United States v. Lon Syhavong

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3342
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the District of
Lon Syhavong, a/k/a Lone, * South Dakota.
*
Appellant. * [UNPUBLISHED]
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Submitted: March 9, 2004
Filed: May 7, 2004
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
Judges.
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PER CURIAM.
A jury found Lon Syhavong guilty of conspiring to possess a controlled
substance with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1), 846, and
possessing a controlled substance with intent to distribute it in violation of 21 U.S.C.
§ 841(a)(1). On appeal Mr. Syhavong challenges the sufficiency of the evidence to
support his conviction and raises some issues with regard to his sentencing. For the
reasons stated below, we affirm the judgment of the district court1 in all respects.
I.
We review the sufficiency of the evidence to sustain a conviction de novo,
viewing all evidence in the light most favorable to the government and accepting all
reasonable inferences that could support the jury's verdict. United States v. Chapman,
356 F.3d 843, 847 (8th Cir. 2004). Because a jury is free simply to disregard
testimony as not credible, we review the verdict by ignoring any testimony that does
not support the jury's decision and then asking whether the remaining evidence, taken
in the light most favorable to the verdict, supports the decision. Cf. Menendez-Donis
v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).
At trial, the government introduced three witnesses against Mr. Syhavong. The
government's chief witness was a convicted methamphetamine dealer named Mark
Roberts, who agreed to testify against Mr. Syhavong as part of a plea agreement. He
stated that Mr. Syhavong "fronted" him methamphetamine to sell, allowing him to
purchase the drugs on credit and then pay for them from the proceeds of subsequent
sales. In cooperation with DEA agents, Mr. Roberts arranged a controlled buy with
Mr. Syhavong. When the defendant arrived at the appointed place for the transaction,
he had no drugs but was carrying a large amount of cash. During the trial, the
government also introduced into evidence a notebook containing Mr. Roberts's
shorthand record of drug transactions with Mr. Syhavong. The government's second
witness was DEA agent Steve Hummel. In addition to testifying about the details of
the sting operation against Mr. Syhavong, Mr. Hummel testified that the kind of
"fronting" transaction described by Mr. Roberts was typical of the methamphetamine
trade, as was the large amount of cash that Mr. Syhavong was carrying. Finally, after
1
The Honorable Lawrence L. Piersol, Chief Judge, United States District Court
for the District of South Dakota.
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Mr. Syhavong testified that he was a drug user, but not a drug dealer, the government
called Mr. Erick Schmidt, who testified to seeing Mr. Syhavong sell drugs as well as
to using drugs that Mr. Syhavong supplied.
On appeal, Mr. Syhavong focuses his argument on the unreliability of
Mr. Roberts's testimony and on the alternative explanation offered for the cash by
Mr. Syhavong and his brother, who also testified on behalf of the defense. These are
clearly matters of credibility for a jury to determine that are unreviewable on appeal.
Taken in the light most favorable to the verdict, there was clearly sufficient evidence
to support Mr. Syhavong's conviction in the present record.
II.
Mr. Syhavong challenges his sentence on two grounds. He argues first that the
sentencing judge incorrectly determined the quantity of drugs sold. At sentencing the
government must prove the facts on which the sentence is based by a preponderance
of the evidence, United States v. Simmons, 964 F.2d 763,771 (8th Cir. 1992), cert.
denied, 506 U.S. 1011 (1992), and we review the sentencing court's fact-finding for
clear error, id. at 773. The heart of Mr. Syhavong's argument is that the district court
relied on the testimony of Mr. Roberts at sentencing and that Mr. Roberts was an
inherently unreliable witness. While there are reasons to doubt Mr. Roberts's
testimony, credibility determinations, as we have already said, are the quintessential
example of a factual determination entitled to deference on appeal. Simmons, on
which Mr. Syhavong relies, is clearly distinguishable. In that case, we vacated the
sentence where the sentencing judge simply stated that he was relying on the
information in the presentence investigation report (PSR), which in turn was based
on witness testimony, some of which the judge knew was perjured. See id. at 774-77.
In contrast, the sentencing judge here explicitly stated that he was relying on the
testimony of Mr. Roberts, which he deemed to be reliable.
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Mr. Syhavong next argues that at sentencing the district court failed to comply
with Federal Rule of Criminal Procedure 32(i)(1)(A), which requires the court to
verify that the defendant and the defendant's attorney have read and discussed the
PSR. We conclude that even though the district court may have erred in not making
an explicit inquiry into these matters, any error that was committed was harmless. Cf.
United States v. Williams, 109 F.3d 502, 511 (8th Cir. 1997), cert. denied, 522 U.S.
917 (1997). Mr. Syhavong does not indicate how he was prejudiced by the failure of
the district court to verify that he had read the PSR and discussed it with his attorney.
In fact, he does not even allege that he and his attorney did not read and discuss the
PSR. The transcript of the sentencing hearing reveals that Mr. Syhavong's attorney,
at least, was thoroughly familiar with the PSR and vigorously argued on
Mr. Syhavong's behalf. Furthermore, the attorney indicated that prior to sentencing
he had met with his client to discuss the upcoming sentencing hearing. In his brief
on appeal, Mr. Syhavong places special emphasis on the fact that he is illiterate and
cannot understand English fully. At the hearing, however, Mr. Syhavong was
provided with an interpreter, and the district court made extensive inquiries into her
qualifications and fluency. The same interpreter was present at the defendant's pre-
hearing meetings with his attorney. At the hearing, Mr. Syhavong reasserted his
innocence and stated that he did not understand how he could be found guilty of drug
dealing. He also stated, however, that he understood the nature of the sentence being
imposed on him by the court, indicating that contrary to his assertions on appeal he
understood the nature of the sentencing hearing. We detect no reversible error here.
III.
Finally, Mr. Syhavong makes some conclusory allegations that the court failed
to comply with Rule 32(i)(3)(C), which requires the sentencing court to append a
record of its findings to the copy of the PSR that is made available to the Bureau of
Prisons. He fails to cite to any relevant authority to support his argument, provides
no concrete factual support for his claim, and alleges no prejudice. We therefore
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reject this argument as without merit. If a mistake has occurred, Mr. Syhavong can
make an application to the district court to correct it.
IV.
The judgment is affirmed.
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