[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10487 JUNE 12 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00099-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER THAI HOANG,
a.k.a. Ti Bo,
a.k.a. Peter Hoang,
Defendant-Appellant.
________________________
No. 06-10488
Non-Argument Calendar
________________________
D. C. Docket No. 05-00101-CR-3-003-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER THAI HOANG,
a.k.a. Ti Bo,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(June 12, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Peter Thai Hoang appeals his 236-month
sentence for conspiring to distribute and to possess with the intent to distribute
methylenedioxymethamphetamine (“MDMA”) and five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 841 and 846, and a concurrent 236-month
sentence for conspiring to launder money, in violation of 18 U.S.C. § 1956(h). On
appeal, Hoang argues the district court erred in calculating his offense level under
the Sentencing Guidelines by (1) imposing a 4-level enhancement, pursuant to
U.S.S.G. § 3B1.1(a), for Hoang’s leadership role in the drug conspiracy; and (2)
imposing a 2-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based on a
co-conspirator’s possession of a firearm. Upon thorough review of the record and
careful consideration of the parties’ brief, we affirm.1
1
Hoang also challenges the district court’s application of § 3B1.1(c) in calculating his
offense level for the money laudering conspiracy. Under the Guidelines, counts which are closely
2
A district court’s sentencing determinations on whether a defendant
qualifies for a minor-role adjustment and whether a defendant possessed a firearm
are findings of fact that we review for clear error. United States v. De Varon, 175
F.3d 930, 934 (11th Cir.) (en banc) (minor-role adjustment), cert. denied, 528 U.S.
976 (1999); United States v. Alred, 144 F.3d 1405, 1420 (11th Cir. 1998)
(possession of a firearm). We have observed,
a trial court’s choice between two permissible views of the evidence is
the very essence of the clear error standard of review. So long as the
basis of the trial court’s decision is supported by the record and does
not involve a misapplication of a rule of law . . . it will be rare for an
appellate court to conclude that the sentencing court’s determination
is clearly erroneous.
De Varon, 175 F.3d at 945 (quotation and citation omitted).
The parties are familiar with the underlying facts of the conspiracies and we
do not recount them again here. According to the facts of the presentence
investigation report (“PSI”), which the district court adopted, and the testimony
presented at Hoang’s sentencing hearing, Hoang was arrested as part of an
related are combined into a single group. See U.S.S.G. § 3D1.2(c). Laundering money is
considered to be closely related to the offense that produced the laundered funds -- in this case, the
drug trafficking conspiracy. See U.S.S.G. § 2S1.1, comment. (n.6). The total offense level for a
group is the highest offense level of the counts in the group. U.S.S.G. § 3D1.3(a). Because Hoang’s
total offense level was determined by grouping his two counts of conviction together and both
counts had the same offense level, any alleged error relating to the scoring of the money laundering
conspiracy count would not affect the application of the Guidelines to Hoang’s case and is,
therefore, harmless error. See U.S.S.G. § 3D1.3(a); Williams v. United States, 503 U.S. 193, 202-03
(1992) (holding that an incorrect application of the Guidelines by the district court does not need
to be remanded when the error was harmless and would not affect the defendant’s sentence).
3
international drug trafficking conspiracy that was under Vietnamese leadership and
stretched across several continents. The primary purpose of the international drug
conspiracy involved laundering profits from MDMA sales. To that end, the
conspiracy consisted of local cells, or “franchises,” in various parts of the United
States, including Louisiana, Texas, Mississippi, and Florida.
John Cao, Hoang’s co-defendant, established a local cell in Pensacola,
Florida. Appellant Hoang and his brother, Paul Hoang, were the two “key leaders”
or “first level distributors” in the Pensacola-based cell, and Title III wiretaps2
documented 20 or more conversations between appellant Hoang and Cao regarding
drug distribution and laundering of the proceeds. The PSI noted that appellant
Hoang actively negotiated the price of the drugs with the suppliers and directed the
activities of other. The PSI additionally described distributions from the first-level
distributors to “second or mid-level distributors” of large amounts of MDMA
supplied by Cao and Mike Pham to the Hoangs. In addition to trafficking MDMA
and laundering the proceeds of the scheme, the Pensacola cell also trafficked
kilogram-quantities of cocaine, under the primary leadership of appellant Hoang,
and marijuana, under the primary leadership of Paul Hoang.
2
See Title III of the Omnibus Crime Control and Safe Streets Act, Pub. L. 90-351, 82
Stat. 212 (1968) (codified at 18 U.S.C. § 2510 et seq.).
4
After a jury convicted him of both conspiracy counts, appellant Hoang
proceeded to sentencing. The PSI grouped Hoang’s offenses together, pursuant to
U.S.S.G. § 3D1.2(c), and calculated the base offense level for the money
laundering offense by looking at the offense level for the offense that produced the
laundered funds, which in this case was 34, pursuant to U.S.S.G. § 2D1.1. The PSI
then recommended the following adjustments to Hoang’s offense level: (1) a two-
level increase, pursuant to U.S.S.G. § 2D1.1(b)(1), because a dangerous firearm
was possessed; (2) a two-level increase, pursuant to U.S.S.G. § 2S1.1(b)(2)(B),
because Hoang was convicted under 18 U.S.C. § 1956; (3) a four-level increase,
pursuant to U.S.S.G. § 3B1.1(a), because Hoang was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive; and (4) a three-level downward adjustment, pursuant to U.S.S.G. §
3E1.1(a) and (b), for acceptance of responsibility. With an adjusted offense level
of 39 and a criminal history category I, Hoang faced a Guidelines sentencing range
of 262-327 months’ imprisonment.
At the sentencing hearing, as to the drug trafficking conspiracy, the district
court overruled Hoang’s objection to the § 2D1.1(b)(1) enhancement, finding that
because it was reasonably foreseeable that the conspiracy would involve a gun, the
enhancement applied to Hoang based on his co-conspirator’s possession of a
5
firearm. The district court also overruled Hoang’s objection to the assessment of
the § 3B1.1(a) four-level enhancement, noting that the evidence of Hoang’s
leadership activities in the conspiracy was “overwhelming” because there was
evidence that Hoang recruited people, provided drugs on consignment, and
arranged for deliveries. After a three-point adjustment for acceptance of
responsibility, Hoang’s adjusted offense level was 37.
The district court then calculated the money laundering conspiracy as having
a base offense level of 34, and assessed three two-point increases for the use of a
firearm by others, U.S.S.G. § 2D1.1(b)(1); Hoang’s conviction for violating 18
U.S.C. § 1956, U.S.S.G. § 2S1.1(b)(2)(B); and Hoang’s role in the offense,
U.S.S.G. § 3B1.1(c). After a three-point reduction for acceptance of responsibility,
Hoang’s adjusted offense level was 37.
Since the offense level for both conspiracies was 37, the overall offense
level was 37. With a criminal history category I, Hoang’s Guidelines
imprisonment range was 210-262 months. The district court imposed a 236-month
term of imprisonment on each count, with the sentences to run concurrently. This
appeal followed.
First, Hoang argues the district court erred by imposing a four-point
enhancement under U.S.S.G. § 3B1.1(a) based on his aggravating role in the drug
6
conspiracy. Hoang claims that all of his interactions with other conspirators
involved merely buying and selling drugs and that he did not have the authority or
control required to be considered an organizer or a leader under the Sentencing
Guidelines.
“The government bears the burden of proving by a preponderance of the
evidence that the defendant had an aggravating role in the offense.” United States
v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). Section 3B1.1(a) states that, “[i]f
the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive, increase [the offense level] by 4
levels.” A participant is “a person who is criminally responsible for the
commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1,
comment. (n.1). In determining the defendant’s role in the offense, the district
court should consider
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning and organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). “Section 3B1.1 requires the exercise of some
authority in the organization, the exertion of some degree of control, influence, or
7
leadership.” United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir.), cert.
denied, 127 S. Ct. 128 (2006) (citation and quotation omitted).
While Hoang is right that the level of control, leadership, or influence
needed to justify an enhancement under § 3B1.1(a) requires more than merely a
buyer/seller relationship, see Alred, 144 F.3d at 1422, the record contains
overwhelming evidence of Hoang’s control and leadership over others, such as
Perry Williams who accepted and processed kilogram-quantities of cocaine at his
house, all at Hoang’s direction. Cf. United States v. Mesa, 247 F.3d 1165, 1169-70
(11th Cir. 2001) (distinguishing Alred based on the presence of evidence that the
defendant directed people who stored and delivered cocaine, who unloaded and
prepacked vehicles, and who translated drug transactions). Moreover, the
government presented abundant evidence concerning Hoang’s efforts to recruit
new members for all levels of the drug trafficking conspiracy, and that his efforts
involved the direction or recruitment of at least five other co-conspirators. Simply
put, a preponderance of the evidence supported the district court’s finding that
appellant Hoang exercised control and leadership over the individuals who bought
drugs from him. Accordingly, the district court’s finding that Hoang was an
organizer or leader of the criminal enterprise was not clearly erroneous. See De
Varon, 175 F.3d at 945.
8
We likewise are unpersuaded by Hoang’s challenge to the district court’s
application of the two-point enhancement under U.S.S.G. § 2D1.1(b)(1) based on
the court’s finding that it was reasonably foreseeable to Hoang that a co-
conspirator would possess a firearm in the course of the drug trafficking
conspiracy. Under § 2D1.1(b)(1), a two-point enhancement is warranted if a
dangerous weapon, including a firearm, was possessed. We have held that, in
order for the § 2D1.1(b)(1) firearm enhancement to be applied based on a
co-conspirator’s gun possession, the government must show the following by a
preponderance of the evidence: “(1) the possessor of the firearm was a
co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the
defendant was a member of the conspiracy at the time of possession, and (4) the
co-conspirator possession was reasonably foreseeable by the defendant.” United
States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999).
Here, one of the firearms attributed to Hoang was possessed by his brother
and co-conspirator, Paul Hoang. Paul Hoang’s possession of a firearm supported
application of the § 2D1.1(b)(1) enhancement to appellant Hoang’s offense level
because it was reasonably foreseeable, given the lucrative and illegal nature of the
drugs involved and the common knowledge that guns are tools of the drug trade, as
well as Hoang’s leadership position in the conspiracy, that a co-conspirator would
9
possess a firearm. See United States v. Pham, 463 F.3d 1239, 1245-46 (11th Cir.
2006). Moreover, as we observed in co-conspirator Mike Pham’s appeal, the large
amounts of drugs and money and the vastness of this particular conspiracy further
support the enhancement. Id. at 1246. The government also presented Title III
phone interceptions in which Hoang actually discussed using a firearm in
connection with settling business. On this record, the four Gallo requirements are
satisfied. Paul Hoang was a co-conspirator who possessed the firearm in
furtherance of the conspiracy at a time when appellant Hoang was a member of the
conspiracy. And the firearm use was reasonably foreseeable to appellant Hoang
because of the nature of the drug conspiracy in which Hoang was involved. See
Pham, 436 at 1246. Therefore, the district court did not clearly err in applying the
§ 2D1.1(b)(1) enhancement. See id.
AFFIRMED.
10