## The Honorable James M. Rosenbaum, United States District Judge for th e 1 

## District of Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2198

___________ United States of America, *

Plaintiff-Appellee, * Appeal from the United States

v. * of Nam Xuan Ngo, *

Defendant-Appellant. * *

* District Court for the District

* Minnesota.

*

*

___________ Submitted: December 12, 1997 Filed: December 30, 1997

___________ Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________ MURPHY, Circuit Judge.
NamXuan Ngo was indicted on twenty-four counts of possessin g counterfeit securities in violation of 18 U.S.C. § 513, nine counts of m oney launde ring in violation of 18 U.S.C. § 1956(a)(1), and one count o f conspiracyto commit these offenses in violation of 18 U.S.C. § 371. Ngo pled guilty to one count of possession and the district court sentenced him 1 to thirty months in prison and two years of supervised

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release
. Ngo now appeals the district court’s denial of a sentencin g reductionfor acceptance of responsibility and the imposition of a n enhancement for a leadership role in the criminal activity. We affirm.
On Jun e 14, 1995, Ngo, Hao Huy Le, and Sang Minh Tu were arrested in Edina, Minnesota after police stopped their c ar because a passenger matched the description of a man who had just attempt ed to pass a counterfeit check at First Bank Edin a. Police found twelve $100 bills in Ngo’s pants pocket and seventeen more in a slit in his shirt cuff. On the adjacent sidewalk theyfound fifteen checks wrapped in a piece of paper; the checks had the same payee, amount , and issuer as the check presented to First Bank Edina. Theyalso found a brochure in the car which listed hours and locations of Minneapolis area First Bank branches and whic h had a signature on it in the name of one of the payees of the counterfeit checks. Ngo’s fingerprints were found on several of the checks and the brochure. Ngo pl ed guilty to one count of possession of a counterfeit security as part of a plea agreement which also provided for dismissal of the other thirty three count s with which Ngo was charged. During his change of plea hearing Ngo admitt ed his involvement in the criminal offense and said that he had joined Le and Tu on June 14 after call ing them on his cellular phone and learning that they were negotiating counterfeit checks with Cuong Ng uyen and had already that day passed checks at thr ee First Bank facilities. Ngo claimed that he asked to join them so he could get some money but that he told Tu he would only serve as a lookout. Nguyen left the group when Ngo arrived and Ngo, Le, and Tu then went on to F irst Bank Southdale where they negotiated a check for $2900 before proceedin g to First Bank Edina. In the course of two days , members of the group presented counterfeit checks with a total value of $72,300.

## -3- The prosecution requested an evidentiary hearing and sought enhancements for obstruction of justice and a leadership role in the offense,but the government withdrew the request for a leadershipenhancement on the day of sentencing b ecause Le, Tu, and Nguyen refused to testify against Ngo. The court adopted th e undisputed factual statements in the presentence report and receive d transcripts of several phone conversations Ng o had from jail with Tu and Le and a stipulation that Ngo had been charged with driving while intoxicated after his guilty p lea. Ngo objected to several aspects of the presentence report, including statements that the four men where members of a gang k nown as the “Minneapolis Boys,” that Ngo had takenover the check counterfeiting scheme fro m his brother and was operating it from his house, that he ha d previously recruited Nguyen and another man to participate and provided them with checks and fa lse identification, and that Le, Tu, and Nguyen had said that Ngo was the leader of the operation. The court stated that it would not cons ider the challenged statements in the report in making it s sentencing determinations. After hearing arguments from counsel an d statements by Ngo and his father, the court imposed a sentence of thirt y months in prison and two years of supervised release. In applying th e United States Sentencing Guidelines the court declined to adjust downwar d for acceptance of responsibility under U.S.S.G. § 3E1.1, imposed a two l evel enh ancement for Ngo’s leadership role in the operation under U.S.S.G. § 3B1.1, and refused to add an enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Ngo claim s that the district court erred in denying him a two leve l reduction for acceptance of responsibility. Ngo had the burden to estab lish a clear acceptance of responsibility, U.S. v. Byrd , 76 F.3d 194, 196 (8th Cir. 1996), and the district court’s factual determination is entitled to great deference. Id ; U.S.S.G. § 3E1.1 n. 5. Such a determination shoul d only be reversed if it is so clearly erroneou s as to be without foundation. Byrd , 76 F.3d at 195.
The district court found Ngo’s story a conscious attempt to mislea d an d to minimize his involvement and that it was thus inconsistent wit h acceptance of

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responsibili ty. U.S.S.G. § 3E1.1 n. 1(a). Ngo told the court that h e participated in the scheme for fun and to mak e some money, but that he only held money because of someone else’s instruct ions. Ngo’s fingerprints were found on several c hecks and on the brochure listing the location and hours of First Bank faci lities where checks had been passed, however, and police found $2900 in cash hidden on his person. The district court was als o entit led to consider his subsequent driving conduct because continue d criminal conduct, even if minor and unrelatedto the offense of conviction, ca nmake a sentence reduction for acceptance of responsibilit y inappropr iate. Byrd , 76 F.3d at 197. The district court had th e opportunityto observe Ngo’s demeanor and evaluate his credibility at the time he entered his guilty plea and again at the sentencing hearing. It s finding that Ngo was not entitled to credit for acceptance of responsibi lity was not clearly erroneous. Ngo also c ontests the imposition of a two level enhancement for hi s leadership role, and this factual determination also can only be reversed if clearly erroneous. United States v. Edwards , 91 F.3d 1101, 1104 (8t h Cir. 1 996). An enhancement for a leadership role in the crimina l enterprise must be based on control of other participants in the offense. U.S.S.G. § 3B1.1 n. 2. The sentencing guidelines support several factors that may be consid ered: decision making authority, planning or organizing, control or authority over others, recruiting others, and the nature o f participation. U.S.S.G. § 3B1.1 n. 4. The district court found that transcripts of Ngo’s phone conversations fromjail with Le and Tu showed his leadership role in the chec k co unterfeiting scheme. During these conversations, Ngo repeatedl y instructed Tu and Le on how to tell their stories to the police and court. He informed them that his sentence would turn on their testimony an d directed them how to testify in order to mini mize his involvement. He also made several statements about killing an individual who had not done what he wanted, and he threatened prosecution witnesses if he ever got out o f jai l. Both Le and Tu appeared deferential to Ngo and his instructions
. These recorded conversations

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support the finding that Ngo directed the cou nterfeiting enterprise because they show planning , organization, and his position as the dominant member.
There was also other evidence to support the district court’s finding about Ngo’s role in the offense. The checks and proceeds were tied dire ctly to him, as was the information on the targeted banks. His fingerprints were found on several c hecks and on the brochure showing the location and hours of the banks where checks were passed. He took charge of the proceeds and hid some in his shirt cuff. He did not perso nally enter the bank, but kept a lookout while Tu and Le attempted to negotiate the checks. The recor d supports the court’s finding that he directedthe other participants at the time of the offens e and continued in that role after the men were arrested and charged.
Sin ce Ngo has not shown that the district court’s sentencin g determinations were clearly erroneous, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.