United States v. Cabaccang

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10352
Plaintiff-Appellee,
v.  D.C. No.
CR 97-0095 DOC
ROY TOVES CABACCANG,
OPINION
Defendant-Appellant.

Appeal from the District Court of Guam
David O. Carter, District Judge, Presiding
Argued and Submitted
January 8, 2007—San Francisco, California
Filed March 30, 2007
Before: Procter Hug, Jr., A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Tashima
3661
3664 UNITED STATES v. CABACCANG
COUNSEL
Richard D. Rome, Van Nuys, California, for the defendant-
appellant.
Karon V. Johnson, Assistant United States Attorney, Hagatna,
Guam, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
This appeal comes to us following our remand to the dis-
trict court for resentencing. Roy Toves Cabaccang, James
Toves Cabaccang, and Richard Toves Cabaccang1 were con-
victed on numerous charges relating to a drug ring that
involved the shipment of methamphetamine from California
to Guam and its distribution in Guam. We affirmed their con-
1
The Cabaccangs are brothers. For ease of reference, we refer to them
by their first names.
UNITED STATES v. CABACCANG 3665
victions and sentences in two unpublished memoranda dispo-
sitions. We subsequently held en banc, however, that the
transport of drugs on a nonstop flight through international
airspace from one location in the United States to another
does not constitute importation within the meaning of 21
U.S.C. § 952(a). United States v. Cabaccang, 332 F.3d 622
(9th Cir. 2003) (en banc) (“Cabaccang I”). We therefore
reversed all three of the Cabaccangs’ importation-related con-
victions and remanded for the district court to reconsider
Roy’s conviction for a continuing criminal enterprise
(“CCE”) because the CCE charge relied, in part, on the
importation charges as predicate offenses. We affirmed the
convictions that were not importation-related and adopted the
decisions of the prior, three-judge panel with respect to those
counts. Id. at 637.
The Cabaccangs then filed a motion for clarification of the
en banc court’s remand, seeking remand of James’ and Rich-
ard’s convictions and sentences on Count II of the indictment,
conspiracy to distribute methamphetamine, and of Roy’s con-
viction and sentence on Count VI, possession with intent to
distribute methamphetamine. We denied the motion as to
Count II, but remanded Count VI. United States v. Cabac-
cang, 341 F.3d 905 (9th Cir. 2003) (en banc) (“Cabaccang
II”). All three brothers appealed the sentences imposed by the
district court on remand.2 We have jurisdiction pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm the dis-
trict court.
2
The three appeals were consolidated by order of this court, and the
cases were argued together. We address in this opinion only the issues
raised by Roy. The appeals of Richard and James, Nos. 05-10353 and 05-
10354, are addressed in a separate, concurrently-filed, unpublished memo-
randum disposition. The facts relevant only to their appeals accordingly
are omitted.
3666 UNITED STATES v. CABACCANG
BACKGROUND
The following facts are taken from the en banc opinion:
In the early 1990s, Roy Cabaccang began selling
methamphetamine out of his house in Long Beach,
California, to customers introduced to him by his
younger brothers Richard and James. The Cabac-
cangs eventually expanded their operation to include
large-scale shipments of methamphetamine to Guam
for local distribution. To transport the drugs to
Guam, Roy recruited various people to fly from Los
Angeles to Guam with packages of methamphet-
amine concealed under their clothing. . . . After
Roy’s associates sold the methamphetamine in
Guam, they sent the proceeds back to California via
courier and wire transfer. Each of the Cabaccang
brothers received wire transfers of profits from the
drug sales.
Cabaccang I, 332 F.3d at 623-24.
An indictment, returned in 1997, charged the Cabaccangs
with the following counts: Count I, CCE, in violation of 21
U.S.C. § 848 (Roy); Count II, conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841 and 846
(all three); Count III, conspiracy to import methamphetamine,
in violation of 21 U.S.C. §§ 952(a), 960, and 963 (all three);
Count IV, conspiracy to launder monetary instruments, in vio-
lation of 18 U.S.C. § 1956 (all three); Count V, importation
of methamphetamine (Roy, Richard); Count VI, possession of
methamphetamine with intent to distribute (Roy); Counts VII
and VIII, possession and receipt of a firearm by a felon, in
violation of 18 U.S.C. § 922(g) (Roy); Counts IX, X, and XI,
attempted importation of methamphetamine (Roy).
Following a jury trial, all three brothers were convicted on
all of the charges against them. In connection with Roy’s
UNITED STATES v. CABACCANG 3667
CCE conviction, the jury found the special allegations in the
verdict form to be true: first, that Roy was the leader of the
CCE; and second, that the violations referred to in Count I
involved at least 3,000 grams of methamphetamine or at least
30,000 grams of a mixture or substance containing a detect-
able amount of methamphetamine.
At Roy’s original sentencing, the government conceded
that Roy’s conspiracy convictions under Counts II and III had
to be vacated as lesser-included offenses of Count I, pursuant
to Rutledge v. United States, 517 U.S. 292 (1996).3 The dis-
trict court agreed that Rutledge controlled and accordingly
vacated Roy’s convictions under Counts II and III, but it let
his other convictions stand.
In their first appeals, we affirmed all three Cabaccangs’
convictions and, rejecting their claims under Apprendi v. New
Jersey, 530 U.S. 466 (2000), affirmed their sentences. See
United States v. Cabaccang, 36 Fed. Appx. 234 (9th Cir.
2002); United States v. Cabaccang, 16 Fed. Appx. 566 (9th
Cir. 2001). We then reheard the case en banc in order to reex-
amine the application of the importation statute.
We concluded in Cabaccang I that “21 U.S.C. § 952(a)
does not proscribe . . . the transport of drugs on a nonstop
flight between two locations within the United States.”
Cabaccang I, 332 F.3d at 636. After holding that the
importation-related convictions should be reversed, we
addressed the impact of this holding on Roy’s CCE convic-
tion:
The effect of our decision on Roy Cabaccang’s con-
viction for conducting a continuing criminal enter-
3
The Supreme Court held in Rutledge that a conspiracy charge under 21
U.S.C. § 846 is a lesser-included offense of CCE, 21 U.S.C. § 848, and
therefore ordered that one of the convictions and its concurrent sentence
be vacated. Rutledge, 517 U.S. at 307.
3668 UNITED STATES v. CABACCANG
prise (Count I) is not so clear. Count I incorporated
the importation charges as predicate offenses, and
the jury was instructed that to convict on that count
it had to find that “the Defendant committed any one
or more of the following federal narcotics trafficking
offenses: conspiracy to distribute methamphetamine;
. . . or, conspiracy to import methamphetamine; or,
importation of methamphetamine; or, possession of
methamphetamine with intent to distribute; or,
attempted importation of methamphetamine.” The
jury was also instructed that it must find that the
offenses were part of a series of three or more
offenses committed by the defendant, and that the
defendant committed the offenses together with five
or more persons. Finally, the jury was instructed that
all members of the jury must unanimously agree on
which three narcotics offenses the defendant com-
mitted and on which five or more persons committed
the offenses together with the defendant. The jury’s
guilty verdict on Count I did not specify which nar-
cotics offenses formed the basis of the jury’s finding.
Id. at 637. We accordingly remanded for the district court to
determine whether Roy’s CCE conviction could stand. Not-
withstanding our remand of the CCE count, however, we
affirmed the convictions and sentences on the counts that
were not importation-related. Id.
In their Motion for Clarification Regarding Remand, Rich-
ard and James argued that their sentences on Count II, con-
spiracy to distribute methamphetamine, should be remanded
because the importation charge and theory were intertwined
with Count II of the indictment. Roy sought remand of his
sentence on Count VI, possession with intent to distribute
methamphetamine, because his Count VI sentence was con-
current with Count I, which had been remanded, and with
Count V, which was one of the reversed importation counts.
The government opposed the motion.
UNITED STATES v. CABACCANG 3669
Cabaccang II granted the motion with respect to Roy’s
Count VI and remanded that count to the district court,
instructing the district court to reconsider Roy’s sentence on
Count VI only if it reversed his conviction on Count I. Cabac-
cang II, 341 F.3d at 905. We further held, however, that if the
district court affirmed his conviction on Count I, “his convic-
tion and sentence on Count VI shall stand.” Id. The motion to
remand any of the other counts was denied.
On remand, the district court reasoned that, because “the
indictment and the jury instructions incorporated the importa-
tion counts as predicate offenses, it is unclear which of the
numerous drug related violations the jury considered as con-
stituting the series used to arrive at their verdict” on Count I.
The court therefore vacated Roy’s Count I conviction, but it
found that the jury’s special allegation findings, regarding
Roy’s role as a leader of the enterprise and the amount of
methamphetamine, were not affected by the vacating of the
importation offenses.
The court also noted the Supreme Court’s approval of the
practice of federal appellate courts to “direct the entry of
judgment for a lesser included offense when a conviction for
a greater offense is reversed on grounds that affect only the
greater offense.” Rutledge, 517 U.S. at 306. The court there-
fore reinstated Roy’s conviction on Count II, conspiracy to
distribute methamphetamine, which is a lesser-included
offense of CCE. Because Counts IV, VII, and VIII had been
affirmed, the counts remaining for sentencing were Counts II
and VI.
The court grouped Counts II and VI and found an offense
level of 38, relying on the drug quantity finding made by the
jury in the special allegation question for Count I. The court
also added a two-level enhancement for possession of a fire-
arm, based on Roy’s convictions under Counts VII and VIII.
In the alternative, the court cited testimony that established
Roy’s possession of firearms. The court added a four-level
3670 UNITED STATES v. CABACCANG
adjustment for Roy’s role in the offense, relying on the jury’s
affirmative response to the special verdict question in Count
I. The court cited testimony supporting a finding that Roy
suborned perjury and added a two-level adjustment for
obstruction of justice.
The court discussed the requisite factors under 18 U.S.C.
§ 3553 and then sentenced Roy to a term of life imprisonment
on Count II and 20 years on Count VI, to be served concur-
rently with each other, and concurrently with the sentences
previously imposed on Counts IV, VII, and VIII. Roy filed a
timely notice of appeal.
STANDARDS OF REVIEW
“Whether a district court has jurisdiction is a question of
law that we review de novo.” United States v. Ruiz-Alvarez,
211 F.3d 1181, 1184 (9th Cir. 2000) (as amended).
The district court’s interpretation of the sentencing guide-
lines is reviewed de novo, its application of the guidelines to
the facts is reviewed for an abuse of discretion, and its factual
findings are reviewed for clear error. United States v. Staten,
466 F.3d 708, 713 (9th Cir. 2006) (as amended). The overall
sentence is reviewed for reasonableness. Id. If, however, the
district court made a “material error in its Guidelines calcula-
tion that serves as the starting point for its sentencing deci-
sion,” we remand for resentencing, “without reaching the
question of whether the sentence as a whole is reasonable.”
United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006).
Whether the district court applied the correct burden of proof
in determining drug quantity is reviewed de novo. Id. As a
general rule, “district courts should resolve factual disputes at
sentencing by applying the preponderance of the evidence
standard.” Id. (citations and footnote omitted).
DISCUSSION
Roy contends that the district court did not have jurisdic-
tion over Count II and therefore erred in reinstating his con-
UNITED STATES v. CABACCANG 3671
viction on that count. He also contends that, even if the court
correctly reinstated the Count II conviction, it erroneously
relied on the jury findings for Count I in imposing sentence.
Roy also raises numerous other challenges to his sentence.
I. Reinstatement of Count II
Roy contends that Cabaccang II expressly prohibited the
district court from reconsidering his Count II conviction for
conspiracy to distribute methamphetamine and that the district
court therefore lacked jurisdiction to reinstate the conviction.
We disagree. Roy’s Count II conviction had been vacated
prior to his first appeal. Count II accordingly was never
before this court in his prior appeal; consequently, it could not
have been addressed in the remand order.
The clarification order does state that “[w]e DENY appel-
lants’ motion to remand the remaining counts, including
Count II, to the district court.” Cabaccang II, 341 F.3d at 905.
The clarification order, however, must be read in light of the
motion for clarification and the situation presented to the
court. Roy’s Count II conviction had been vacated, so it was
never at issue in the prior appeal. Thus, the motion for clarifi-
cation sought remand of Count II only as to Richard’s and
James’ sentences. The clarification order therefore clearly was
referring only to Richard’s and James’ Count II convictions.
Roy’s Count II simply was not before and was not addressed
by the en banc court. See United States v. Garcia-Beltran, 443
F.3d 1126, 1131 (9th Cir.) (where the “remand order was lim-
ited to the question of suppression of an initial set of finger-
prints,” we stated that “the remand order simply did not
consider whether a new set of fingerprints could later be com-
pelled to identify the defendant after indictment,” and there-
fore affirmed the grant of a motion to compel a new set of
fingerprints), cert. denied, 127 S. Ct. 319 (2006).
Roy points out that the government “vigorously argued
against remanding Count II.” The motion for clarification
3672 UNITED STATES v. CABACCANG
sought remand on Richard’s and James’ Count II convictions
on the basis that importation was alleged as part of the con-
spiracy to distribute. The government did oppose remand of
Count II on that basis. However, in discussing the contention
that Roy’s Count VI conviction should be remanded, the gov-
ernment argued that, if Roy’s CCE count were reversed, his
Count II conviction should be reinstated, citing Rutledge.
[1] Because Roy’s Count II conviction had been vacated
and was not before the en banc court, the clarification order
does not preclude the district court from reconsidering that
conviction. See Garcia-Beltran, 443 F.3d at 1129 (stating that
the lower court is bound only as to issues addressed by the
appellate court). The next question is whether the district
court correctly reinstated the Count II conviction after vacat-
ing Roy’s Count I conviction for CCE.
We have not addressed this precise issue, but a related
question was posed in United States v. Jose, 425 F.3d 1237
(9th Cir. 2005), cert. denied, 126 S. Ct. 1664 (2006): whether
“the reversal of a conviction on a greater offense, coupled
with a final conviction on a lesser included offense, pre-
clude[s] retrial of the greater offense when the offenses were
charged in the same indictment and tried together in the same
original trial.” Id. at 1239. We held in Jose that retrial under
these facts did not violate the Double Jeopardy clause. Id. at
1239-45.
[2] As relevant to the instant case, Jose reasoned that, when
a jury convicts on both a greater and a lesser included offense,
Rutledge requires the district court to enter a final judgment
of conviction on the greater offense and vacate the conviction
on the lesser offense, which is what the district court did here
at Roy’s original sentencing. See id. at 1247. “However, if the
greater offense is later reversed on appeal, the appellate court
should reinstate the previously vacated convictions on the
lesser-included offenses.”4 Id. (citing Rutledge, 517 U.S. at
306).
4
Jose noted that we previously “shied away from this approach” in
United States v. Medina, 940 F.2d 1247 (9th Cir. 1991). Jose, 425 F.3d
UNITED STATES v. CABACCANG 3673
Under the reasoning of Jose, the district court correctly
reinstated Roy’s previously vacated conviction on the lesser
included conspiracy offense. The Fourth and Seventh Circuits
have affirmed when confronted with facts similar to those
presented here, and we agree that this is the correct outcome.
[3] In United States v. Silvers, 90 F.3d 95 (4th Cir. 1996),
after a jury convicted Silvers on numerous counts, including
CCE and conspiracy to distribute cocaine, the district court
vacated the conspiracy conviction because it was a lesser
included offense of the CCE conviction. Silvers later filed a
habeas petition contending that his CCE conviction should be
vacated because it was obtained through perjured testimony.
The district court agreed and ordered a new trial on the CCE
conviction, but, “because Silvers’ previously-vacated conspir-
acy conviction no longer merged into a CCE conviction, the
court sua sponte reinstated Silvers’ conspiracy conviction.”
Id. at 97. The Fourth Circuit held that the district court cor-
rectly reinstated the previously-vacated conspiracy convic-
tion, citing “the Supreme Court’s express ratification of the
district court’s action” in Rutledge. Id. at 101. After the
Supreme Court remanded Rutledge to the Seventh Circuit,
that court also held that the district court had authority to rein-
state the conspiracy conviction, noting that the Supreme Court
had specifically validated this practice. Rutledge v. United
States, 230 F.3d 1041, 1047-49 (7th Cir. 2000); see also
United States v. West, 201 F.3d 1312, 1312 (11th Cir. 2000)
at 1247 n.6. In Medina, we vacated the defendant’s conspiracy convictions
because they were lesser-included offenses of his CCE conviction. Medina
opined that “district courts faced with convictions on both CCE and lesser-
included conspiracy counts are put in a bind,” because, “[i]f the district
court itself vacates the conspiracy convictions, . . . and the court of appeals
subsequently reverses the CCE conviction, the courts would be powerless
to reinstate the potentially valid lesser-included counts of conviction.”
Medina, 940 F.2d at 1253. Jose recognized, however, that Medina had
been overruled to the extent that Rutledge endorsed this very practice.
Jose, 425 F.3d at 1247 n.6.
3674 UNITED STATES v. CABACCANG
(per curiam) (vacating a CCE conviction and remanding for
the district court to reinstate a previously-vacated conspiracy
conviction that had been vacated only because it was a lesser-
included offense of the CCE conviction); United States v.
Ward, 37 F.3d 243, 251 (6th Cir. 1994) (stating that the
defendant conceded that his drug conspiracy conviction
should be reinstated if his CCE conviction were reversed, and
therefore remanding for resentencing after reversing the CCE
conviction).
[4] We conclude that the district court correctly reinstated
Roy’s previously-vacated conspiracy conviction after vacat-
ing his CCE conviction on grounds that did not affect the
lesser-included conspiracy conviction.
II. Reliance on Count I Findings for Count II Sentence
Roy contends that, even if the district court did not err in
reinstating his Count II conviction, the court erroneously
relied on jury findings relating to Count I in imposing his
Count II sentence. The government asserts that Roy has
waived the issue by failing to raise it before the district court
and by conceding the drug quantity in his prior appeal.
Roy essentially concedes that he did not raise this issue
below, stating in his reply brief that he did not address Count
II because he thought it was not before the district court. He
contends, however, that he raised the issue by arguing that
Count I should be vacated and that Count II was not before
the court. Contrary to his contention, this does not support a
finding that he questioned the district court’s drug quantity
finding.
At Roy’s resentencing, the government argued that the
Cabaccangs had not contested the drug quantity at trial, and
that the sole issue during the trial was whether they were
involved in the conspiracy. The government also argued that,
if the court vacated Roy’s CCE conviction, the Count II con-
UNITED STATES v. CABACCANG 3675
viction should be reinstated, and that there was a special find-
ing of more than 3,000 grams of methamphetamine. Defense
counsel responded that Count II was not at issue and that
Count I should be vacated, but he did not challenge the drug
quantity finding. Our review accordingly is for plain error.
Fed. R. Crim. P. 52(b); see, e.g., United States v. Evans-
Martinez, 448 F.3d 1163, 1166 (9th Cir. 2006) (reviewing for
plain error a claim that the defendant failed to raise at sen-
tencing). Plain error is error that is plain and that affects sub-
stantial rights. Id. If these conditions are met, we may
exercise discretion to grant relief only if the error “ ‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’ ” Id. (quoting United States v. Ameline, 409
F.3d 1073, 1078 (9th Cir. 2005) (en banc)).
[5] When the jury found Roy guilty of Count I, CCE, the
jury also found that “the violations referred to in Count I
involved at least 3,000 grams of methamphetamine, or at least
30,000 grams of a mixture or substance containing a detect-
able amount of methamphetamine.” Count II was alleged in
the indictment to be one of the violations constituting the
CCE. The jury verdict form therefore provides on its face that
the drug quantity finding in Count I applies to each of the
other counts.
[6] We agree with the careful reasoning of the district court
in concluding that the special allegation findings were not
tainted by the importation offenses. At the May 6, 2005,
resentencing, the court reasoned as follows:
First, the time frame alleged in Counts 2 and 6 are
[sic] the same as or contained within the same time
frame as to Count One, the CCE.
Second, Counts 2 and 6 were explicitly listed as
part of the series of drug related offenses to be con-
sidered by the jury.
3676 UNITED STATES v. CABACCANG
Third, even if the jury utilized only the importa-
tion counts as being involved in the series, the only
defect with the importation was the definition of
importation. Absent that element, the jury still found
the remaining elements to be true, that the defendant
conspired to transport, attempted to transport, or
transported methamphetamine from California to
Guam.
The district court further reasoned that the special allegations
were found by the jury beyond a reasonable doubt and there-
fore relied on the special allegation finding for Count I in
determining the drug quantity.
[7] Roy argues that the overlapping time frame of Counts
I and II is irrelevant because it is not clear which offenses the
jury relied on in the CCE count. While this is true, this fact
serves as the reason that the district court vacated the CCE
conviction; it does not support Roy’s contention that the dis-
trict court erred in relying on the Count I drug quantity find-
ing for the Count II sentence. It still remains true that the time
frame alleged in the indictment for Counts I and II was the
same. Although it is possible that the jury may have relied on
three importation offenses in its CCE finding, the jury con-
victed Roy on Count II also. Moreover, as the district court
reasoned, the problem with the importation offenses was the
legal definition of importation. The jury’s drug quantity find-
ing with respect to any importation-related offenses still was
made beyond a reasonable doubt. Cf. Bequette, 309 F.3d at
451 (“find[ing] no reason to disturb either the jury’s special
verdict or the district court’s reliance on it” where the defen-
dant did not contest the reliability of the drug quantity finding
in the special verdict). Whether or not the drugs were “im-
ported” in the legal sense does not affect the jury’s finding
that Roy’s conduct — all of which came within the scope of
the conspiracy charge — involved at least 3,000 grams of
methamphetamine.
UNITED STATES v. CABACCANG 3677
III. Count II Enhancements
Roy contends that the district court erred in enhancing his
Count II sentence for possession of a firearm, his role in the
offense, and obstruction of justice.
A. Possession of a firearm
The district court found that Roy possessed at least one
firearm during the conspiracy and therefore added two levels
for possession of a firearm. See U.S.S.G. § 2D1.1(b)(1)
(1995) (adding a two-level increase in offense level if “a dan-
gerous weapon (including a firearm) was possessed” during a
drug offense). The court relied for its finding on Roy’s con-
victions in Counts VII and VIII for possession of a firearm.
In the alternative, the court found that the enhancement was
supported by the testimony of two witnesses, Joseph Kinder
and Doris Cruz, who testified that Cabaccang possessed a
firearm. Roy contends that an enhancement for possession of
a firearm constitutes impermissible double counting because
he already had been sentenced to 120 months on Counts VII
and VIII for possession of the same firearm.
[8] “Impermissible double counting ‘occurs where one part
of the Guidelines is applied to increase a defendant’s punish-
ment on account of a kind of harm that has already been fully
accounted for by the application of another part of the Guide-
lines.’ ” United States v. Speelman, 431 F.3d 1226, 1233 (9th
Cir. 2005) (quoting United States v. Reese, 2 F.3d 870, 895
(9th Cir.1993)). There is, however, “nothing wrong with ‘dou-
ble counting’ when it is necessary to make the defendant’s
sentence reflect the full extent of the wrongfulness of his con-
duct.” Reese, 2 F.3d at 895.
[9] We reject Roy’s double counting argument. The alter-
native ground on which the district court relied to apply the
firearm enhancement was the testimony of two witnesses
involving a different weapon from those on which Roy’s fire-
3678 UNITED STATES v. CABACCANG
arm convictions were based. Roy’s § 922(g) convictions were
for the possession of two different .22 LR caliber revolvers.
The testimony relied upon by the district court to support its
finding that the firearm enhancement applied involved a .357
Magnum. The offense level increase for Roy’s sentence on
Count II accordingly was based on different conduct from the
conduct on which his sentence for Counts VII and VIII was
based. The application of the enhancement for firearm posses-
sion did not constitute impermissible double counting.
B. Organizer/Leader
The district court added a four-level increase in offense
level for Roy’s role in the offense pursuant to U.S.S.G.
§ 3B1.1, relying on the jury’s special finding in Count I. The
special allegation concerning Roy’s role in the offense
required the jury to find that Roy “was the principal adminis-
trator, organizer or leader of the enterprise or was one of sev-
eral such principal administrators, organizers or leaders.” Our
review, again, is for plain error.
Roy contends that the jury finding that he was an organizer
or leader concerned Count I and that no finding was made
with respect to Count II. Roy does not cite any precedent to
support his contention that the district court erred in relying
on the special verdict finding in imposing the offense level
increase.
[10] Roy also contends that the special finding by the jury
“never mentioned five or more persons, or extensiveness.”
While it is true that the special allegation did not mention five
or more persons, the jury instructions did. In order to convict
Roy of Count I, the jury was instructed that it had to find that
Roy “committed the offenses together with five or more other
persons,” and that they “must also unanimously agree on
which five or more persons committed the offenses together
with the defendant and with respect to whom the defendant
acted as organizer, supervisor, or manager.” The district court
UNITED STATES v. CABACCANG 3679
did not err in enhancing Roy’s sentence for his role in the
offense.
C. Obstruction of justice
The district court imposed a two-level increase in offense
level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1.
The court based its finding that Roy had obstructed justice on
its review of the trial transcripts. The court cited the testimony
of eight witnesses who testified that Roy had instructed them
to lie if they were questioned by police regarding the money
they were laundering. The court also cited the testimony of
Franklin Alcantara, who testified that he was confronted by
Roy and three of Roy’s friends and instructed by Roy to lie
about the source of drug proceeds.
Roy contends that the district court relied on the incorrect
section of the guidelines in imposing this enhancement, and
he briefly states that there was no jury finding on this issue.
Although the district court cited U.S.S.G. § 2D1.5, which
concerns a CCE conviction, when the court initially discussed
the obstruction of justice enhancement, this mistake is imma-
terial. The citation of the incorrect section did not affect the
court’s findings regarding obstruction of justice or its calcula-
tion of the sentence.
[11] The 1995 version of the guidelines, which is the ver-
sion applied to this case, provided for a two-level increase in
offense level “[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administra-
tion of justice during the investigation, prosecution, or sen-
tencing of the instant offense.” U.S.S.G. § 3C1.1. The
application notes indicate that “committing, suborning, or
attempting to suborn perjury,” is an example of the type of
conduct to which the enhancement applied. U.S.S.G. § 3C1.1,
cmt. n.3(b). Roy does not challenge the testimony on which
the district court relied in making its finding that Roy sub-
orned perjury. He merely states that the court erred in relying
3680 UNITED STATES v. CABACCANG
on “[t]he transfer from Count I.” The court did not, however,
rely on the jury’s finding from Count I in imposing the
enhancement for obstruction of justice. Rather, the court spe-
cifically cited the testimony of numerous witnesses to support
its finding that Roy suborned perjury. The offense level
increase for obstruction of justice was not erroneous.
IV. Count VI Sentence
Roy contends that the district court did not adequately
explain the reasons for the sentence imposed on Count VI, as
required by 18 U.S.C. § 3553(c). He also contends that the
district court did not adequately explain how it determined
that the offense level should be 46 for this count.
“All counts involving substantially the same harm shall be
grouped together into a single Group.” U.S.S.G. § 3D1.2.
Counts are grouped together “[w]hen the offense level is
determined largely on the basis of . . . the quantity of a sub-
stance involved.” U.S.S.G. § 3D1.2(d). Count II, conspiracy
to distribute methamphetamine, and Count VI, possession
with intent to distribute methamphetamine, accordingly were
grouped together in Group One. The court concluded that
Count II involved at least three kilograms of methamphet-
amine (which included the 21.19 grams separately alleged in
Count VI), resulting in a base offense level of 38, pursuant to
U.S.S.G. § 2D1.1(a)(3).5 The court then added two levels for
the firearm possession, four levels for role in the offense, and
two levels for obstruction of justice, resulting in an offense
level of 46. The offense level for Group Two, the money
laundering conviction for Count IV, was 34. The offense level
for Group Three, the felon in possession convictions for
Counts VII and VIII, was 28. The total offense level, accord-
5
Under the Drug Quantity Table found in U.S.S.G. § 2D1.1, 30 kilo-
grams of a mixture or substance containing a detectable amount of
methamphetamine, or 3 kilograms or more of methamphetamine (actual)
has a base offense level of 38.
UNITED STATES v. CABACCANG 3681
ingly was 46, pursuant to U.S.S.G. § 3D1.4.6 The district
court adequately explained its reasons for the offense level of
46.
Moreover, despite Roy’s contention to the contrary, the dis-
trict court thoroughly discussed the requisite factors under 18
U.S.C. § 3553 in imposing Roy’s sentence. The court first
expressed its awareness that the guidelines are advisory. It
then discussed its considerations of the § 3553 factors. For
example, the court stated that Roy was responsible for bring-
ing “a substantial amount of methamphetamine onto this
island,” and had been engaged in that activity for six to ten
years. The court also stated that Roy had “manipulated and
exploited numerous people in the community, and members
of his own family, all for his own personal gain.” The court
described the “complex and far-reaching” nature of the drug
ring, the money involved, and the manner in which the con-
spiracy was carried out. The court further stated that Roy had
“been obstructing justice continually, carrying and supplying
firearms and laundering a substantial amount of money.” The
court then discussed the effects of Roy’s conduct on the com-
munity and his family.
The court discussed Roy’s conduct in prison, his prior con-
victions and other offenses, the seriousness of the offense, and
the need for deterrence. The court also considered the need to
protect the public, Roy’s continued choices to disobey the law
and his failure to acknowledge wrongdoing, as well as the
ways Roy could benefit from education or vocational training,
medical care, and other treatment in prison. Finally, the court
considered the kinds of sentences available and the range of
6
Section 3D1.4 provides that “[t]he combined offense level is deter-
mined by taking the offense level applicable to the Group with the highest
offense level and increasing that offense level by the amount indicated.”
U.S.S.G. § 3D1.4. As the district court stated, the total number of units
was one, so no more increases in offense level were warranted. U.S.S.G.
§ 3D1.4.
3682 UNITED STATES v. CABACCANG
punishment. The court’s discussion of the § 3553 factors was
extensive, thoughtful, and thorough.
[12] Roy briefly asserts that the sentence was not reason-
able. The district court did not misconstrue or misinterpret the
guidelines. See United States v. Mix, 457 F.3d 906, 911 (9th
Cir. 2006) (discussing this court’s review of sentences). Nor
did the court abuse its discretion in applying the guidelines to
the facts of the case or make any clear error in its factual find-
ings. See id. Furthermore, the court engaged in a very thor-
ough and thoughtful consideration of the § 3553 factors. For
all these reasons, we find that the sentence imposed by the
district court is reasonable. See United States v. Nichols, 464
F.3d 1117, 1126 (9th Cir. 2006) (concluding that the sentence
was reasonable where “[t]he district court’s approach was rea-
soned and addressed factors specified in § 3553(a),” and the
defendant had not shown that the district court “overlooked
any significant factor, gave improper weight to any factor or
otherwise imposed an unreasonable sentence”).
The sentence imposed by the district court is affirmed.7
AFFIRMED.
7
Roy briefly challenges the sentences imposed on Counts IV, VII, and
VIII. These counts, however, were not before the district court on remand
because Cabaccang I affirmed the sentences on the convictions that were
not importation-related, and Cabaccang II remanded only Count VI.
Moreover, the arguments Roy raises were not raised in his prior appeal
and were not raised in the district court. We have examined Roy’s argu-
ments and conclude that any error, if there was error, did not affect his
substantial rights.