United States v. Biao Huang , 687 F.3d 1197 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10389
Plaintiff-Appellee, D.C. No.
v.  1:09-cr-00014-
BIAO HUANG, WHA-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of the Northern Mariana Islands
William Alsup, District Judge, Presiding
Argued and Submitted
June 13, 2012—Honolulu, Hawaii
Filed August 8, 2012
Before: Mary M. Schroeder, Consuelo M. Callahan, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Callahan
8999
UNITED STATES v. HUANG 9001
COUNSEL
George Anthony Long, Law Office of G. Anthony Long, San
Jose, Saipan, Northern Mariana Islands, for defendant-
appellant Biao Huang.
Karon V. Johnson (argued) and James J. Benedetto (on the
briefs), Assistant United States Attorneys, Office of the
United JStates Attorney for the Districts of Guam and the
9002 UNITED STATES v. HUANG
Northern Mariana Islands, Hagatna, Guam and Saipan, North-
ern Mariana Islands, for plaintiff-appellee the United States of
America.
OPINION
CALLAHAN, Circuit Judge:
Defendant-Appellant Biao Huang, a native and citizen of
China residing in the Commonwealth of the Northern Mariana
Islands, pleaded guilty to conspiracy and possession with
intent to distribute various quantities of methamphetamine,
including one quantity of more than 900 grams. The district
court sentenced Huang to 135 months in prison. Huang
appeals his sentence on the ground that he was the victim of
sentencing entrapment, which “occurs when a defendant is
predisposed to commit a lesser crime, but is entrapped by the
government into committing a crime subject to more severe
punishment.” United States v. Mejia, 559 F.3d 1113, 1118
(9th Cir. 2009). Huang also argues that he should not have
received, pursuant to U.S.S.G. § 2D1.1(b)(5), a two-point
enhancement for an offense involving the importation of a
controlled substance, and that his sentence is substantively
unreasonable.
Finding no error in Huang’s sentencing, we affirm the dis-
trict court. Huang was not subject to sentencing entrapment
because Huang had the intent and capacity to produce more
than 900 grams of methamphetamine and acted on that intent
without hesitation. We join the Fifth and Eleventh Circuits in
holding that a defendant need not be personally involved in
the importation of illegal drugs to receive the § 2D1.1(b)(5)
importation enhancement; it is enough for the government to
show that the drugs were imported. Finally, Huang’s sentence
was reasonable even though it was the same as his co-
defendant’s sentence; the co-defendant cooperated with the
government while Huang did not.
UNITED STATES v. HUANG 9003
BACKGROUND
In 2008, a confidential source on Saipan, in the Northern
Mariana Islands, advised agents of the Drug Enforcement
Administration (“DEA”) that he could purchase large quanti-
ties of “ice,” or mostly pure methamphetamine, from Chinese
nationals residing in the Islands. At the direction of the DEA
and other government agents, the confidential source con-
tacted one of these nationals, who directed him to a “source
of supply” named Sheng Lian. Lian and Huang had gone to
school together in China, and later worked for a company
owned by Huang’s father, before relocating to a shared resi-
dence in Saipan.
On Huang’s assurances that the confidential source was
trustworthy, Lian met the confidential source and sold him 9.7
net grams of methamphetamine for $5,000. A few months
after this initial sale, the confidential source contacted Huang
to make another controlled buy. Huang then sold the confi-
dential source 4.8 net grams of methamphetamine for $1,500.
A couple of months later, Huang and Lian sold the confiden-
tial source another 5.8 net grams of methamphetamine for
$1,500.
A few months after these initial transactions, the confiden-
tial source contacted Lian and explained that his (the
source’s) boss wanted to purchase large quantities of metham-
phetamine. Undercover agents and the confidential source
then met with Lian, who agreed to sell one of the agents 900
grams of methamphetamine for $250,000. Lian also stated he
would be willing to meet the agent’s request for ten kilograms
of methamphetamine for delivery in American Samoa and 50
kilograms for delivery in Hawaii during an initial six-month
period. Lian explained that his boss had been trafficking
methamphetamine in Saipan for twelve years, and that his
boss was the biggest dealer on the island.
Two days after this meeting, one of the undercover agents
and the confidential source met with Huang and Lian. Lian
9004 UNITED STATES v. HUANG
explained that their boss had agreed to the large shipments to
American Samoa and Hawaii and that everything was “ready
to go” for the sale of the 900 grams. The parties dispersed,
after which Huang called the confidential source and said that
he (Huang) and Lian were ready. The parties met in a hotel
room, where Lian handed over the methamphetamine. Lian,
Huang, and the two undercover agents present were arrested.
Following his arrest, Lian waived his Miranda rights and
talked about his relationship with Huang, Huang’s relation-
ship with the confidential source, and the initial sale of 9.7
grams. Huang, in contrast, refused to cooperate.
A grand jury returned a five-count indictment against
Huang and Lian. Count One charged both defendants with
conspiracy to distribute more than 900 grams of “metham-
phetamine hydrochloride,” in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1), and 846, while Counts Two through
Five charged them with possession with intent to distribute
“d-methamphetamine hydrochloride in the form commonly
known as ‘ice,’ ” in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), and (b)(1)(C). Specifically, Count Two charged
Lian for 9.7 grams of “ice”; Count Three charged Huang for
4.8 grams; Count Four charged both defendants for 5.8 grams;
and Count Five charged both defendants for 947 grams.
Lian entered into a plea agreement that provided for a sen-
tence of 135 months. In exchange, Lian agreed to cooperate
with the government by “disclos[ing] all information with
respect to the activities of himself and his co-defendant,
Huang, Biao.” Huang, meanwhile, chose to plead guilty with-
out the benefit of a written plea agreement. During the change
of plea colloquy, Huang and his lawyer admitted to the drug
quantities charged in the indictment.
The Presentence Investigation Report (“PSR”) set the
applicable offense level at 37, which would have yielded a
sentencing range of 210 to 262 months. Huang filed no writ-
UNITED STATES v. HUANG 9005
ten objections to the PSR. However, Huang did object before
and during the sentencing hearing to the PSR’s recommended
sentencing range on numerous grounds, one of which the gov-
ernment conceded and several of which the district court
accepted.
Two of Huang’s arguments that the district court rejected,
and that Huang raises on appeal, were: (1) Huang was a
“small” dealer whom the government induced to sell a much
larger quantity of methamphetamine, and such inducement
constituted sentencing entrapment that justified a lower sen-
tence, and (2) a two-point importation enhancement under
U.S.S.G. § 2D1.1(b)(5) was inappropriate because Huang did
not himself import any methamphetamine. Regarding sen-
tencing entrapment, the district court explained that it “does
not find that the defendant’s will was overcome. The burden
is on the defendant, and the Court rejects the . . . sentence
entrapment argument by the defense.” The court added, “[t]he
defendant is accountable certainly for 911 grams of metham-
phetamine.” Regarding the importation enhancement, the
court explained that a “preponderance of evidence, let alone
clear and convincing evidence,” showed that Huang satisfied
the terms of the enhancement.
The court calculated Huang’s final base offense level to be
31. With a criminal history category of one, Huang’s applica-
ble sentencing range was 108 to 135 months. See U.S.S.G.
Ch. 5, Pt. A. The district court sentenced Huang to 135
months after explaining that Huang had shown no remorse
and acted solely for profit. The court also cited the fact that
Huang had not cooperated with the government, unlike his co-
defendant Lian Sheng, who also received 135 months. The
district court entered judgment and Huang timely appealed.
On appeal, Huang re-asserts two of the arguments the dis-
trict court rejected: he was the victim of “sentencing entrap-
ment” and the two-point importation enhancement was
inappropriate. Huang also argues that his 135-month sentence
9006 UNITED STATES v. HUANG
is substantively unreasonable because he received the same
sentence as Lian, who promised to cooperate but, according
to Huang, did not.
STANDARD OF REVIEW
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo and its factual findings for clear error.
United States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009).
We have not resolved whether we review a district court’s
application of the Guidelines to the facts de novo or for abuse
of discretion. See United States v. Swank, 676 F.3d 919, 921-
22 (9th Cir. 2012). However, in the context of sentencing
entrapment, we have held that a “district court was reasonable
in rejecting [the defendant’s] argument of sentencing entrap-
ment and did not abuse its discretion.” Mejia, 559 F.3d at
1118. In this case, even applying de novo review, the outcome
does not change. Finally, if the district court correctly calcu-
lated the applicable sentencing range, we review the sentence
for reasonableness. United States v. Dallman, 533 F.3d 755,
760 (9th Cir. 2008).
DISCUSSION
A. Sentencing entrapment
[1] Sentencing entrapment occurs “when a defendant is
predisposed to commit a lesser crime, but is entrapped by the
government into committing a crime subject to more severe
punishment.” Mejia, 559 F.3d at 1118. The defense of sen-
tencing entrapment serves to prevent the government from
“ ‘structur[ing] sting operations in such a way as to maximize
the sentences imposed on defendants’ without regard for the
defendant’s culpability or ability to commit the crime on his
own.” United States v. Schafer, 625 F.3d 629, 640 (9th Cir.
2010) (quoting United States v. Staufer, 38 F.3d 1103, 1107
(9th Cir. 1994)).
UNITED STATES v. HUANG 9007
[2] A defendant “bears the burden of proving sentencing
entrapment by a preponderance of the evidence.” United
States v. Parrilla, 114 F.3d 124, 127 (9th Cir. 1997). Specifi-
cally, the defendant must show he was predisposed to commit
only a lesser crime, Staufer, 38 F.3d at 1108, i.e., that he
lacked the intent and capability to produce the larger quantity
of drugs, Mejia, 559 F.3d at 1118; United States v. Naranjo,
52 F.3d 245, 250 n.13 (9th Cir. 1995); see also United States
v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003) (explaining that a
defendant must show the government engaged in “outrageous
official conduct which caused the individual to commit a
more significant crime”). The district court must make
express factual findings regarding whether the defendant has
met his burden. United States v. Riewe, 165 F.3d 727, 729
(9th Cir. 1999) (per curiam).
Where a sentencing court determines that a defendant has
met his burden of proof, the court ordinarily may grant a
downward departure from the applicable sentencing range. Id.However, where, as here, a statutory minimum sentence
applies, the court does not have the authority to depart below
that sentence absent application of the safety valve provision
in U.S.S.G. § 5C1.2 or a substantial assistance motion from
the government.1 United States v. Wipf, 620 F.3d 1168, 1170
(9th Cir. 2010). In such a case, the proper course is to “de-
cline to apply the statutory penalty provision for the greater
offense that the defendant was induced to commit, and instead
apply the penalty provision for the lesser offense that the
defendant was predisposed to commit.” Riewe, 165 F.3d at
729 (quotation marks and citation omitted); see also United
States v. Castaneda, 94 F.3d 592, 595 (9th Cir. 1996);
U.S.S.G. § 2D1.1 Commentary, Application Note 12. In other
words, the court should subtract “the amount of drugs tainted
by the entrapment” and use the minimum sentence, and sen-
1
Huang sought, and was denied, relief under the safety valve provision.
He does not appeal the district court’s ruling on this issue.
9008 UNITED STATES v. HUANG
tencing range, that pertain to the modified drug quantity.
Riewe, 165 F.3d at 729.
In this case, Huang was charged with, and pleaded guilty
to, possession with intent to distribute more than 900 grams
of “ice,” a methamphetamine mixture. Such offense carries a
minimum sentence of ten years and a maximum sentence of
life. 21 U.S.C. § 841(b)(1)(A)(viii). If the district court were
to subtract, on account of sentencing entrapment, the 900
grams in Count One and the 947 grams in Count Five of the
indictment, leaving only the 10.6 grams charged in Counts
Three and Four, Huang would have faced a statutory mini-
mum sentence of only five years. 21 U.S.C.
§ 841(b)(1)(B)(viii).
Huang, however, did not meet his burden of showing sen-
tencing entrapment by a preponderance of the evidence.2
Huang twice sold five to six grams, and Lian ten grams, of
methamphetamine to the government’s confidential source. A
few months after the last of these sales, Lian readily agreed
to sell an undercover agent 900 grams for $250,000, and to
provide “initial” shipments of ten kilograms to American
Samoa and 50 kilograms to Hawaii. Lian bragged that “their”
methamphetamine came from the biggest dealer on Saipan,
who in turn got it from China. Huang’s complicity in Lian’s
actions and statements was evidenced by the fact that, when
the time came to exchange the drugs and money, Huang made
the call to the undercover agent. Huang then accompanied
Lian to the meetings. The district court also heard proffered
testimony from a DEA agent that Lian said something to the
effect of “500 [grams] is small for us;” that Huang never
expressed reluctance (in fact, “it seemed like they were laugh-
2
The government argues that a defendant waives his sentencing entrap-
ment claim as a matter of law where he pleads guilty and admits to the
quantity of drugs charged in the indictment. We need not decide this issue
because Huang’s sentencing entrapment claim, even if it is not waived,
fails on the facts.
UNITED STATES v. HUANG 9009
ing and having a good time”); and that during the time it took
to seal the 900-gram deal “it was [Lian and Huang] who
repeatedly contacted the confidential source in an attempt to
get that deal completed.”
[3] Huang offered no evidence that he was, in his words,
a “novice or inexperienced dealer.” Indeed, the only three
facts that could support his claim of sentencing entrapment
are that: (1) the undercover agent, not Huang or Lian, initiated
the 900-gram sale and pursued it through a series of calls; (2)
the only other methamphetamine sales Huang is known to
have made involved small quantities; and (3) Huang was
merely present when Lian first talked about dealing in large
quantities. However, Huang and Lian showed only enthusi-
asm and wherewithal once the agent suggested the larger deal;
Huang introduced no evidence that the smaller sales he was
caught making were typical; and Huang actively participated
in the 900-gram sale after Lian set it up. There is no evidence
of the type of reluctance and inducement present in cases
where we have found sentencing entrapment. See United
States v. McClelland, 72 F.3d 717, 726 n.6 (9th Cir. 1995)
(affirming district court’s entrapment finding where defendant
was emotionally vulnerable and resisted government agent’s
repeated efforts to convince him to kill his wife); Naranjo, 52
F.3d at 251 (suggesting entrapment might exist where DEA
had no evidence defendant previously engaged in drug traf-
ficking, defendant resisted undercover agent’s repeated efforts
to buy large quantity of cocaine, and defendant could not pay
for large quantity); Staufer, 38 F.3d at 1105, 1108 (finding
entrapment where undercover agent and confidential infor-
mant, motivated by a possible lower sentence for his own
crimes, insisted over defendant’s reluctance that he sell an
unusually large quantity of drugs for an inflated price).
In short, Huang failed to prove that he lacked the intent and
capability to produce and sell 900 grams of methamphet-
amine, Mejia, 559 F.3d at 1118; Naranjo, 52 F.3d at 250 n.13,
or that the government engaged in “outrageous official con-
9010 UNITED STATES v. HUANG
duct” that overcame his predisposition to sell only smaller
amounts, Schafer, 625 F.3d at 639-40 (quotation marks and
citation omitted). Instead, the evidence shows only Huang’s
“complete willingness to proceed, even as the size of the pro-
posed transaction[s] increased over the course” of time.
United States v. James, 487 F.3d 518, 529 (7th Cir. 2007). On
this record the district court properly rejected Huang’s claim
of sentencing entrapment.
Huang nonetheless raises two objections to the district
court’s ruling. He first argues that the district court did not
make the specific factual findings required when the court
rejects a sentencing entrapment claim. See Riewe, 165 F.3d at
729 (remanding where district court did not expressly reject
sentencing entrapment claim and instead said only that the
PSR “correctly calculate[d] the sentencing guidelines” (inter-
nal quotation marks omitted)); Parrilla, 114 F.3d at 128(remanding where defendant disputed PSR’s factual state-
ments and district court “never drew any explicit conclusions
about the factual support for Parrilla’s sentencing entrapment
claim”); Naranjo, 52 F.3d at 251 (remanding where it was
unclear “what findings the district court relied on in finding
Naranjo predisposed to cocaine dealing,” especially given the
absence of any real evidence of such predisposition). Here,
however, the district court plainly stated that it did “not find
that the defendant’s will was overcome. The burden is on the
defendant, and the Court rejects the . . . sentence entrapment
argument by the defense.” In addition, Huang did not dispute
the PSR’s findings and the district court expressly attributed
the large quantity of methamphetamine to Huang, saying
“[t]he defendant is accountable certainly for 911 grams of
methamphetamine.” These statements, although not pellucid,
adequately explained the district court’s rationale for rejecting
Huang’s sentencing entrapment claim.
[4] Second, Huang argues that the district court erred by
not analyzing his sentencing entrapment claim using the five
factors identified in McClelland, 72 F.3d at 722. However,
UNITED STATES v. HUANG 9011
even if the McClelland factors are applicable, Huang was not
the victim of sentencing entrapment.3 While the government
initially suggested the 900-gram deal, government agents did
not provide undue incentives and Huang was a known drug
dealer who agreed without hesitation to the larger sale for
profit. No matter what test applies, Huang fails to show that
the district court erred in rejecting his sentencing entrapment
claim.
B. Importation enhancement
[5] The Sentencing Guidelines provide for a two-level
enhancement in the applicable sentencing range if, among
other things, “the offense involved the importation of amphet-
amine or methamphetamine or the manufacture of amphet-
amine or methamphetamine from listed chemicals that the
defendant knew were imported unlawfully.” U.S.S.G.
§ 2D1.1(b)(5)(A).4 The district court concluded that this
enhancement was appropriate by at least a preponderance of
the evidence.
[6] Huang argues that § 2D1.1(b)(5) requires the govern-
ment to show that Huang himself imported the methamphet-
amine. However, by its plain language, § 2D1.1(b)(5) applies
to any “offense” that “involved” the importation of methamphet-
amine.5 In contrast, other enhancements under § 2D1.1 apply
3
These factors are: “(1) the character and reputation of the defendant;
(2) whether the government made the initial suggestion of criminal activ-
ity; (3) whether the defendant engaged in the activity for profit; (4)
whether the defendant showed any reluctance; and (5) the nature of the
government’s inducement.” McClelland, 72 F.3d at 722. “Although none
of these factors is controlling, the defendant’s reluctance to engage in the
criminal activity is the most important.” Id. McClelland applied these fac-
tors as a test for the predisposition element of the defense of legal entrap-
ment, not as a test for sentencing entrapment. See id.4
The § 2D1.1(b)(5) enhancement previously was found at
§ 2D1.1(b)(4).
5
There is no dispute that the methamphetamine Huang and Lian sold
was imported from China.
9012 UNITED STATES v. HUANG
only to a “defendant” who “unlawfully imported or exported
a controlled substance” or who “was directly involved in the
importation of a controlled substance.” U.S.S.G.
§ 2D1.1(b)(3), (b)(14)(C). If the Sentencing Commission had
intended to limit § 2D1.1(b)(5) to defendants who personally
imported methamphetamine, it would have used the more
restrictive language it included in these other enhancements.
Cf. In re Egebjerg, 574 F.3d 1045, 1050 (9th Cir. 2009)
(“[W]e . . . presume that if Congress includes particular lan-
guage in one section of a statute but omits it in another, Con-
gress acted intentionally in that exclusion.”).
[7] Following this reasoning, the two circuits that have
considered Huang’s argument have rejected it. See United
States v. Rodriguez, 666 F.3d 944, 946 (5th Cir. 2012) (“Even
if we accept Rodriguez’s narrower interpretation of ‘importa-
tion,’ it means only that she did not import the drugs, not that
her possession did not involve importation. The scope of
actions that ‘involve’ the importation of drugs is larger than
the scope of those that constitute the actual importation.”);
United States v. Perez-Oliveros, 479 F.3d 779, 784 (11th Cir.
2007) (holding that § 2D1.1(b)(5) does not “apply to only
those defendants who themselves transport methamphetamine
across the border”). We agree with the Fifth and Eleventh Cir-
cuits that a defendant need not be personally involved in the
importation of illegal drugs to receive an enhancement under
§ 2D1.1(b)(5); it is enough for the government to show that
the drugs were imported.
[8] Huang also contends that he had to know (but did not)
that the methamphetamine he sold was imported. Whether
§ 2D1.1(b)(5) requires such knowledge is an open question.
See, e.g., Rodriguez, 666 F.3d at 947. As in Rodriguez, we
need not settle this issue here because Huang knew the source
of the methamphetamine. Id. The record shows that: (1) Lian
and Huang were childhood friends who left China together
and who lived and worked together in Saipan; (2) Lian told
the confidential source and undercover government agents
UNITED STATES v. HUANG 9013
that “their” methamphetamine came from China; and (3)
Huang was directly involved with Lian in selling most of the
methamphetamine at issue in this case, and also sold some on
his own. These facts establish by a preponderance of the evi-
dence that Huang knew he was selling imported methamphet-
amine.6 See United States v. Romero-Rendon, 220 F.3d 1159,
1160-61 (9th Cir. 2000) (explaining that the government must
prove factors enhancing a sentence by a preponderance of the
evidence, and that district court can rely on an unchallenged
PSR to find this burden met).
[9] Finally, Huang argues that there was no basis for
applying the importation enhancement because he was not
charged with “any importation or manufacturing offense”
under 21 U.S.C. §§ 952(a), 960, or 963. However, we see no
reason why the enhancement cannot apply to the offenses pro-
scribed by 21 U.S.C. §§ 841 and 846, so long as the offense
“involved the importation of,” U.S.S.G. § 2D1.1(b)(5)(A), a
“controlled” or “counterfeit” substance, 21 U.S.C.
§ 841(a)(1)-(2). Indeed, courts repeatedly have upheld the
enhancement for convictions secured only under those provi-
sions. See, e.g., Rodriguez, 666 F.3d at 946; Perez-Oliveros,
479 F.3d at 781. Thus, we hold that the § 2D1.1(b)(5) impor-
tation enhancement may be applied to a defendant convicted
under 21 U.S.C. §§ 841 and/or 846, even if he is not also con-
victed under 21 U.S.C. §§ 952(a), 960, or 963.
6
Huang faults the district court for failing to make any specific factual
findings to support the enhancement. However, the court adopted the “Of-
fense Conduct” facts set forth in the PSR and appropriately concluded that
they established that Huang qualified for the enhancement by at least a
preponderance of the evidence. See Fed R. Crim. P. 32(i)(3)(A) (“At sen-
tencing, the court . . . may accept any undisputed portion of the presen-
tence report as a finding of fact.”); United States v. Hernandez-Guardado,
228 F.3d 1017, 1027 (9th Cir. 2000) (explaining that district court may
adopt PSR’s factual findings where they are supported by the record).
9014 UNITED STATES v. HUANG
C. Substantive reasonableness
Federal sentences must be procedurally and substantively
reasonable. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). When a district court’s “ ‘discretionary
decision accords with the [Sentencing] Commission’s view of
the appropriate application of § 3553(a) in the mine run of
cases, it is probable that the sentence is reasonable.’ ” Id. at
994 (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).
Huang argues that his sentence is substantively unreason-
able because it is the same sentence imposed on Lian, his co-
defendant. According to Huang, he should have received a
lower sentence because Lian promised to cooperate with the
government but “did not fulfill his obligation,” while Huang
“did not make any false promises” or “breach any promise”
to the government.
The record belies Huang’s argument. Lian entered into a
plea agreement in which he agreed to cooperate with the gov-
ernment, while Huang chose to plead guilty without the bene-
fit of a plea agreement. The PSR explained that Lian
cooperated with the government by talking about his relation-
ship with Huang, Huang’s relationship with the confidential
source, and the initial sale of 9.7 grams. At sentencing, the
government also proffered the testimony of a DEA agent that
Lian was “fully cooperative from day one.” Huang, in con-
trast, “declined and refused to provide any information con-
cerning the offenses” despite “opportunities to cooperate and
be interviewed.” Huang presented no evidence to contradict
the PSR or the government’s proffer.
The district court adopted the PSR’s findings and “accep-
t[ed] the proffer by the investigating officer that Mr. Lian,
Sheng put himself in [a] somewhat different position in terms
of . . . his efforts to cooperate.” The district judge then reason-
ably concluded that Lian “has the more righteous position, in
UNITED STATES v. HUANG 9015
my opinion, having received 135 months, because at least he
agreed to cooperate and be truthful to some extent.”
[10] Although Huang does not explain what “false” prom-
ises Lian allegedly made to the government, he argued during
the sentencing hearing that Lian provided less than the full
cooperation required by his plea agreement when he “declined
to identify the source” of the methamphetamine he and Huang
sold. However, the district court recognized that Lian’s coop-
eration was “limited,” and, in any event, the limits of Lian’s
cooperation do not change the fact that Lian cooperated while
Huang did not. The district court reasonably relied on
Huang’s lack of cooperation in sentencing Huang.
CONCLUSION
The district court properly sentenced Huang. Huang has not
shown that he was the victim of sentencing entrapment; he
had the intent and capacity to sell 900 grams of methamphet-
amine and acted on that intent without hesitation. The district
court properly applied the U.S.S.G. § 2D1.1(b)(5) sentencing
enhancement for an offense involving the importation of
drugs because the government was not required to show that
Huang himself imported the methamphetamine he sold. There
was no dispute the methamphetamine was imported from
China, and Huang more likely than not knew of the metham-
phetamine’s origin. Finally, Huang’s sentence, as compared to
Lian’s, is reasonable given that Lian cooperated with the gov-
ernment while Huang did not. The district court’s judgment
is AFFIRMED.