PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-2417

___________

UNITED STATES OF AMERICA

v.

THUNG VAN HUYNH,

Appellant 

__________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 4-14-cr-00275-002)

District Judge: Honorable Malachy E. Mannion

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 26, 2018

Before: HARDIMAN, VANASKIE, and SHWARTZ,

Circuit Judges.

(Filed: March 6, 2018)
2

George J. Rocktashel

Office of United States Attorney

240 West Third Street, Suite 316

Williamsport, PA 17701

Attorney for Appellee

Edward J. Rymsza, III

Miele & Rymsza, P.C.

125 East Third Street

Williamsport, PA 17701

Attorney for Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Thung Van Huynh pleaded guilty in the United States 

District Court for the Middle District of Pennsylvania to 

conspiracy to commit bank and wire fraud. The District Court 

sentenced Huynh to 70 months’ imprisonment in part based 

on its findings that he was subject to sentencing 

enhancements for being an organizer or leader of the 

conspiracy and for relocating the conspiracy to evade 

detection by the authorities. Huynh now argues that neither 

enhancement was warranted and that the Government 

breached its plea agreement with him at the sentencing 

hearing. For the reasons that follow, we will affirm. 
3

I

This case involves a scheme to fraudulently purchase 

luxury wristwatches at jewelry stores throughout the country. 

To finance the purchases, which totaled $815,553, Huynh and 

his co-conspirators used loans they obtained through identity 

theft. Huynh paid an employee of a California car dealership 

to give him identification and credit reporting information 

from customer records. Using the stolen information and 

photographs of his co-conspirators, Huynh arranged for

counterfeit driver’s licenses and credit cards to be made in the 

victims’ names.

At dozens of jewelry stores in 16 states, Huynh’s coconspirators used the counterfeit licenses and credit cards to 

apply to various financial institutions for credit in the amount 

of each watch purchase. Huynh then sold the watches to a 

woman in California who served as a fence for the scheme. 

Huynh used the proceeds to cover all of the scheme’s 

expenses and compensate his co-conspirators, keeping a share 

for himself. Huynh selected the jewelry stores, made all travel 

arrangements, and supplied his co-conspirators with the 

personal information of the defrauded individuals. On two 

occasions, law enforcement stopped Huynh around the time 

conspirators purchased watches. Specifically, Huynh and a 

co-conspirator were detained in Michigan at the United 

States-Canada border, where border agents “recovered the 

fraudulently obtained watches and counterfeit driver's 

licenses.” PSR ¶ 17. Huynh “falsely told the agents that he 

had purchased the watches with money won at the casinos.”

Id. Two months later, Huynh and a different co-conspirator 

went to a store in Texas and attempted to purchase a luxury 

watch, but “store personnel alerted the police.” PSR ¶ 19. 

Huynh’s co-conspirator was arrested. Based upon information 
4

from the store’s employees, a police officer approached 

Huynh, who was standing in the parking lot near the store. 

Huynh falsely told the officer he had no connection to the coconspirator. Huynh did not return to either Michigan or Texas 

after these interactions with law enforcement but continued to 

make fraudulent transactions in several other states.

As part of a written agreement, Huynh pleaded guilty 

to conspiracy to commit bank and wire fraud in violation of 

18 U.S.C. § 1349. Huynh and the Government stipulated as to 

how certain provisions of USSG § 2B1.1 (the Guideline for 

fraud-related offenses) applied to Huynh’s sentencing. In 

Paragraph 10 of the agreement, the parties stipulated to: a 

base offense level of seven under § 2B1.1(a)(1); a 12-level 

increase under § 2B1.1(b)(1)(G) based on the amount of loss;

a two-level increase under § 2B1.1(b)(2)(A) based on the 

number of victims; and a two-level increase under 

§ 2B1.1(b)(11) because the scheme used an unlawfully 

produced means of identification. After a three-level 

reduction for acceptance of responsibility, Paragraph 10 

established Huynh’s total offense level at 20. At the same 

time, the Government reserved the right to seek an additional

four-level enhancement under USSG § 3B1.1(a) for Huynh’s 

role as an “organizer or leader of a criminal activity that

involved five or more participants or was otherwise 

extensive.”

Also at issue in this appeal is the applicability of the 

two-level enhancement under Guidelines § 2B1.1(b)(10)(A)

for relocating “a fraudulent scheme to another jurisdiction to 

evade law enforcement or regulatory officials.” Huynh’s plea 

agreement was silent as to the application of that 

enhancement, but the Government retained significant 

flexibility in responding to questions by the District Court and 
5

providing the Court with information the Government

deemed relevant to the application of the Guidelines or other 

sentencing issues. The Presentence Investigation Report 

(PSR) prepared by the Probation Office applied the two-level 

“relocation” enhancement and the four-level “organizer or 

leader enhancement” to Huynh’s offense level. Huynh 

objected to both enhancements before sentencing.

At the sentencing hearing, the District Court overruled 

both of Huynh’s objections. After determining that the plea 

agreement did not “specifically exclude” the relocation 

enhancement, the Court asked the Government for its position 

on the enhancement’s applicability. App. 17. The 

Government responded that it was “really taking no position” 

and did not “want to be viewed as undermining the plea 

agreement,” but noted that the agreement expressly provides 

that the Government was not restricted in responding to the 

Court’s questions regarding the application of the Guidelines. 

Id. The Court then repeated its question more specifically: did 

Huynh’s travel back and forth from his home in California to 

make fraudulent purchases at jewelry stores across the 

country constitute relocation under § 2B1.1(b)(10)(A)? In 

response, the Government offered an analysis of the facts and 

relevant caselaw that, in effect, supported Huynh’s principal 

argument. The Government agreed with Huynh that while 

“[m]ovement was integral to the conspiracy[,] . . . it was 

integral more for economic reasons than for evading law 

enforcement.” App. 19. Thereafter, the Government’s only 

significant comment on the enhancement was a confirmation, 

at the Court’s request, that the Court correctly understood that 

the scheme was focused primarily on locations in the eastern 

half of the country despite Rolex watches being sold 

nationwide.
6

After hearing Huynh’s arguments and reviewing the 

offense conduct as described in the PSR, which it adopted in 

full, the Court agreed with the Probation Office that the

relocation enhancement applied. The Court based this 

determination on Huynh’s pattern of targeting jewelry stores 

at great distances from California and from one another, as 

well as specific instances of apparent efforts to evade 

detection by the authorities. The Court also overruled 

Huynh’s objection to the organizer or leader enhancement, 

agreeing with the Government that Huynh was the “leader 

and organizer of [the] group,” that the scheme involved the 

requisite five or more participants, and that even if it did not, 

it was “otherwise extensive,” as required by § 3B1.1(a). 

App. 28. As a result, Huynh’s final offense level was 26, and 

his Guidelines imprisonment range was 70 to 87 months. In 

addition to restitution and a special assessment, the District 

Court sentenced Huynh to 70 months’ imprisonment and 

three years of supervised release. Huynh filed a timely notice 

of appeal.

II

The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 

28 U.S.C. § 1291.

In general, “[w]e review the District Court’s 

application of the Guidelines to facts for abuse of discretion”

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

Tupone, 442 F.3d 145, 149 (3d Cir. 2006). But where the 

Guidelines “set[] forth a predominantly fact-driven test,” 

these two standards become indistinguishable, because we 

would find that the Court had “abused its discretion in 

applying the enhancement based on a particular set of facts 
7

only if those facts were clearly erroneous.” United States v. 

Richards, 674 F.3d 215, 223 (3d Cir. 2012). We have already 

held that the organizer or leader enhancement of § 3B1.1(a) 

sets forth such a fact-driven test. See United States v. Starnes, 

583 F.3d 196, 216–17 (3d Cir. 2009).

As for the relocation enhancement of 

§ 2B1.1(b)(10)(A), we now hold that clear error review is 

appropriate because “the legal issue decided by the district 

court is, in essence, a factual question.” Richards, 674 F.3d at 

220. Whether or not a scheme was relocated to another 

jurisdiction to evade law enforcement or regulatory officials

is, at bottom, “a strictly factual test, such that once the test is 

stated[,] no legal reasoning is necessary to the resolution of 

the issue.” Id. at 221 (internal quotation marks omitted) 

(quoting United States v. Brown, 631 F.3d 638, 644 (3d Cir.

2011)). Was the scheme relocated? Was it relocated to evade 

the authorities? These are fact-intensive questions that the 

district courts, given their “relative institutional advantages,”

are best equipped to answer. Id. We therefore review the 

District Court’s application of the relocation enhancement for 

clear error.

By contrast, “[w]hether the government’s conduct 

violate[d] the terms of [a] plea agreement is a question of 

law[,] and our review is plenary.” United States v. 

Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989). 

III

Huynh makes three arguments on appeal. First, he 

claims the Government breached the plea agreement when it 

failed to oppose the relocation enhancement. Second, he 

argues the enhancement did not apply because Huynh’s
8

travels did not constitute relocation of the scheme and were

not intended to evade the authorities. Third, he contends the 

District Court erred in applying the organizer or leader

enhancement because Huynh lacked the requisite “decisionmaking authority,” the scheme involved fewer than five 

participants, and it was not “otherwise extensive,” as required

by USSG § 3B1.1(a). Huynh Br. 15–19. We will address each 

argument in turn. 

A

When assessing whether a plea agreement has been 

breached, we first “identify the terms of the agreement and 

the government’s alleged improper conduct,” and next 

“determine whether the government has violated its 

obligations under that agreement.” United States v. 

Davenport, 775 F.3d 605, 609 (3d Cir. 2015) (citing United 

States v. Nolan-Cooper, 155 F.3d 221, 235 (3d Cir.

1998)). “[I]f it has, we fashion the proper remedy.” Id. The 

core question guiding the analysis is “whether the 

government’s conduct [was] inconsistent with what was 

reasonably understood by the defendant when entering the 

plea of guilty.” Id. (quoting Nolan-Cooper, 155 F.3d at 236).

This is a “purely objective standard governed by the common 

law of contract.” Id. (internal quotation marks and citation 

omitted). “[W]e look to the plain meaning of the plea 

agreement and . . . give the benefit of any doubt to the 

defendant, given the government’s tremendous bargaining 

power in negotiating such plea agreements . . . and the fact 

that the defendant, by entering into the plea, surrenders a 

number of . . . constitutional rights.” Id. (internal quotation 

marks and citations omitted). “[T]he Government must 

adhere strictly to the terms of the bargain[] it strikes,” United 

States v. Miller, 565 F.2d 1273, 1274 (3d Cir. 1977), and “we 
9

will hold the government to that bargain,” Davenport, 775 

F.3d at 609. 

Huynh’s argument that the Government breached the 

plea agreement centers on Paragraph 10. He contends that the 

Paragraph’s stipulations to specific enhancements, coupled 

with its assignment of an offense level of 20, amounted to an 

exclusion of any other enhancements except for the organizer 

or leader enhancement, which the agreement acknowledged 

the Government would pursue. On Huynh’s view, it wasn’t 

enough for the Government to remain neutral; it had to 

affirmatively oppose the application of the relocation 

enhancement. Huynh insists the Government’s “initial failure 

to object [to the PSR] . . . , its failure to take a position at

sentencing, and its acquiescence to the district court’s 

reasoning . . . should be construed as a clear breach of its 

agreement.” Huynh Br. 12 n.5. 

We disagree. As we explained in Davenport, “plea 

agreements ‘must be interpreted as a whole[,] and no part 

should be ignored.’” 775 F.3d at 610 (quoting United States v. 

Schwartz, 511 F.3d 403, 405 (3d Cir. 2008)). And this 

agreement included many provisions that put Huynh on 

notice that the stipulations did not carve his offense level into 

stone. As in Davenport, the same paragraph that listed the 

parties’ Guidelines stipulations also expressly reserved the 

Government’s right to supply to the District Court “all 

information in its possession which it deems relevant to the 

application of the Sentencing Guidelines to the defendant’s 

conduct.” App. 73. Further underscoring the Government’s 

discretion at sentencing, Paragraph 17 provided that the 

Government could “bring to the court’s attention . . . all 

relevant information with respect to the defendant’s 

background, character and conduct,” and Paragraph 18 
10

allowed the Government to respond “to any request by the 

court for briefing, argument or presentation of evidence 

regarding the application of Sentencing Guidelines to the 

defendant’s conduct.” App. 80. The parties also noted that 

their stipulations did not bind the District Court or the 

Probation Office. Read objectively and in their full context, 

the stipulations in Paragraph 10 did not restrict the 

Government as Huynh suggests. The plea agreement nowhere 

required the Government to object to the PSR’s application of 

the relocation enhancement or to oppose it at sentencing. 

Our decision in Davenport is instructive here. In that 

case, which involved a plea agreement similar to Huynh’s, we 

concluded that there had been no breach despite the 

Government’s affirmative pursuit of an enhancement that had 

been stricken from the parties’ stipulations. 775 F.3d at 609–

11. Here, Huynh concedes that the Government never 

affirmatively pursued the relocation enhancement, and the 

record shows that the Government maintained neutrality

throughout the sentencing hearing. Contrary to Huynh’s 

assertion, the Government did not “trigger[] the district 

court’s inquiry,” Reply Br. 6, into the enhancement’s 

applicability. Instead, the District Court raised the issue sua 

sponte, noting Huynh’s objection to the PSR and requesting

argument on the issue. Only after the Court inquired did the 

Government make statements about the enhancement. And 

those statements were either factual or, to the extent they 

contained legal analysis, were consistent with Huynh’s 

arguments.

In sum, the Government’s responses cannot fairly be 

understood as an attempt to circumvent the plea agreement in 

order to advocate for the enhancement’s application. See 

United States v. Larkin, 629 F.3d 177, 191 (3d Cir. 2010) 
11

(concluding that no breach occurred where the government’s 

statements on an omitted enhancement’s applicability were 

limited to a “straightforward” presentation of legal issues and 

facts “well known to the District Court”).1 Accordingly, we 

hold that the Government did not breach the plea agreement. 

B

We turn next to Huynh’s arguments on the merits of 

the District Court’s application of the relocation 

enhancement. The Guidelines provide that a base offense 

level may be increased by two levels if “the defendant 

relocated, or participated in relocating, a fraudulent scheme to 

another jurisdiction to evade law enforcement or regulatory 

officials.” USSG § 2B1.1(b)(10)(A). For the enhancement to 

apply, the defendant must have: (1) relocated a fraudulent 

 

1 Huynh cites Nolan-Cooper in support of his 

contention that the Government’s statements improperly 

relied on the agreement’s general authorization to comment 

on the application of the Guidelines “to defeat a specific 

provision.” Huynh Br. 13. Huynh overlooks two critical 

elements of that case. First, the “specific provision” that we 

concluded had been breached expressly required that the 

government “not oppose” a particular sentencing position 

advanced by the defendant. Nolan-Cooper, 155 F.3d at 236. 

Second, the government in that case went beyond a neutral 

presentation of the relevant facts, effectively opposing the 

defendant’s position. Id. at 237. Neither of those facts is 

present here.
12

scheme from one jurisdiction to another, and (2) done so to 

evade law enforcement or regulatory officials. Id.2

Huynh claims neither prong is satisfied. According to 

Huynh, the District Court mischaracterized the scheme’s 

movements as relocation when in fact Huynh was “simply 

operating a fraudulent scheme in multiple jurisdictions.” 

Reply Br. 5. Although multi-state schemes may involve 

cross-jurisdictional travel by their participants, Huynh argues 

that this is not the type of conduct the enhancement is 

intended to target. Instead, his scheme’s various “out-of-town 

trips,” all of which ended with Huynh returning home to 

California, reflected an “expansion of the conspiracy, not a 

relocation to avoid detection.” Huynh Br. 10. Huynh also 

disputes that he meets the second prong, arguing that, in the 

absence of specific evidence that the scheme was relocated 

“for the purpose of eluding law enforcement,” rather than for 

“economic reasons,” the enhancement does not apply. Reply 

Br. 4–5. Each of these arguments merits analysis.

Critical to the District Court’s determination that 

Huynh had relocated the scheme was its observation that the 

stores Huynh and his co-conspirators targeted generally were 

located far away from California and each other. The Court 

found it significant that the “vast majority” of the stores were 

 

2 The Guidelines and commentary do not define the 

term “relocate” or provide any further guidance regarding this 

provision, see USSG § 2B1.1 cmt. n.1 (“Definitions”), n.9 

(“Application of Subsection (b)(10)”). The dictionary defines 

“relocate” to mean “establish or lay out in a new place.” 

Webster’s Third New Int’l Dictionary, Unabridged (3d ed. 

1993).
13

in the eastern half of the country despite no shortage of stores 

selling luxury watches in California or elsewhere on the West 

Coast. App. 22. The targets chosen thus did not reflect mere 

expansion, in the Court’s view, but rather a deliberate effort 

to maximize the distance between the conspiracy’s home base 

and the places where its members most likely would raise 

suspicions.

According to Huynh, these findings did not establish 

relocation because “operating in multiple jurisdictions was 

part of the larger conspiracy,” citing United States v. HinesFlagg, 789 F.3d 751 (7th Cir. 2015). Huynh Br. 10. The 

conspirators in Hines-Flagg made counterfeit identification 

documents in Detroit and used them at retail stores across 

several states to purchase merchandise on store credit 

accounts. Id. at 753. After each purchasing spree, the

defendant and her nephew drove home to Detroit with the 

merchandise, which they either sold or kept for personal use. 

Id. at 754. The Seventh Circuit reversed, concluding that 

because it was “always meant to operate in multiple locations, 

with Detroit as its home base,” the scheme was “not 

‘relocated’ to Wisconsin, Ohio, and Illinois when [the 

defendant] traveled to those locations for temporary trips and

returned to Detroit.” Id.

Huynh’s reliance on Hines-Flagg is misplaced for two 

reasons. First, whereas Huynh’s targets were almost 

exclusively “half the country apart,” App. 22, the scheme in 

Hines-Flagg was limited to four contiguous states. We agree 

with Huynh that “mere geographic distance . . . is not 

dispositive,” Reply Br. 5, but the District Court did not 

clearly err in considering the geographic scope of the 

conspiracy and the dispersed nature of the locations to which 

the co-conspirators traveled when deciding whether to credit 
14

Huynh’s claim that the scheme’s travels reflected only an 

expansion of its operations.3 Second, the Seventh Circuit

reviewed the application of the enhancement in Hines-Flagg 

de novo, see 789 F.3d at 754–56, whereas our review is far 

more deferential. Quite unlike de novo review, we may deem 

a district court’s finding clearly erroneous only when we are 

“left with the definite and firm conviction that a mistake has 

been committed.” United States v. Wise, 515 F.3d 207, 218 

(3d Cir. 2008) (quoting Concrete Pipe & Prods. of Cal., Inc. 

v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 

(1993)). Our review of the full record does not leave us with a 

conviction—much less a definite and firm one—that the 

District Court’s determination that the scheme was relocated 

was mistaken.

Nor are we persuaded that the District Court clearly 

erred in finding that Huynh relocated the scheme for the 

purpose of evading the authorities. In support of his claim to 

the contrary, Huynh cites dicta in Hines-Flagg suggesting that 

 

3 For the same reasons, this case is also distinguishable 

from a panel decision of the Eleventh Circuit that Huynh 

cites, United States v. Morris, 153 F. App’x 556 (11th Cir. 

2015). There, the court reversed a finding of relocation where 

the scheme’s stolen credit cards and driver’s licenses, all 

obtained in the greater Atlanta area, were used to make 

fraudulent purchases primarily in northern Georgia. Id. at 

558–59. Cf. United States v. Savarese, 686 F.3d 1, 15–16 (1st 

Cir. 2012) (rejecting defendants’ argument that despite trips 

throughout the country to withdraw fraudulent cash advances, 

their scheme was always firmly rooted in greater Boston and 

thus never relocated).
15

the “operation of a multi-jurisdictional scheme in order to 

reduce the chances of detection” is insufficient by itself to 

imply an intent to evade the authorities, 789 F.3d at 756. 

Even if we were to accept that premise, the record contains 

evidence—and the District Court made findings—supporting 

the conclusion that Huynh and his co-conspirators’ efforts to 

evade the authorities consisted of more than simply the act of 

operating in multiple jurisdictions. Citing among other facts 

the conspirators’ “driving to Nevada for purposes of flying 

out of Nevada to then go to the [E]ast [C]oast . . . , back 

sometimes to different airports,” the District Court stated that 

it found “ample evidence that the intent was we’ll go 

someplace other than where we are, where hopefully when 

we get our Rolex and we leave[,] we won’t have any 

additional concerns or problem with law enforcement because 

we’re not even around there, we don’t live in the same half of 

the country.” App. 21–22.

Further supporting the District Court’s determination 

that the scheme was relocated to evade the authorities was 

Huynh’s decision, with one exception, to target each store 

only once. See Savarese, 686 F.3d at 16 n.12. (“The evidence

supports an inference that the defendants avoided returning to 

the same health clubs and gambling establishments not

because of any shortage of available credit cards and funds, 

but because the likelihood of detection would otherwise have

increased substantially.”).

Finally, the evidence concerning Huynh’s contacts 

with law enforcement and his actions thereafter support the 

inference that Huynh relocated the fraud scheme to evade law 

enforcement. Huynh was encountered by law enforcement on 

two separate occasions in two separate states; both incidents 

occurred during or shortly after Huynh and his co-
16

conspirators engaged or attempted to engage in fraudulent 

transactions and Huynh did not return to either state but 

engaged in fraudulent transactions in other states. These facts 

support the reasonable inference that the co-conspirators 

stopped engaging in fraud in the places where they were

confronted by law enforcement and “relocated” their fraud 

scheme to several other states following such confrontations 

so as to evade law enforcement. See United States v. Paredes, 

461 F.3d 1190, 1192 (10th Cir. 2006) (determining that the 

scheme relocated “to evade law enforcement” where 

fraudulently obtained goods “moved from Utah to Idaho 

because Utah became ‘hot’ after one of the [defendants] was 

arrested [there]”); United States v. Smith, 367 F.3d 737, 740 

(8th Cir. 2004) (concluding that the evidence established that 

the defendant—who operated a fraud scheme in Iowa and 

then moved permanently to Florida and began operating a 

fraud scheme there—moved in order to evade law 

enforcement where he had been arrested several times for 

fraud and other crimes in Iowa and a warrant for his arrest 

was outstanding in Iowa).

The District Court did not clearly err when it found

that Huynh relocated the scheme and that he did so for the 

purpose of evading the authorities. 

C

We next address Huynh’s argument that the District 

Court erred when it applied the organizer or leader 

enhancement. The Guidelines provide for a four-level 

increase in a base offense level if the defendant “was an 

organizer or leader of a criminal activity that involved five or 

more participants or was otherwise extensive.” USSG 

§ 3B1.1(a). The commentary to § 3B1.1 does not define 
17

“organizer or leader” but lists factors for sentencing courts to 

consider in determining whether a defendant qualifies as 

such. Those factors include

the exercise of decision making authority, the 

nature of participation in the commission of the 

offense, the recruitment of accomplices, the 

claimed right to a larger share of the fruits of 

the crime, the degree of participation in 

planning or organizing the offense, the nature 

and scope of the illegal activity, and the degree 

of control and authority exercised over others.

Id. cmt. n.4. “We have explained that to be considered an 

organizer or leader, the defendant must have exercised some 

degree of control over others in the commission of the 

offense.” United States v. Helbling, 209 F.3d 226, 243 (3d 

Cir. 2000) (internal quotation marks and citation omitted). 

Huynh argues that he was not an organizer or leader of 

the conspiracy for two reasons. First, he was an equal partner 

with co-conspirator Phil Nguyen, who was indicted separately 

and did not receive an organizer or leader enhancement. 

Huynh cites our decision in United States v. Katora, 981 F.2d 

1398 (3d Cir. 1992), for the proposition that the organizer or 

leader enhancement is inapplicable where “two 

participants . . . bear equal responsibility for the commission 

of crimes.” Huynh Br. 18. This selective citation does not 

help Huynh. In Katora, we held that the enhancement could 

not apply to a scheme in which there were only two 

participants, both of whom were “equally culpable,” because 

neither of them led the other and they had no additional 
18

members to lead. 981 F.2d at 1405. Here, the conspiracy had 

additional members, so Katora is inapposite.4

Second, Huynh argues that he could not have been an

organizer or leader of the scheme because he split its profits 

equally with his co-conspirators and did not exercise “any 

decision-making authority over the others . . . or control over 

assets.” Huynh Br. 18. This argument is undermined by the 

overwhelming evidence in the record demonstrating Huynh’s 

singular leadership role. It is not clear from the portion of the 

PSR Huynh cites that the profits were split equally among the 

co-conspirators, but even assuming he is correct on this score, 

it does not establish clear error by the District Court because 

the balance of the factors outlined in the commentary to 

§ 3B1.1 unequivocally support its finding that Huynh was an 

organizer or leader of the scheme. Specifically, the record 

indicates that Huynh recruited Tung Thanh Doan, John 

Nguyen, and Phil Nguyen to participate in the scheme. Huynh 

arranged for their counterfeit licenses and fraudulent credit 

cards to be made and then instructed the men to memorize the 

details of their fake identities. Huynh also took possession of 

the watches and the credit cards and licenses used to obtain 

them, decided which stores would be targeted, coordinated 

 

4 Huynh’s suggestion that the decision of Nguyen’s 

sentencing court not to apply the enhancement somehow 

bound the District Court here to reach the same decision as to 

Huynh is without merit. Huynh also appears to suggest that 

two equally culpable individuals cannot both qualify as 

organizers or leaders. The commentary to USSG § 3B1.1 says 

otherwise. See § 3B1.1 cmt. n. 4 (“There can, of course, be 

more than one person who qualifies as a leader or organizer 

of a criminal association or conspiracy.”).
19

and paid for all travel, and controlled the scheme’s finances

from start to finish.

5 As the Probation Office noted in its 

response to Huynh’s objection to the PSR, “[i]t does not 

appear that the codefendants had any independent decision 

making ability in connection with the scheme.” PSR 

Addendum 3. Because Huynh exercised a significant “degree 

of control over others in the commission of the offense,” 

Helbling, 209 F.3d at 243, we hold that the District Court did 

not clearly err when it found Huynh to be an organizer or 

leader of the scheme.

Huynh also challenges the application of the 

enhancement on the ground that the scheme involved fewer

than five participants and was not “otherwise extensive.”

Under § 3B1.1, a participant is “a person who is criminally 

responsible for the commission of the offense, but need not 

have been convicted.” USSG § 3B1.1 cmt. n.1. Huynh does 

not dispute that at least three participants were involved (i.e.,

Huynh and his two co-defendants), and although he does not 

 

5 Huynh cites several cases in which other courts of 

appeals reversed applications of an organizer or leader 

enhancement. See United States v. Jordan, 291 F.3d 1091 

(9th Cir. 2002); United States v. Parmelee, 42 F.3d 387 (7th 

Cir. 1994); United States v. Litchfield, 959 F.2d 1514 (10th 

Cir. 1992). The reversal of the enhancements in those cases 

was predicated on a lack of evidence in the record that the 

defendants had exercised sufficient decision making 

authority. See Jordan, 291 F.3d at 1098; Parmelee, 42 F.3d at 

395; Litchfield, 959 F.2d at 1523. Huynh’s role in initiating 

the scheme, his authority over its operations, and his 

responsibility for coordinating its every move all distinguish 

his case. 
20

explicitly accept Phil Nguyen’s inclusion in the count, he 

effectively concedes the point by arguing that he and Nguyen 

were equal partners in the scheme. Huynh finds fault, 

however, with the District Court’s inclusion in the scheme of 

two unnamed individuals: the car dealership employee who 

supplied Huynh with the stolen customer information and the 

woman who fenced the watches. Huynh posits that those two 

actors should not have been counted because they were 

neither “identified in some capacity in the conspiracy” nor 

“necessary to the scheme.” Huynh Br. 16.

We need not reach the merits of these arguments, 

however, because we conclude that the District Court did not 

clearly err in finding that the scheme was otherwise extensive

for purposes of § 3B1.1(a). In Helbling, we adopted a threestep approach to determining whether a scheme is otherwise 

extensive. First, a sentencing court must distinguish the 

scheme’s “participants,” as defined by the commentary to 

§ 3B1.1, from non-participants who were nevertheless 

involved. 209 F.3d at 247–48. Next, the court must determine 

whether the defendant used each non-participant’s services 

“with specific criminal intent.” Id. at 248. Finally, the court 

must determine the extent to which those services were 

“peculiar and necessary to the criminal scheme.” Id. Nonparticipants whom the defendant employed with specific 

criminal intent for services that were peculiar and necessary 

to the scheme may be counted as “functional equivalents” of 

participants. Id. If a scheme has a total of five or more 

participants and countable non-participants, it is “otherwise 

extensive.” Id. 

Although Huynh complains that the Court did not 

explicitly undertake this three-step analysis at his sentencing 
21

hearing,6the Court’s specific factual findings, viewed in light 

of the entire record, suffice for us to determine that its 

conclusion was not clearly erroneous. In this case, assuming 

only the four undisputed participants, the involved nonparticipants include the car dealership employee and the 

fence. Huynh does not dispute that he engaged both with the 

specific intent of furthering the aims of the conspiracy. And 

contrary to his suggestion, the record contains ample evidence 

that their services were necessary to the scheme’s success. 

Without the stolen identification and credit information the 

car dealership employee supplied to Huynh, the scheme could

not have created the fake identities necessary to complete its 

fraudulent credit applications and purchases. And by

purchasing the stolen watches from Huynh, the fence supplied 

the cash necessary to cover the scheme’s expenses and 

compensate its members. Huynh makes no attempt to show 

why these two individuals should not be counted as functional 

equivalents of participants, and we perceive no clear error in 

doing so. Because the sum of the scheme’s participants and 

countable non-participants exceeds five, we conclude that the 

District Court did not clearly err in finding that the scheme 

was otherwise extensive within the meaning of § 3B1.1(a). 

Accordingly, the Court did not clearly err in finding that 

 

6 The District Court found that the scheme had at least 

five participants, rendering the “otherwise extensive” inquiry 

unnecessary. Its separate finding that the scheme was 

otherwise extensive was, as Huynh notes, not based on the 

Helbling factors outlined above. Coupled with the Court’s 

factual findings regarding whom it deemed to be participants 

for purposes of § 3B1.1(a), however, the record provides us 

with a sufficient basis on which to evaluate the Court’s 

finding for clear error.
22

Huynh was “an organizer or leader of a criminal activity that 

involved five or more participants or was otherwise 

extensive.” USSG § 3B1.1(a).

IV

Because the Government did not breach its plea 

agreement with Huynh and the District Court did not clearly

err when it applied the relocation and organizer or leader

enhancements, we will affirm the District Court’s judgment 

of sentence.