United States v. Dung Vu , 215 F. App'x 9 ( 2007 )

Not for Publication in West's Federal Reporter.
United States Court of Appeals
For the First Circuit
Nos. 06-1221
06-1222
UNITED STATES OF AMERICA,
Appellee,
v.
DUNG VU,
Defendant, Appellant.
No. 06-1223
UNITED STATES OF AMERICA,
Appellee,
v.
DUNG LE,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Selya and Lynch, Circuit Judges.
Jane Elizabeth Lee on brief for appellant Dung Vu.
qTina Schneider on brief for appellant Dung Le.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
February 6, 2007
Per Curiam. Dung Vu and Dung Le--co-conspirators in a
drug trafficking operation that brought crack cocaine from
Massachusetts to Maine for local distribution, see generally United
States v. Dung Cao, 471 F.3d 1 (1st Cir. 2006) (affirming
conviction and sentence of another co-conspirator in that
operation)--appeal from their sentences. After careful
consideration of the parties' briefs and the underlying record, we
affirm both defendants' sentences for the reasons discussed below.
Dung Vu challenges his mandatory minimum sentence on the
sole ground that the applicable statute, 21 U.S.C. § 841(b)(1)(A),
violates his equal protection or due process rights1 by imposing
the same mandatory minimum penalty for crimes involving crack
cocaine as for crimes involving 100 times the amount of powder
cocaine. We have repeatedly rejected that argument, United States
v. Berrios, 132 F.3d 834, 842 (1st Cir. 1998); United States v.
Graciani, 61 F.3d 70, 75 (1st Cir. 1995); United States v.
Singleterry, 29 F.3d 733, 740 (1st Cir. 1994); and "[u]ntil the en
banc court of this circuit, the U.S. Supreme Court, or Congress
itself . . . finds [this disparity] untenable, [such] challenges .
. . will continue to fail," Berrios, 132 F.3d at 842; see also
Graciani, 61 F.3d at 75.
1
In the district court Dung Vu framed his challenge in terms
of equal protection, while in this court he relies on due process.
As he acknowledges, however, the standard is the same in either
case. See Chapman v. United States, 500 U.S. 453, 464-65 (1991).
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Dung Le challenges her sentence on the ground that the
district court erred in applying a four-level enhancement to her
base offense level based on its finding that she was an "organizer
or leader" of the conspiracy within the meaning of USSG §
3B1.1(a).2 We review that fact-sensitive finding only for clear
error. United States v. Ortiz-Santiago, 211 F.3d 146, 148 (1st
Cir. 2000).
In making that finding, the district court expressly
relied upon "the facts set forth in the presentence investigation
report, which [it] accept[ed]; the results of the wiretap, which
[it had] heard; [and] the activities involving the direct sales of
drugs and [Dung Le's] part in those." In addition, the government,
which had the burden of justifying the role enhancement, United
States v. Picanso, 333 F.3d 21, 23 (1st Cir. 2003), pointed to
other evidence in the transcripts of co-defendant Dung Cao's trial,
2
On appeal, she also argues that the court erred in concluding
that the criminal activity involved "five or more participants or
was otherwise extensive," another prerequisite for applying the
same enhancement. USSG § 3B1.1(a). However, by not raising that
argument below, she forfeited all but plain error review on that
ground, United States v. Connolly, 341 F.3d 16, 30 (1st Cir. 2003).
The district court did not err, plainly or otherwise, in finding
that criterion to be satisfied. The record is clear that the
conspiracy involved at least the six individuals named in the
indictment and was also "extensive" in terms of its duration (more
than one year), the amount of drugs involved (50 grams or more of
crack cocaine), and its geographic reach (from Massachusetts to
Maine). See United States v. Thiongo, 344 F.3d 55, 62-63 (1st Cir.
2003).
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co-defendant Sang Tran's sentencing, and the suppression hearing,
over which the same judge presided.
Dung Le objects to the district court's reliance on
anything but the undisputed facts in the presentence report
("PSR"), the facts in the prosecution's version that she admitted
when she pled guilty, and the evidence introduced at the
suppression hearing (which included tape-recordings and transcripts
of the results of the wiretap of Dung Le's telephone). Her
objections to the court's other sources of information are
unfounded.
Even where a defendant objects to facts in a PSR, the
district court is entitled to rely on the objected-to facts if the
defendant's objections "'are merely rhetorical and unsupported by
countervailing proof.'" United States v. Prochner, 417 F.3d 54, 66
(1st Cir. 2005) (quoting United States v. Cyr, 337 F.3d 96, 100
(1st Cir. 2003)); see also United States v. Grant, 114 F.3d 323,
328 (1st Cir. 1997).3 Here, although Dung Le objected to the PSR's
conclusion that she was a leader or organizer and also denied some
of the subsidiary facts, she produced no evidence to the contrary.
"In the absence of rebuttal evidence beyond defendant's self-
3
Dung Le asks us to reconsider these precedents in light of
United States v. Booker, 543 U.S. 220 (2005). Even if this panel
were empowered to do so, see Berrios, 132 F.3d at 842, we would
decline. Booker did not alter the district court's fact-finding
authority. United States v. Pizarro-Berríos, 448 F.3d 1, 6 (1st
Cir. 2006). Indeed, Prochner itself was decided post-Booker.
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serving words," the district court did not clearly err in relying
on the facts in the PSR. Prochner, 417 F.3d at 66. Moreover, to
the extent that the district court implicitly resolved the disputed
facts in the government's favor, as it was also entitled to do,
Grant, 114 F.3d at 66 n.9, its "choice among supportable
alternatives cannot be clearly erroneous," United States v. Ruiz,
905 F.2d 499, 508 (1st Cir. 1990).
The district court did not expressly rely on the
transcripts of co-defendant Dung Cao's trial or Sang Tran's
sentencing. However, to the extent it did so implicitly, it was
entitled to rely on the evidence presented at those related
proceedings, over which the same judge presided, United States v.
Canada, 960 F.2d 263, 268 (1st Cir. 1992), particularly since Dung
Le had prior notice, via the government's sentencing memorandum,
that the government intended to rely on evidence from the former
proceeding, and defense counsel was present at the latter. See id.(distinguishing United States v. Berzon, 941 F.2d 8 (1st Cir.
1991), on which Dung Le relies, on these grounds).
As a fall-back argument, Dung Le contends that her trial
counsel was ineffective in failing to request a transcript of Dung
Cao's trial prior to sentencing, so that he could point to evidence
from that transcript to demonstrate Dung Le's lack of a leadership
role. That argument is premature in this direct appeal, United
States v. Medina, 427 F.3d 88, 90 (1st Cir. 2005), and is unlikely
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to succeed in any event. Even if Dung Le could show that her
counsel's failure to request the transcript fell below an objective
standard of reasonableness, Strickland v. Washington, 466 U.S. 668,
687 (1984), it is doubtful that she could show the necessary
prejudice, id. Even with the benefit of the transcript, her
appellate counsel has identified only one minor discrepancy between
the government's characterization of the trial evidence and the
transcript itself and two instances where co-conspirators acted
independently. We doubt that this evidence would have changed the
court's view--based on the other evidence it considered--that Dung
Le's role as a leader or organizer was "abundantly clear."
That conclusion is amply supported by the record
evidence. In sum, that evidence showed that, among other tasks,
Dung Le made arrangements to purchase the crack in Massachusetts,
recruited and supervised runners to pick up and distribute it,
repackaged it in smaller amounts for distribution, handled most of
the negotiations over amounts and prices, and arranged for sales to
undercover agents and others.
That array of responsibilities was sufficient to warrant
a leadership enhancement under USSG § 3B1.1(a). See id., comment.
(n.2) (listing among the relevant factors, "the exercise of
decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, . . .
the degree of participation in planning or organizing the offense,
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. . . . and the degree of control and authority exercised over
others"); see also, e.g., United States v. Casas, 356 F.3d 104, 129
(1st Cir. 2004); United States v. Ventura, 353 F.3d 84, 89 (1st
Cir. 2003); Berrios, 132 F.3d at 839. Although, at times, Dung Le
performed some lower-level tasks herself and others shared
leadership responsibility or acted independently, those facts do
not render her ineligible for a leadership enhancement. "There
can, of course, be more than one person who qualifies as a leader
or organizer of a criminal association or conspiracy." USSG §
3B1.1, cmt. (n.4); see also Ventura, 353 F.3d at 89-90.
Accordingly, finding no error in either defendant's
sentence, we affirm both sentences. See 1st Cir. Loc. R. 27.0(c).
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