United States v. Yang ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11384
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BLONG YANG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-111-2-R
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August 17, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Blong Yang appeals his sentence following a guilty-plea
conviction of aiding and abetting the possession of opium with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. Yang argues that the district court erred in
attributing the opium from the second undelivered package to him
when determining his sentence.
The presentence report (PSR), its addendum, and the
testimony of the Customs Service agent at Yang’s sentencing
hearing support the district court’s finding that the opium from
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-11384
-2-
the second package was reasonably foreseeable to Yang and was
part of his “relevant conduct” under U.S.S.G. § 1B1.3. The
evidence established that Yang would have retrieved both packages
had the packages not been intercepted by the Customs Service.
See United States v. Bryant, 991 F.2d 171, 176-77 (5th Cir. 1993)
(holding district court did not clearly err in finding package
intercepted by post office and intended for defendant was part of
defendant’s relevant conduct); see also United States v. White,
888 F.2d 490, 498 (7th Cir. 1989) (holding sentencing
determination should not be impacted by Government’s actions in a
controlled delivery of intercepted drug packages). Yang
presented no evidence rebutting the findings of the PSR or the
testimony of the agent. The district court’s determination of
the drug quantity attributable to Yang was not clearly erroneous.
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
Yang’s contention that the district court should have made a
downward departure in his sentence pursuant to U.S.S.G. § 5K1.1
similarly is without merit. Because the Government did not
assert a motion under § 5K1.1, the district court had no
authority to depart downward based on Yang’s alleged substantial
assistance. United States v. Solis, 169 F.3d 224, 226 (5th
Cir.), cert. denied, 120 S. Ct. 112 (1999). Furthermore, there
were no limitations on the Government’s discretionary power under
§ 5K1.1. The district court consequently did not err in refusing
to grant Yang a downward departure. Id. at 227.
AFFIRMED.