[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 11, 2006
No. 06-10880 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00099-CR-3-002-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKE LINH PHAM,
a.k.a. Mike Pham,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 11, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Mike Linh Pham appeals his 264-month sentence, imposed after he pled
guilty to conspiracy to distribute and possession with intent to distribute ecstasy,
violations of 21 U.S.C. §§ 841(b)(1)(A)(ii), (b)(1)(C), and 846, as well as his 240-
month sentence, imposed after he pled guilty to conspiracy to commit money
laundering, a violation of 18 U.S.C. § 1956(h). On appeal he argues that (1) the
drug quantity attributed to him at sentencing was derived from information he
provided to the government as part of his plea agreement in violation of U.S.S.G.
§ 1B1.8, and (2) the district court erred by applying a two-level enhancement for
possession of a firearm by a co-conspirator. For the reasons set forth more fully
below, we affirm.
Pursuant to the plea agreement, Pham agreed that the conspiracy involved in
excess of 70,000 MDMA pills and well in excess of 5 kilograms of cocaine, but
reserved any specific findings for sentencing. Pham also agreed to cooperate fully
with the United States Attorney in any ongoing investigations, and in return, the
government agreed to treat any statements made by Pham as given under
Fed.R.Crim.P. 11(f), Fed.R.Evid. 410, and U.S.S.G. § 1B1.8.
A presentence investigation report (PSI) determined the drug quantity
applicable to Pham based on information collected from Title III intercepts,
debriefings of codefendants, information obtained from confidential informants,
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admissions after Miranda warnings, and drug seizures. Using a drug equivalency
table, the PSI attributed 13,563.6 kilograms of marijuana to Pham. This
calculation was based on statements of codefendants Peter Hoang and Chieu
Nguyen. Hoang reported that he received at least 6,000 MDMA tablets from
Pham, as well as 13.6 kilograms of marijuana. Nguyen stated that he and Pham
transported at least 64 kilograms of cocaine, and intercepted telephone calls
confirmed information provided by Pham regarding Nguyen’s source in Texas and
Nguyen’s travel there to obtain the drugs.
As to firearms, the PSI reported that a search of Paul Hoang’s residence
revealed a small, locked safe that contained a small amount of marijuana, a scale
and other drug paraphernalia, and an unloaded .9 mm pistol with a loaded
magazine. Title III intercepts contained numerous conversations where Paul
Hoang referenced a safe that contained drugs and drug proceeds, as well as
conversations where Hoang admitted to owning a gun and planning to use it to
settle disputes in connection with his drug activity. According to the government’s
notice of incorrect statement of fact, there were also intercepts between Paul and
Anthony Hoang wherein Paul expressed an intention to obtain the gun from the
house and use it.1
1
The PSI listed the conversation as between Paul and Peter Hoang. Counsel for the
government, however, filed a notice of incorrect statement of fact indicating that the
3
Based on the drug quantity and firearm, the PSI set Pham’s base offense
level at 36 and added a two-level enhancement for possession of a firearm because
it was reasonably foreseeable that someone involved in the drug conspiracy would
possess a firearm in furtherance of that conspiracy, U.S.S.G. § 2D1.1(b)(1), (c)(2).
After applying an enhancement and reduction irrelevant to this appeal, ultimately
Pham’s total offense level was 37. Pham’s criminal history category was II, which,
at offense level 37, provided for an advisory sentencing range of 235 to 293
months’ imprisonment on each charge.
At sentencing, Pham objected that the drug weight attributed to him was
derived from information he provided after entering his plea agreement, and,
furthermore, was obtained either directly from him or from Nguyen, about whom
he provided information and who subsequently confirmed the drug weight. As to
the firearm, he objected that it was found in Paul Hoang’s home, a person with
whom Pham had no dealings, and the firearms were neither found in proximity to
drugs or found to be possessed during the conspiracy.
In response, the government presented the testimony of Drug Enforcement
Administration (DEA) Special Agent John Johnson. Johnson testified that the
conversation was between Paul and Anthony Hoang. The government asserts that this fact is
immaterial. A review of the sentencing transcript revealed that the district court did not base its
rulings regarding the firearm on the participants of the conversation. Thus, this opinion reflects
the accurate statement of fact as provided by the government.
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quantities of cocaine transferred by Pham to North Carolina were provided
independently by Nguyen in an interview that took place after Pham provided
information regarding the same drug transfer. Johnson further testified that no
information provided by Pham was communicated to Nguyen prior to Nguyen’s
debriefing. Nguyen eventually was convicted, but based on independent
information from the overall investigation, not information provided by Pham.
As to the firearm, Johnson testified that the gun was found in Paul Hoang’s
bedroom, which was located in Peter Hoang’s house, someone with whom Pham
dealt during the conspiracy. Johnson further testified that the gun was discovered
in a lock box that also contained marijuana. Moreover, Johnson testified that
intercepts of conversations between Pham and Peter Hoang indicated that Pham
told Hoang that his (Pham’s) residence had been burglarized and someone had
stolen a number of his weapons.2
On cross-examination, Johnson stated that Nguyen previously had been
debriefed on two occasions, but did not disclose the drug weights until after Pham
had given his statement. However, when Nguyen finally did disclose the
2
The government later filed a notice of error in sentencing in which it admitted that
Agent Johnson had mistakenly testified that it was Pham whose apartment was burglarized. In
reality, it was Nguyen who stated that weapons had been stolen. However, because the firearm
enhancement was based on the reasonable foreseeability of someone involved in the conspiracy
using a firearm, Pham did not seek a reconsideration of his sentence because the conversation
was not the basis for the enhancement. The government also pointed out that Nguyen and Pham
were closely associated.
5
transactions in North Carolina, he did so without any questions concerning that trip
or any other possible trip that involved transporting drugs between states.
The district court then overruled both of Pham’s objections. First, it found
that it was reasonably foreseeable that firearms would play a part in the conspiracy.
Second, it found that the drug amounts were not calculated based on Pham’s
debriefing or any other information he provided. Thus, the court found the PSI to
be accurate and imposed a sentence of 264 months’ imprisonment on the drug
charge, the mid-point of the guidelines’ recommended range, and 240 months’ (the
statutory maximum) for the money laundering charge, to be served concurrently.
I. Drug Quantity Evidence
On appeal, Pham first argues that the district court erred by allowing the
government to use statements and information obtained pursuant to his plea and
cooperation or from sources provided by Pham and previously unknown to the
government to enhance his sentence in violation of U.S.S.G. § 1B1.8, which
prohibits a court from relying on evidence at sentencing that was provided to the
government as a means of cooperation under the plea agreement. Specifically, he
argues that § 1B1.8's plain language requires that any corroboration of Pham’s
statements given pursuant to a plea agreement and cooperation must have been
before the entry of the agreement, and, therefore, because the government’s
6
evidence of drug weight was the same as the statements given by Pham, his
sentence must be vacated. Pham further argues that it was only after he gave his
statement regarding drug quantity that the government proceeded to use his
statement, directly or indirectly, to get a confirmation of that drug quantity from
Nguyen. Pham argues that the evidence used to enhance his sentence, therefore,
was tainted. He also argues that the government failed to meet its burden of
showing that its evidence was derived from an independent source, and not Pham’s
immunized statements. Lastly, Pham argues that the government’s use of his
statements amounted to a breach of the plea agreement and his case should be
remanded for resentencing before a different judge because permitting the
agreement to stand would drastically restrict the candor of informants.
This issue presents a question of first impression in this Circuit. We
conclude, like the other circuits to have addressed the issue, that where a defendant
alleges a violation of U.S.S.G. § 1B1.8 in district court, the court is required to
make factual findings that are reviewed for clear error. See United States v.
Gibson, 48 F.3d 876, 878 (5th cir. 1995); United States v. St. Julian, 922 F.2d 563,
566 (10th Cir. 1990).
Section 1B1.8 provides that, “[w]here a defendant agrees to cooperate with
the government by providing information concerning unlawful activities of others,
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and . . . the government agrees that self-incriminating information . . . will not be
used against the defendant, then such information shall not be used in determining
the applicable guideline range.” U.S.S.G. § 1B1.8(a). However, some information
is also excepted from the rule, such as information known to the government prior
to entering the agreement, information regarding prior convictions, and
information in a prosecution for perjury. U.S.S.G. § 1B1.8(b)(1)-(3). Subsection
(a) also does not apply in the event the defendant breaches the agreement or in a
case where a downward departure for substantial assistance may be warranted.
U.S.S.G. § 1B1.8(b)(4)-(5).
While we have not addressed the specific question presented, we are not
without some guidance from other circuits. The Third Circuit, citing Gibson,
supra, has held that the use of “information post-dating the agreement and obtained
from independent sources is not barred.” United States v. Baird, 218 F.3d 221, 231
(3d Cir. 2000). “Information separately gleaned from co-defendants is also fair
game . . . .” Id. (citation omitted). However, “the government may not evade
U.S.S.G. § 1B1.8(a) where the evidence was elicited solely as a result of, or
prompted by, the defendant’s cooperation.” Id. We agree and conclude that, so
long as the information is obtained from independent sources or separately gleaned
from codefendants, it may be used at sentencing without violating § 1B1.8. We
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turn now to the evidence presented by the government.
The government offered Agent Johnson’s testimony, which showed that,
while Pham told authorities about the drug quantities transferred to North Carolina,
that information was not provided in any way to Nguyen, who later corroborated
Pham’s statement regarding drug quantity in an interview. There was no evidence
that Johnson induced Nguyen to discuss those drug quantities by using Pham’s
statements or that Nguyen would not have told authorities about those drug
quantities absent Pham’s cooperation and agreement. In this respect, Pham’s case
is similar to a Tenth Circuit case, United States v. Davis, 912 F.2d 1210, 1213
(10th Cir. 1990), where the defendant made the same argument advanced by
Pham—that the district court relied on his statements regarding drug quantity in
violation of the plea agreement. The Tenth Circuit rejected the defendant’s claims,
stating:
There is no indication that the co-defendants’ statements were elicited
as a result of Davis’ plea agreement with the government, and Davis
provided no evidence that, had he refused to cooperate, his
co-defendants likewise would not have offered the information about
the correct quantity of drugs involved. While there may be some
concern that the use of the co-defendants’ information against Davis
may lead future defendants to refuse to cooperate in investigations, it
is clear that the sentencing judge did not use Davis’ own information
against him. The plea agreement was not violated by the use of
statements of Davis’ co-defendants.
Id.
9
To the extent that Pham argues that the government failed to meet its burden
of proof, his argument is meritless. The government did not just include an
unsubstantiated statement of fact in the PSI and rely on it. Cf. United States v.
Shacklett, 921 F.2d 5804, 584 (5th Cir. 1991) (rejecting the district court’s use of
information post-dating a § 1B1.8 agreement because that information was based
on an unproduced report made by an unidentified DEA agent at an unknown time
and neither the informant nor the agent appeared to testify, rendering the report
unreliable). Here, the government proffered the testimony of the agent who
interviewed both Pham and Nguyen, and he testified that Nguyen independently
and without mention of Pham’s statements provided drug quantity information.
The district court, although it did not explicitly say so, obviously found Agent
Johnson’s testimony credible, a decision that we are not in a position to question
absent some evidence to the contrary. We afford “substantial deference to the
factfinder, in this case, the district court, in reaching credibility determinations with
respect to witness testimony.” United States v. McPhee, 336 F.3d 1269, 1275
(11th Cir. 2003). Based on Johnson’s testimony, it cannot be said that the district
court clearly erred by finding that the drug quantity was based on statements other
than Pham’s. See also Gibson, 48 F.3d at 879 (persuasively holding that the
district court’s determination that § 1B1.8 was not violated would not be disturbed
10
where probation officer unequivocally testified that none of the drug quantity
information was obtained from the defendant’s statements and the defendant had
“adduced no evidence to show that he was instrumental in obtaining Jefferson’s
and McGee’s cooperation.”).
The case Pham principally relies upon is United States v. Foster, 889 F.2d
1049 (11th Cir. 1989), where we vacated a defendant’s sentence and remanded for
resentencing before a different judge after the government breached a plea
agreement by using the defendant’s statements, which were given as part of the
agreement and suggested a greater involvement of drug activity than previously
thought, against him for purposes of sentencing. Foster, 889 F.2d at 1055-56.
However, the only evidence in Foster was the defendant’s own statements, and the
government there conceded the breach of the plea agreement as a result. Id. Here,
however, the enhanced sentence was based on independently obtained statements
of a codefendant, and, therefore, Foster is factually distinguishable.
Based on the foregoing, we conclude that the district court properly
considered evidence of drug quantity obtained from an independent source, in this
case a codefendant, and did not violate § 1B1.8. Furthermore, we conclude that the
government offered unrebutted testimony of the interviewing agent, who stated
that Pham’s statements were not used in any way to induce a codefendant to
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discuss the drug quantities forming the basis for Pham’s enhancement. Therefore,
the district court did not clearly err by finding that Pham’s debriefing was not used
to establish drug quantity.
II. Firearm Enhancement
Next, Pham argues that the district court erred by applying the two-level
enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
Specifically, Pham argues that the government failed to establish through
Johnson’s testimony that any weapon was used in furtherance of the conspiracy,
that such use was foreseeable, or that the firearm was found at the site of the
charged conduct, as required to prove a direct connection.
We review “the district court’s findings of fact under U.S.S.G.
§ 2D1.1(b)(1) for clear error, and the application of the Sentencing Guidelines to
those facts de novo.” United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir.
1999). The § 2D1.1(b)(1) enhancement may be applied when the firearm is
possessed by a co-conspirator. United States v. Fields, 408 F.3d 1356, 1359 (11th
Cir.), cert. denied 126 S.Ct. 221 (2005). The enhancement applies to a co-
conspirator when the government establishes by a preponderance of the evidence
that “(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
12
at the time of possession, and (4) the co-conspirator possession was reasonably
foreseeable by the defendant.” Id. Furthermore:
Application Note 3 to U.S.S.G. § 2D1.1(b)(1) advises: ‘The
adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.’
Once the government shows that a firearm was present, ‘the
evidentiary burden shifts to the defendant to show that a connection
between the firearm and the offense is clearly improbable.’
Id.
Here, the possessor was Paul Hoang, who was charged as a co-conspirator.
It is clear as well that Pham was a member of the conspiracy at the time of the
possession. The undisputed facts in the PSI also established that Hoang was
overheard in intercepted communications stating that he planned to use the firearm
to settle disputes in connection with his illegal drug activity. As to the reasonable
foreseeability of the firearm’s usage, we have noted that “numerous cases have
recognized that guns are a tool of the drug trade. There is a frequent and
overpowering connection between the use of firearms and narcotics traffic.”
United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986). To that end, we have
found it reasonably foreseeable that a co-conspirator would possess a firearm
where the conspiracy involved trafficking in lucrative and illegal drugs. See
Fields, 408 F.3d at 1359; United States v. Freyre-Lazaro, 3 F.3d 1496, 1506 (11th
Cir. 1993) (holding that it was reasonably foreseeable that one co-conspirator
13
would possess a firearm while transporting 13 kilograms of cocaine). We have
further upheld application of the § 2D1.1(b)(1) enhancement even where
defendants claim they were unaware of the firearm possession. United States v.
Martinez, 924 F.2d 209, 210 (11th Cir. 1991). In light of the vastness of the
conspiracy and the large amount of drugs and money being exchanged in this case,
the district court did not clearly err by finding that it was reasonably foreseeable
that a firearm would be possessed by a co-conspirator.
Lastly, Pham argues that the government failed to establish a connection
between the firearm and the charged offense because the firearm was not found at
the site of the charged offense. We have held that “the [§ 2D1.1(b)(1)]
enhancement is to be applied whenever a firearm is possessed during conduct
relevant to the offense of conviction.” United States v. Smith, 127 F.3d 1388,
1390 (11th Cir. 1997). “Relevant conduct includes acts ‘that were part of the same
course of conduct or common scheme or plan as the offense of conviction . . . .’”
Id., citing U.S.S.G. § 1B1.3(a)(2). Several of the codefendants and co-conspirators
trafficked in marijuana, as well as cocaine and ecstasy, including Pham, Nguyen,
Peter Hoang, and Robert Hewitt. Here, the firearm was found in a safe containing
marijuana and drug paraphernalia. Thus, the firearm was possessed during conduct
relevant to the offense of conviction.
14
Pham relies on United States v. Cooper, 111 F.3d 845, 847 (11th Cir. 1997),
where we held that the government failed to establish that weapons were present at
a mini-warehouse, where the charged conduct of conviction—possession with
intent to distribute cocaine—took place. Unlike in Cooper, the offense of
conviction here is conspiracy, which permits the application of the § 2D1.1(b)(1)
enhancement if the firearms are found in a place where acts in furtherance of the
conspiracies took place. Id. Since the firearm was seized in Paul Hoang’s
bedroom, located in the home of Peter Hoang, one of the leaders of the conspiracy,
we cannot say that the district court clearly erred by finding a connection between
the firearm and the charged conduct, and, therefore, the enhancement was properly
applied; cf. Fields, 408 F.3d at 1359 (holding that a connection between a seized
firearm and the drug conspiracy was not clearly improbable where firearms were
present at locations where co-conspirators sold lucrative and illegal drugs).
We conclude that the district court did not clearly err in its calculation of
drug quantity or in its application of the § 2D1.1(b)(1) firearm enhancement. We,
therefore, affirm Pham’s sentences.
AFFIRMED.
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