United States v. Tien Quyet Luong , 172 F. App'x 284 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2006
No. 05-12188
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-00054-CR-3-RV
and 04-00085-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIEN QUYET LUONG,
a.k.a. Tam Thanh Tran,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 27, 2006)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Tien Quyet Luong appeals his conviction and 136-month sentence for
multiple counts of bank fraud. The district court ensured Luong’s plea was
knowingly and voluntarily executed, and the court accurately calculated Luong’s
sentencing range under the Guidelines. Because the plea was properly executed
and the sentence imposed is reasonable, we AFFIRM.
I. BACKGROUND
Luong was separately indicted in Oregon and Florida for various charges
related to bank fraud. The Oregon case was consolidated in Florida under Federal
Rule of Criminal Procedure 20, and a superceding indictment was issued. Luong
pled guilty at separate hearings in June, pursuant to a written agreement, and
August 2004, without a written agreement. At the hearings, the court explained the
trial rights that Luong was waiving by pleading guilty, and the court listened to the
government’s presentation and Luong’s acknowledgment of the factual predicates
to the charged offenses, including eleven counts of bank fraud in Oregon and
seventy-three counts of bank fraud in Florida.
These plea hearings occurred in the months following the decision in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the plea
agreement and colloquies reflected the uncertainty of the time regarding the federal
Sentencing Guidelines. Nonetheless, the court was clear with Luong that the
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Guidelines were binding at the time and that no one would be able to tell him what
his sentencing range would be until the presentence investigation report (“PSI”)
was completed and the judge weighed the evidence regarding various sentencing
factors. The court observed that the sentence would depend on “any number of
things, including the amount involved, the number of victims, any number of
things.” R3 at 37. At the plea hearing on the Oregon charges, the court told Luong
that he could not withdraw his plea if the sentence imposed was more severe than
he expected. R4 at 33. Luong’s guilty pleas were accepted.
The cases were consolidated in Florida for sentencing. The PSI detailed the
schemes used by Luong and concluded that he played a role in dealing fraudulent
checks in excess of $6.8 million, including a leadership and organizing role in the
offenses. Luong’s attorney made a motion to withdraw his representation after
Luong questioned the attorney’s advice regarding the plea.
Luong subsequently filed a motion to withdraw his plea. Luong and his first
attorney testified at the hearing on the motion to withdraw plea. The court denied
the motion because it would prejudice the government to allow Luong to withdraw
his plea and because Luong had knowingly and voluntarily entered the plea in the
first place.
The sentencing hearing occurred in April 2005. At that hearing, the
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government introduced evidence concerning the scheme employed by Luong to
defraud banks, including his role in the offenses and evidence of the amount of
money that Luong had defrauded from various financial institutions. Regarding
the amount of money at stake, the government presented evidence of the total
amount of dealt checks, $6.8 million, and the amount of actual loss, $5.8 million.
The district court found Luong responsible for $2.9 million, exactly half of the
actual loss amount, for purposes of the Guidelines calculation. The court also
denied Luong’s objection to a four level enhancement for his role in the crime and
denied the government’s objection to the reduction for acceptance of
responsibility. Luong was convicted of multiple counts of bank fraud, in violation
of 18 U.S.C. §§ 2 and 1344; one count of conspiracy to commit money laundering,
in violation of 18 U.S.C. § 1956(a)(1) and (h); and one count of conspiracy to
commit bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 371
and sentenced to 136 months.
On appeal, Luong challenges both his conviction and sentence, including
several claims not raised in the district court. Regarding his conviction, Luong
argues the district court abused its discretion by not granting his motion to
withdraw his plea as to some of the charges, because he did not enter it knowingly.
In regard to his sentence, Luong makes three general arguments. First, he argues
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that the district court should have used a clear-and-convincing standard instead of a
preponderance-of-the-evidence standard for establishing the facts that gave rise to
his sentence. Second, Luong claims that his rights under the Confrontation Clause
were violated, because the court considered evidence summarized by the
government without giving him the opportunity to confront the witnesses whose
information was the basis for the summary. Third, Luong argues that the district
court should have made a sua sponte downward departure, because his criminal
history category was overstated. Also regarding his sentence, Luong appeals the
application of several sentencing guidelines. First, he claims that the district court
erred in determining his responsibility for the amount of loss, because it did not
provide a critical analysis of the dollar amount. Second, Luong argues that the
district court erred when it applied a two-level increase under U.S.S.G.
§ 2B1.1(b)(9) (2003) for the use of unauthorized access devices, because he did not
qualify for the increase. Finally, Luong contends that the district court erred in
applying a four-level enhancement under U.S.S.G. § 3B1.1(a) for his leadership
role, because the evidence was insufficient to support it. As a final grounds for
appeal, Luong argues the district court imposed an unreasonable sentence, because
it incorrectly applied the factors under 18 U.S.C. § 3553(a).
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II. DISCUSSION
Luong presents us with a montage of legal arguments, several unmade in the
district court, regarding his plea and subsequent sentencing. We recognize from
the outset that a “guilty plea is not a meaningless gesture to be renounced on a
lark.” United States v. Cesal, 391 F.3d 1172, 1180 (11th Cir. 2004) (per curiam),
vacated on other grounds, 125 S. Ct. 2553 (2005). Nor is it “a means of testing the
weight of a potential sentence.” United States v. Gonzales-Mercado, 808 F.2d 796,
801 (11th Cir. 1987) (citation omitted). The absence, in the district court, of
Luong’s adscititious appellate arguments colors our consideration of those new
arguments on appeal. We proceed by addressing Luong’s arguments in turn.
A. Withdrawal of a Guilty Plea
The denial of a motion for withdrawal of a guilty plea is reviewed for abuse
of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003).
Before a district court imposes sentence, it may permit a defendant to withdraw his
plea for any “fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). Evaluating the
totality of the circumstances to determine if the defendant has showed a “fair and
just reason,” the district court must consider “(1) whether close assistance of
counsel was available; (2) whether the plea was knowing and voluntary;
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(3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
plea.” Freixas, 332 F.3d at 1318 (quotations omitted). In addition, a district court
must ensure that the three core concerns of Rule 11 have been met: “(1) the guilty
plea must be free from coercion; (2) the defendant must understand the nature of
the charges; and (3) the defendant must know and understand the consequences of
his guilty plea.” Id. (quotations omitted). We defer to the district court’s
application of these criteria and reverse “only if the district court’s ultimate
conclusion is arbitrary or unreasonable.” Id. (quotations omitted).
In this case, the district court did not abuse its discretion in denying Luong’s
motion to withdraw his plea. Luong only appears to argue the second prong of the
Rule 11(d)(2) test, that is, whether the plea was knowing and voluntary. The crux
of Luong’s argument is that he did not knowingly enter his plea because he did not
understand the scope of conduct that the district court would consider, and,
therefore, he did not understand the gravity of his possible sentence. However, at
both plea hearings Luong was told that his relevant conduct could not be
determined until the PSI was generated and that he would not be able to withdraw
his plea if he received a more severe sentence than he thought he would receive.
He was also informed that his maximum sentence was thirty years.
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Luong had the benefit of close assistance of counsel during his plea hearing,
and the government introduced evidence regarding the resources conserved and
prejudice avoided by denying the motion to withdraw the plea. Because Luong
knew his maximum sentence and because he knowingly entered his plea, the
district court did not abuse its discretion in denying his motion to withdraw it. See
Gonzales-Mercado, 808 F.2d at 801 (noting that close assistance of counsel and a
knowing and voluntary plea are strong evidence in support of a district court’s
denial of a motion to withdraw a guilty plea).
B. Sentencing Arguments
After the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), we review sentences for reasonableness with the Guidelines
treated as advisory. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005). Even after Booker, however, we still require district courts to use the
Guidelines to correctly calculate a sentencing range. United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir. 2005). Thus, Booker did not alter our review of
the application of the Guidelines or the applicable standards of review. Id. In this
appeal, we undertake the now-familiar two-step analysis of a sentence. First, we
must determine whether the district court correctly employed the Guidelines to
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determine Luong’s sentencing range, including the proper inclusion of sentencing
enhancements and reductions. Second, we must review whether the overall
sentence is reasonable in light of the factors in § 3553(a).
1. Whether the Court Correctly Determined the Sentencing Range
Luong argues that two general errors plagued his sentencing hearing: first,
that the district court used the wrong evidentiary standard; second, that the district
court violated his Confrontation Clause right at sentencing. We address these
arguments in turn. We then address whether the district court should have sua
sponte departed downward, as argued by Luong. Finally, we discuss Luong’s
challenges regarding the specific application of sections of the sentencing
Guidelines to him.
Because Luong never raised a challenge in the district court to the
appropriate evidentiary standard at sentencing, we review for plain error. See
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,
126 S. Ct. 457 (2005).
An appellate court may not correct an error the defendant failed to
raise in the district court unless there is: (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
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Id. (quotation omitted). In this context, “plain” means that “where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)
(quotations omitted).
In this circuit, it is well-settled law that at sentencing “a federal defendant’s
due process rights are satisfied by the preponderance of the evidence standard.”
United States v. Jackson, 57 F.3d 1012, 1019 (11th Cir. 1995) (quotation and
alteration omitted); see also United States v. Rodriguez, 398 F.3d 1291, 1296 (11th
Cir.), cert. denied, 125 S. Ct. 2935 (2005) (affirming preponderance-of-the-
evidence standard after Booker). Because the law regarding the evidentiary
standard at sentencing is clear, the district court did not err, much less plainly err,
in applying a preponderance-of-the-evidence standard at sentencing.
In his second general argument, Luong argues that the district court violated
his rights under the Confrontation Clause, citing Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354 (2004). However, because he did not raise this concern
before the district court, we review for plain error. Chau, 426 F.3d at 1321–22. In
Crawford, the Supreme Court held that when testimonial evidence is used against a
defendant, the defendant’s Sixth Amendment rights under the Confrontation
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Clause cannot be denied unless the witness was unavailable at trial and the
defendant had a prior opportunity to cross-examine him. 541 U.S. at 68, 124 S.
Ct. at 1374. We have, however, refused to extend Crawford to reliable hearsay
admitted at sentencing. United States v. Baker, 432 F.3d 1189, 1254 (11th Cir.
2005) (observing that, because Crawford did not address sentencing, the use of
reliable hearsay at sentencing was unaltered by the decision). Luong does not
articulate a non-Crawford rationale for his claim that the district court violated his
rights under the Confrontation Clause. Thus, the district court did not plainly err at
sentencing with regard to either the evidentiary standard or Luong’s Confrontation
Clause rights.
Finally, Luong seems to argue that the district court should not have counted
prior juvenile convictions in determining his criminal history category, however
such offenses are properly included. See U.S.S.G. §§ 4A1.1(b), 4A1.2(d)(2).
Luong also argues that the court should have departed downward from the criminal
history category because “reliable information indicates that defendant’s criminal
history category substantially over-represents the seriousness of the defendant’s
criminal history.” U.S.S.G. § 4A1.3(b)(1). It is unclear how specifically Luong
made these arguments to the district court. There was an objection lodged as to the
PSI, but no downward departure was requested.
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We “generally do not review the merits of a district court’s refusal to grant a
downward departure.” United States v. Mignott, 184 F.3d 1288, 1289 (11th Cir.
1999). “[W]e may conduct a de novo review of a defendant’s claim that the
district court mistakenly believed it lacked the authority to grant such a departure.”
Id. However, “[t]o preserve an issue at trial for later consideration by an appellate
court, one must raise an objection that is sufficient to apprise the trial court and the
opposing party of the particular grounds upon which appellate relief will later be
sought. A general objection or an objection on other grounds will not suffice.”
United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986).
At sentencing, Luong never requested a downward departure based on his
criminal history category. In fact, he never mentioned § 4A1.3 in the district court.
As such, he never put the district court on notice that he was requesting a
downward departure. See Dennis, 786 F.2d at 1042. Furthermore, even if Luong
had filed a motion for a downward departure, we would not be able to review its
denial, unless there was evidence that the district court erroneously thought that it
lacked the authority to grant it. See Winingear, 422 F.3d at 1245. Because there is
nothing in the record to suggest that the district court believed that it lacked the
authority to make such a downward departure, we reject Luong’s argument.
Luong also argues that the Guidelines were used improperly to determine his
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offense level. We address these challenges in the subsequent sections.
a. Amount-of-Loss Calculation
For offenses involving counterfeit instruments, the offense level increases
with the amount of loss. See U.S.S.G. § 2B1.1(b)(1). According to the application
note, the loss amount is “the greater of actual loss or intended loss.” Id. § 2B1.1
cmt. n.3(A). In addition, “[t]he court need only make a reasonable estimate of the
loss. The sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence. For this reason, the court’s loss
determination is entitled to the appropriate deference.” Id. § 2B1.1 cmt. n.3(C).
“We review for clear error the district court’s determination of amount of loss
under the Guidelines.” United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005).
For relevant conduct for jointly undertaken criminal activity, “all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity . . . that occurred during the commission of the offense of
conviction” shall be factored into the determination of the offense level. U.S.S.G.
§ 1B1.3(a)(1). For fraudulent activity, each defendant is liable for the reasonably
foreseeable fraudulent activity of all the other codefendants involved in the fraud.
See id. § 1B1.3 cmt. n.2(c)(2); see also United States v. McCrimmon, 362 F.3d
13725, 732–33 (11th Cir. 2004) (per curiam).
The government presented testimony and exhibits that detailed the extent of
the fraud that involved Luong. Because the evidence supported the conclusion that
Luong was fully aware of the objectives of the conspiracy and was actively
involved in expanding it, the district court did not clearly err in finding that the
amount of loss exceeded $2,500,000.1 Thus, the court correctly assessed a
eighteen-level increase for the amount of loss. See U.S.S.G. § 1B1.3(c).
b. Increase for Use of an Unauthorized-Access-Device
Section 2B1.1 of the Sentencing Guidelines applies, inter alia, to offenses
that involve altered or counterfeit instruments. A 2-level increase is warranted if
the offense involved the production or trafficking of any unauthorized access
device or counterfeit access device or the possession of five or more means of
1
We agree with Luong that arbitrarily halving the proved amount of loss constitutes error.
The district court said, “[$5.8 million] total loss, right. [That] . . . is a huge amount. And even if
I hold Mr. Luong accountable for just half of that, he’s still in the same category. So that would be
my finding in this matter that Mr. Luong is held responsible for guideline calculation purposes of
an amount equal to or in excess of [$2.9 million].” R7 at 44. There is no factual support in the
record for an amount of loss of $2.9 million; the court limited neither the time frame nor the victims
in order to arrive at some amount less than the amount shown by the government . Furthermore,
there is no legal reason to prorate the amount of loss caused by Luong. For example, the presence
of coconspirators is immaterial; each is responsible for the entire amount foreseeably caused by the
conspiracy. See U.S.S.G. § 1B1.3 cmt. n.2(c)(2). There is support in the record for an amount of
loss of $5.8 million, a number on which the court admittedly based its factual conclusion. Thus, it
was legal error to divide the proven amount by two; however, because both $2.9 million and $5.8
million fall within the same specific offense characteristic increase, the error is harmless.
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identification that were produced unlawfully. U.S.S.G. § 2B1.1(b)(9). Luong did
not present this argument in the district court. Therefore, we review the district
court’s actions for plain error. See Camacho-Ibarquen, 410 F.3d at 1315.
Here, the evidence showed that Luong mailed more than five counterfeit
driver’s licenses to a codefendant. Therefore, the district court did not err, much
less plainly err, in applying § 2B1.1(b)(9).
c. Leadership-Role Enhancement
The Sentencing Guidelines require a district court to increase a defendant’s
base offense level because of that defendant’s role in an offense. Thus, a
defendant’s offense level is increased by 4 levels if he was “an organizer or leader
of a criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). “A defendant’s role as an organizer or leader is a
factual finding that we review for clear error to determine if the enhancement
under § 3B1.1 was applied appropriately.” United States v. Ramirez, 426 F.3d
1344, 1355 (11th Cir. 2005) (per curiam). A sentencing court considers the
following factors to determine if this enhancement applies,
(1) exercise of decision-making authority, (2) nature of participation
in the commission of the offense, (3) recruitment of accomplices,
(4) claimed right to a larger share of the fruits of the crime, (5) degree
of participation in planning or organizing the offense, (6) nature and
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scope of the illegal activity, and (7) degree of control and authority
exercised over others.
Id. (quotations omitted).
The evidence in the record supports a finding that Luong was a leader or
organizer of a large-scale check-cashing scheme involving five or more
participants, that he recruited others to participate, and that he took a large portion
of the profits. Therefore, the district court did not clearly err. We affirm the
district court’s application of § 3B1.1(a).
2. Reasonableness of Sentence Under 18 U.S.C. § 3553(a)
As explained previously, we review a sentence for reasonableness.
Winingear, 422 F.3d at 1244, 1246. Our review is guided by the factors in 18
U.S.C. § 3553(a).2 Winingear, 422 F.3d at 1244–45. The district court need not
address every factor, when the district court acknowledges the defendant’s
arguments and the factors in § 3553(a). United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005) (per curiam). The review for reasonableness is deferential. Id. at
788.
2
Relevant factors include the nature and circumstances of the offense, the history and
characteristics of the defendant, deterrence, the kinds of sentences available, the sentencing range
under the Guidelines, and the need to avoid disparity in sentences among similar defendants. See
18 U.S.C. § 3553(a).
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The district court stated that, in determining the sentence, it considered the
factors in § 3553(a), the Guidelines range, the goals of punishment and deterrence,
and whether there were aggravating or mitigating circumstances. Because the
district court acknowledged the arguments that Luong made at sentencing and
addressed the § 3553(a) factors, we conclude that the district court imposed a
reasonable sentence.
III. CONCLUSION
Luong challenges his conviction for bank fraud and sentence to 136 months
imprisonment. We conclude that the district court did not abuse its discretion by
denying Luong’s motion to withdraw his plea, that it did not err in its calculation
of Luong’s sentence under the Guidelines, and that Luong’s sentence was
reasonable. Accordingly, we AFFIRM Luong’s conviction and sentence.
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