IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
__________________________ FILED
December 21, 2007
No. 05-21007
__________________________ Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VU ANH LE
Defendant-Appellant
___________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
___________________________________________________
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Vu Anh Le was convicted of one count of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Le was sentenced to
120 months imprisonment, and he now appeals his conviction and sentence. We
affirm.
FACTS AND PROCEEDINGS
The relevant events revolve around a series of altercations that occurred
during the evening of July 30, 2003, and the early morning of July 31, 2003.
Two groups of people arrived at Star Karaoke in Houston, Texas. One group
included Le, Le’s girlfriend, a man nicknamed Flavor, and Flavor’s girlfriend.
The other group included Ty Nguyen, Nguyen’s girlfriend, Dat Dao, Thong Dao,
and Nien Kao.
In the lobby of Star Karaoke, witnesses saw Le and Flavor playfighting
against each other with firearms. One gun was described as black and the other
as silver or black and silver. Later, in one of the karaoke rooms, Nguyen’s
girlfriend and Flavor’s girlfriend got into a physical altercation. Witnesses from
Nguyen’s group observed Le pull a silver gun from his waistband and fire it into
the ceiling. One of those witnesses, Dat Dao, then saw Le place a silver gun in
his pants. The club manager told everyone to leave. Outside, the two women
continued their physical altercation. Nguyen tried to stop the fight.
At this point, there was some disagreement as to what occurred.
Witnesses stated that Le drew a firearm and either aimed it at the back of
Nguyen’s head or held it out while telling Flavor to leave and go home. Without
firing the gun, Le walked away. Witnesses stated that Flavor then walked over
to Nguyen and shot him in the head, killing him. A bullet also hit another
person at the scene. Flavor then fled the scene.
Police subsequently arrived and discovered a silver gun in the trash can
of the men’s restroom of Star Karaoke. The police found a cartridge case whose
location suggested that it was the case from the bullet that went through the
ceiling of the karaoke room, where a hole was found. No DNA evidence or
fingerprints were recovered from the gun.
Le was convicted of being a felon in possession of a firearm. Because there
was no physical evidence tying Le to the firearm, the government’s case relied
on the testimony of various individuals who saw him with a gun during the
evening. Le appeals, raising four points of error.1
1
Le also argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face or as
applied. He concedes that these issues are foreclosed by United States v. Daugherty,
264 F.3d 513, 518 (5th Cir. 2001). Le raises the claims here to preserve them for
2
DISCUSSION
I. Supplemental jury instructions
During deliberations, the jury sent a note to the judge asking: “Are we
allowed to consider the statements made to police as evidence, or only to
impeach statements made in court?” Le argued that the judge should simply
instruct the jurors to read the instructions that were given to them before they
retired to their deliberations. Instead, the judge gave the jury various
instructions on the rules of evidence which dealt with bases on which to treat the
testimony as substantive, rather than only impeachment, evidence. Le renewed
his objection to the supplemental jury instructions.
The government argues for plain error review on the basis that defense
counsel’s objection at trial was only to the actual giving of supplemental
instructions and did not refer to the specific issues raised on appeal. The
defendant argues that his objection to the giving of supplemental instructions
preserved all of his arguments relating to those instructions. Because we reject
the defendant’s arguments under either standard of review, we will assume that
the defendant preserved these issues for appeal.
With respect to supplemental jury instructions, “appellate courts are
guided by lofty, but very general, propositions and admonitions.” United States
v. Carter, 491 F.2d 625, 633 (5th Cir. 1974). This court, in considering
supplemental jury instructions, considers whether “the court’s answer was
reasonably responsive to the jury’s questions and whether the original and
supplemental instructions as a whole allowed the jury to understand the issue
presented to it.” United States v. Cantu, 185 F.3d 298, 306 (5th Cir. 1999)
further review. See McKnight v. Gen. Motors Corp., 511 U.S. 659, 659–60 (1994) (per
curiam).
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(internal quotation omitted). The Supreme Court has cautioned about the
impact of supplemental charges to the jury. “Particularly in a criminal trial, the
judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital
issue and misleading, the error is not cured by a prior unexceptional and
unilluminating abstract charge.” Bollenbach v. United States, 326 U.S. 607, 612
(1946). Fifth Circuit caselaw has suggested that when giving a supplemental
instruction the district court should either refer the jury back to the original
instructions, “remind them that all instructions must be considered as a whole[,
o]r take other appropriate steps to avoid any possibility of prejudice to the
defendant.” United States v. L’Hoste, 609 F.2d 796, 809 (5th Cir. 1980) (internal
quotation omitted).
“[W]hen the jury requests further instructions on points which are
favorable to the Government, the trial judge should repeat instructions favorable
to the defense where the requested information taken alone might leave an
erroneous impression in the minds of the jury.” Carter, 491 F.2d at 634 (internal
quotation omitted). The district court must meet “the high standard of balance
and fairness necessary to assure [the] defendant a fair trial.” Id. at 633.
Accordingly, the touchstone of the inquiry might be described as whether there
was prejudice to the defendant. See L’Hoste, 609 F.2d at 809.
On appeal, Le challenges the supplemental jury instructions on two
grounds: (1) the district court gave impermissibly government-favored
instructions, and (2) the district court failed to refer to the original instructions.2
(1) Impermissibly government-favored supplemental instructions
2
Le asserts vaguely that the supplemental instructions contained misstatements
of the law, but he does not clearly explain this argument. His argument is deemed
waived for inadequate briefing. See United States v. Freeman, 434 F.3d 369, 374 (5th
Cir. 2005).
4
The theory of the defense was that the witnesses were lying because they
had feelings of acrimony towards Le due to the altercations between the two
groups at Star Karaoke. In order to discredit these witnesses, Le attempted to
show inconsistencies between their testimony to the police and their testimony
at trial. Accordingly, Le argues that by giving supplemental instructions that
referred only to the admissibility of these statements as substantive evidence,
the district court prejudiced his defense by directing the jury’s attention away
from the impeachment value of these statements.
The supplemental jury instructions did not prejudice Le’s defense. While
the emphasis of the supplemental instructions was admittedly on bases for
admission of testimony that did not favor Le’s theory of the case, the jury
question indicated by its own terms that the jury already understood that this
testimony was admissible for impeachment purposes. The jury asked, “Are we
allowed to consider the statements made to police as evidence, or only to
impeach statements made in court?” The jury therefore demonstrated its
knowledge and awareness that these statements were admissible to impeach the
witnesses’ credibility, which goes to Le’s theory of the case. As such, the giving
of supplemental jury instructions was not reversible error.
(2) Failure to refer to original instructions
The district court did not refer back to the original instructions after
giving the supplemental instructions. While Le’s counsel did not request that
the court do so, this court has stated that a reference to the original jury
instructions is necessary when the supplemental instructions “taken alone might
leave an erroneous impression in the minds of the jury.” Carter, 491 F.2d at 634
(internal quotation omitted). The caselaw indicates substantial concern with the
possibility of prejudice in such situations. See L’Hoste, 609 F.2d at 809. As
noted, however, the jury’s question itself indicated that it understood that the
5
prior statements were admissible to show impeachment. The failure to refer to
the original instructions while giving the supplemental instructions did not
prejudice the defendant. We reject this basis for reversal.
II. Parole status statements
This court reviews for abuse of discretion the district court’s denial of a
motion for a mistrial based on the admission of prejudicial testimony. United
States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998). In situations where the jury
hears prejudicial information, “a new trial is required only if there is a
significant possibility that the prejudicial evidence had a substantial impact
upon the jury verdict, viewed in light of the entire record.” Id.
Le and the government agreed prior to trial to stipulate to Le’s prior felony
conviction. After the close of the government’s case-in-chief, a statement was
read to the jury which indicated that the parties “agree[d] to stipulate that the
defendant had been convicted of a felony punishable by more than one year
imprisonment, prior to July 31st, 2003, the date of the offense at issue.”
During the trial, Le’s parole status was mentioned three times. First,
during opening statements, the government stated that Le knew he needed to
rid himself of the gun because of his parole status. Le did not object. Second, a
police detective testified for the government that Le “said he couldn’t have [a
firearm] because he was on parole.” Le objected, the government did not dispute
the objection, and the court sustained the objection. The court did not, however,
direct the jury to disregard the statement at the time nor did Le request that the
court do so. Third, the government stated during closing argument that Le had
originally wanted to flee the scene because the police were en route and he knew
he should not have the gun because he was on parole. After objection and
discussion at the bench, Le’s counsel decided against a curative instruction but
instead moved for a mistrial, which was denied. Le’s counsel declined the
6
opportunity for the court to direct the jury to ignore the statement, stating that
this would draw even more attention to the information. Le argues that the
district court erred in denying his motion for a mistrial after the government
mentioned that he was on parole when he committed the offense.
These three references were a very small part of the trial. The jury heard
testimony from various witnesses that Le brandished a firearm on at least two
occasions during the evening, and the police recovered a gun from a location Le
was seen near after the altercations occurred. Furthermore, the reference to
Le’s parole status during opening statements went by without objection. At this
point the jury had the information. The testimony objection was sustained. Le’s
counsel declined a curative instruction regarding the closing argument
statement. The references to Le’s parole status did not have a “substantial
impact upon the jury’s verdict.” Paul, 142 F.3d at 844. We reject this basis for
reversal.
III. Four-level enhancement under U.S.S.G. § 2K2.1(b)(5)
This court reviews de novo the district court’s guidelines interpretations
and reviews for clear error the district court’s findings of fact. United States v.
Aguirre-Villa, 460 F.3d 681, 682 (5th Cir. 2006). In addition, this court “may
affirm the district court’s judgment on any basis supported by the record.”
United States v. Clay, 408 F.3d 214, 218 n.7 (5th Cir. 2005). The government
argues that the court should only review for plain error because Le’s objection
on appeal is different from that raised in district court. Because we reject Le’s
argument under either standard of review, we will assume that he preserved the
issue for appeal.
The district court applied a four-level sentencing enhancement based on
a finding that “the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5) (2004). The
7
guidelines define “felony offense” in this enhancement as “any offense (federal,
state, or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought or conviction obtained.” Id. cmt.
n.4. The court at sentencing credited trial testimony indicating that Le
possessed the firearm in connection with another felony offense, namely, the
Texas felony of aggravated assault.
Le’s argument on appeal is that the evidence presented at trial was
insufficient to permit this enhancement because aggravated assault under Texas
law requires the victim to perceive the threat of bodily injury. See McGowan v.
State, 664 S.W.2d 355, 357–58 (Tex. Crim. App. 1984). Le asserts that the
evidence at trial never indicated that the victim of the alleged assault, Nguyen,
perceived that he was being threatened by Le. The government argues that the
evidence was sufficient to conclude that Le committed an attempted aggravated
assault and urges the court to uphold the enhancement on this alternative basis.
See Clay, 408 F.3d at 218.
Under Texas law, “[a] person commits an offense [of attempt] if, with
specific intent to commit an offense, he does an act amounting to more than
mere preparation that tends to but fails to effect the commission of the offense
intended.” TEX. PENAL CODE § 15.01(a). Because the aggravating factor here
was the use of a deadly weapon, the attempt would be an attempted aggravated
assault. Id. § 15.01(b). Texas law treats an attempted aggravated assault as a
third degree felony, which is punishable by between two and ten years
imprisonment. TEX. PENAL CODE §§ 12.34(a), 15.01(a), 22.02(a)(2).
The evidence at trial substantiates the conclusion that Le committed an
attempted aggravated assault, as he pointed the gun at Nguyen in the middle
of a heated situation in which two people, one from each of their respective
groups, were fighting. On this alternative basis, we reject Le’s argument that
8
the four-level enhancement was improper.
IV. Base offense level for a prior conviction of a “controlled substance
offense”
Le acknowledges that he did not object to the determination of the base
offense level at trial, and therefore review is for plain error only. United States
v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). On plain error, the defendant
must establish (1) error, (2) that was plain, (3) that affected substantial rights,
and (4) that the court should use its discretion to correct the error because
failure to do so would result in a miscarriage of justice. Id. at 358–59.
The district court determined that Le’s base offense level should be twenty
because “the defendant committed any part of the instant offense subsequent to
sustaining one felony conviction of . . . a controlled substance offense.” U.S.S.G.
§ 2K2.1(a)(4)(A) (2004). The relevant guidelines section defines “controlled
substance offense”:
The term “controlled substance offense” means an offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.
U.S.S.G. § 4B1.2(b).3 The government must prove by “a preponderance of the
relevant and sufficiently reliable evidence” that the prior conviction permits the
guidelines classification. United States v. Herrera-Solorzano, 114 F.3d 48, 50
(5th Cir. 1997) (internal quotation omitted).
Generally, courts employ the so-called categorical approach from Taylor
3
Le correctly identifies that this language is the same language used in the
definition of “drug trafficking offense” under U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
Accordingly, cases discussing these definitions are cited interchangeably.
9
v. United States, which instructs “the trial court to look only to the fact of
conviction and the statutory definition of the prior offense.” 495 U.S. 575, 602
(1990). In a narrow range of cases, like the drug offense presented here, courts
may examine “the statutory definition of the offense, the charging paper and
jury instructions.” United States v. Allen, 282 F.3d 339, 343 (5th Cir. 2002)
(referencing Taylor). Under Shepard v. United States, the Supreme Court
defined this inquiry with respect to a case involving a guilty plea to include “the
statutory definition, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” 544 U.S. 13, 16 (2005).
The parties agree that the prior conviction was for “Manufacture or
Delivery of Substance in Penalty Group 2” under section 481.113(a) of the Texas
Health & Safety Code. This statute states that “a person commits an offense if
the person knowingly manufactures, delivers, or possesses with intent to deliver
a controlled substance listed in Penalty Group 2.” Id. One can violate this Texas
statute in at least five ways: “1) manufacture, 2) an offer to sell;4 or 3) possession
with intent to deliver; or through knowing delivery by 4) actual transfer; or 5)
constructive transfer.” Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App.
2003).5
Le argues that the guidelines classification was improper because
engaging in an “offer to sell,” the second way to violate the Texas statute, would
not constitute a “controlled substance offense” as defined in the guidelines. The
4
Under this statute, an “offer to sell” is a type of delivery. Id.
5
Lopez actually dealt with section 481.112 of the Texas Health & Safety Code
rather than section 481.113. The only difference in statutory language between these
sections is the penalty group in which the drug is listed. Accordingly, the caselaw
applies interchangeably in analyzing the other elements of both crimes.
10
Texas statute of conviction permits a conviction under its “delivery” section by
virtue of an offer to sell without possession, Lopez, 108 S.W.3d at 297, and in
order for Le’s conviction to be classified as a controlled substance offense under
the guidelines, it must involve possession of drugs. See United States v. Garza-
Lopez, 410 F.3d 268, 274 (5th Cir. 2005). But cf. United States v. Palacois-
Quinonez, 431 F.3d 471, 476 (5th Cir. 2005) (distinguishing Garza-Lopez by
holding that “possession with intent to distribute” can include “constructive
possession” attained by one who purchases drugs for future sale).
The materials Le himself attached to the record on appeal indicate that he
possessed the drugs. One of the documents is a guilty plea in which Le said, in
a signed statement, that he “committed the offense of possession of a controlled
substance on June 1, 2000 along with Benjamin Dang and Rathna King who had
joint possession of the ecstasy, knew of it and were also exercising care, custody,
and control over it.” This written plea document is admissible. See Shepard, 544
U.S. at 16; see also United States v. Castillo-Morales, No. 07-40053, 2007 WL
3287531, at *3 (5th Cir. Nov. 8, 2007) (holding that when a defendant stipulates
that a factual basis for his plea is present in court documents, courts may use
any uncontradicted facts in those documents to establish an element of a prior
conviction for sentencing purposes).
The guilty plea document negates the possibility that Le’s conviction was
for conduct that did not involve possession. Le specifically stated that he
pleaded guilty to possession of drugs. It is clear from this document that Le was
not pleading guilty to delivery by an offer to sell without possession. The only
way to violate the Texas statute of conviction by possessing drugs is to do so with
intent to distribute in some way; the Texas statute does not permit a conviction
for possession without intent to manufacture, delivery, or distribute. See Lopez,
108 S.W.3d at 297. Accordingly, the only way for Le to have pleaded guilty to
11
violating the Texas statute of conviction by virtue of “possession of a controlled
substance,” is to have “possesse[d] with intent to delivery a controlled
substance.” TEX. HEALTH & SAFETY CODE § 481.113(a). Such a conviction
qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). See
United States v. Ford, No. 06-21042, 2007 WL 4303800, at *3–4 (5th Cir. Dec. 11,
2007) (holding that “possession with intent to deliver” under the Texas statute
is indistinguishable from “possession with intent to distribute,” and thus
qualifies as a “controlled substance offense” under the guidelines). We therefore
reject this basis for reversal of Le’s sentence.
CONCLUSION
We AFFIRM the judgment of the district court.
12