UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT FILED
JUL 20 2011
UNITED STATES OF AMERICA, No. 09-50265
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 2:07-cr-00449-PSG-6
Central District of California,
v. Los Angeles
PETER XUONG LAM, AKA Kiet,
ORDER
Defendant - Appellant.
Before: TROTT and RYMER, Circuit Judges, and BEISTLINE, Chief District
Judge.*
Appellant’s petition for panel rehearing filed July 13, 2011, is DENIED. An
amended memorandum disposition is filed concurrently with this order. No further
petitions shall be entertained.
*
The Honorable Ralph R. Beistline, Chief District Judge for the
District of Alaska, sitting by designation.
FILED
NOT FOR PUBLICATION JUL 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50265
Plaintiff - Appellee, D.C. No. CR-07-449-PSG
v. AMENDED
MEMORANDUM*
PETER XUONG LAM,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted June 8, 2011
Pasadena, California
Before: RYMER, TROTT, Circuit Judges, and BEISTLINE,**1Chief District
Judge.
Lam appeals his convictions and sentence in the District Court for selling
illegally imported fish in violation of 18 U.S.C. § 545 and introducing misbranded
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Beistline, Chief District Judge for the
District of Alaska, sitting by designation.
1
fish into interstate commerce with the intent to defraud in violation of 21 U.S.C.
§§ 331(a)&(c), § 333(a)(2). This court has jurisdiction pursuant to 18 U.S.C. §
3742 and 28 U.S.C. § 1291, and we affirm the convictions and remand for
resentencing.
There was sufficient evidence presented at trial to support defendant’s
convictions. Even were we to conclude that some of the government’s comments
during closing argument were inappropriate, which we do not, any error would be
harmless and have had no impact on the verdict rendered. Furthermore, venue was
appropriate pursuant to 18 U.S.C. § 3237(a). Defendant’s convictions are
therefore AFFIRMED.
However, there was a procedural error by the District Court in determining
the amount of tax loss to assess against defendant. This resulted in a two level
enhancement of defendant’s offense level. Accordingly, this matter is remanded
for an open resentencing pursuant to Pepper v. United States, ___ U.S. ___, 131
S.Ct. 1229, 1239-40 (2011) and United States v. Matthews, 278 F.3d 880, 885-86
(9th Cir. 2002). Furthermore, the forfeiture order is hereby vacated. The district
court may reconsider the forfeiture as part of the resentencing.
The court REMANDS this matter to the District Court for resentencing
consistent herewith.
It is so ordered.
2
FILED
United States v. Lam, No. 09-50265 (Pasadena – June 8, 2011) JUL 20 2011
MOLLY C. DWYER, CLERK
RYMER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I would hold that venue in the Central District of California was improper
for Lam’s convictions under 18 U.S.C. § 545.
The indictment does not charge Lam with smuggling fish into the United
States—only with receiving, selling, and transporting the fish after its importation.1
This anterior criminal conduct does not count towards venue. United States v.
Cabrales, 524 U.S. 1, 6-8 (1998).
I am not persuaded that 18 U.S.C. § 3237(a) permits venue in this case. The
indictment didn’t charge Lam with moving the fish in interstate commerce. See
Cabrales, 524 U.S. at 8-9 (holding that § 3237(a) did not establish venue in a non-
interstate commerce offense).
1
To be precise, the indictment charges that Lam “did knowingly receive,
conceal, buy, sell, and facilitate the transportation, concealment, and sale” of the
fish after illegal importation.