United States v. Tan Vang

United States Court of Appeals
For the Eighth Circuit
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No. 20-2005
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United States of America
Plaintiff - Appellee
v.
Tan Fong Vang
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 18, 2021
Filed: July 7, 2021
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Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Tan Fong Vang was convicted of conspiring to distribute marijuana and
possessing a firearm in furtherance of a drug trafficking crime. He appeals, arguing
that the evidence was insufficient to support his conviction on the gun charge and
that the district court1 made errors at sentencing. We affirm.
I.
A confidential informant told police that Vang was distributing hundreds of
pounds of marijuana. Officers set up controlled buys of pound-quantities of
marijuana from Vang’s co-conspirators, executed search warrants on their homes,
and arrested them. After the co-conspirators informed on Vang, police executed a
search warrant on his home. Inside, they found about 294 pounds of marijuana in
one-pound bags in the basement, along with drug ledgers, money, and a loaded
handgun in a concealable holster in Vang’s bedroom. Vang volunteered that the gun
was his.
Vang was indicted for conspiring to distribute over 100 kilograms of
marijuana, 21 U.S.C. §§ 846 and 841(b)(1)(B), and for possessing a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). He pleaded
guilty to the conspiracy count three days before trial but went to trial on the gun
count. The jury found him guilty of possessing the gun in furtherance of drug
trafficking.
Vang’s Presentence Investigation Report estimated he distributed about 1,136
pounds of marijuana and recommended a base offense level of 26. This was based
on a witness who saw a stash of 300 pounds in Vang’s home. At sentencing, the
district court determined that the PSR undercounted the amount of marijuana. The
district court looked to the record and decided that the amount of marijuana should
instead yield a base offense level of 30. The district court also refused to give Vang
a two-level reduction for acceptance of responsibility. Vang was sentenced to 110
months in prison on the first count and a consecutive 60 months on the second count.
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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Vang appeals, arguing that there was insufficient evidence that he used his
handgun in furtherance of drug trafficking, that the district court miscalculated the
amount of marijuana, and that the district court erred by not giving him credit for
accepting responsibility.
II.
A.
When reviewing the sufficiency of the evidence, we “view[] the evidence in
the light most favorable to the verdict and draw[] all reasonable inferences in favor
of the verdict.” United States v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010)
(citation omitted).
Vang is right—the presence of a gun alone is not enough to prove possession
in furtherance of a drug offense. There must be a connection between his possession
of the gun and his drug crime, “such that this possession had the effect of furthering,
advancing or helping forward the drug crime.” Vang Br. 14 (quoting United States
v. Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir. 2006) (cleaned up). But he overlooks
that the facts here establish that connection.
A nexus between a gun and a drug offense can be shown by “evidence that
the firearm was used for protection, was kept near the drugs, or was in close
proximity to the defendant during drug transactions.” Robinson, 617 F.3d at 988(citation omitted). “Drugs do not need to be found next to the firearms in order to
establish a nexus”; rather, “[a] nexus can exist when a firearm is in proximity to
items identified as relating to drug trafficking.” United States v. Druger, 920 F.3d
567, 570 (8th Cir. 2019).
Vang’s gun, drug ledgers, and drug money were all in his upstairs bedroom,
two floors above the drugs. While we have not dealt with facts quite like these, we
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have addressed a similar case. In Sanchez-Garcia, we said that the combination of
a gun in a bedroom closet, the presence of drugs and paraphernalia in the adjoining
kitchen, and expert testimony about how guns are used in drug trafficking were,
together, sufficient evidence to support a guilty verdict for possession in furtherance
of a drug crime. 461 F.3d at 947; see also United States v. Rush-Richardson, 574
F.3d 906, 909–10 (8th Cir. 2009) (evidence was sufficient where guns were found
in a bedroom closet across the hall from another bedroom containing drugs and in a
nearby kitchen containing drug paraphernalia and residue). Although the drugs here
were in Vang’s basement rather than in an adjoining room, drug money and drug
ledgers—“items identified as relating to drug trafficking”—were found in the same
room as the handgun. Druger, 920 F.3d at 570. Plus, like in Sanchez-Garcia, the
Government introduced expert testimony at trial about the relationship between guns
and drug trafficking.2
Druger and Sanchez-Garcia cover this case. There was enough evidence for
the jury to infer a nexus between Vang’s handgun and his drug trafficking offense.
B.
Vang next challenges the district court’s fact-finding at sentencing. We
review findings of fact about drug quantities at sentencing for clear error. United
States v. Mesner, 377 F.3d 849, 852 (8th Cir. 2004). We uphold the district court’s
2
Vang describes the expert’s testimony as “the sort of generic,
overgeneralized account which the courts have said is insufficient.” Vang Br. 26.
But we have upheld convictions where expert testimony establishes the link between
guns discovered near drugs and drug trafficking, even if that is done through an
explanation of general trends among drug dealers. See Druger, 920 F.3d at 570–71;
see also Sanchez-Garcia, 461 F.3d at 946–47. Vang’s alternative argument boils
down to an attack on the expert’s credibility—but “[i]t is the function of the jury,
not an appellate court, to resolve conflicts in testimony or judge the credibility of
witnesses.” United States v. Brooks-Davis, 984 F.3d 695, 698 (8th Cir. 2021)
(citation omitted).
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findings “as long as the determination is plausible in light of the record as a whole.”
United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007) (citation omitted).
Relying partly on the PSR, Vang argues that he was only responsible for 1,411
pounds of marijuana. That would yield a base offense level of 26. But the district
court disagreed and concluded that when a CI visited Vang’s home (between 10 and
20 times), the CI saw a replenished stash of 300 pounds of marijuana each time.
Based on this, the district court attributed more than a thousand additional pounds
of marijuana to Vang, which produced a new base offense level of 30. Vang says
the district court did not have enough reliable evidence to draw that conclusion.
We conclude that the district court’s finding was plausible in light of the
whole record because the court relied on the “scale of the [drug] operation,” “the
drug ledgers” found in Vang’s bedroom, and “the amount of money that was
possessed.” Sent. Tr. at 23. Vang does not explain why any of that evidence was
insufficient or unreliable.
C.
Vang finally argues that the district court erred by refusing to give him credit
for acceptance of responsibility after he pleaded guilty to the conspiracy charge three
days before trial. We review the district court’s factual findings about acceptance
of responsibility for clear error, United States v. Greger, 339 F.3d 666, 672 (8th Cir.
2003), and its legal conclusions de novo, looking to the “totality of the
circumstances” and granting “great deference” to the district court’s evaluation of
responsibility. United States v. Wattree, 431 F.3d 618, 623 (8th Cir. 2005).
Vang says that he accepted responsibility by pleading guilty to the drug
conspiracy offense and multiple elements of the gun offense. He argues that our
caselaw requires that he receive sentencing credit because he admitted to possessing
a firearm, which is relevant conduct for the drug offense. While he acknowledges
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that he made his guilty plea just days before trial, he says that timeliness is just one
of many factors we should consider.
The totality of the circumstances cuts against Vang. In Wattree, we said that
“while [the defendant] did plead guilty to the drug offenses, his pleas were untimely,
occurring only one week before trial and after the government prepared its case.”
Id. Vang’s decision to plead guilty only three days before trial was even later.
Plus, although Vang admitted to two elements of his § 924(c) charge (that he
joined a drug conspiracy and that he possessed a gun), he still contested his factual
guilt on the final element: whether he possessed his gun in furtherance of the drug
conspiracy. See Greger, 339 F.3d at 673 (“[C]redit for acceptance of responsibility
may be granted when a defendant goes to trial without denying the factual elements
of guilt” (emphasis added)); see also Wattree, 431 F.3d at 623 (noting that the
defendant’s refusal to plead guilty to the § 924(c) offense meant that he was
“contest[ing] factual guilt on this charge” and concluding that this was the “[m]ost
important[]” consideration when analyzing acceptance of responsibility). Vang’s
decision made the Government introduce evidence about the drug conspiracy.3
Because the defendant in Wattree put the Government to its burden of proof on the
§ 924(c) charge, we held that he should not have received a reduction for acceptance
of responsibility. Id. That is what happened here.
Like the defendant in Wattree, Vang pleaded guilty late and required the
Government to establish guilt beyond a reasonable doubt. In light of Vang’s
3
Vang admitted to relevant conduct for the drug offense by stipulating that he
possessed a firearm; but our inquiry is focused on the totality of the circumstances,
not just the elements of the § 924(c) charge that relate to the relevant conduct for the
drug offense. See Wattree, 431 F.3d at 623 (refusing to grant a reduction for
acceptance of responsibility where the Government would not only have to prove
Wattree “carried a firearm,” [relevant conduct] but also “that he did so in furtherance
of the charged drug offenses” [an element of § 924(c) that is not relevant conduct]).
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eleventh-hour guilty plea and his decision to force the Government to prove its case,
we affirm Vang’s sentence.
III.
The judgment of the district court is affirmed.
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