United States v. Tien Quyet Luong

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 27, 2006
No. 05-12188
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket Nos. 04-00054-CR-3-RV
and 04-00085-CR-3-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIEN QUYET LUONG,
a.k.a. Tam Thanh Tran,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(March 27, 2006)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Tien Quyet Luong appeals his conviction and 136-month sentence for
multiple counts of bank fraud. The district court ensured Luong’s plea was

knowingly and voluntarily executed, and the court accurately calculated Luong’s

sentencing range under the Guidelines. Because the plea was properly executed

and the sentence imposed is reasonable, we AFFIRM.

I. BACKGROUND

Luong was separately indicted in Oregon and Florida for various charges

related to bank fraud. The Oregon case was consolidated in Florida under Federal

Rule of Criminal Procedure 20, and a superceding indictment was issued. Luong

pled guilty at separate hearings in June, pursuant to a written agreement, and

August 2004, without a written agreement. At the hearings, the court explained the

trial rights that Luong was waiving by pleading guilty, and the court listened to the

government’s presentation and Luong’s acknowledgment of the factual predicates

to the charged offenses, including eleven counts of bank fraud in Oregon and

seventy-three counts of bank fraud in Florida.

These plea hearings occurred in the months following the decision in

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the plea

agreement and colloquies reflected the uncertainty of the time regarding the federal

Sentencing Guidelines. Nonetheless, the court was clear with Luong that the

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Guidelines were binding at the time and that no one would be able to tell him what

his sentencing range would be until the presentence investigation report (“PSI”)

was completed and the judge weighed the evidence regarding various sentencing

factors. The court observed that the sentence would depend on “any number of

things, including the amount involved, the number of victims, any number of

things.” R3 at 37. At the plea hearing on the Oregon charges, the court told Luong

that he could not withdraw his plea if the sentence imposed was more severe than

he expected. R4 at 33. Luong’s guilty pleas were accepted.

The cases were consolidated in Florida for sentencing. The PSI detailed the

schemes used by Luong and concluded that he played a role in dealing fraudulent

checks in excess of $6.8 million, including a leadership and organizing role in the

offenses. Luong’s attorney made a motion to withdraw his representation after

Luong questioned the attorney’s advice regarding the plea.

Luong subsequently filed a motion to withdraw his plea. Luong and his first

attorney testified at the hearing on the motion to withdraw plea. The court denied

the motion because it would prejudice the government to allow Luong to withdraw

his plea and because Luong had knowingly and voluntarily entered the plea in the

first place.

The sentencing hearing occurred in April 2005. At that hearing, the

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government introduced evidence concerning the scheme employed by Luong to

defraud banks, including his role in the offenses and evidence of the amount of

money that Luong had defrauded from various financial institutions. Regarding

the amount of money at stake, the government presented evidence of the total

amount of dealt checks, $6.8 million, and the amount of actual loss, $5.8 million.

The district court found Luong responsible for $2.9 million, exactly half of the

actual loss amount, for purposes of the Guidelines calculation. The court also

denied Luong’s objection to a four level enhancement for his role in the crime and

denied the government’s objection to the reduction for acceptance of

responsibility. Luong was convicted of multiple counts of bank fraud, in violation

of 18 U.S.C. §§ 2 and 1344; one count of conspiracy to commit money laundering,

in violation of 18 U.S.C. § 1956(a)(1) and (h); and one count of conspiracy to

commit bank fraud and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 371

and sentenced to 136 months.

On appeal, Luong challenges both his conviction and sentence, including

several claims not raised in the district court. Regarding his conviction, Luong

argues the district court abused its discretion by not granting his motion to

withdraw his plea as to some of the charges, because he did not enter it knowingly.

In regard to his sentence, Luong makes three general arguments. First, he argues

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that the district court should have used a clear-and-convincing standard instead of a

preponderance-of-the-evidence standard for establishing the facts that gave rise to

his sentence. Second, Luong claims that his rights under the Confrontation Clause

were violated, because the court considered evidence summarized by the

government without giving him the opportunity to confront the witnesses whose

information was the basis for the summary. Third, Luong argues that the district

court should have made a sua sponte downward departure, because his criminal

history category was overstated. Also regarding his sentence, Luong appeals the

application of several sentencing guidelines. First, he claims that the district court

erred in determining his responsibility for the amount of loss, because it did not

provide a critical analysis of the dollar amount. Second, Luong argues that the

district court erred when it applied a two-level increase under U.S.S.G.

§ 2B1.1(b)(9) (2003) for the use of unauthorized access devices, because he did not

qualify for the increase. Finally, Luong contends that the district court erred in

applying a four-level enhancement under U.S.S.G. § 3B1.1(a) for his leadership

role, because the evidence was insufficient to support it. As a final grounds for

appeal, Luong argues the district court imposed an unreasonable sentence, because

it incorrectly applied the factors under 18 U.S.C. § 3553(a).

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 II. DISCUSSION

Luong presents us with a montage of legal arguments, several unmade in the

district court, regarding his plea and subsequent sentencing. We recognize from

the outset that a “guilty plea is not a meaningless gesture to be renounced on a

lark.” United States v. Cesal, 391 F.3d 1172, 1180 (11th Cir. 2004) (per curiam),

vacated on other grounds, 125 S. Ct. 2553 (2005). Nor is it “a means of testing the

weight of a potential sentence.” United States v. Gonzales-Mercado, 808 F.2d 796,

801 (11th Cir. 1987) (citation omitted). The absence, in the district court, of

Luong’s adscititious appellate arguments colors our consideration of those new

arguments on appeal. We proceed by addressing Luong’s arguments in turn.

A. Withdrawal of a Guilty Plea

The denial of a motion for withdrawal of a guilty plea is reviewed for abuse

of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003).

Before a district court imposes sentence, it may permit a defendant to withdraw his

plea for any “fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). Evaluating the

totality of the circumstances to determine if the defendant has showed a “fair and

just reason,” the district court must consider “(1) whether close assistance of

counsel was available; (2) whether the plea was knowing and voluntary;

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(3) whether judicial resources would be conserved; and (4) whether the

government would be prejudiced if the defendant were allowed to withdraw his

plea.” Freixas, 332 F.3d at 1318 (quotations omitted). In addition, a district court

must ensure that the three core concerns of Rule 11 have been met: “(1) the guilty

plea must be free from coercion; (2) the defendant must understand the nature of

the charges; and (3) the defendant must know and understand the consequences of

his guilty plea.” Id. (quotations omitted). We defer to the district court’s

application of these criteria and reverse “only if the district court’s ultimate

conclusion is arbitrary or unreasonable.” Id. (quotations omitted).

In this case, the district court did not abuse its discretion in denying Luong’s

motion to withdraw his plea. Luong only appears to argue the second prong of the

Rule 11(d)(2) test, that is, whether the plea was knowing and voluntary. The crux

of Luong’s argument is that he did not knowingly enter his plea because he did not

understand the scope of conduct that the district court would consider, and,

therefore, he did not understand the gravity of his possible sentence. However, at

both plea hearings Luong was told that his relevant conduct could not be

determined until the PSI was generated and that he would not be able to withdraw

his plea if he received a more severe sentence than he thought he would receive.

He was also informed that his maximum sentence was thirty years.

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 Luong had the benefit of close assistance of counsel during his plea hearing,

and the government introduced evidence regarding the resources conserved and

prejudice avoided by denying the motion to withdraw the plea. Because Luong

knew his maximum sentence and because he knowingly entered his plea, the

district court did not abuse its discretion in denying his motion to withdraw it. See

Gonzales-Mercado, 808 F.2d at 801 (noting that close assistance of counsel and a

knowing and voluntary plea are strong evidence in support of a district court’s

denial of a motion to withdraw a guilty plea).

B. Sentencing Arguments

After the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005), we review sentences for reasonableness with the Guidelines

treated as advisory. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.

2005). Even after Booker, however, we still require district courts to use the

Guidelines to correctly calculate a sentencing range. United States v. Crawford,

407 F.3d 1174, 1178 (11th Cir. 2005). Thus, Booker did not alter our review of

the application of the Guidelines or the applicable standards of review. Id. In this

appeal, we undertake the now-familiar two-step analysis of a sentence. First, we

must determine whether the district court correctly employed the Guidelines to

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determine Luong’s sentencing range, including the proper inclusion of sentencing

enhancements and reductions. Second, we must review whether the overall

sentence is reasonable in light of the factors in § 3553(a).

1. Whether the Court Correctly Determined the Sentencing Range

Luong argues that two general errors plagued his sentencing hearing: first,

that the district court used the wrong evidentiary standard; second, that the district

court violated his Confrontation Clause right at sentencing. We address these

arguments in turn. We then address whether the district court should have sua

sponte departed downward, as argued by Luong. Finally, we discuss Luong’s

challenges regarding the specific application of sections of the sentencing

Guidelines to him.

Because Luong never raised a challenge in the district court to the

appropriate evidentiary standard at sentencing, we review for plain error. See

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,

126 S. Ct. 457 (2005).

An appellate court may not correct an error the defendant failed to
raise in the district court unless there is: (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.

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Id. (quotation omitted). In this context, “plain” means that “where the explicit

language of a statute or rule does not specifically resolve an issue, there can be no

plain error where there is no precedent from the Supreme Court or this Court

directly resolving it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)

(quotations omitted).

In this circuit, it is well-settled law that at sentencing “a federal defendant’s

due process rights are satisfied by the preponderance of the evidence standard.”

United States v. Jackson, 57 F.3d 1012, 1019 (11th Cir. 1995) (quotation and

alteration omitted); see also United States v. Rodriguez, 398 F.3d 1291, 1296 (11th

Cir.), cert. denied, 125 S. Ct. 2935 (2005) (affirming preponderance-of-the-

evidence standard after Booker). Because the law regarding the evidentiary

standard at sentencing is clear, the district court did not err, much less plainly err,

in applying a preponderance-of-the-evidence standard at sentencing.

In his second general argument, Luong argues that the district court violated

his rights under the Confrontation Clause, citing Crawford v. Washington, 541

U.S. 36, 124 S. Ct. 1354 (2004). However, because he did not raise this concern

before the district court, we review for plain error. Chau, 426 F.3d at 1321–22. In

Crawford, the Supreme Court held that when testimonial evidence is used against a

defendant, the defendant’s Sixth Amendment rights under the Confrontation

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Clause cannot be denied unless the witness was unavailable at trial and the

defendant had a prior opportunity to cross-examine him. 541 U.S. at 68, 124 S.

Ct. at 1374. We have, however, refused to extend Crawford to reliable hearsay

admitted at sentencing. United States v. Baker, 432 F.3d 1189, 1254 (11th Cir.

2005) (observing that, because Crawford did not address sentencing, the use of

reliable hearsay at sentencing was unaltered by the decision). Luong does not

articulate a non-Crawford rationale for his claim that the district court violated his

rights under the Confrontation Clause. Thus, the district court did not plainly err at

sentencing with regard to either the evidentiary standard or Luong’s Confrontation

Clause rights.

Finally, Luong seems to argue that the district court should not have counted

prior juvenile convictions in determining his criminal history category, however

such offenses are properly included. See U.S.S.G. §§ 4A1.1(b), 4A1.2(d)(2).

Luong also argues that the court should have departed downward from the criminal

history category because “reliable information indicates that defendant’s criminal

history category substantially over-represents the seriousness of the defendant’s

criminal history.” U.S.S.G. § 4A1.3(b)(1). It is unclear how specifically Luong

made these arguments to the district court. There was an objection lodged as to the

PSI, but no downward departure was requested.

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 We “generally do not review the merits of a district court’s refusal to grant a

downward departure.” United States v. Mignott, 184 F.3d 1288, 1289 (11th Cir.

1999). “[W]e may conduct a de novo review of a defendant’s claim that the

district court mistakenly believed it lacked the authority to grant such a departure.”

Id. However, “[t]o preserve an issue at trial for later consideration by an appellate

court, one must raise an objection that is sufficient to apprise the trial court and the

opposing party of the particular grounds upon which appellate relief will later be

sought. A general objection or an objection on other grounds will not suffice.”

United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986).

At sentencing, Luong never requested a downward departure based on his

criminal history category. In fact, he never mentioned § 4A1.3 in the district court.

As such, he never put the district court on notice that he was requesting a

downward departure. See Dennis, 786 F.2d at 1042. Furthermore, even if Luong

had filed a motion for a downward departure, we would not be able to review its

denial, unless there was evidence that the district court erroneously thought that it

lacked the authority to grant it. See Winingear, 422 F.3d at 1245. Because there is

nothing in the record to suggest that the district court believed that it lacked the

authority to make such a downward departure, we reject Luong’s argument.

Luong also argues that the Guidelines were used improperly to determine his

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offense level. We address these challenges in the subsequent sections.

a. Amount-of-Loss Calculation

For offenses involving counterfeit instruments, the offense level increases

with the amount of loss. See U.S.S.G. § 2B1.1(b)(1). According to the application

note, the loss amount is “the greater of actual loss or intended loss.” Id. § 2B1.1

cmt. n.3(A). In addition, “[t]he court need only make a reasonable estimate of the

loss. The sentencing judge is in a unique position to assess the evidence and

estimate the loss based upon that evidence. For this reason, the court’s loss

determination is entitled to the appropriate deference.” Id. § 2B1.1 cmt. n.3(C).

“We review for clear error the district court’s determination of amount of loss

under the Guidelines.” United States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005).

For relevant conduct for jointly undertaken criminal activity, “all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity . . . that occurred during the commission of the offense of

conviction” shall be factored into the determination of the offense level. U.S.S.G.

§ 1B1.3(a)(1). For fraudulent activity, each defendant is liable for the reasonably

foreseeable fraudulent activity of all the other codefendants involved in the fraud.

See id. § 1B1.3 cmt. n.2(c)(2); see also United States v. McCrimmon, 362 F.3d

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725, 732–33 (11th Cir. 2004) (per curiam).

The government presented testimony and exhibits that detailed the extent of

the fraud that involved Luong. Because the evidence supported the conclusion that

Luong was fully aware of the objectives of the conspiracy and was actively

involved in expanding it, the district court did not clearly err in finding that the

amount of loss exceeded $2,500,000.1 Thus, the court correctly assessed a

eighteen-level increase for the amount of loss. See U.S.S.G. § 1B1.3(c).

b. Increase for Use of an Unauthorized-Access-Device

Section 2B1.1 of the Sentencing Guidelines applies, inter alia, to offenses

that involve altered or counterfeit instruments. A 2-level increase is warranted if

the offense involved the production or trafficking of any unauthorized access

device or counterfeit access device or the possession of five or more means of

1
We agree with Luong that arbitrarily halving the proved amount of loss constitutes error.
The district court said, “[$5.8 million] total loss, right. [That] . . . is a huge amount. And even if
I hold Mr. Luong accountable for just half of that, he’s still in the same category. So that would be
my finding in this matter that Mr. Luong is held responsible for guideline calculation purposes of
an amount equal to or in excess of [$2.9 million].” R7 at 44. There is no factual support in the
record for an amount of loss of $2.9 million; the court limited neither the time frame nor the victims
in order to arrive at some amount less than the amount shown by the government . Furthermore,
there is no legal reason to prorate the amount of loss caused by Luong. For example, the presence
of coconspirators is immaterial; each is responsible for the entire amount foreseeably caused by the
conspiracy. See U.S.S.G. § 1B1.3 cmt. n.2(c)(2). There is support in the record for an amount of
loss of $5.8 million, a number on which the court admittedly based its factual conclusion. Thus, it
was legal error to divide the proven amount by two; however, because both $2.9 million and $5.8
million fall within the same specific offense characteristic increase, the error is harmless.

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identification that were produced unlawfully. U.S.S.G. § 2B1.1(b)(9). Luong did

not present this argument in the district court. Therefore, we review the district

court’s actions for plain error. See Camacho-Ibarquen, 410 F.3d at 1315.

Here, the evidence showed that Luong mailed more than five counterfeit

driver’s licenses to a codefendant. Therefore, the district court did not err, much

less plainly err, in applying § 2B1.1(b)(9).

c. Leadership-Role Enhancement

The Sentencing Guidelines require a district court to increase a defendant’s

base offense level because of that defendant’s role in an offense. Thus, a

defendant’s offense level is increased by 4 levels if he 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). “A defendant’s role as an organizer or leader is a

factual finding that we review for clear error to determine if the enhancement

under § 3B1.1 was applied appropriately.” United States v. Ramirez, 426 F.3d

1344, 1355 (11th Cir. 2005) (per curiam). A sentencing court considers the

following factors to determine if this enhancement applies,

(1) exercise of decision-making authority, (2) nature of participation
in the commission of the offense, (3) recruitment of accomplices,
(4) claimed right to a larger share of the fruits of the crime, (5) degree
of participation in planning or organizing the offense, (6) nature and

15
 scope of the illegal activity, and (7) degree of control and authority
exercised over others.

Id. (quotations omitted).

The evidence in the record supports a finding that Luong was a leader or

organizer of a large-scale check-cashing scheme involving five or more

participants, that he recruited others to participate, and that he took a large portion

of the profits. Therefore, the district court did not clearly err. We affirm the

district court’s application of § 3B1.1(a).

2. Reasonableness of Sentence Under 18 U.S.C. § 3553(a)

As explained previously, we review a sentence for reasonableness.

Winingear, 422 F.3d at 1244, 1246. Our review is guided by the factors in 18

U.S.C. § 3553(a).2 Winingear, 422 F.3d at 1244–45. The district court need not

address every factor, when the district court acknowledges the defendant’s

arguments and the factors in § 3553(a). United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005) (per curiam). The review for reasonableness is deferential. Id. at

788.

2
Relevant factors include the nature and circumstances of the offense, the history and
characteristics of the defendant, deterrence, the kinds of sentences available, the sentencing range
under the Guidelines, and the need to avoid disparity in sentences among similar defendants. See
18 U.S.C. § 3553(a).

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 The district court stated that, in determining the sentence, it considered the

factors in § 3553(a), the Guidelines range, the goals of punishment and deterrence,

and whether there were aggravating or mitigating circumstances. Because the

district court acknowledged the arguments that Luong made at sentencing and

addressed the § 3553(a) factors, we conclude that the district court imposed a

reasonable sentence.

III. CONCLUSION

Luong challenges his conviction for bank fraud and sentence to 136 months

imprisonment. We conclude that the district court did not abuse its discretion by

denying Luong’s motion to withdraw his plea, that it did not err in its calculation

of Luong’s sentence under the Guidelines, and that Luong’s sentence was

reasonable. Accordingly, we AFFIRM Luong’s conviction and sentence.

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