In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-2349 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

XUAN TAM, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 19-cr-00158-5 — Virginia M. Kendall, Judge. 

____________________ 

ARGUED MARCH 29, 2023 — DECIDED SEPTEMBER 7, 2023 

____________________ 

Before SYKES, Chief Judge, and ROVNER and BRENNAN,

Circuit Judges. 

ROVNER, Circuit Judge. Xuan Tam was charged in a superseding indictment with conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), money laundering in 

violation of 18 U.S.C. § 1956(a)(1)(B)(i), and operating an unlicensed money transmitting business in violation of 18 U.S.C. 

§ 1960(a). Pursuant to a written plea agreement, he pled guilty

to conspiracy to commit money laundering, and the court 
2 No. 22-2349 

sentenced him to a below-Guidelines sentence of 65 months’ 

imprisonment. He now raises a number of challenges to the 

sentence. 

The written plea agreement set forth the factual basis for 

the plea, and we limit our facts to those included in that plea 

agreement. From February 2017 until September 2017, Tam 

worked with Minghan Chen, Zhiqiang Chen, Weishe Tan, 

Chris Mei, and others, in a scheme to launder the funds from 

unlawful narcotics transactions by Mexican drug traffickers 

through bank accounts in China. For instance, between May 

and July of 2017, Tam conducted 10-20 pickups of money at 

the direction of Weishe Tan, in amounts ranging from $30,000 

to $150,000 per pickup. When a client was in possession of 

drug proceeds which needed to be collected and exchanged 

for Chinese Renminbi (“RMB”), Weishe Tan or Zhiqiang 

Chen would contact Tam. He then provided Weishe Tan or 

Zhiqiang Chen with the serial number on a dollar bill in his 

possession, a cellphone number, and a code name that he 

would use for the transaction. 

Shortly after Tam provided that information to them, he 

would be contacted by an individual who had drug proceeds 

to deliver to Chicago. The client provided Tam with the serial 

number that Tam had given to Weishe Tan or Zhiqiang Chen, 

and once Tam confirmed the match, Tam would make arrangements to meet the caller in Chicago. At that meeting. 

Tam took possession of the U.S. dollars obtained through unlawful drug transactions. The person who delivered the quantities of U.S. dollars then received from Tam the dollar bill 

containing the serial number that had been used as an identifier in the transaction. That dollar bill with the serial number 

functioned as a receipt for the bulk currency exchange.
No. 22-2349 3

Once he received the currency, Tam or others including 

Weishe Tan, counted the money and reported the total 

amount to Zhiqiang Chen, who then provided information 

for Chinese bank accounts to be used in the transaction. Tam 

or Weishe Tan then delivered the dollars to a broker, or to an 

intermediary who delivered it to a broker, and the broker arranged payment for the dollars by releasing an equivalent 

amount of RMB in China to the bank accounts that Zhiqiang 

Chen had provided. 

Between approximately May 2017 and August 2017, Tam 

participated in the transfer of around $1.4 million in narcotics 

proceeds through the collection of those narcotics proceeds 

from various individuals and through the exchange of dollars 

for RMB. He was paid a small percentage fee for each laundering transaction, earning approximately $7,500 for those 

services. Tam acknowledged that he was aware that the proceeds he was collecting and delivering were derived from the 

sale of narcotics, and knew that the manner of collecting and 

exchanging the proceeds was designed to hide the proceeds, 

as well as the source and nature, from law enforcement, and 

ultimately to remit the funds back to drug traffickers in Mexico.

The written plea agreement also included a recognition of 

the potential sentence. It included an acknowledgment that 

Tam was subject to a maximum sentence of 20 years’ imprisonment. Moreover, it set forth the Sentencing Guidelines 

range for the offense to which he was pleading guilty. The 

plea agreement set forth a base offense level of 22 pursuant to

Guidelines §§ 2S1.1(a)(2) and 2B1.1(b)(1)(H), because the 

value of the laundered funds was approximately $1.4 million. 

It then reflected a potential decrease of 3 levels for acceptance 
4 No. 22-2349 

of responsibility under § 3E1.1(a) and § 3E1.1(b), and increases in the offense levels as follows: 6 level increase pursuant to § 2S1.1(b)(1), because § 2S1.1(a)(2) applies and Tam 

knew that the laundered funds were proceeds of an offense 

involving a controlled substance; 2 level increase under 

§ 2S1.1(b)(2)(B), because the defendant was convicted under 

18 U.S.C. § 1956; 2 level increase under § 2S1.1(b)(3), because 

§ 2S1.1(b)(2)(B) applies and the offense involved sophisticated 

laundering. The plea agreement reflected disagreement as to 

whether Tam was a minor participant in the offense, and 

therefore entitled to a decrease of 2 levels pursuant to 

§ 3B1.2(b). The agreement projected a Guidelines range of 87-

108 months’ imprisonment if the minor participant decrease 

was not applied, and 70-87 months’ imprisonment if the court 

determined that the minor participant reduction was proper. 

Following the plea, the court imposed a sentence of 65 

months’ imprisonment, which was below both of those 

Guidelines ranges. 

Tam pursues two challenges on appeal. First, he alleges 

that the district court failed to ask the questions required in 

Federal Rule of Criminal Procedure 32(i)(1)(A) and that the 

error was not harmless. Second, he asserts that the court erred 

in denying a downward adjustment on his offense level due 

to his minor role in the offense, pursuant to U.S.S.G. § 3B1.2. 

Although Tam initially raised an ineffective assistance of 

counsel claim in his brief in this appeal, he withdrew that 

claim—as we have repeatedly advised defendants to do—in 

order to preserve the ability for Tam to pursue it in a subsequent proceeding in which the factual basis of the claim can 

be developed. See United States v. McClinton, 23 F.4th 732, 

736–37 (7th Cir. 2022). 
No. 22-2349 5

We turn, then, to his claim that the district court failed to 

comply with Rule 32(i)(1)(A). That rule, in conjunction with 

Rule 32(i)(1)(C), required the court to directly ask Tam three 

questions—whether he had an opportunity to read the 

Presentence Investigation Report (“PSR”), whether he and defense counsel had discussed the PSR, and whether he wished 

to challenge any facts in the PSR. United States v. Hise, 65 F.4th 

905, 908 (7th Cir. 2023); United States v. Jarigese, 999 F.3d 464, 

472 (7th Cir. 2021); United States v. Rone, 743 F.2d 1169, 1174 

(7th Cir. 1984). Although “[w]e have advised district courts to 

carry out this brief questioning in the interest of focused, adversarial development of the factual and legal issues relevant 

to determining the appropriate Guidelines sentence ..., we 

need not remand for re-sentencing if the defendant’s right to 

a fair sentencing process was not compromised, i.e., if the error was harmless.” (internal quotation marks and citations 

omitted) Jarigese, 999 F.3d at 472; Hise, 65 F.4th at 908. 

In Jarigese, the defendant argued that the failure of the 

court to ask the Rule 32(i)(A)(1) questions was not harmless 

because, as a result of that error, he did not have the opportunity to contest a factual error in the PSR which was relied 

upon by the court in sentencing him. Jarigese, 999 F.3d at 472. 

We rejected that argument, because the factual error identified by Jarigese, his title—president or vice president—at two 

companies, was correctly stated during the sentencing hearing, and because the court did not rely on his title in determining Jarigese’s sentence, focusing instead on facts regarding his responsibilities at the companies and his role in signing contracts. Id. Because the factual error in the PSR which 

Jarigese could have raised was not relevant to the sentence 

imposed, we held that the error in failing to ensure that he 

had reviewed the PSR was harmless. Id. at 472–73 
6 No. 22-2349 

Here, the government concedes that the district court 

failed to ask those questions but argues that the error was 

harmless. In contrast to the defendant in Jarigese, Tam does 

not assert that he in fact was denied the opportunity to read 

the PSR or to consult with his attorney and register objections, 

nor does he identify any specific objections that he would 

have made given that opportunity.1 Moreover, at the sentencing hearing, Tam’s attorney affirmatively confirmed that Tam 

had seen the PSR and that they had discussed it, stating: “I 

have reviewed both reports with my client, and there are no 

factual changes.” Sent. Tr. at 4. Given that representation, and 

the failure of Tam to argue even now that he did not see the 

report or that he would have raised specific challenges if 

given that opportunity, the error was harmless.

Tam next challenges the district court’s refusal to grant a 

downward adjustment on his offense level due to his minor 

role in the offense, pursuant to U.S.S.G. § 3B1.2. Such an adjustment is proper where the defendant is “substantially less 

culpable than the average participant” in the conspiracy. 

1 In a supplemental filing after oral argument, Tam asserts that, 

through appellate counsel, he in fact represented that if the district court 

inquired as to whether he had read the report, he would have responded 

that he had not. No cite to the brief substantiates that assertion, and in his 

brief, he argues only that the error was not harmless because the sentencing court never learned whether Tam was given the opportunity to read 

and review the PSR. He also asserts, without citing any specific example, 

that the appellate brief provides numerous examples of what additions, 

modifications and corrections would have been made if counsel had discussed the contents of the PSR with Tam, but his brief states only that his 

counsel could have made further inquiries, such as to the nature of Tam’s 

role. The brief fails to identify a single fact or legal argument that he would 

have presented but was deprived of the opportunity to pursue. 
No. 22-2349 7

U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Freyermuth, ___ 

F.4th ___, 2023 WL 5006842, *2 (7th Cir. 2023); United States v. 

Orlando, 819 F.3d 1016, 1025 (7th Cir. 2016). In assessing the 

applicability of that adjustment, then, “[w]e compare the defendant’s role to that of an average member of the conspiracy, 

not with that of the leaders.” Orlando, 819 F.3d at 1025. 

Tam asserts that the district court denied the adjustment 

without considering the five factors identified by the Sentencing Commission as a non-exhaustive guide for courts in determining whether a defendant should receive a mitigating 

role adjustment:

(1) the degree to which the defendant understood the scope and structure of the criminal 

activity;

(2) the degree to which the defendant participated in planning or organizing the criminal 

activity;

(3) the degree to which the defendant exercised 

decision-making authority or influenced the 

exercise of decision-making authority; 

(4) the nature and extent of the defendant’s participation in the commission of the criminal 

activity, including the acts the defendant 

performed and the responsibility and discretion the defendant had in performing those 

acts; and 

(5) the degree to which the defendant stood to 

benefit from the criminal activity.
8 No. 22-2349 

U.S.S.G. § 3B1.2 cmt. n.3(C). That issue encompasses a mixed 

question of law and fact, requiring us to review de novo the 

district court’s interpretation of the Sentencing Guidelines 

and for clear error its factual findings. United States v. 

Campuzano-Benitez, 910 F.3d 982, 989 (7th Cir. 2018). We have 

repeatedly recognized that, “when reviewing sentencing 

courts’ decisions on mitigating or aggravating roles for clear 

error, we ‘will rarely reverse, as the sentencing court is in the 

best position to determine the role that a defendant had in the 

criminal activity.’” Id., quoting United States v. SandovalVelazco, 736 F.3d 1104, 1107 (7th Cir. 2013). 

Tam asserts that the district court failed to properly

address and consider those factors. As an initial matter, we 

note that a court’s failure to state explicit findings on each of 

the enumerated factors does not alone constitute reversible 

error. Campuzano-Benitez, 910 F.3d at 989. As we explained in 

Campuzano-Benitez, “[w]e do not require district courts to treat 

sentencing factors as a checklist or to spell out their analyses 

of each factor at each sentencing,” ... [and] [n]othing in 

§ 3B1.2 or its application notes suggests the sentencing judge 

is required to treat these mitigating role factors differently.” 

Id. at 989–90. 

Here, the court in fact identified the factors, and essentially adopted the arguments made by the government with 

respect to those factors. The court’s discussion therefore reflects that it was aware of the factors and based its decision on 

them. At the sentencing hearing, the Assistant U.S. Attorney 

(“AUSA”) addressed those factors and argued that they 

demonstrated that Tam was not substantially less culpable 

than the other participants. Addressing the defense arguments that Tam had been involved for a minimal amount of 
No. 22-2349 9

time and involving a smaller amount of money, the AUSA 

pointed out that all of the other couriers were involved for a 

truncated period of time as was Tam, and that Tam was not 

even the least culpable in terms of the amount of money laundered. The AUSA then argued that the extent and nature of 

Tam’s involvement favored denying the adjustment, in that it 

was ongoing for seven months, involving 15-20 pickups, and 

that it went beyond merely the physical transfer of cash. The 

AUSA pointed out that Tam went through an elaborate process to engage in the secure transactions between the money 

laundering organization in China and the drug trafficking organization in Mexico, including passing along the information needed to conduct the secure transaction and transferring money to the brokers to conduct the mirror transactions, 

thus involving himself in both sides of the transactions. The 

AUSA also asserted that Tam understood the scope and structure of the organization, and knew funds were going through 

China to launder money for the Mexican drug cartel. Finally, 

the AUSA pointed out that he was profiting to the same extent 

as his co-conspirators, receiving a percentage of the laundered money as commission. Therefore, the AUSA discussed 

the facts in the context of those factors and set forth why the 

factors favored denial of the downward adjustment.

Immediately following that argument, the court began its 

analysis by cycling through the elements, stating that the 

AUSA “is correct regarding that fact-based determination, because we look to the degree to which he understood the scope 

and structure, and he certainly did ...,” which was the first of 

the factors. The court then continued the discussion, identifying the other factors, mentioning “the degree to which he participated in the planning,” and then stating:
10 No. 22-2349 

[a]nd then, of course, the degree to which he exercised authority or influenced the exercise and 

decision-making authority, the nature and extent of his participation, and then whether he 

stood to benefit. And all of the factors that [the 

AUSA] just said really favor the enhancement 

being given. ... I don’t think the reduction is appropriate based upon the factual statements 

that [the AUSA] just made. 

See Sent. Tr. at p5-9. 

The court therefore recognized the factors that had to be 

considered and identified them explicitly. It then endorsed

the facts set forth by the AUSA and the application of those 

factors, and determined that the downward adjustment was 

not warranted. The court was not required to restate the 

AUSA’s argument in order for it to show that it considered 

the proper factors. The court explicitly noted the factors, and 

adopted the AUSA’s factual arguments in agreeing with the 

AUSA that the adjustment was not proper here. The facts 

identified by the AUSA and adopted by the court support the 

determination to deny the minor role adjustment, and the 

court’s factual findings and legal conclusions in denying the 

adjustment were not erroneous.

Accordingly, the decision of the district court is 

AFFIRMED.