United States v. Treiu Thuy Duong

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1482
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UNITED STATES OF AMERICA
v.
TREIU THUY DUONG,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-14-cr-00073-001)
District Judge: Hon. Malachy E. Mannion
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 21, 2017
Before: AMBRO, JORDAN, and ROTH, Circuit Judges.
(Opinion Filed: April 12, 2017)
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OPINION
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JORDAN, Circuit Judge.

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Treiu Thuy Duong pled guilty to conspiracy to distribute and possess with intent
to distribute a controlled substance analogue, alpha-PVP (“a-PVP”). She now seeks
vacatur of her sentence of 70 months’ imprisonment and a remand for re-sentencing,
arguing that the District Court plainly erred by applying an overly restrictive standard
when it considered her personal circumstances. For the reasons that follow, we will
affirm.
I. Background
Duong is a 38-year-old Vietnamese immigrant and naturalized American citizen.
She was married, but divorced soon after her daughter was born. While her ex-husband
has been supportive financially, he has not been actively involved in his daughter’s life.
Duong is the primary caretaker for the girl, who is now 13 years old. Before the crime at
issue in this case, Duong had no criminal history.
In 2013 and 2014, law enforcement officials conducted an investigation in
Pennsylvania into the trafficking of a-PVP, which is a controlled substance analogue
under 21 U.S.C. § 802(32). They intercepted a mail parcel containing a-PVP and traced
it back to Duong and businesses she was using to distribute the drug. After executing a
search warrant at Duong’s residence, authorities seized 843 grams of a-PVP, $7,053 in
cash, 48 uncashed money orders totaling $17,361, some 200 United States silver coins,
500 Canadian bison silver coins, two handguns, magazines, computer items, cell phones,
digital scales, and two vehicles.
Duong was indicted on one count of conspiracy to distribute a-PVP in violation of
21 U.S.C. § 846. She pled guilty in exchange for a government recommendation that she
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receive a three-level reduction in her offense level for acceptance of responsibility. She
also agreed to forfeit the assets noticed in her indictment. (App. at 36-38.)
The presentence report calculated a base offense level of 32, given the amount (10
kilograms) of a-PVP involved in Duong’s offense. A two-level enhancement was made
for possession of the weapon found during the search of Duong’s residence. And a three-
level downward adjustment for acceptance of responsibility was recommended, which
lowered the offense level to 31. For someone, like Duong, with no criminal history, the
guidelines range for that offense level is 108 to 135 months’ imprisonment. Neither party
objected to the presentence report.
After motions practice, the District Court gave a downward departure and set the
offense level at 28, which corresponds to a guidelines range of 78 to 97 months. At the
sentencing hearing, Duong sought a downward variance based on her personal history
and character, her model conduct during supervised release, and her status as a single
mother. The government argued for a sentence within the guidelines range, citing the
severity and effect of Duong’s offense. The Court called this “a very difficult case”
because of the nature of the offense in comparison with Duong’s otherwise law-abiding
past and her behavior during supervised release. (App. at 112-13.) It then assessed the
factors set forth in 18 U.S.C. § 3553(a) and said:
Well, I’ve tried to take into account all of the factors in this case, and while
your own personal circumstances are not generally relevant, I understand
you’re a single mother with a 12-year old child, who at least has a family,
your parents to take care of her. Because no matter what happens in this
case, you’re going to end up being in jail for a period of time that’s more
than one would expect with somebody that has no criminal history.
3
(App. at 116 (emphasis added).) On those grounds, the Court sentenced Duong to 70
months’ imprisonment, varying downward eight months from the recommended
guidelines range. Duong did not object to the sentence at the time. This appeal ensued.
II. Discussion1
We review Duong’s sentence for plain error. See United States v. Flores-Mejia,
759 F.3d 253, 255 (3d Cir. 2014) (en banc) (“We now hold that ... when a party wishes to
take an appeal based on a procedural error at sentencing ... that party must object to the
procedural error complained of after sentence is imposed in order to avoid plain error
review on appeal.”).2 For there to be plain error, “[t]here must be an ‘error’ that is ‘plain’
and that ‘affect[s] substantial rights.’” United States v. Olano, 507 U.S. 725, 732 (1993)
(second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct
such an error unless it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (alteration in original) (quoting United States v. Young, 470
U.S. 1, 15 (1985)).
Duong contends that the District Court plainly erred by considering her personal
circumstances under a restrictive standard applicable to departures rather than variances.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
Whether the Court applied the correct standard of review for a request for a
variance is a matter of procedure. See Flores-Mejia, 759 F.3d at 255-56 (acknowledging
that “whether, in order to preserve the objection for appeal and to avert plain error
review, a defendant must object after the sentence is pronounced to the district court’s
failure to meaningfully consider his argument” for a variance is “a procedural objection
to the sentencing process.”).
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She then argues that the sentence was substantively unreasonable because of that alleged
procedural flaw. We disagree.
“We expressly distinguish between departures from the guidelines and variances
from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing
United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are
changes to the guidelines calculation that require a motion by the requesting party and are
“based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451
F.3d at 195 n.2). Variances are discretionary changes to the sentencing guidelines range
based on a review of the § 3553(a) factors. Id. at 226. In that regard, “[d]istrict courts
have greater leeway in deciding what to consider in determining whether to vary from the
Guidelines.” United States v. Lofink, 564 F.3d 232, 240 (3d Cir. 2009). “[We] review[] a
variance for reasonableness ... by evaluating the district court’s analysis of the § 3553(a)
factors, whereas [we] review[] a departure [by] consult[ing] the relevant guidelines
provision in order to determine whether the departure was appropriate.” Brown, 578 F.3d
at 226.
Duong construes the Court’s use of the phrase “not generally relevant” as the
standard for departures, but we do not think the District Court was confused. The request
was plainly for a variance – Duong made no motion for a departure and did not cite to
any departure provision. The record shows that the Court understood her request as one
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for a variance and that it applied the correct standard.3 First, the Court noted that it had
reviewed “on more than one occasion” all relevant documentation in preparation for
sentencing, including the presentence report, supplements to the report, sentencing
memoranda, and character letters. (App. at 107.) It then reviewed on the record the
nature and seriousness of the offense, Duong’s otherwise-clean criminal history, and her
conduct during supervised released. Next, it specifically addressed each of the § 3553(a)
factors, including Duong’s personal circumstances. After that thorough analysis, it
granted Duong’s request for a variance and imposed a 70-month sentence, eight months
below the guidelines range. We therefore see no error in the sentencing, let alone plain
error.
Duong’s final argument is that her sentence was substantively unreasonable as
“directly connected to the procedural flaw.” (Opening Br. at 21.) Because there was no
procedural error, that substantive unreasonableness argument fails too.
III. Conclusion
For the foregoing reasons, we will affirm.
3
The Court had already granted a departure motion prior to her sentencing. The
Court’s review of that motion, in comparison with its review of Duong’s variance
request, indicates that it understood the differences between the two.
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