United States v. Christopher Aucoin , 390 F. App'x 336 ( 2010 )

Case: 09-30319 Document: 00511190936 Page: 1 Date Filed: 08/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 2, 2010
No. 09-30319 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHRISTOPHER AUCOIN, also known as C; BOUNTHONG XAPHILOM,
also known as Nick; MISAY CHANDAKHAM; DUC HUU PHAM,
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
No. 6:07-CR-60037-8
Before JOLLY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
In this appeal, four defendants convicted of participating in a conspiracy
to distribute methamphetamine in the New Iberia, Louisiana, area ask us to
reverse their convictions. They bring a variety of challenges to their convictions
and sentences, which we consider defendant by defendant, proceeding in
alphabetical order. After reviewing the trial record, briefs, and oral arguments
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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relating to each defendant, we affirm the judgment of the district court as to
each defendant.
I.
We begin with a recitation of the facts based on the evidence presented at
trial, drawing reasonable inferences in favor of the jury’s verdict.
By 2002, Bounthong Xaphilom was manufacturing methamphemine,
commonly known simply as “meth,” in a shed behind his home in New Iberia and
selling it through at least one local dealer, Eng Champkungsing. On February
26, Iberia Parish sheriff’s deputies went to Xaphilom’s home in the course of
investigating reports that Xaphilom was involved in meth distribution. They
found him outside the shed, holding money with crystalline powder on it. After
his arrest, Xaphilom gave officers permission to search the shed. Inside, they
discovered the shed to be a meth lab, and called in a hazmat team. They also
discovered meth buried at various locations on the property, seizing 1,028 grams
total.
After a state conviction, Xaphilom found himself in jail in Iberia Parish,
where he met Phanut Phonchinda some time in 2002. At some point during
their time together Xaphilom told Phonchinda that he had been in the fourth
year of a five-year plan at the time of his arrest. He wanted to unite the Asian
gangs of southwest Louisiana into a drug-dealing alliance called the Nineteen
Dragons, and he told Phonchinda that he planned to resume his plan when he
was released. In the meantime, Champkungsing continued to sell meth,
obtaining it from sources other than Xaphilom.
Xaphilom also met a man named Arthur Basaldua in the Iberia Parish jail.
Basaldua, who was from California, arrived in 2004. According to Phonchinda,
the two discussed their experience in the drug business and began plans to work
together. Xaphilom was not the only one talking to Basaldua about drugs.
Through phone calls arranged by Dominic Sonemangkhala, Basaldua, while in
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jail, contacted various associates, including Duc Pham, regarding the possibility
of selling drugs in Louisiana. These calls often concerned the “construction
business” (i.e., the drug trade) and “windshield wipers” (i.e., meth).
Sonemangkhala was no stranger to the drug trade or to law enforcement. A
narcotics task force—a partnership between local authorities and the FBI—had
hired Sonemangkhala as an informant after his arrest on drug charges to help
them dismantle the Asian drug trade in southwest Louisiana. As he helped
Basaldua contact the outside world, he helped the FBI monitor Basaldua’s
communications.
After his release, Xaphilom found himself incarcerated again, this time in
Bakersfield, California. He and Basaldua stayed in touch, however, through the
mail and Sonemangkhala-arranged phone calls. One of Basaldua’s letters, dated
February 13, 2006, asked if Xaphilom was “still down with that power move that
we have plan[n]ed out for that world.” They also discussed plans to unite after
the two regained their freedom. In early 2006, after they were both out of jail,
they moved into a house on Henry Street in New Iberia, Louisiana, and began
selling meth. Whereas Xaphilom manufactured meth before his arrest in 2002,
he and Basaldua now turned to sources in California, including Pham, to supply
their new business. Basaldua generally handled the drugs, while Xaphilom used
his local connections to find customers and dealers. Xaphilom told his former
customer and dealer Champkungsing about Basaldua, and Champkungsing
purchased from Basaldua on several occasions, selling to support his habit.
Xaphilom also contacted a former coworker, Sammy Thibodeaux, another user-
dealer, to tell him he had the “hook up.” When Thibodeaux hesitated to buy
from Basaldua, whom he did not know, Xaphilom told him that the only way he
would get any meth was through Basaldua. Thibodeaux began purchasing an
eight ball or two each week from Basaldua, using some and selling the rest,
paying about $200 each time. Other times, Thibodeaux would make larger
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purchases, up to a half-pound at a time, costing $8,000. The pair also sold to
Phonchinda, whom Xaphilom had told about his Nineteen Dragons ambitions in
jail, seven times over a three-week period before Phonchinda was arrested.
Aucoin, who had met Basaldua in jail, also purchased an eight ball a month,
using some and selling the rest to fund his habit.
Another customer was Sonemangkhala, the informant. At a meeting
arranged by Basaldua, Basaldua and Xaphilom agreed to sell and
Sonemangkhala agreed to purchase an ounce of meth for $2,000.
Sonemangkhala, as an informant, first purchased an ounce on June 9, 2006, at
the Henry Street residence. On June 30, he purchased another ounce at Henry
Street. For his third purchase, he traveled to Los Angeles, California, to
purchase directly from Pham. He met Pham behind a gas station and purchased
three ounces at a discounted price of $2,400. For each purchase, the FBI gave
him cash immediately before and received the drugs immediately after.
As time went on, Basaldua became increasingly fearful that the FBI was
watching him. Meth is known to cause paranoia, and like his dealers, Basaldua
used the drug frequently. To quell his anxiety, he required female
acquaintainces to empty their purses to make sure they were not wired, and he
forced a coconspirator, Israel Perez, to ingest meth to prove he was not a police
officer. To protect the Henry Street residence, he hired Aucoin to install security
cameras. When that proved unsatisfactory, Xaphilom arranged for Basaldua to
spend several nights a week with Misay Chandakham, in her Lafayette,
Louisiana, townhouse. In January 2007, Basaldua moved there full- time with
his girlfriend and her children.1 Chandakham was an addict, and he paid her
in meth. She also pooled her money with her friends to purchase “party packs”
of meth that they would consume. Finally, after Basaldua paid to bail her out
1
Xaphilom relocated to Dallas, Texas, but he continued to consult with Basaldua on
the drug business by telephone.
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of jail after an arrest for passing bad checks, Basaldua made her move out of the
townhome. He changed the locks and attempted to install a security camera on
the roof, though he could not get it to work. All through Basaldua’s residency,
Chandakham had paid the rent on time and in full, even though she lacked a job
or any other apparent source of income.
The conspiracy began to unravel in February 2007. On February 26,
Basaldua and Perez were arrested after a high-speed chase in Youngsville,
Louisiana. Officers found a bag containing 121 grams of meth, a scale, and a
handgun, all of which had been thrown from the car. Basaldua managed to get
out of jail, but on March 19 he shot two bail bondsmen. A manhunt involving
approximately fifty law-enforcement personnel ensued. Hoping Aucoin could tell
them where to find Basaldua, members of the task force went to Aucoin’s father’s
home to ask Aucoin if he could help. Although they received no help from
Aucoin, they did see some success, as Aucoin agreed to a meeting two days later
to discuss his relationship with Basaldua. At that meeting, without notice of his
Miranda rights, Aucoin gave the task force information that would eventually
be key to his conviction.
The task force interviewed other members of the conspiracy and the grand
jury handed down an indictment on October 11. In addition to the appellants,
the indictment named Basaldua, Perez, Pham, Champkungsing, Phonchinda,
and Joseph—all of whom pleaded guilty, and some of whom would testify against
their coconspirators at trial. The indictment charged all of the appellants with
one count of conspiring to possess meth with the intent to distribute, see 21
U.S.C. §§ 841(a)(1), 846. It also charged Pham with three counts of unlawful use
of a communication facility, see § 843(b). Before trial, Chandakham moved to
sever her trial from her coconspirators, but the district court denied the motion.
Aucoin moved to suppress his statement to the task force. The district court
assigned the motion to a magistrate judge, who recommend denying the motion
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after an evidentiary hearing. Aucoin did not object, and the district court denied
the motion on the magistrate’s recommendation.
The case proceeded to trial. Evidence before the jury consisted primarily
of testimony from members of the task force and coconspirators who had pleaded
guilty. At the close of the government’s evidence, the appellants moved for
judgment of acquittal. Aucoin also moved for a severance, though he did not
explain the basis. The district court also denied this motion. The jury returned
a guilty verdict against the defendants on all counts, and the district court
denied the motions for a judgment of acquittal. Aucoin and Chandakham moved
for a new trial, and the district court denied those motions. The appellants
timely appealed.
II.
We first consider Aucoin’s appeal. The indictment charged him with
participating in the conspiracy and specifically attributed to him one affirmative
act: installing video surveillance cameras at the Henry Street residence.2 The
government argues that it presented evidence showing that his actions
supported the aims of the conspiracy in at least three ways: selling meth,
installing cameras to protect the Henry Street residence, and selling property
to raise money to get Basaldua out of jail. Although there was other evidence at
trial, the record shows that the testimony regarding Aucoin’s confession was the
most significant evidence against him. In an interview with two members of the
task force, he described his relationship with Basaldua. The two met in prison.
When they were free, Aucoin purchased an eight ball of meth per month from
Basaldua, using some and selling the rest to customers he refused to name. He
also admitted installing security cameras at Henry Street in exchange for
2
The indictment reads, “On or about October 27, 2006, CHRISTOPHER AUCOIN, a/k/a
“C”, installed video surveillance cameras on ARTHUR BASALDUA’S, a/k/a Yogi, a/k/a Joey,
a/k/a Art, a/k/a Artie, a/k/a Leo Perez, a/k/a Joe Perez, House[.]”
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another eight ball of meth and selling an amplifier to help raise bail for
Basaldua. On appeal, Aucoin raises essentially three challenges, two of which
relate to his confession. First, he says the district court should have granted his
motion to sever. Second, he says the district court should have suppressed his
confession. Third, he says that, if the confession was admissible, the government
failed to present sufficient evidence to corroborate his confession. Reviewing
these arguments in order, we find no error and affirm Aucoin’s conviction.
A.
Aucoin first argues that he is entitled to a new trial because the court
should have severed his trial from his coconspirators. A defendant must move
for severance before trial, unless he can show cause why he should be able to file
at a later date. F ED. R. C RIM. P. 12 (b)(5) & (f). Here, Aucoin moved for
severance after the government put on its evidence. Because he makes no
argument on appeal why such a delay was justified, he is not entitled to a new
trial. United States v. Tolliver, 61 F.3d 1189, 1198-99 (5th Cir. 1995), vacated
and remanded on other grounds sub nom. Moore v. United States, 519 U.S. 802,
802 (1996).
B.
We turn now to whether Aucoin’s confession should have been suppressed.
The district court referred the motion to a magistrate judge, who held a
suppression hearing. At the hearing, two members of the task force, Douglas
Carr and Shane Landry, testified for the government, and Aucoin testified on his
own behalf. The evidence showed that members of the task force went to
Aucoin’s father’s house looking for Basaldua after he shot the bail bondsmen on
March 19, 2007. Carr explained that the task force urgently needed help finding
Basaldua. Carr also told Aucoin that he was a target of an investigation into
meth distribution, a crime that carried serious penalties. Aucoin told Carr that
he had heard from Basaldua that evening but did not know where to find him.
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Carr and the rest of the task force left soon afterward, but before leaving, Carr
told Aucoin that the task force would like to interview him. The task force also
left with Aucoin’s driver’s license, which one member had requested but failed
to return. Aucoin arranged a meeting at the office of a lawyer who previously
represented him in a personal injury matter.
At the meeting were five or six members of the task force, Aucoin, and his
lawyer. The lawyer asked Agent Carr if Aucoin was a suspect in the
investigation. After Agent Carr indicated that Aucoin was a target, the lawyer
told Aucoin he would be better served by a lawyer familiar with criminal law.
Nevertheless, Aucoin was willing to speak to the agents. Carr told Aucoin and
the lawyer that it would be better to speak without the lawyer present so he
could develop Aucoin as an informant, a condition Aucoin apparently did not
protest. Although Aucoin wanted to speak to Carr only, Carr told him that such
interviews should involve two agents. Aucoin chose Landry to participate in the
interview, which was outside so Aucoin could smoke. During the interview,
Aucoin was generally cooperative, confessing his involvement in the conspiracy
but refusing to identify those who purchased meth from him. The three
witnesses agreed that the task force members never gave him a Miranda
warning.
After the hearing, the magistrate recommended denying the motion to
suppress. The report and recommendation notified Aucoin that failing to object
to the recommendation would result in plain-error review on appeal. Aucoin did
not object to the recommendation, and the district court denied the motion.
Because Aucoin did not ask the district court to reconsider the magistrate’s
ruling, which notified Aucoin of forfeiture for failing to ask for review, we review
for plain error only. United States v. Francis, 183 F.3d 450, 452 (5th Cir. 1999).
For us to consider reversing Aucoin’s conviction, Aucoin must show that the
magistrate’s conclusion that he was not in custody was erroneous, that the error
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was plain, and that the error affected his substantial rights. United States v.
Scher, 601 F.3d 408, 411 (5th Cir. 2010). Upon such a showing, we have the
discretion to reverse if we determine “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citations and
quotations omitted).
On this record, we cannot say that the district court plainly erred.
Miranda warnings are necessary only if “a reasonable person in the suspect’s
position would have understood the situation to constitute a restraint on
freedom of movement to the degree which the law associates with formal arrest.”
United States v. Stevens, 487 F.3d 232, 241 (5th Cir. 2007) (quoting United
States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc)). As Aucoin
points out, “a statement by a law enforcement officer that an individual is
suspected of illegal activity is persuasive evidence” that a suspect is in custody.
United States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996). But the totality of
the circumstances indicates enough voluntariness that any error in the district
court’s decision was not plain. It was Aucoin’s decision when and where to meet,
and it was his decision to speak to law enforcement without a lawyer, even after
his lawyer told him he should find a criminal lawyer. Moreover, the interview
took place outside at Aucoin’s request, where he was free to smoke and evidently
felt comfortable enough to refuse to answer certain questions. Even assuming
the district court erred, the error is not plain. We will not reverse on this
ground.
C.
Aucoin next challenges the sufficiency of the evidence against him, arguing
that the government failed adequately to corroborate his confession. Before
addressing that argument, we must address Aucoin’s contention that the
government’s introduction of evidence tending to prove overt acts not alleged in
the indictment amounts to a variance between the indictment and proof. We
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have long held that the government’s proof is not limited to evidence of the overt
acts alleged in the indictment. See, e.g., United States v. Wilson, 657 F.2d 755,
763 (5th Cir. 1981). Accordingly, in considering the sufficiency of the
government’s evidence, we are not limited to evidence concerning Aucoin’s
alleged installation of the cameras at Henry Street.
As noted above, Aucoin confessed that he bought meth from Basaldua to
use and sell it; installed cameras at Henry Street; and sold property to raise bail
for Basaldua. Although confessions can be crucial to a conviction, a conviction
cannot stand on the confession alone. Smith v. United States, 348 U.S. 147, 152
(1954). This rule reflects the reality that defendants sometimes confess to
crimes they did not commit. Id. When the government offers a defendant’s
confession as part of its evidence, it must also offer evidence that “fortifies the
truth of the confession.” United States v. Deville, 278 F.3d 500, 506 (5th Cir.
2002) (quoting United States v. Garth, 773 F.2d 1469, 1479 (5th Cir. 1985)). This
evidence does not, however, need to prove every element of the offense, so long
as there is substantial evidence to show the offense was committed and all the
evidence is sufficient for the jury to convict. Id. In this case, the evidence had
to show a conspiracy to possess and distribute meth as defined by 21 U.S.C. §§
841(a)(1) and 846. Thus, the government had to prove as to each defendant the
existence of an agreement to possess meth with the intent to distribute, that the
defendant knew of the agreement, and that the defendant voluntarily
participated in the agreement. See United States v. Brito, 136 F.3d 397, 409 (5th
Cir. 1998). There is no need for direct evidence; circumstantial evidence may
suffice to show the agreement. Id. Evidence that the defendant merely
associated with members of the conspiracy is not enough, but such associations
can be circumstantial evidence of a conspiracy. See United States v. Williams-
Hendricks, 805 F.2d 496, 503 (5th Cir. 1986).
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A review of the record discloses sufficient corroboratory evidence. First,
phone records showed 105 phone calls between Basaldua and Aucoin from
December 18, 2006, to February 17, 2007—almost two per day—demonstrating
a close relationship between the two. Basaldua’s girlfriend at the time of the
shootings also testified that she went to Aucoin’s home to try to get money for
Basaldua’s bail, showing that people close to Basaldua expected Aucoin to help
pay to get Basaldua out of jail. In addition, testimony from Perez that Aucoin
installed cameras at Henry Street and FBI surveillance photographs of the
installation support Aucoin’s admission that he installed the cameras for
Basaldua. Futher testimony attested to Basaldua’s paranoia, and the jury could
reasonably infer that someone who regularly spoke to Basaldua and had a
relationship with him was at least generally aware of Basaldua’s activities and
his fear of law-enforcement detection. Taken together, this evidence supports
an inference that he installed the cameras to protect Basaldua’s illegal drug
activities. In view of this corroboratory evidence, the jury had sufficient
evidence to conclude he joined Basaldua in the conspiracy to distribute meth.
Finding no error, we affirm Aucoin’s conviction.
III.
Next, we consider Chandakham’s appeal. Chandakham’s townhouse is
where Basaldua moved as he became increasingly concerned with his safety,
eventually displacing Chandakham. She makes two arguments against her
conviction: first, that the district court should have granted her motion for a
separate trial, and second, that the evidence before the jury was insufficient to
support her conviction. In addition, she argues that her ten-year mandatory
minimum sentence violates the Eighth Amendment. Finding no error, we
affirm.
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A.
Chandakham first argues that the district court should have severed her
trial. Unlike Aucoin, Chandakham presented her motion at the appropriate
time, so we review for abuse of discretion. United States v. Sudeen, 434 F.3d
384, 387 (5th Cir. 2005). Generally, judicial economy calls for trying
coconspirators together and “the mere presence of a spillover effect does not
ordinarily warrant severance.” United States v. Posada-Rios, 158 F.3d 832, 863
(5th Cir. 1998) (quotations omitted). To merit reversal, the defendant must show
“clear, specific, and compelling prejudice that resulted in an unfair trial.” Id.She argues that such prejudice existed in two ways: first, that the evidence
regarding bad acts of her coconspirators overwhelmed the jury’s ability to
consider separately the evidence against her, and second, that she was unable
to call key witnesses to testify on her behalf. We find no error.
Regarding the first, although Chandakham is certainly correct that the
lion’s share of evidence concerned other members of the conspiracy, that
spillover was not out of the mainstream of conspiracy cases. Especially in the
light of the district court’s instruction to the jury to consider the evidence
separately as to each defendant, we think the “jury could . . . be expected to
compartmentalize the evidence as it related to separate defendants.” United
States v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987). Similarly, Chandakham
has not demonstrated a need for a separate trial to obtain exculpatory testimony.
To prevail, she must show: “(1) a bona fide need for the testimony; (2) the
substance of the testimony; (3) its exculpatory nature and effect; [and] (4) that
the co-defendant would in fact testify if severance were granted.” United States
v. Villarreal, 963 F.2d 725, 732 (5th Cir. 1992). Regarding the need for a
severance to obtain exculpatory testimony, Chandakham’s motion stated only:
“Counsel for your defendant believes there is potential exculpatory evidence from
a co-defendant which will not be available if the co-defendant asserts his 5th
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Amendment rights at trial.” This brief statement failed to argue any of the four
necessary factors. On appeal, her brief and oral argument also omitted any
specific argument on the relevant factors. Accordingly, we will not reverse for
failure to grant a severance.
B.
We next consider Chandakham’s claim of the insufficiency of the evidence.
Our analysis of Aucoin’s sufficiency of the evidence argument contains the
relevant legal standard for conspiracy to distribute meth, so we will not repeat
it here. Chandakham argues there was no evidence sufficient to allow the jury
to infer an agreement to participate in the conspiracy to distribute meth. We
disagree. Perez, a coconspirator, testified that “Arthur [Basaldua] would give
Misay methamphetamine . . . so she could pay the rent,” i.e., from sales of meth.
Perez further testified that Chandakham became angry when someone she knew
started purchasing directly from Basaldua, suggesting that the friend was also
her customer who earlier might have been purchasing meth from her. Given her
unemployment and her landlord’s testimony that her rent was always paid on
time, the jury reasonably could infer an agreement that Basaldua would give
Chandakham meth, which she would sell to pay the rent. The jury had more
than enough evidence to conclude that Chandakham joined the conspiracy to
distribute meth.
C.
Chandakham also says that her ten-year mandatory minimum sentence
violates her Eighth Amendment right to be free from cruel and unusual
punishment. We disagree. The Eighth Amendment embraces a “narrow
proportionality principle,” that tolerates severe sentences so long as they are not
“grossly disproportionate.” Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01
(1991) (Kennedy, J., concurring in part and concurring in the judgment). We
cannot say that Chandakham’s sentence is so grossly disproportionate that it is
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unconstitutional in the light of other severe sentences we have approved. See,
e.g., United States v. Cathey, 259 F.3d 365, 368-69 (5th Cir. 2001). We affirm her
sentence.
IV.
Pham raises two challenges to his sentence, neither of which merits
reversal. First, he argues that the district court violated his Sixth Amendment
rights by finding that he possessed a gun in the commission of his crime and
applying U.S.S.G. § 2D1.1(b)(1). He says the jury, not the court, should have
made the factual finding. “Booker contemplates that, with the mandatory use of
the Guidelines excised, the Sixth Amendment will not impede a sentencing judge
from finding all facts relevant to sentencing.” United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005). There is no error. Next, he argues that his counsel was
ineffective in failing to object to the amount of drugs used to calculate his
sentence. The record contains insufficient to evaluate that claim on direct
appeal. United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010).
V.
We turn now to Xaphilom’s arguments against his conviction and sentence.
We should reverse his conviction, he argues, because the evidence at trial proved
two conspiracies, whereas the indictment alleged only one. Regarding his
sentence, he makes two arguments. First, if we find that two conspiracies
existed but decline to reverse his conviction, he says he at least deserves to be
sentenced only for the conduct relating to the later activity. Second, he argues
that the district court erred by attributing his brother’s conviction to him,
causing it to deny his request for a variance. After a review of the record and
consideration of the briefs and oral argument, we find no error.
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A.
We first consider Xaphilom’s argument that the proof at trial varied from
the indictment. Specifically, he argues that whereas the indictment charged
only one conspiracy, the evidence presented at trial showed two. He contends
that his 2002 conduct—manufacturing meth for distribution in New
Iberia—involved a conspiracy different from his later activities with Basaldua.
We determine whether there is a variance by comparing the proof at trial to the
allegations in the indictment. United States v. Mitchell, 484 F.3d 762, 769 (5th
Cir. 2007). The number of conspiracies is a question of fact, and in the face of a
jury’s determination that only one conspiracy existed, we will find multiple
conspiracies only if the jury lacked sufficient evidence to conclude the activities
were part of a single conspiracy. Id. In evaluating the evidence, we consider
principally three factors: the purposes, means, and composition of the
conspiracy. Id. at 771. In addition to a variance, Xaphilom would have to show
prejudice for us to vacate his conviction. Id. We need not, however, reach the
issue of prejudice, because we conclude that sufficient evidence exists for the
jury to conclude there was a single, continuing conspiracy to profit from the sale
of meth in the New Iberia, Louisiana, area.
In 2002, Xaphilom was manufacturing meth in a shed behind his house on
a fairly significant scale, as evidenced by seizure of more than a kilogram of the
drug at his arrest. Although the government did not introduce much evidence
as to the character of the conspiracy in 2002, Champkungsing, who pleaded
guilty to the conspiracy charged in this case, told the jury he both consumed and
sold meth obtained from Xaphilom both before and after Xaphilom’s
incarceration, demonstrating a clear connection between the 2002 conduct and
the conduct after Xaphilom got out of jail. Once in jail, Xaphilom recruited
others to join his meth distribution ring after his release. Phonchinda testified
that Xaphilom told him of his incomplete plan to create a Nineteen Dragons
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gang to dominate the meth trade in southwest Louisiana and that he planned
to continue dealing meth after his release. Xaphilom’s pitch seems to have
worked, as Phonchinda bought drugs from the conspiracy after his release.
Xaphilom’s most significant jailhouse recruit, of course, was Basaldua, who
helped to bring other new members to the conspiracy and provided the
connections to import meth from California. Once released, Xaphilom
reconnected with his old dealer, Champkungsing, and resumed dealing through
him, but now with Xaphilom’s jail-mate, Basaldua, as the primary contact in this
continuing and growing arrangement. The evidence sufficiently establishes a
single conspiracy, both alleged and proved, and we affirm Xaphilom’s conviction.
B.
We next consider Xaphilom’s sentence. We review sentences for abuse of
discretion, reviewing factual findings for clear error and application of the
guidelines de novo. United States v. Valencia, 600 F.3d 389, 433 (5th Cir. 2010)
(per curiam). We will not reverse for harmless error. Id. Because we have
determined that the jury had sufficient evidence to conclude that there was only
one ongoing conspiracy, we address only briefly Xaphilom’s argument that the
the district court should not have considered the drugs seized in 2002. Because
possession of those drugs was part of the conspiracy, the district court did not err
in considering those drugs to sentence Xaphilom. We turn now to his second
argument.
Xaphilom’s argument that he should get a new sentence concerns a 1999
conviction for possession of marijuana and drug paraphernalia. His presentence
report attributed the conviction to him, but Xaphilom contends it belongs to his
brother, Bounnong. He acknowledges that the sentence made no difference to
his criminal history category, but he says that the district court might have
granted his request for a variance had it not concluded that the 1999 conviction
was his. The record, briefs, and oral arguments convince us that the district
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Case: 09-30319 Document: 00511190936 Page: 17 Date Filed: 08/02/2010
No. 09-30319
court did not clearly err in rejecting Xaphilom’s argument, and even if it did, the
error would be harmless.
As noted above, the presentence report attributed the conviction to
Xaphilom. The district court is permitted to rely on the report unless the
defendant shows it is materially unreliable. United States v. Ford, 558 F.3d 371,
377 (5th Cir. 2009). Xaphilom filed an objection to the report, stating that he
“d[id] not think he pled to this offense.” At the sentencing hearing, he provided
an uncertified record from the Lafayette Parish Clerk of Court that showed the
social security number and date of birth associated with the plea matched those
of Xaphilom’s brother, Bounnong. The probation officer explained that the
presentence report attributed the conviction to Xaphilom because it was in his
name and the address also matched. The district court asked Xaphilom if he had
any other evidence, but he did not. Having reviewed the record, we cannot say
that Xaphilom carried his burden to show that the presentence report was
materially unreliable, so we find no clear error. Moreover, the record discloses
no reason to believe that the district court would have granted a variance had
it not concluded the conviction belonged to Xaphilom. Consequently, even if the
district court had erred, that error would have been harmless. Accordingly,
Xaphilom’s sentence stands.
VI.
In this appeal, we have thoroughly considered the trial record, the briefs
and the oral arguments. We are satisfied that the district court did not commit
error, and certainly not reversible error, so the judgment is, in all respects,
AFFIRMED.
17