United States v. Thung Van Huynh

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2417
___________
UNITED STATES OF AMERICA
v.
THUNG VAN HUYNH,
Appellant
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4-14-cr-00275-002)
District Judge: Honorable Malachy E. Mannion
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 26, 2018
Before: HARDIMAN, VANASKIE, and SHWARTZ,
Circuit Judges.
(Filed: March 6, 2018)
George J. Rocktashel
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701
Attorney for Appellee
Edward J. Rymsza, III
Miele & Rymsza, P.C.
125 East Third Street
Williamsport, PA 17701
Attorney for Appellant
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Thung Van Huynh pleaded guilty in the United States
District Court for the Middle District of Pennsylvania to
conspiracy to commit bank and wire fraud. The District Court
sentenced Huynh to 70 months’ imprisonment in part based
on its findings that he was subject to sentencing
enhancements for being an organizer or leader of the
conspiracy and for relocating the conspiracy to evade
detection by the authorities. Huynh now argues that neither
enhancement was warranted and that the Government
breached its plea agreement with him at the sentencing
hearing. For the reasons that follow, we will affirm.
2
I
This case involves a scheme to fraudulently purchase
luxury wristwatches at jewelry stores throughout the country.
To finance the purchases, which totaled $815,553, Huynh and
his co-conspirators used loans they obtained through identity
theft. Huynh paid an employee of a California car dealership
to give him identification and credit reporting information
from customer records. Using the stolen information and
photographs of his co-conspirators, Huynh arranged for
counterfeit driver’s licenses and credit cards to be made in the
victims’ names.
At dozens of jewelry stores in 16 states, Huynh’s co-
conspirators used the counterfeit licenses and credit cards to
apply to various financial institutions for credit in the amount
of each watch purchase. Huynh then sold the watches to a
woman in California who served as a fence for the scheme.
Huynh used the proceeds to cover all of the scheme’s
expenses and compensate his co-conspirators, keeping a share
for himself. Huynh selected the jewelry stores, made all travel
arrangements, and supplied his co-conspirators with the
personal information of the defrauded individuals. On two
occasions, law enforcement stopped Huynh around the time
conspirators purchased watches. Specifically, Huynh and a
co-conspirator were detained in Michigan at the United
States-Canada border, where border agents “recovered the
fraudulently obtained watches and counterfeit driver's
licenses.” PSR ¶ 17. Huynh “falsely told the agents that he
had purchased the watches with money won at the casinos.”
Id. Two months later, Huynh and a different co-conspirator
went to a store in Texas and attempted to purchase a luxury
watch, but “store personnel alerted the police.” PSR ¶ 19.
Huynh’s co-conspirator was arrested. Based upon information
3
from the store’s employees, a police officer approached
Huynh, who was standing in the parking lot near the store.
Huynh falsely told the officer he had no connection to the co-
conspirator. Huynh did not return to either Michigan or Texas
after these interactions with law enforcement but continued to
make fraudulent transactions in several other states.
As part of a written agreement, Huynh pleaded guilty
to conspiracy to commit bank and wire fraud in violation of
18 U.S.C. § 1349. Huynh and the Government stipulated as to
how certain provisions of USSG § 2B1.1 (the Guideline for
fraud-related offenses) applied to Huynh’s sentencing. In
Paragraph 10 of the agreement, the parties stipulated to: a
base offense level of seven under § 2B1.1(a)(1); a 12-level
increase under § 2B1.1(b)(1)(G) based on the amount of loss;
a two-level increase under § 2B1.1(b)(2)(A) based on the
number of victims; and a two-level increase under
§ 2B1.1(b)(11) because the scheme used an unlawfully
produced means of identification. After a three-level
reduction for acceptance of responsibility, Paragraph 10
established Huynh’s total offense level at 20. At the same
time, the Government reserved the right to seek an additional
four-level enhancement under USSG § 3B1.1(a) for Huynh’s
role as an “organizer or leader of a criminal activity that
involved five or more participants or was otherwise
extensive.”
Also at issue in this appeal is the applicability of the
two-level enhancement under Guidelines § 2B1.1(b)(10)(A)
for relocating “a fraudulent scheme to another jurisdiction to
evade law enforcement or regulatory officials.” Huynh’s plea
agreement was silent as to the application of that
enhancement, but the Government retained significant
flexibility in responding to questions by the District Court and
4
providing the Court with information the Government
deemed relevant to the application of the Guidelines or other
sentencing issues. The Presentence Investigation Report
(PSR) prepared by the Probation Office applied the two-level
“relocation” enhancement and the four-level “organizer or
leader enhancement” to Huynh’s offense level. Huynh
objected to both enhancements before sentencing.
At the sentencing hearing, the District Court overruled
both of Huynh’s objections. After determining that the plea
agreement did not “specifically exclude” the relocation
enhancement, the Court asked the Government for its position
on the enhancement’s applicability. App. 17. The
Government responded that it was “really taking no position”
and did not “want to be viewed as undermining the plea
agreement,” but noted that the agreement expressly provides
that the Government was not restricted in responding to the
Court’s questions regarding the application of the Guidelines.
Id. The Court then repeated its question more specifically: did
Huynh’s travel back and forth from his home in California to
make fraudulent purchases at jewelry stores across the
country constitute relocation under § 2B1.1(b)(10)(A)? In
response, the Government offered an analysis of the facts and
relevant caselaw that, in effect, supported Huynh’s principal
argument. The Government agreed with Huynh that while
“[m]ovement was integral to the conspiracy[,] . . . it was
integral more for economic reasons than for evading law
enforcement.” App. 19. Thereafter, the Government’s only
significant comment on the enhancement was a confirmation,
at the Court’s request, that the Court correctly understood that
the scheme was focused primarily on locations in the eastern
half of the country despite Rolex watches being sold
nationwide.
5
After hearing Huynh’s arguments and reviewing the
offense conduct as described in the PSR, which it adopted in
full, the Court agreed with the Probation Office that the
relocation enhancement applied. The Court based this
determination on Huynh’s pattern of targeting jewelry stores
at great distances from California and from one another, as
well as specific instances of apparent efforts to evade
detection by the authorities. The Court also overruled
Huynh’s objection to the organizer or leader enhancement,
agreeing with the Government that Huynh was the “leader
and organizer of [the] group,” that the scheme involved the
requisite five or more participants, and that even if it did not,
it was “otherwise extensive,” as required by § 3B1.1(a).
App. 28. As a result, Huynh’s final offense level was 26, and
his Guidelines imprisonment range was 70 to 87 months. In
addition to restitution and a special assessment, the District
Court sentenced Huynh to 70 months’ imprisonment and
three years of supervised release. Huynh filed a timely notice
of appeal.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291.
In general, “[w]e review the District Court’s
application of the Guidelines to facts for abuse of discretion”
and its factual findings for clear error. United States v.
Tupone, 442 F.3d 145, 149 (3d Cir. 2006). But where the
Guidelines “set[] forth a predominantly fact-driven test,”
these two standards become indistinguishable, because we
would find that the Court had “abused its discretion in
applying the enhancement based on a particular set of facts
6
only if those facts were clearly erroneous.” United States v.
Richards, 674 F.3d 215, 223 (3d Cir. 2012). We have already
held that the organizer or leader enhancement of § 3B1.1(a)
sets forth such a fact-driven test. See United States v. Starnes,
583 F.3d 196, 216–17 (3d Cir. 2009).
As for the relocation enhancement of
§ 2B1.1(b)(10)(A), we now hold that clear error review is
appropriate because “the legal issue decided by the district
court is, in essence, a factual question.” Richards, 674 F.3d at
220. Whether or not a scheme was relocated to another
jurisdiction to evade law enforcement or regulatory officials
is, at bottom, “a strictly factual test, such that once the test is
stated[,] no legal reasoning is necessary to the resolution of
the issue.” Id. at 221 (internal quotation marks omitted)
(quoting United States v. Brown, 631 F.3d 638, 644 (3d Cir.
2011)). Was the scheme relocated? Was it relocated to evade
the authorities? These are fact-intensive questions that the
district courts, given their “relative institutional advantages,”
are best equipped to answer. Id. We therefore review the
District Court’s application of the relocation enhancement for
clear error.
By contrast, “[w]hether the government’s conduct
violate[d] the terms of [a] plea agreement is a question of
law[,] and our review is plenary.” United States v.
Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989).
III
Huynh makes three arguments on appeal. First, he
claims the Government breached the plea agreement when it
failed to oppose the relocation enhancement. Second, he
argues the enhancement did not apply because Huynh’s
7
travels did not constitute relocation of the scheme and were
not intended to evade the authorities. Third, he contends the
District Court erred in applying the organizer or leader
enhancement because Huynh lacked the requisite “decision-
making authority,” the scheme involved fewer than five
participants, and it was not “otherwise extensive,” as required
by USSG § 3B1.1(a). Huynh Br. 15–19. We will address each
argument in turn.
A
When assessing whether a plea agreement has been
breached, we first “identify the terms of the agreement and
the government’s alleged improper conduct,” and next
“determine whether the government has violated its
obligations under that agreement.” United States v.
Davenport, 775 F.3d 605, 609 (3d Cir. 2015) (citing United
States v. Nolan-Cooper, 155 F.3d 221, 235 (3d Cir.
1998)). “[I]f it has, we fashion the proper remedy.” Id. The
core question guiding the analysis is “whether the
government’s conduct [was] inconsistent with what was
reasonably understood by the defendant when entering the
plea of guilty.” Id. (quoting Nolan-Cooper, 155 F.3d at 236).
This is a “purely objective standard governed by the common
law of contract.” Id. (internal quotation marks and citation
omitted). “[W]e look to the plain meaning of the plea
agreement and . . . give the benefit of any doubt to the
defendant, given the government’s tremendous bargaining
power in negotiating such plea agreements . . . and the fact
that the defendant, by entering into the plea, surrenders a
number of . . . constitutional rights.” Id. (internal quotation
marks and citations omitted). “[T]he Government must
adhere strictly to the terms of the bargain[] it strikes,” United
States v. Miller, 565 F.2d 1273, 1274 (3d Cir. 1977), and “we
8
will hold the government to that bargain,” Davenport, 775
F.3d at 609.
Huynh’s argument that the Government breached the
plea agreement centers on Paragraph 10. He contends that the
Paragraph’s stipulations to specific enhancements, coupled
with its assignment of an offense level of 20, amounted to an
exclusion of any other enhancements except for the organizer
or leader enhancement, which the agreement acknowledged
the Government would pursue. On Huynh’s view, it wasn’t
enough for the Government to remain neutral; it had to
affirmatively oppose the application of the relocation
enhancement. Huynh insists the Government’s “initial failure
to object [to the PSR] . . . , its failure to take a position at
sentencing, and its acquiescence to the district court’s
reasoning . . . should be construed as a clear breach of its
agreement.” Huynh Br. 12 n.5.
We disagree. As we explained in Davenport, “plea
agreements ‘must be interpreted as a whole[,] and no part
should be ignored.’” 775 F.3d at 610 (quoting United States v.
Schwartz, 511 F.3d 403, 405 (3d Cir. 2008)). And this
agreement included many provisions that put Huynh on
notice that the stipulations did not carve his offense level into
stone. As in Davenport, the same paragraph that listed the
parties’ Guidelines stipulations also expressly reserved the
Government’s right to supply to the District Court “all
information in its possession which it deems relevant to the
application of the Sentencing Guidelines to the defendant’s
conduct.” App. 73. Further underscoring the Government’s
discretion at sentencing, Paragraph 17 provided that the
Government could “bring to the court’s attention . . . all
relevant information with respect to the defendant’s
background, character and conduct,” and Paragraph 18
9
allowed the Government to respond “to any request by the
court for briefing, argument or presentation of evidence
regarding the application of Sentencing Guidelines to the
defendant’s conduct.” App. 80. The parties also noted that
their stipulations did not bind the District Court or the
Probation Office. Read objectively and in their full context,
the stipulations in Paragraph 10 did not restrict the
Government as Huynh suggests. The plea agreement nowhere
required the Government to object to the PSR’s application of
the relocation enhancement or to oppose it at sentencing.
Our decision in Davenport is instructive here. In that
case, which involved a plea agreement similar to Huynh’s, we
concluded that there had been no breach despite the
Government’s affirmative pursuit of an enhancement that had
been stricken from the parties’ stipulations. 775 F.3d at 609–
11. Here, Huynh concedes that the Government never
affirmatively pursued the relocation enhancement, and the
record shows that the Government maintained neutrality
throughout the sentencing hearing. Contrary to Huynh’s
assertion, the Government did not “trigger[] the district
court’s inquiry,” Reply Br. 6, into the enhancement’s
applicability. Instead, the District Court raised the issue sua
sponte, noting Huynh’s objection to the PSR and requesting
argument on the issue. Only after the Court inquired did the
Government make statements about the enhancement. And
those statements were either factual or, to the extent they
contained legal analysis, were consistent with Huynh’s
arguments.
In sum, the Government’s responses cannot fairly be
understood as an attempt to circumvent the plea agreement in
order to advocate for the enhancement’s application. See
United States v. Larkin, 629 F.3d 177, 191 (3d Cir. 2010)
10
(concluding that no breach occurred where the government’s
statements on an omitted enhancement’s applicability were
limited to a “straightforward” presentation of legal issues and
facts “well known to the District Court”).1 Accordingly, we
hold that the Government did not breach the plea agreement.
B
We turn next to Huynh’s arguments on the merits of
the District Court’s application of the relocation
enhancement. The Guidelines provide that a base offense
level may be increased by two levels if “the defendant
relocated, or participated in relocating, a fraudulent scheme to
another jurisdiction to evade law enforcement or regulatory
officials.” USSG § 2B1.1(b)(10)(A). For the enhancement to
apply, the defendant must have: (1) relocated a fraudulent
1
Huynh cites Nolan-Cooper in support of his
contention that the Government’s statements improperly
relied on the agreement’s general authorization to comment
on the application of the Guidelines “to defeat a specific
provision.” Huynh Br. 13. Huynh overlooks two critical
elements of that case. First, the “specific provision” that we
concluded had been breached expressly required that the
government “not oppose” a particular sentencing position
advanced by the defendant. Nolan-Cooper, 155 F.3d at 236.
Second, the government in that case went beyond a neutral
presentation of the relevant facts, effectively opposing the
defendant’s position. Id. at 237. Neither of those facts is
present here.
11
scheme from one jurisdiction to another, and (2) done so to
evade law enforcement or regulatory officials. Id.2
Huynh claims neither prong is satisfied. According to
Huynh, the District Court mischaracterized the scheme’s
movements as relocation when in fact Huynh was “simply
operating a fraudulent scheme in multiple jurisdictions.”
Reply Br. 5. Although multi-state schemes may involve
cross-jurisdictional travel by their participants, Huynh argues
that this is not the type of conduct the enhancement is
intended to target. Instead, his scheme’s various “out-of-town
trips,” all of which ended with Huynh returning home to
California, reflected an “expansion of the conspiracy, not a
relocation to avoid detection.” Huynh Br. 10. Huynh also
disputes that he meets the second prong, arguing that, in the
absence of specific evidence that the scheme was relocated
“for the purpose of eluding law enforcement,” rather than for
“economic reasons,” the enhancement does not apply. Reply
Br. 4–5. Each of these arguments merits analysis.
Critical to the District Court’s determination that
Huynh had relocated the scheme was its observation that the
stores Huynh and his co-conspirators targeted generally were
located far away from California and each other. The Court
found it significant that the “vast majority” of the stores were
2
The Guidelines and commentary do not define the
term “relocate” or provide any further guidance regarding this
provision, see USSG § 2B1.1 cmt. n.1 (“Definitions”), n.9
(“Application of Subsection (b)(10)”). The dictionary defines
“relocate” to mean “establish or lay out in a new place.”
Webster’s Third New Int’l Dictionary, Unabridged (3d ed.
1993).
12
in the eastern half of the country despite no shortage of stores
selling luxury watches in California or elsewhere on the West
Coast. App. 22. The targets chosen thus did not reflect mere
expansion, in the Court’s view, but rather a deliberate effort
to maximize the distance between the conspiracy’s home base
and the places where its members most likely would raise
suspicions.
According to Huynh, these findings did not establish
relocation because “operating in multiple jurisdictions was
part of the larger conspiracy,” citing United States v. Hines-
Flagg, 789 F.3d 751 (7th Cir. 2015). Huynh Br. 10. The
conspirators in Hines-Flagg made counterfeit identification
documents in Detroit and used them at retail stores across
several states to purchase merchandise on store credit
accounts. Id. at 753. After each purchasing spree, the
defendant and her nephew drove home to Detroit with the
merchandise, which they either sold or kept for personal use.
Id. at 754. The Seventh Circuit reversed, concluding that
because it was “always meant to operate in multiple locations,
with Detroit as its home base,” the scheme was “not
‘relocated’ to Wisconsin, Ohio, and Illinois when [the
defendant] traveled to those locations for temporary trips and
returned to Detroit.” Id.
Huynh’s reliance on Hines-Flagg is misplaced for two
reasons. First, whereas Huynh’s targets were almost
exclusively “half the country apart,” App. 22, the scheme in
Hines-Flagg was limited to four contiguous states. We agree
with Huynh that “mere geographic distance . . . is not
dispositive,” Reply Br. 5, but the District Court did not
clearly err in considering the geographic scope of the
conspiracy and the dispersed nature of the locations to which
the co-conspirators traveled when deciding whether to credit
13
Huynh’s claim that the scheme’s travels reflected only an
expansion of its operations.3 Second, the Seventh Circuit
reviewed the application of the enhancement in Hines-Flagg
de novo, see 789 F.3d at 754–56, whereas our review is far
more deferential. Quite unlike de novo review, we may deem
a district court’s finding clearly erroneous only when we are
“left with the definite and firm conviction that a mistake has
been committed.” United States v. Wise, 515 F.3d 207, 218
(3d Cir. 2008) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622
(1993)). Our review of the full record does not leave us with a
conviction—much less a definite and firm one—that the
District Court’s determination that the scheme was relocated
was mistaken.
Nor are we persuaded that the District Court clearly
erred in finding that Huynh relocated the scheme for the
purpose of evading the authorities. In support of his claim to
the contrary, Huynh cites dicta in Hines-Flagg suggesting that
3
For the same reasons, this case is also distinguishable
from a panel decision of the Eleventh Circuit that Huynh
cites, United States v. Morris, 153 F. App’x 556 (11th Cir.
2015). There, the court reversed a finding of relocation where
the scheme’s stolen credit cards and driver’s licenses, all
obtained in the greater Atlanta area, were used to make
fraudulent purchases primarily in northern Georgia. Id. at
558–59. Cf. United States v. Savarese, 686 F.3d 1, 15–16 (1st
Cir. 2012) (rejecting defendants’ argument that despite trips
throughout the country to withdraw fraudulent cash advances,
their scheme was always firmly rooted in greater Boston and
thus never relocated).
14
the “operation of a multi-jurisdictional scheme in order to
reduce the chances of detection” is insufficient by itself to
imply an intent to evade the authorities, 789 F.3d at 756.
Even if we were to accept that premise, the record contains
evidence—and the District Court made findings—supporting
the conclusion that Huynh and his co-conspirators’ efforts to
evade the authorities consisted of more than simply the act of
operating in multiple jurisdictions. Citing among other facts
the conspirators’ “driving to Nevada for purposes of flying
out of Nevada to then go to the [E]ast [C]oast . . . , back
sometimes to different airports,” the District Court stated that
it found “ample evidence that the intent was we’ll go
someplace other than where we are, where hopefully when
we get our Rolex and we leave[,] we won’t have any
additional concerns or problem with law enforcement because
we’re not even around there, we don’t live in the same half of
the country.” App. 21–22.
Further supporting the District Court’s determination
that the scheme was relocated to evade the authorities was
Huynh’s decision, with one exception, to target each store
only once. See Savarese, 686 F.3d at 16 n.12. (“The evidence
supports an inference that the defendants avoided returning to
the same health clubs and gambling establishments not
because of any shortage of available credit cards and funds,
but because the likelihood of detection would otherwise have
increased substantially.”).
Finally, the evidence concerning Huynh’s contacts
with law enforcement and his actions thereafter support the
inference that Huynh relocated the fraud scheme to evade law
enforcement. Huynh was encountered by law enforcement on
two separate occasions in two separate states; both incidents
occurred during or shortly after Huynh and his co-
15
conspirators engaged or attempted to engage in fraudulent
transactions and Huynh did not return to either state but
engaged in fraudulent transactions in other states. These facts
support the reasonable inference that the co-conspirators
stopped engaging in fraud in the places where they were
confronted by law enforcement and “relocated” their fraud
scheme to several other states following such confrontations
so as to evade law enforcement. See United States v. Paredes,
461 F.3d 1190, 1192 (10th Cir. 2006) (determining that the
scheme relocated “to evade law enforcement” where
fraudulently obtained goods “moved from Utah to Idaho
because Utah became ‘hot’ after one of the [defendants] was
arrested [there]”); United States v. Smith, 367 F.3d 737, 740
(8th Cir. 2004) (concluding that the evidence established that
the defendant—who operated a fraud scheme in Iowa and
then moved permanently to Florida and began operating a
fraud scheme there—moved in order to evade law
enforcement where he had been arrested several times for
fraud and other crimes in Iowa and a warrant for his arrest
was outstanding in Iowa).
The District Court did not clearly err when it found
that Huynh relocated the scheme and that he did so for the
purpose of evading the authorities.
C
We next address Huynh’s argument that the District
Court erred when it applied the organizer or leader
enhancement. The Guidelines provide for a four-level
increase in a base offense level if the defendant “was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” USSG
§ 3B1.1(a). The commentary to § 3B1.1 does not define
16
“organizer or leader” but lists factors for sentencing courts to
consider in determining whether a defendant qualifies as
such. Those factors include
the exercise of decision making authority, the
nature of participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of
the crime, the degree of participation in
planning or organizing the offense, the nature
and scope of the illegal activity, and the degree
of control and authority exercised over others.
Id. cmt. n.4. “We have explained that to be considered an
organizer or leader, the defendant must have exercised some
degree of control over others in the commission of the
offense.” United States v. Helbling, 209 F.3d 226, 243 (3d
Cir. 2000) (internal quotation marks and citation omitted).
Huynh argues that he was not an organizer or leader of
the conspiracy for two reasons. First, he was an equal partner
with co-conspirator Phil Nguyen, who was indicted separately
and did not receive an organizer or leader enhancement.
Huynh cites our decision in United States v. Katora, 981 F.2d
1398 (3d Cir. 1992), for the proposition that the organizer or
leader enhancement is inapplicable where “two
participants . . . bear equal responsibility for the commission
of crimes.” Huynh Br. 18. This selective citation does not
help Huynh. In Katora, we held that the enhancement could
not apply to a scheme in which there were only two
participants, both of whom were “equally culpable,” because
neither of them led the other and they had no additional
17
members to lead. 981 F.2d at 1405. Here, the conspiracy had
additional members, so Katora is inapposite.4
Second, Huynh argues that he could not have been an
organizer or leader of the scheme because he split its profits
equally with his co-conspirators and did not exercise “any
decision-making authority over the others . . . or control over
assets.” Huynh Br. 18. This argument is undermined by the
overwhelming evidence in the record demonstrating Huynh’s
singular leadership role. It is not clear from the portion of the
PSR Huynh cites that the profits were split equally among the
co-conspirators, but even assuming he is correct on this score,
it does not establish clear error by the District Court because
the balance of the factors outlined in the commentary to
§ 3B1.1 unequivocally support its finding that Huynh was an
organizer or leader of the scheme. Specifically, the record
indicates that Huynh recruited Tung Thanh Doan, John
Nguyen, and Phil Nguyen to participate in the scheme. Huynh
arranged for their counterfeit licenses and fraudulent credit
cards to be made and then instructed the men to memorize the
details of their fake identities. Huynh also took possession of
the watches and the credit cards and licenses used to obtain
them, decided which stores would be targeted, coordinated
4
Huynh’s suggestion that the decision of Nguyen’s
sentencing court not to apply the enhancement somehow
bound the District Court here to reach the same decision as to
Huynh is without merit. Huynh also appears to suggest that
two equally culpable individuals cannot both qualify as
organizers or leaders. The commentary to USSG § 3B1.1 says
otherwise. See § 3B1.1 cmt. n. 4 (“There can, of course, be
more than one person who qualifies as a leader or organizer
of a criminal association or conspiracy.”).
18
and paid for all travel, and controlled the scheme’s finances
from start to finish.5 As the Probation Office noted in its
response to Huynh’s objection to the PSR, “[i]t does not
appear that the codefendants had any independent decision
making ability in connection with the scheme.” PSR
Addendum 3. Because Huynh exercised a significant “degree
of control over others in the commission of the offense,”
Helbling, 209 F.3d at 243, we hold that the District Court did
not clearly err when it found Huynh to be an organizer or
leader of the scheme.
Huynh also challenges the application of the
enhancement on the ground that the scheme involved fewer
than five participants and was not “otherwise extensive.”
Under § 3B1.1, a participant is “a person who is criminally
responsible for the commission of the offense, but need not
have been convicted.” USSG § 3B1.1 cmt. n.1. Huynh does
not dispute that at least three participants were involved (i.e.,
Huynh and his two co-defendants), and although he does not
5
Huynh cites several cases in which other courts of
appeals reversed applications of an organizer or leader
enhancement. See United States v. Jordan, 291 F.3d 1091
(9th Cir. 2002); United States v. Parmelee, 42 F.3d 387 (7th
Cir. 1994); United States v. Litchfield, 959 F.2d 1514 (10th
Cir. 1992). The reversal of the enhancements in those cases
was predicated on a lack of evidence in the record that the
defendants had exercised sufficient decision making
authority. See Jordan, 291 F.3d at 1098; Parmelee, 42 F.3d at
395; Litchfield, 959 F.2d at 1523. Huynh’s role in initiating
the scheme, his authority over its operations, and his
responsibility for coordinating its every move all distinguish
his case.
19
explicitly accept Phil Nguyen’s inclusion in the count, he
effectively concedes the point by arguing that he and Nguyen
were equal partners in the scheme. Huynh finds fault,
however, with the District Court’s inclusion in the scheme of
two unnamed individuals: the car dealership employee who
supplied Huynh with the stolen customer information and the
woman who fenced the watches. Huynh posits that those two
actors should not have been counted because they were
neither “identified in some capacity in the conspiracy” nor
“necessary to the scheme.” Huynh Br. 16.
We need not reach the merits of these arguments,
however, because we conclude that the District Court did not
clearly err in finding that the scheme was otherwise extensive
for purposes of § 3B1.1(a). In Helbling, we adopted a three-
step approach to determining whether a scheme is otherwise
extensive. First, a sentencing court must distinguish the
scheme’s “participants,” as defined by the commentary to
§ 3B1.1, from non-participants who were nevertheless
involved. 209 F.3d at 247–48. Next, the court must determine
whether the defendant used each non-participant’s services
“with specific criminal intent.” Id. at 248. Finally, the court
must determine the extent to which those services were
“peculiar and necessary to the criminal scheme.” Id. Non-
participants whom the defendant employed with specific
criminal intent for services that were peculiar and necessary
to the scheme may be counted as “functional equivalents” of
participants. Id. If a scheme has a total of five or more
participants and countable non-participants, it is “otherwise
extensive.” Id.
Although Huynh complains that the Court did not
explicitly undertake this three-step analysis at his sentencing
20
hearing,6 the Court’s specific factual findings, viewed in light
of the entire record, suffice for us to determine that its
conclusion was not clearly erroneous. In this case, assuming
only the four undisputed participants, the involved non-
participants include the car dealership employee and the
fence. Huynh does not dispute that he engaged both with the
specific intent of furthering the aims of the conspiracy. And
contrary to his suggestion, the record contains ample evidence
that their services were necessary to the scheme’s success.
Without the stolen identification and credit information the
car dealership employee supplied to Huynh, the scheme could
not have created the fake identities necessary to complete its
fraudulent credit applications and purchases. And by
purchasing the stolen watches from Huynh, the fence supplied
the cash necessary to cover the scheme’s expenses and
compensate its members. Huynh makes no attempt to show
why these two individuals should not be counted as functional
equivalents of participants, and we perceive no clear error in
doing so. Because the sum of the scheme’s participants and
countable non-participants exceeds five, we conclude that the
District Court did not clearly err in finding that the scheme
was otherwise extensive within the meaning of § 3B1.1(a).
Accordingly, the Court did not clearly err in finding that
6
The District Court found that the scheme had at least
five participants, rendering the “otherwise extensive” inquiry
unnecessary. Its separate finding that the scheme was
otherwise extensive was, as Huynh notes, not based on the
Helbling factors outlined above. Coupled with the Court’s
factual findings regarding whom it deemed to be participants
for purposes of § 3B1.1(a), however, the record provides us
with a sufficient basis on which to evaluate the Court’s
finding for clear error.
21
Huynh was “an organizer or leader of a criminal activity that
involved five or more participants or was otherwise
extensive.” USSG § 3B1.1(a).
IV
Because the Government did not breach its plea
agreement with Huynh and the District Court did not clearly
err when it applied the relocation and organizer or leader
enhancements, we will affirm the District Court’s judgment
of sentence.
22