FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11996

Non-Argument Calendar

________________________

D. C. Docket No. 06-00206-CR-CG-001

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

QUANG VAN NGUYEN, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(October 15, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

Quang Van Nguyen appeals his conviction for conspiracy to possess
methamphetamine with intent to distribute, 21 U.S.C. § 846, and his 364-month

sentence. On appeal, he first argues the evidence was insufficient to show any

agreement to distribute methamphetamine. He argues that, at best, the evidence

shows a series of buy-sell relationships, which show no objective beyond that

immediately accomplished by the transaction. Further, he asserts the testimony of

the investigating police officer was not supported by the witnesses who

cooperated with the government in exchange for leniency. Nguyen argues that, to

prove conspiracy, the government must prove more than a series of arms-length

drug transactions.

We review de novo challenges to the sufficiency of the evidence in criminal

trials, viewing the evidence in the light most favorable to the government. United

States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000) (per curiam). To prove a

conspiracy under 21 U.S.C. § 846, the evidence must show “(1) an agreement

between the defendant and one or more persons, (2) the object of which is to do

either an unlawful act or a lawful act by unlawful means.” United States v. Toler,

144 F.3d 1423, 1426 (11th Cir. 1998). Conspiracy is primarily a mental offense,

so “it is frequently necessary to resort to circumstantial evidence to prove its

elements.” Id. Agreement to conspire may be inferred from a continuing

relationship that results in the repeated transfer of drugs to the purchaser. United

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States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999) (per curiam). However,

buyer-seller transactions in themselves do not support a conspiracy conviction. 

See United States v. Dekle, 165 F.3d 826, 829-30 (11th Cir. 1999) (noting that

“evidence that the parties understood their transactions to do no more than support

the buyer’s personal drug habit is antithetical to a finding of conspiracy”). “If the

evidence shows only a buy-sell relationship, the fact that sales are repeated,

without more, does not support an inference that the buyer and the seller have the

same joint criminal objective to distribute drugs.” Id. at 830. Testimony by the

defendant, if disbelieved by the jury, may be considered as substantive evidence of

guilt. United States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004). A jury is

free to choose among reasonable constructions of the evidence. Id. at 1323.

The district court did not err by finding sufficient evidence to show Nguyen

conspired to distribute methamphetamine because there was testimony from the

investigating officer that Nguyen helped Cu Hunyh sell methamphetamine, and the

jury could reasonably have considered Nguyen’s denials as evidence against him.

Nguyen also argues that the district court plainly erred by failing to instruct

the jury that a buyer-seller relationship does not alone establish a conspiracy. 

Specifically, he claims the standard jury instructions on the elements of conspiracy

fail to inform the jury that the buyer-seller relationship does not, by itself,

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establish the intent to agree required for a conspiracy. Nguyen argues that the

district court’s use of the plural word “purposes” in the pattern jury instruction

allowed the jury to find a conspiracy even if no potential member of the

conspiracy agreed with any other as to the goal of the conspiracy. Further, he

claims that the weakness of the government’s case required the district court to

give a buyer-seller instruction.

Here, where the defendant asserts that the district court erred by not giving a

jury instruction that the defendant did not request, review is for plain error. 

United States v. Beasley, 2 F.3d 1551, 1561 (11th Cir. 1993). Plain error exists if

there was “(1) error, (2) that is plain, and (3) affects substantial rights. If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Heath, 419 F.3d 1312,

1314 (11th Cir. 2005) (per curiam) (internal quotation marks and citation omitted).

We find reversible error in the refusal to give a requested jury instruction

only if “(1) the requested instruction correctly stated the law; (2) the actual charge

to the jury did not substantially cover the proposed instruction; and (3) the failure

to give the instruction substantially impaired the defendant’s ability to present an

effective defense.” United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008)

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(per curiam), petition for cert. filed, No. 08-5067 (April 2, 2008) (internal

quotation marks omitted). 

In a case involving the use of the same pattern instruction as used in

Nguyen’s trial, we held the instruction “address[ed] the substance of the requested

[buyer-seller] instruction.” United States v. Lively, 803 F.2d 1124, 1128-29 (11th

Cir. 1986). We explained that the instruction adequately addresses that the

defendant must knowingly and willfully become a member of the conspiracy. Id.

at 1129. We further explained that “a person who has no knowledge of a

conspiracy, but who happens to act in a way which advances some purpose of one,

does not thereby become a conspirator.” Id. Thus, the instruction “adequately and

correctly covered” the requested buyer-seller instruction. Because the conspiracy

instruction covered the substance of the buyer-seller instruction, we find no plain

error.

In addition, Nguyen argues that the district court plainly erred by using facts

found by a judge and not by the jury in determining his sentence. Nguyen asserts

the statutory maximum was the guideline range that would have been calculated

without the use of those facts, and therefore, his Sixth Amendment rights have

been violated.

When a defendant does not object to fact finding by the district court,

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review is for plain error. United States v. Cartwright, 413 F.3d 1295, 1300 (11th

Cir. 2005) (per curiam). When a defendant does not object to the facts in the presentence investigation report, the defendant admits those facts. United States v.

Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (per curiam). District courts are

permitted to find facts by a preponderance of the evidence to use in calculating the

advisory guideline range. United States v. Douglas, 489 F.3d 1117, 1129 (11th

Cir. 2007) (per curiam), cert. denied, 128 S. Ct. 1875 (2008).

The district court did not plainly err because Nguyen admitted to the facts in

the pre-sentence investigation report used to calculate his sentence and district

courts are permitted to find facts for use in sentencing in an advisory system.

Finally, Nguyen argues that the district court imposed a procedurally and

substantively unreasonable sentence. Procedurally, he argues the district court did

not respond to his arguments that he was not a major drug dealer and his criminal

history score did not accurately reflect his true criminal history. Further, he claims

that the district court did not sufficiently explain its reasons for sentencing. 

Substantively, he argues his sentence was above the average sentence in this

Circuit for drug trafficking and above the national average sentence for murder

and kidnapping. Nguyen argues the district court was too credulous of the drug

transactions described by the government’s cooperating witnesses, and should

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only have ascribed to Nguyen an amount of methamphetamine that would not

require a mandatory minimum sentence. Additionally, he maintains that the

district court’s calculation of the drug quantity failed to consider the effect of a

long distribution period on the quantity of drugs.

We review the final sentence imposed by the district court for

reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007) (per

curiam). Recently, the Supreme Court clarified that the reasonableness standard

means review of sentences for abuse of discretion. Gall v. United States, 552 U.S. 

__, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). 

The district court must impose a sentence that is both procedurally and

substantively reasonable. Gall, 552 U.S. at __, 128 S. Ct. at 597. The Supreme

Court has explained that a sentence would be procedurally unreasonable if the

district court improperly calculated the guideline imprisonment range, treated the

Guidelines as mandatory, failed to consider the appropriate statutory factors, based

the sentence on clearly erroneous facts, or failed to adequately explain its

reasoning. Id. If the district court made no procedural errors, then we review the

substantive reasonableness of the sentence imposed to determine whether the

sentence is supported by the 18 U.S.C. § 3553(a) factors. Id. at __, 128 S.

Ct. at 600. The § 3553(a) factors include: 

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(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need

to protect the public; (5) the need to provide the defendant with

needed educational or vocational training or medical care; (6) the

kinds of sentences available; (7) the Sentencing Guidelines range; (8)

pertinent policy statements of the Sentencing Commission; (9) the

need to avoid unwanted sentencing disparities; and (10) the need to

provide restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam) (citing 18

U.S.C. § 3553(a)). There is a “range of reasonable sentences from which the

district court may choose.” Id. at 788. “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in light of both

[the] record and the factors in section 3553(a).” Id. The weight given to particular

sentencing factors is committed to the sound discretion of the district court. 

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

We have held that a district court is not required to state that it has explicitly

considered each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005). In addition, “when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Talley, 431 F.3d at 788.

The district court’s sentence was procedurally reasonable because it

considered Nguyen’s arguments in mitigation. The district court’s sentence was

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substantively reasonable because it considered the sentencing factors, including

the seriousness of Nguyen’s conduct, his history of violent behavior, and the need

to protect the public from a heavily armed drug dealer. Moreover, Nguyen’s 364-

month sentence was well within the 324-405 months advisory guideline range.

Upon review of the record and consideration of the parties’ briefs, we affirm

Nguyen’s conviction and sentence. 

AFFIRMED.

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