by applying a two-level enhancement for

possession of a firearm by a co-conspirator. For the reasons set forth more fully

below, we affirm.

Pursuant to the plea agreement, Pham agreed that the conspiracy involved in

excess of 70,000 MDMA pills and well in excess of 5 kilograms of cocaine, but

reserved any specific findings for sentencing. Pham also agreed to cooperate fully

with the United States Attorney in any ongoing investigations, and in return, the

government agreed to treat any statements made by Pham as given under

Fed.R.Crim.P. 11(f), Fed.R.Evid. 410, and U.S.S.G. § 1B1.8.

A presentence investigation report (PSI) determined the drug quantity

applicable to Pham based on information collected from Title III intercepts,

debriefings of codefendants, information obtained from confidential informants,

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admissions after Miranda warnings, and drug seizures. Using a drug equivalency

table, the PSI attributed 13,563.6 kilograms of marijuana to Pham. This

calculation was based on statements of codefendants Peter Hoang and Chieu

Nguyen. Hoang reported that he received at least 6,000 MDMA tablets from

Pham, as well as 13.6 kilograms of marijuana. Nguyen stated that he and Pham

transported at least 64 kilograms of cocaine, and intercepted telephone calls

confirmed information provided by Pham regarding Nguyen’s source in Texas and

Nguyen’s travel there to obtain the drugs.

As to firearms, the PSI reported that a search of Paul Hoang’s residence

revealed a small, locked safe that contained a small amount of marijuana, a scale

and other drug paraphernalia, and an unloaded .9 mm pistol with a loaded

magazine. Title III intercepts contained numerous conversations where Paul

Hoang referenced a safe that contained drugs and drug proceeds, as well as

conversations where Hoang admitted to owning a gun and planning to use it to

settle disputes in connection with his drug activity. According to the government’s

notice of incorrect statement of fact, there were also intercepts between Paul and

Anthony Hoang wherein Paul expressed an intention to obtain the gun from the

house and use it.1

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The PSI listed the conversation as between Paul and Peter Hoang. Counsel for the

government, however, filed a notice of incorrect statement of fact indicating that the

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Based on the drug quantity and firearm, the PSI set Pham’s base offense

level at 36 and added a two-level enhancement for possession of a firearm because

it was reasonably foreseeable that someone involved in the drug conspiracy would

possess a firearm in furtherance of that conspiracy, U.S.S.G. § 2D1.1(b)(1), (c)(2).

After applying an enhancement and reduction irrelevant to this appeal, ultimately

Pham’s total offense level was 37. Pham’s criminal history category was II, which,

at offense level 37, provided for an advisory sentencing range of 235 to 293

months’ imprisonment on each charge.

At sentencing, Pham objected that the drug weight attributed to him was

derived from information he provided after entering his plea agreement, and,

furthermore, was obtained either directly from him or from Nguyen, about whom

he provided information and who subsequently confirmed the drug weight. As to

the firearm, he objected that it was found in Paul Hoang’s home, a person with

whom Pham had no dealings, and the firearms were neither found in proximity to

drugs or found to be possessed during the conspiracy.

In response, the government presented the testimony of Drug Enforcement

Administration (DEA) Special Agent John Johnson. Johnson testified that the

conversation was between Paul and Anthony Hoang. The government asserts that this fact is

immaterial. A review of the sentencing transcript revealed that the district court did not base its

rulings regarding the firearm on the participants of the conversation. Thus, this opinion reflects

the accurate statement of fact as provided by the government.

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quantities of cocaine transferred by Pham to North Carolina were provided

independently by Nguyen in an interview that took place after Pham provided

information regarding the same drug transfer. Johnson further testified that no

information provided by Pham was communicated to Nguyen prior to Nguyen’s

debriefing. Nguyen eventually was convicted, but based on independent

information from the overall investigation, not information provided by Pham.

As to the firearm, Johnson testified that the gun was found in Paul Hoang’s

bedroom, which was located in Peter Hoang’s house, someone with whom Pham

dealt during the conspiracy. Johnson further testified that the gun was discovered

in a lock box that also contained marijuana. Moreover, Johnson testified that

intercepts of conversations between Pham and Peter Hoang indicated that Pham

told Hoang that his (Pham’s) residence had been burglarized and someone had

stolen a number of his weapons.2

On cross-examination, Johnson stated that Nguyen previously had been

debriefed on two occasions, but did not disclose the drug weights until after Pham

had given his statement. However, when Nguyen finally did disclose the

2

The government later filed a notice of error in sentencing in which it admitted that

Agent Johnson had mistakenly testified that it was Pham whose apartment was burglarized. In

reality, it was Nguyen who stated that weapons had been stolen. However, because the firearm

enhancement was based on the reasonable foreseeability of someone involved in the conspiracy

using a firearm, Pham did not seek a reconsideration of his sentence because the conversation

was not the basis for the enhancement. The government also pointed out that Nguyen and Pham

were closely associated.

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transactions in North Carolina, he did so without any questions concerning that trip

or any other possible trip that involved transporting drugs between states.

The district court then overruled both of Pham’s objections. First, it found

that it was reasonably foreseeable that firearms would play a part in the conspiracy.

Second, it found that the drug amounts were not calculated based on Pham’s

debriefing or any other information he provided. Thus, the court found the PSI to

be accurate and imposed a sentence of 264 months’ imprisonment on the drug

charge, the mid-point of the guidelines’ recommended range, and 240 months’ (the

statutory maximum) for the money laundering charge, to be served concurrently.

I. Drug Quantity Evidence

On appeal, Pham first argues that the district court erred by allowing the

government to use statements and information obtained pursuant to his plea and

cooperation or from sources provided by Pham and previously unknown to the

government to enhance his sentence in violation of U.S.S.G. § 1B1.8, which

prohibits a court from relying on evidence at sentencing that was provided to the

government as a means of cooperation under the plea agreement. Specifically, he

argues that § 1B1.8's plain language requires that any corroboration of Pham’s

statements given pursuant to a plea agreement and cooperation must have been

before the entry of the agreement, and, therefore, because the government’s

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evidence of drug weight was the same as the statements given by Pham, his

sentence must be vacated. Pham further argues that it was only after he gave his

statement regarding drug quantity that the government proceeded to use his

statement, directly or indirectly, to get a confirmation of that drug quantity from

Nguyen. Pham argues that the evidence used to enhance his sentence, therefore,

was tainted. He also argues that the government failed to meet its burden of

showing that its evidence was derived from an independent source, and not Pham’s

immunized statements. Lastly, Pham argues that the government’s use of his

statements amounted to a breach of the plea agreement and his case should be

remanded for resentencing before a different judge because permitting the

agreement to stand would drastically restrict the candor of informants.

This issue presents a question of first impression in this Circuit. We

conclude, like the other circuits to have addressed the issue, that where a defendant

alleges a violation of U.S.S.G. § 1B1.8 in district court, the court is required to

make factual findings that are reviewed for clear error. See United States v.

Gibson, 48 F.3d 876, 878 (5th cir. 1995); United States v. St. Julian, 922 F.2d 563,

566 (10th Cir. 1990).

Section 1B1.8 provides that, “[w]here a defendant agrees to cooperate with

the government by providing information concerning unlawful activities of others,

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and . . . the government agrees that self-incriminating information . . . will not be

used against the defendant, then such information shall not be used in determining

the applicable guideline range.” U.S.S.G. § 1B1.8(a). However, some information

is also excepted from the rule, such as information known to the government prior

to entering the agreement, information regarding prior convictions, and

information in a prosecution for perjury. U.S.S.G. § 1B1.8(b)(1)-(3). Subsection

(a) also does not apply in the event the defendant breaches the agreement or in a

case where a downward departure for substantial assistance may be warranted.

U.S.S.G. § 1B1.8(b)(4)-(5).

While we have not addressed the specific question presented, we are not

without some guidance from other circuits. The Third Circuit, citing Gibson,

supra, has held that the use of “information post-dating the agreement and obtained

from independent sources is not barred.” United States v. Baird, 218 F.3d 221, 231

(3d Cir. 2000). “Information separately gleaned from co-defendants is also fair

game . . . .” Id. (citation omitted). However, “the government may not evade

U.S.S.G. § 1B1.8(a) where the evidence was elicited solely as a result of, or

prompted by, the defendant’s cooperation.” Id. We agree and conclude that, so

long as the information is obtained from independent sources or separately gleaned

from codefendants, it may be used at sentencing without violating § 1B1.8. We

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turn now to the evidence presented by the government.

The government offered Agent Johnson’s testimony, which showed that,

while Pham told authorities about the drug quantities transferred to North Carolina,

that information was not provided in any way to Nguyen, who later corroborated

Pham’s statement regarding drug quantity in an interview. There was no evidence

that Johnson induced Nguyen to discuss those drug quantities by using Pham’s

statements or that Nguyen would not have told authorities about those drug

quantities absent Pham’s cooperation and agreement. In this respect, Pham’s case

is similar to a Tenth Circuit case, United States v. Davis, 912 F.2d 1210, 1213

(10th Cir. 1990), where the defendant made the same argument advanced by

Pham—that the district court relied on his statements regarding drug quantity in

violation of the plea agreement. The Tenth Circuit rejected the defendant’s claims,

stating:

There is no indication that the co-defendants’ statements were elicited

as a result of Davis’ plea agreement with the government, and Davis

provided no evidence that, had he refused to cooperate, his

co-defendants likewise would not have offered the information about

the correct quantity of drugs involved. While there may be some

concern that the use of the co-defendants’ information against Davis

may lead future defendants to refuse to cooperate in investigations, it

is clear that the sentencing judge did not use Davis’ own information

against him. The plea agreement was not violated by the use of

statements of Davis’ co-defendants.

Id.

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To the extent that Pham argues that the government failed to meet its burden

of proof, his argument is meritless. The government did not just include an

unsubstantiated statement of fact in the PSI and rely on it. Cf. United States v.

Shacklett, 921 F.2d 5804, 584 (5th Cir. 1991) (rejecting the district court’s use of

information post-dating a § 1B1.8 agreement because that information was based

on an unproduced report made by an unidentified DEA agent at an unknown time

and neither the informant nor the agent appeared to testify, rendering the report

unreliable). Here, the government proffered the testimony of the agent who

interviewed both Pham and Nguyen, and he testified that Nguyen independently

and without mention of Pham’s statements provided drug quantity information.

The district court, although it did not explicitly say so, obviously found Agent

Johnson’s testimony credible, a decision that we are not in a position to question

absent some evidence to the contrary. We afford “substantial deference to the

factfinder, in this case, the district court, in reaching credibility determinations with

respect to witness testimony.” United States v. McPhee, 336 F.3d 1269, 1275

(11th Cir. 2003). Based on Johnson’s testimony, it cannot be said that the district

court clearly erred by finding that the drug quantity was based on statements other

than Pham’s. See also Gibson, 48 F.3d at 879 (persuasively holding that the

district court’s determination that § 1B1.8 was not violated would not be disturbed

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where probation officer unequivocally testified that none of the drug quantity

information was obtained from the defendant’s statements and the defendant had

“adduced no evidence to show that he was instrumental in obtaining Jefferson’s

and McGee’s cooperation.”).

The case Pham principally relies upon is United States v. Foster, 889 F.2d

1049 (11th Cir. 1989), where we vacated a defendant’s sentence and remanded for

resentencing before a different judge after the government breached a plea

agreement by using the defendant’s statements, which were given as part of the

agreement and suggested a greater involvement of drug activity than previously

thought, against him for purposes of sentencing. Foster, 889 F.2d at 1055-56.

However, the only evidence in Foster was the defendant’s own statements, and the

government there conceded the breach of the plea agreement as a result. Id. Here,

however, the enhanced sentence was based on independently obtained statements

of a codefendant, and, therefore, Foster is factually distinguishable.

Based on the foregoing, we conclude that the district court properly

considered evidence of drug quantity obtained from an independent source, in this

case a codefendant, and did not violate § 1B1.8. Furthermore, we conclude that the

government offered unrebutted testimony of the interviewing agent, who stated

that Pham’s statements were not used in any way to induce a codefendant to

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discuss the drug quantities forming the basis for Pham’s enhancement. Therefore,

the district court did not clearly err by finding that Pham’s debriefing was not used

to establish drug quantity.

II. Firearm Enhancement

Next, Pham argues that the district court erred by applying the two-level

enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1).

Specifically, Pham argues that the government failed to establish through

Johnson’s testimony that any weapon was used in furtherance of the conspiracy,

that such use was foreseeable, or that the firearm was found at the site of the

charged conduct, as required to prove a direct connection.

We review “the district court’s findings of fact under U.S.S.G.

§ 2D1.1(b)(1) for clear error, and the application of the Sentencing Guidelines to

those facts de novo.” United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.

1999). The § 2D1.1(b)(1) enhancement may be applied when the firearm is

possessed by a co-conspirator. United States v. Fields, 408 F.3d 1356, 1359 (11th

Cir.), cert. denied 126 S.Ct. 221 (2005). The enhancement applies to a co-

conspirator when the government establishes by a preponderance of the evidence

that “(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

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at the time of possession, and (4) the co-conspirator possession was reasonably

foreseeable by the defendant.” Id. Furthermore:

Application Note 3 to U.S.S.G. § 2D1.1(b)(1) advises: ‘The

adjustment should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.’

Once the government shows that a firearm was present, ‘the

evidentiary burden shifts to the defendant to show that a connection

between the firearm and the offense is clearly improbable.’

Id.

Here, the possessor was Paul Hoang, who was charged as a co-conspirator.

It is clear as well that Pham was a member of the conspiracy at the time of the

possession. The undisputed facts in the PSI also established that Hoang was

overheard in intercepted communications stating that he planned to use the firearm

to settle disputes in connection with his illegal drug activity. As to the reasonable

foreseeability of the firearm’s usage, we have noted that “numerous cases have

recognized that guns are a tool of the drug trade. There is a frequent and

overpowering connection between the use of firearms and narcotics traffic.”

United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986). To that end, we have

found it reasonably foreseeable that a co-conspirator would possess a firearm

where the conspiracy involved trafficking in lucrative and illegal drugs. See

Fields, 408 F.3d at 1359; United States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th

Cir. 1993) (holding that it was reasonably foreseeable that one co-conspirator

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would possess a firearm while transporting 13 kilograms of cocaine). We have

further upheld application of the § 2D1.1(b)(1) enhancement even where

defendants claim they were unaware of the firearm possession. United States v.

Martinez, 924 F.2d 209, 210 (11th Cir. 1991). In light of the vastness of the

conspiracy and the large amount of drugs and money being exchanged in this case,

the district court did not clearly err by finding that it was reasonably foreseeable

that a firearm would be possessed by a co-conspirator.

Lastly, Pham argues that the government failed to establish a connection

between the firearm and the charged offense because the firearm was not found at

the site of the charged offense. We have held that “the [§ 2D1.1(b)(1)]

enhancement is to be applied whenever a firearm is possessed during conduct

relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388,

1390 (11th Cir. 1997). “Relevant conduct includes acts ‘that were part of the same

course of conduct or common scheme or plan as the offense of conviction . . . .’”

Id., citing U.S.S.G. § 1B1.3(a)(2). Several of the codefendants and co-conspirators

trafficked in marijuana, as well as cocaine and ecstasy, including Pham, Nguyen,

Peter Hoang, and Robert Hewitt. Here, the firearm was found in a safe containing

marijuana and drug paraphernalia. Thus, the firearm was possessed during conduct

relevant to the offense of conviction.

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Pham relies on United States v. Cooper, 111 F.3d 845, 847 (11th Cir. 1997),

where we held that the government failed to establish that weapons were present at

a mini-warehouse, where the charged conduct of conviction—possession with

intent to distribute cocaine—took place. Unlike in Cooper, the offense of

conviction here is conspiracy, which permits the application of the § 2D1.1(b)(1)

enhancement if the firearms are found in a place where acts in furtherance of the

conspiracies took place. Id. Since the firearm was seized in Paul Hoang’s

bedroom, located in the home of Peter Hoang, one of the leaders of the conspiracy,

we cannot say that the district court clearly erred by finding a connection between

the firearm and the charged conduct, and, therefore, the enhancement was properly

applied; cf. Fields, 408 F.3d at 1359 (holding that a connection between a seized

firearm and the drug conspiracy was not clearly improbable where firearms were

present at locations where co-conspirators sold lucrative and illegal drugs).

We conclude that the district court did not clearly err in its calculation of

drug quantity or in its application of the § 2D1.1(b)(1) firearm enhancement. We,

therefore, affirm Pham’s sentences.

AFFIRMED.

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