UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4965
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THONG HOANG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-196)
Submitted: September 21, 2005 Decided: November 2, 2005
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lana M. Manitta, MARTIN & ARIF, Springfield, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Rebeca H.
Bellows, Assistant United States Attorney, Kelli Ferry, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thong Hoang was convicted of conspiracy to distribute
MDMA (Ecstasy), 21 U.S.C. § 846 (2000), and distribution of 500
grams or more of methamphetamine, 21 U.S.C. § 841(a)(1) (2000). He
was sentenced to 168 months in prison.1 Hoang appeals, raising
three issues. We affirm.
I
Hoang first alleges that the district court erred when it
denied his motion to suppress incriminating statements made to
police officers following his arrest. Specifically, he contends
that his understanding of English is so poor that he could not have
knowingly waived his Miranda2 rights. We review the district
court’s factual findings underlying the denial of a suppression
motion for clear error and its legal conclusions de novo. United
States v. Johnson, 400 F.3d 187, 193 (4th Cir. 2005). We construe
the evidence in the light most favorable to the Government, the
prevailing party. United States v. Seidman, 156 F.3d 542, 547 (4th
Cir. 1998).
1
The jury found that the object of the conspiracy was to
distribute 10,000 MDMA pills. Given this factual finding, Hoang’s
base offense level was 34. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(3) (2003). There were no enhancements. With a total
offense level of 34 and a criminal history category of II, Hoang’s
guideline range was 168-210 months.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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“Limited ability to understand English may render a
waiver of rights defective.” United States v. Guay, 108 F.3d 545,
549 (4th Cir. 1997). At the suppression hearing, Detectives
Thompson and McGee, neither of whom speaks Vietnamese, testified
that they had no difficulty conversing with Hoang in English and
that he appeared to have no trouble understanding them. He
acknowledged that he understood each Miranda right as it was read
to him. Similarly, Hoang’s pretrial services officer testified
that Hoang easily communicated with her in English. Given this
testimony, the district court’s finding that Hoang was able to
comprehend the Miranda warning was not clearly erroneous. Nor did
the court err in finding the waiver of rights to be valid and
denying the motion to suppress.
II
Hoang next contends that the evidence was insufficient to
convict him of conspiracy. To determine if there is sufficient
evidence to support a conviction, we consider whether, taking the
evidence in the light most favorable to the Government, substantial
evidence supports the verdict. Glasser v. United States, 315 U.S.
60, 80 (1942). We review direct and circumstantial evidence and
permit the “[G]overnment the benefit of all reasonable inferences
from the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Witness
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credibility is within the sole province of the jury. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
“To prove a conspiracy under 21 U.S.C. § 846, the
[G]overnment must prove (1) an agreement between two or more
persons to engage in conduct that violates a federal drug law, (2)
the defendant’s knowledge of the conspiracy, and (3) the
defendant’s knowing and voluntary participation in the conspiracy.”
United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001);
United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en
banc). The evidence in this case sufficiently established these
elements.
Detective Thompson arranged to purchase 10,000 pills of
MDMA from Tu Quoc Ho. Hoang served as an intermediary between Ho
and suppliers in Philadelphia. The sale to Thompson was originally
scheduled for March 30, 2004. However, Ho called Thompson to say
that the pills would not arrive on time. Thompson suggested
consummating the deal the next day. When Ho called Thompson back
to say that this was acceptable, Hoang came on the telephone to
confirm to Thompson that the date and proposed time were agreeable.
Hoang was present when Thompson, Ho, and Hien Minh Tran, another
codefendant, met at a café on March 31 to discuss final details of
the transaction. Tran testified that Hoang was to make five cents
per pill from the transaction. These facts are sufficient to
support a conspiracy conviction.
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III
Finally, Hoang asks that his sentence be vacated and the
matter remanded for resentencing because the district court treated
the sentencing guidelines as mandatory in violation of United
States v. Booker, 125 S. Ct. 738 (2005). Because Hoang did not
raise this issue below, our review is for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). Although the district court committed plain error,3 remand
for resentencing is not required because “the record as a whole
provides no nonspeculative basis for concluding that the treatment
of the guidelines as mandatory affected the district court’s
selection of the sentence imposed.” United States v. White, 405
F.3d 208, 223 (4th Cir. 2005) (internal quotation marks omitted).
Thus, the error did not affect Hoang’s substantial rights, and
remand for resentencing is unnecessary. See id. at 224-25.
IV
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3
We, of course, offer no criticism of the district judge, who
followed the law and procedure at the time of Hoang’s sentencing.
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