UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4965

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THONG HOANG,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Gerald Bruce Lee, District

Judge. (CR-04-196)

Submitted: September 21, 2005 Decided: November 2, 2005

Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lana M. Manitta, MARTIN & ARIF, Springfield, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Rebeca H.

Bellows, Assistant United States Attorney, Kelli Ferry, Special

Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1The jury found that the object of the conspiracy was to

distribute 10,000 MDMA pills. Given this factual finding, Hoang’s

base offense level was 34. See U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(3) (2003). There were no enhancements. With a total

offense level of 34 and a criminal history category of II, Hoang’s

guideline range was 168-210 months. 

2

Miranda v. Arizona, 384 U.S. 436 (1966). 

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PER CURIAM:

Thong Hoang was convicted of conspiracy to distribute

MDMA (Ecstasy), 21 U.S.C. § 846 (2000), and distribution of 500

grams or more of methamphetamine, 21 U.S.C. § 841(a)(1) (2000). He

was sentenced to 168 months in prison.1 Hoang appeals, raising

three issues. We affirm.

I

Hoang first alleges that the district court erred when it

denied his motion to suppress incriminating statements made to

police officers following his arrest. Specifically, he contends

that his understanding of English is so poor that he could not have

knowingly waived his Miranda2

 rights. We review the district

court’s factual findings underlying the denial of a suppression

motion for clear error and its legal conclusions de novo. United

States v. Johnson, 400 F.3d 187, 193 (4th Cir. 2005). We construe

the evidence in the light most favorable to the Government, the

prevailing party. United States v. Seidman, 156 F.3d 542, 547 (4th

Cir. 1998).
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“Limited ability to understand English may render a

waiver of rights defective.” United States v. Guay, 108 F.3d 545,

549 (4th Cir. 1997). At the suppression hearing, Detectives

Thompson and McGee, neither of whom speaks Vietnamese, testified

that they had no difficulty conversing with Hoang in English and

that he appeared to have no trouble understanding them. He

acknowledged that he understood each Miranda right as it was read

to him. Similarly, Hoang’s pretrial services officer testified

that Hoang easily communicated with her in English. Given this

testimony, the district court’s finding that Hoang was able to

comprehend the Miranda warning was not clearly erroneous. Nor did

the court err in finding the waiver of rights to be valid and

denying the motion to suppress.

II

Hoang next contends that the evidence was insufficient to

convict him of conspiracy. To determine if there is sufficient

evidence to support a conviction, we consider whether, taking the

evidence in the light most favorable to the Government, substantial

evidence supports the verdict. Glasser v. United States, 315 U.S.

60, 80 (1942). We review direct and circumstantial evidence and

permit the “[G]overnment the benefit of all reasonable inferences

from the facts proven to those sought to be established.” United

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Witness
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credibility is within the sole province of the jury. United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). 

“To prove a conspiracy under 21 U.S.C. § 846, the

[G]overnment must prove (1) an agreement between two or more

persons to engage in conduct that violates a federal drug law, (2)

the defendant’s knowledge of the conspiracy, and (3) the

defendant’s knowing and voluntary participation in the conspiracy.”

United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001);

United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en

banc). The evidence in this case sufficiently established these

elements.

Detective Thompson arranged to purchase 10,000 pills of

MDMA from Tu Quoc Ho. Hoang served as an intermediary between Ho

and suppliers in Philadelphia. The sale to Thompson was originally

scheduled for March 30, 2004. However, Ho called Thompson to say

that the pills would not arrive on time. Thompson suggested

consummating the deal the next day. When Ho called Thompson back

to say that this was acceptable, Hoang came on the telephone to

confirm to Thompson that the date and proposed time were agreeable.

Hoang was present when Thompson, Ho, and Hien Minh Tran, another

codefendant, met at a café on March 31 to discuss final details of

the transaction. Tran testified that Hoang was to make five cents

per pill from the transaction. These facts are sufficient to

support a conspiracy conviction. 
3

We, of course, offer no criticism of the district judge, who

followed the law and procedure at the time of Hoang’s sentencing.

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III

Finally, Hoang asks that his sentence be vacated and the

matter remanded for resentencing because the district court treated

the sentencing guidelines as mandatory in violation of United

States v. Booker, 125 S. Ct. 738 (2005). Because Hoang did not

raise this issue below, our review is for plain error. See Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). Although the district court committed plain error,3 remand

for resentencing is not required because “the record as a whole

provides no nonspeculative basis for concluding that the treatment

of the guidelines as mandatory affected the district court’s

selection of the sentence imposed.” United States v. White, 405

F.3d 208, 223 (4th Cir. 2005) (internal quotation marks omitted).

Thus, the error did not affect Hoang’s substantial rights, and

remand for resentencing is unnecessary. See id. at 224-25. 

IV

We therefore affirm. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process. 

AFFIRMED