2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2009

USA v. Le

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3254

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Recommended Citation

"USA v. Le" (2009). 2009 Decisions. Paper 693.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/693
Honorable Richard G. Stearns, United States District Judge for the District of *

Massachusetts, sitting by designation. 

1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________

Nos. 08-2414 / 07-3254

_________

UNITED STATES OF AMERICA

 

v.

MICHAEL NGUYEN,

 

 THUY A. LE 

Appellants

___________________

Appeal from the United States District Court

 for the Eastern District of Pennsylvania

Nos. 04-cr-00767-15 / 04-cr-00767-22

(District Judge: The Honorable Paul S. Diamond) 

___________________

Submitted Pursuant to Third Circuit LAR 34.1(a) 

April 13, 2009

Before: McKEE, SMITH, Circuit Judges and STEARNS , District Judge.

*

(Filed September 8, 2009) 
2

OPINION OF THE COURT

McKee, Circuit Judge,

Michael Nguyen and Thuy Le both appeal the respective sentences that were

imposed after they were convicted of conspiracy to distribute 100 kilograms or more of

marijuana. For the reasons that follow, we will affirm.

I. 

The first of Nguyen’s several arguments is that the district court should have

granted his motion to dismiss his indictment based on violations of the Speedy Trial Act,

18 U.S.C. §§ 3161-3174, and the Interstate Agreement on Detainers (“IAD”), 18 U.S.C.

App. § 2. We review the district court’s legal conclusions de novo, and factual findings

are reviewed for clear error. United States v. Dent, 149 F.3d 180, 183 (3d Cir. 1990). 

First, we note that Nguyen’s claim based on the IAD must fail, since the rights provided

for in the agreement are triggered only when a detainer has been filed by the requesting

jurisdiction based on pending charges against the prisoner. United States v. Mauro, 436

U.S. 340, 343 (1978). Here, the district court judge issued a writ of habeas corpus ad

testificandum for him to testify before a grand jury, and thus at the time Nguyen claims

there was a violation of his IAD rights there were no “untried indictments, informations,

or complaints” against him as required by the IAD. 
3

In addition, a defendant may waive his right to a speedy trial without explicitly

stating a desire to do so. See, New York v. Hill, 528 U.S. 110, 114 (2000) (holding that

where defense counsel agreed to a trial date beyond the 180 day limit imposed by the

IAD, defendant’s rights under the IAD were deemed to be waived). Here, the defendant

agreed to a complex case designation, which necessarily tolls the Speedy Trial clock. In

addition, the defendant requested and was granted a continuance of the trial in order to

locate an essential witness. Therefore, Nguyen waived any rights he may otherwise have

had under the Speedy Trial Act and the IAD does not apply.

II. 

 Nguyen’s next argument is that the district court committed error in its

supplemental jury instructions by failing to properly respond to two questions posed by the

jury during deliberations. Because Nguyen failed to object to the judge’s supplemental

jury instructions, we review only for plain error. United States v. Antico, 275 F.3d 245,

265 (3d Cir. 2001), cert. denied, 537 U.S. 821 (2002). Nguyen argues that the first

question- “Can you provide a summary of the amounts, pounds of marijuana 100 kilos?”-

should have been interpreted as a request for a table to assist the jury in converting pounds

into kilograms. However, the judge and counsel for both sides understood this question to

be a request for a summary of the evidence. Counsel and the judge agreed not to provide

an evidentiary summary. Rather, the jury was reminded of its obligation to deliberate

based upon each juror’s recollection of the evidence. 
In addition, Third Circuit Model Criminal Jury Instruction 3.16 states: “You should 1

never consider the possible punishment in reaching your verdict.” 

4

We see no reason to conclude that the jury was actually requesting a conversion

into pounds, and the jury did not attempt to clarify the court’s response in any manner that

would suggest the kind of misunderstanding that Nguyen now hypothesizes. Moreover,

during closing argument the prosecutor told the jury that 100 kilograms was equal to

approximately 225 pounds. The jury instructions explained the need for each juror to be

convinced of the defendant’s guilt beyond a reasonable doubt. Any uncertainty about

whether quantity had been proved would therefore have enured to the defendant’s benefit.

The jury also asked: “Is the 100 kilogram amount legally significant? If so, can we

know how or why?”. The court properly instructed the jury that the amount was a legal

matter not for its consideration. Nguyen argues that the jury was entitled to know the

significance of the 100 kilograms because it is an element of the offense. While the jury

was required to determine whether Nguyen conspired to distribute 100 kilograms of

marijuana, there was no requirement that it be informed of the sentencing consequences

that would result from that finding. A contrary rule would improperly open the door to

allowing jurors to base a verdict on sentencing consequences. See, Rogers v. United

States, 422 U.S. 35, 40 (1975) (“[T]he jury ha[s] no sentencing function and should reach

its verdict without regard to what sentence might be imposed.”). Therefore, we find no 1

error in the judge’s supplemental jury instructions. 

III. 
5

Nguyen also challenges the sufficiency of the evidence. He first contends that there

was insufficient evidence to convict him of being a conspirator as opposed to an

independent contractor. Our review of the sufficiency of the evidence is “particularly

deferential.” We will sustain the verdict “if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (quoting United States v.

Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)) (internal quotations omitted). 

A drug distribution conspiracy requires: “(1) a shared unity of purpose; (2) an intent

to achieve a common goal; and (3) an agreement to work together toward the goal.” 

United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008) (quoting United States v. Bobb,

471 F.3d 491, 494 (3d Cir. 2006). In determining whether a conspiracy exists, courts have

looked to “the length of affiliation between the defendant and the conspiracy; whether

there is an established method of payment; the extent to which transactions are

standardized; and whether there is a demonstrated level of mutual trust.” Iglesias, 535

F.3d at 156 (quoting United States v. Gibbs, 190 F.3d 188, 199 (3d Cir. 1999)). Not all of

the above factors must be present in order to find a conspiracy- indeed, the presence of

even one factor may be sufficient. Id. 

Here, the government presented testimony that Nguyen was introduced to the Ton

Organization as someone who could sell large quantities of marijuana. There was

evidence that he was affiliated with the conspiracy for several months, and that like other

co-conspirators here he received marijuana on consignment, usually sold it within a week,
In fact, this argument is undermined by the testimony of Phuc Vo, who stated on cross 2

that Nguyen told him that the only reason Nguyen could not pay the $20,000 was because the

marijuana given to him on consignment had been stolen from his car. 

In addition, we note that Ton acknowledged that while he only authorized five marijuana 3

sales to Nguyen, more sales were made without his express authorization, and thus Ton’s

6

and usually paid a member of the Ton Organization for that marijuana. The jury could

have concluded that Nguyen received about $1,000,000 worth of marijuana over the

course of 15 to 20 transactions, and that he paid for all but $20,000 of it. Although

Nguyen argues that his failure to pay for some of the marijuana is evidence of an attempt

to frustrate the conspiracy, there is nothing in the record that suggests that this was a

deliberate attempt to disrupt the actions of the Ton Organization. The evidence here was 2

clearly sufficient to establish Nguyen’s membership in the conspiracy beyond a reasonable

doubt. 

Nguyen also argues that there was insufficient evidence for the jury to find that he

conspired to distribute 100 kilograms or more of marijuana. That argument is equally

meritless. Phuc Vo, one of the leaders of the Ton Organization, testified that he provided

Nguyen with at least 300 pounds of marijuana on consignment, with the largest single sale

being 180 pounds. Nguyen points out that, in contrast to Phuc Vo’s testimony, Benjamin

Ton testified that the most he personally sold it Nguyen was 100 pounds. Nguyen argues

that because of this conflicting testimony, no rational juror could have found that he

conspired to sell more than 100 kilograms. However, the fact that the jury credited the

testimony of Phuc Vo over Benjamin Ton is not grounds for reversal. We can not weigh 3
testimony is not necessarily in conflict with that of Vo.

7

the evidence or determine the credibility of witnesses. See, United States v. Miller, 527

F.3d 54, 60 (3d Cir. 2008). 

IV. 

Nguyen challenges the sentence that was imposed on several grounds. First, he

contends that the district court erred in imposing a general sentence of 262 months. 

Because Nguyen did not raise this objection before the sentencing court, we review for

plain error. United States v. Couch. 291 F.3d 251, 252-53 (3d Cir. 2002), Nguyen cites

United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005), for the proposition that

general sentences are illegal. However, we have repeatedly held that where a defendant is

convicted on multiple counts, a general sentence is permissible as long as it does not

exceed the maximum possible sentence for the count which carries the greatest sentence. 

See, United States v. Xavier, 2 F.3d 1281, 1292 (3d Cir. 1993); United States v. Corson,

449 F.2d 544, 551 (3d Cir. 1971) (en banc); Jones v. Hill, 71 F.2d 932, 932 (3d Cir. 1934). 

Here, the general sentence of 262 months was less than the maximum permissible penalty

for any of the counts of conviction.

Nguyen next argues that his sentence was not reasonable. A sentence will be

upheld if “the record as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d

Cir. 2007) (en banc), cert. denied, 128 S.Ct. 106 (2007). This requires the sentencing
8

judge to “set forth enough to satisfy the appellate court that he[/she] has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decision making

authority.” Rita v. United States, 551 U.S. 339, 356 (2007). 

Here, the record shows that the sentencing court properly calculated the advisory

guideline range, considered all relevant § 3553(a) factors, as well as the sentencing

arguments made by the parties, and reasonably applied each of these factors to the

circumstances of this case. The judge explained in detail why, based on these factors, a

sentence at the bottom of the guideline range was reasonable. 

V. 

Co-defendant Le argues that the district court erred in not applying the safety valve

provision of 18 U.S.C. § 3553(f) because it applied criminal history points to the

guidelines calculation in a mandatory fashion. However, we need not reach the merits of

Le’s argument because Le waived her right to appeal that issue by executing a valid plea

agreement that contained an appellate waiver. Le does not argue that the waiver was not

entered into knowingly and voluntarily, or that one of the limited exceptions contained in

the waiver applies. Instead, she argues that because of the alleged error by the district

court, enforcing the appellate waiver would result in a miscarriage of justice. See, United

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001) (“Waivers of appeals, if entered into

knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”). 

However, “[a] waiver of the right to appeal includes a waiver of the right to appeal . . .
9

debatable legal issues- indeed, it includes a waiver of the right to appeal blatant error.” Id.

at 562. Thus, even if Le’s argument had merit, enforcing this waiver would not result in a

miscarriage of justice. 

VI. 

For all of the above reasons, we will affirm the judgments of conviction and

sentence of the district court.