Not for Publication in West's Federal Reporter.

United States Court of Appeals

For the First Circuit

Nos. 06-1221

06-1222

UNITED STATES OF AMERICA,

Appellee,

v.

DUNG VU,

Defendant, Appellant.

No. 06-1223

UNITED STATES OF AMERICA,

Appellee,

v.

DUNG LE,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Torruella, Selya and Lynch, Circuit Judges.

Jane Elizabeth Lee on brief for appellant Dung Vu.

qTina Schneider on brief for appellant Dung Le.

Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,

United States Attorney, on brief for appellee.
February 6, 2007
In the district court Dung Vu framed his challenge in terms 1

of equal protection, while in this court he relies on due process.

As he acknowledges, however, the standard is the same in either

case. See Chapman v. United States, 500 U.S. 453, 464-65 (1991).

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Per Curiam. Dung Vu and Dung Le--co-conspirators in a

drug trafficking operation that brought crack cocaine from

Massachusetts to Maine for local distribution, see generally United

States v. Dung Cao, 471 F.3d 1 (1st Cir. 2006) (affirming

conviction and sentence of another co-conspirator in that

operation)--appeal from their sentences. After careful

consideration of the parties' briefs and the underlying record, we

affirm both defendants' sentences for the reasons discussed below.

Dung Vu challenges his mandatory minimum sentence on the

sole ground that the applicable statute, 21 U.S.C. § 841(b)(1)(A),

violates his equal protection or due process rights by imposing 1

the same mandatory minimum penalty for crimes involving crack

cocaine as for crimes involving 100 times the amount of powder

cocaine. We have repeatedly rejected that argument, United States

v. Berrios, 132 F.3d 834, 842 (1st Cir. 1998); United States v.

Graciani, 61 F.3d 70, 75 (1st Cir. 1995); United States v.

Singleterry, 29 F.3d 733, 740 (1st Cir. 1994); and "[u]ntil the en

banc court of this circuit, the U.S. Supreme Court, or Congress

itself . . . finds [this disparity] untenable, [such] challenges .

. . will continue to fail," Berrios, 132 F.3d at 842; see also

Graciani, 61 F.3d at 75.
On appeal, she also argues that the court erred in concluding 2

that the criminal activity involved "five or more participants or

was otherwise extensive," another prerequisite for applying the

same enhancement. USSG § 3B1.1(a). However, by not raising that

argument below, she forfeited all but plain error review on that

ground, United States v. Connolly, 341 F.3d 16, 30 (1st Cir. 2003).

The district court did not err, plainly or otherwise, in finding

that criterion to be satisfied. The record is clear that the

conspiracy involved at least the six individuals named in the

indictment and was also "extensive" in terms of its duration (more

than one year), the amount of drugs involved (50 grams or more of

crack cocaine), and its geographic reach (from Massachusetts to

Maine). See United States v. Thiongo, 344 F.3d 55, 62-63 (1st Cir.

2003). 

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Dung Le challenges her sentence on the ground that the

district court erred in applying a four-level enhancement to her

base offense level based on its finding that she was an "organizer

or leader" of the conspiracy within the meaning of USSG §

3B1.1(a). We review that fact-sensitive finding only for clear 2

error. United States v. Ortiz-Santiago, 211 F.3d 146, 148 (1st

Cir. 2000).

In making that finding, the district court expressly

relied upon "the facts set forth in the presentence investigation

report, which [it] accept[ed]; the results of the wiretap, which

[it had] heard; [and] the activities involving the direct sales of

drugs and [Dung Le's] part in those." In addition, the government,

which had the burden of justifying the role enhancement, United

States v. Picanso, 333 F.3d 21, 23 (1st Cir. 2003), pointed to

other evidence in the transcripts of co-defendant Dung Cao's trial,
Dung Le asks us to reconsider these precedents in light of 3

United States v. Booker, 543 U.S. 220 (2005). Even if this panel

were empowered to do so, see Berrios, 132 F.3d at 842, we would

decline. Booker did not alter the district court's fact-finding

authority. United States v. Pizarro-Berríos, 448 F.3d 1, 6 (1st

Cir. 2006). Indeed, Prochner itself was decided post-Booker. 

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co-defendant Sang Tran's sentencing, and the suppression hearing,

over which the same judge presided.

Dung Le objects to the district court's reliance on

anything but the undisputed facts in the presentence report

("PSR"), the facts in the prosecution's version that she admitted

when she pled guilty, and the evidence introduced at the

suppression hearing (which included tape-recordings and transcripts

of the results of the wiretap of Dung Le's telephone). Her

objections to the court's other sources of information are

unfounded.

Even where a defendant objects to facts in a PSR, the

district court is entitled to rely on the objected-to facts if the

defendant's objections "'are merely rhetorical and unsupported by

countervailing proof.'" United States v. Prochner, 417 F.3d 54, 66

(1st Cir. 2005) (quoting United States v. Cyr, 337 F.3d 96, 100

(1st Cir. 2003)); see also United States v. Grant, 114 F.3d 323,

328 (1st Cir. 1997). Here, although Dung Le objected to the PSR's 3

conclusion that she was a leader or organizer and also denied some

of the subsidiary facts, she produced no evidence to the contrary.

"In the absence of rebuttal evidence beyond defendant's self-
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serving words," the district court did not clearly err in relying

on the facts in the PSR. Prochner, 417 F.3d at 66. Moreover, to

the extent that the district court implicitly resolved the disputed

facts in the government's favor, as it was also entitled to do,

Grant, 114 F.3d at 66 n.9, its "choice among supportable

alternatives cannot be clearly erroneous," United States v. Ruiz,

905 F.2d 499, 508 (1st Cir. 1990). 

The district court did not expressly rely on the

transcripts of co-defendant Dung Cao's trial or Sang Tran's

sentencing. However, to the extent it did so implicitly, it was

entitled to rely on the evidence presented at those related

proceedings, over which the same judge presided, United States v.

Canada, 960 F.2d 263, 268 (1st Cir. 1992), particularly since Dung

Le had prior notice, via the government's sentencing memorandum,

that the government intended to rely on evidence from the former

proceeding, and defense counsel was present at the latter. See id.

(distinguishing United States v. Berzon, 941 F.2d 8 (1st Cir.

1991), on which Dung Le relies, on these grounds).

As a fall-back argument, Dung Le contends that her trial

counsel was ineffective in failing to request a transcript of Dung

Cao's trial prior to sentencing, so that he could point to evidence

from that transcript to demonstrate Dung Le's lack of a leadership

role. That argument is premature in this direct appeal, United

States v. Medina, 427 F.3d 88, 90 (1st Cir. 2005), and is unlikely
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to succeed in any event. Even if Dung Le could show that her

counsel's failure to request the transcript fell below an objective

standard of reasonableness, Strickland v. Washington, 466 U.S. 668,

687 (1984), it is doubtful that she could show the necessary

prejudice, id. Even with the benefit of the transcript, her

appellate counsel has identified only one minor discrepancy between

the government's characterization of the trial evidence and the

transcript itself and two instances where co-conspirators acted

independently. We doubt that this evidence would have changed the

court's view--based on the other evidence it considered--that Dung

Le's role as a leader or organizer was "abundantly clear." 

That conclusion is amply supported by the record

evidence. In sum, that evidence showed that, among other tasks,

Dung Le made arrangements to purchase the crack in Massachusetts,

recruited and supervised runners to pick up and distribute it,

repackaged it in smaller amounts for distribution, handled most of

the negotiations over amounts and prices, and arranged for sales to

undercover agents and others.

That array of responsibilities was sufficient to warrant

a leadership enhancement under USSG § 3B1.1(a). See id., comment.

(n.2) (listing among the relevant factors, "the exercise of

decision making authority, the nature of participation in the

commission of the offense, the recruitment of accomplices, . . .

the degree of participation in planning or organizing the offense,
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. . . . and the degree of control and authority exercised over

others"); see also, e.g., United States v. Casas, 356 F.3d 104, 129

(1st Cir. 2004); United States v. Ventura, 353 F.3d 84, 89 (1st

Cir. 2003); Berrios, 132 F.3d at 839. Although, at times, Dung Le

performed some lower-level tasks herself and others shared

leadership responsibility or acted independently, those facts do

not render her ineligible for a leadership enhancement. "There

can, of course, be more than one person who qualifies as a leader

or organizer of a criminal association or conspiracy." USSG §

3B1.1, cmt. (n.4); see also Ventura, 353 F.3d at 89-90.

Accordingly, finding no error in either defendant's

sentence, we affirm both sentences. See 1st Cir. Loc. R. 27.0(c).