United States v. Xi Andy Lieng

FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10429
Plaintiff - Appellee, D.C. No. 1:07-cr-00316-LJO-SKO
v.
XI ANDY LIENG, AKA Andy Lieng, MEMORANDUM*
AKA Andy Xi Lieng, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 5, 2013
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and DUFFY, District Judge.**
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Xi “Andy” Lieng, a Vietnam native, appeals his jury conviction and sentence
imposed for conspiring to manufacture, distribute and possess with the intent to
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
distribute marijuana, and manufacturing marijuana. We presume the parties’
familiarity with the facts of the case and proceedings below. This Court has
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s decision.
I. The Statutory and Constitutional Right to a Courtroom Interpreter
The use and availability of interpreters in the courtroom is a matter within the
trial court’s discretion. United States v. Lim, 794 F.2d 469, 471 (9th Cir. 1986). A
district court’s ruling on the use of a courtroom interpreter should be reversed only for
clear error. Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir. 1994). The Court
Interpreters Act (“CIA”) requires that “[t]he presiding judicial officer. . . shall utilize
the services of [a] certified interpreter. . . in judicial proceedings instituted by the
United States, if the presiding judicial officer determines on such officer’s own
motion or on the motion of a party that such party (including a defendant in a criminal
case). . . speaks only or primarily a language other than the English language.” 28
U.S.C. § 1827(d)(1)(A). Lieng made no mention of his difficulty comprehending the
proceedings against him until sentencing, and the record reflects he had no difficulty
speaking and understanding English. Therefore, we affirm the district court’s
determination that Lieng did not need the assistance of a courtroom interpreter.
II. The Four-Level Sentencing Enhancement for a Defendant’s Role in the
Offense
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A district court’s four-level leadership adjustment is reviewed for clear error.
United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000). The United States
Sentencing Guideline § 3B1.1(a) provides for a four-level increase in a defendant’s
offense level “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).
“It is not necessary that the district court make specific findings of fact to justify
the imposition of the role enhancement. There must, however, be evidence in the
record that would support the conclusion that the defendant exercised [a]. . . level of
control.” United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (internal
citations omitted). Here, there was evidence that Lieng exerted some level of control
over other individuals involved in the criminal enterprise. See United States v.
Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007). We thus affirm the district court’s
decision to apply a four-level sentencing enhancement.
III. Rule 32 of the Federal Rules of Criminal Procedure
Under Rule 32(i)(3), “[a]t sentencing, the court: may accept any undisputed
portion of the presentence report as a finding of fact; [and] must—for any disputed
portion of the presentence report or other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” Fed. R.
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Crim. P. 32(i)(3)(A), (B). Because Lieng’s objections to the Presentence Report were
resolved by the district judge in the government’s favor at Lieng’s sentencing, Lieng’s
argument that the district court failed to comply with Rule 32 lacks merit.
IV. Rule 33 Motion for a New Trial Based on Newly Discovered Evidence
This court reviews a district court’s denial of a motion for a new trial based on
newly discovered evidence for an abuse of discretion. United States v. Sarno, 73 F.3d
1470, 1488 (9th Cir. 1995). On appeal, “the defendant carries a ‘significant burden’
to show that the district court abused its discretion in denying a new trial” based on
newly discovered evidence. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.
1989) (quoting United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985)).
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial if the interest of
justice so requires.” Rule 33(b)(1) provides that “[a]ny motion for a new trial
grounded on newly discovered evidence must be filed within 3 years after the verdict
or finding of guilty.” All other grounds for a motion for new trial are filed under Rule
33(b)(2) and must be filed within 14 days after the verdict or finding of guilty. In
order for a criminal defendant “[t]o prevail on a Rule 33 motion for a new trial based
on newly discovered evidence, a defendant must satisfy a five-part test: ‘(1) the
evidence must be newly discovered; (2) the failure to discover the evidence sooner
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must not be the result of a lack of diligence on the defendant’s part; (3) the evidence
must be material to the issues at trial; (4) the evidence must be neither cumulative nor
merely impeaching; and (5) the evidence must indicate that a new trial would probably
result in acquittal.’” United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)
(quoting United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991)). Lieng did not
satisfy this test, so the district court did not abuse its discretion in denying Lieng’s
Rule 33 Motion for a new trial on the basis of newly discovered evidence.
AFFIRMED.
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