NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 08-4887

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UNITED STATES OF AMERICA 

v.

SANN THACH,

Appellant

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On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Criminal Action No. 2-07-cr-00087-001)

District Judge: Honorable Eduardo C. Robreno

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Submitted Under Third Circuit LAR 34.1(a)

November 15, 2010

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Before: AMBRO, FISHER, and GARTH, Circuit Judges

(Opinion filed: January 5, 2011)

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OPINION

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AMBRO, Circuit Judge

In August 2008, Sann Thach was found guilty after a jury trial of conspiracy to 

possess with intent to distribute MDMA and methamphetamine, in violation of 21 U.S.C. 

§ 846, and possession of MDMA and methamphetamine with intent to distribute, in 
2

violation of 21 U.S.C. § 841(a)(1). On appeal, he argues that the District Court erred in 

denying his motion to suppress the evidence of drugs and U.S. currency. He challenges 

as well his sentence. We affirm the District Court’s rulings on both issues.

I. Background

In January 2007, the Bureau of Immigration and Customs Enforcement (“ICE”) 

was investigating an ecstasy drug “ring” between Canada and Philadelphia. Drugs were 

shipped from Canada to Philadelphia and then distributed to other regions. Agents had 

placed Nahn Le’s house in Philadelphia under surveillance because they had information 

that she had recently received a large shipment of ecstasy pills. One evening, while 

surveilling the location, the agents’ suspicions were aroused by a car parked nearby with 

North Carolina license plates. Later that evening the agents saw three people leave the 

Le house and approach the car. One of them, Thach, had a plastic bag, which he placed 

in the trunk. The three drove away, Thach in the backseat, his co-defendant, Kareem 

Martin, in the passenger seat, and the third person, Karisa Hilley, driving. The agents 

called for local police backup. Officer Kelly responded, followed the car, and stopped it 

after it exceeded the speed limit by 25 miles per hour. Shortly thereafter, Officer 

Fredericksdorf arrived. 

He removed Thach from the car for questioning while Officer Kelly spoke with 

Hilley. From his conversation with Hilley, Kelly learned that the car was rented to 

someone else, and Hilley was not an authorized driver. Fredericksdorf did a pat down of 

Thach, during which he removed a bundle of cash. When asked from where they were 

coming, all three occupants of the car gave the officers a different story. Suspecting that 
3

there were drugs in the car, Officer Kelly asked Hilley if he could search the car. Hilley 

agreed and signed a consent form. Kelly then searched the trunk and found two cereal 

boxes filled with ecstasy pills. Thach was arrested and the evidence was given to the 

federal agents. 

Prior to trial, Thach moved to suppress the physical evidence on the ground that 

the traffic stop and frisk were illegal, and that Hilley’s consent to search was invalid. The 

District Court denied the motion. 

Prior to trial, Thach, in concert with his then-girlfriend, sent false IRS filings to 

the U.S. Attorney’s Office. The forms were issued in the names of the District Judge 

assigned to his case, the U.S. Attorney, and the prosecutor in the U.S. Attorney’s Office

(collectively, the “Government officials”). The forms falsely stated that each of the 

Government officials had earned $200,000,000 in 2008. Thach filed these docume nts, 

accompanied by an “affidavit of facts,” with the District Court, claiming he was entitled 

to recover a total of $600,000,000 from the Government officials. Phone calls between 

Thach and his girlfriend revealed that he intended to use this scheme as a way to get his 

case dismissed and to get money from the Government. (This act, not uncommon, is 

sometimes referred to as a “redemption scheme.”) The District Court dismissed these 

claims.

Thach was subsequently convicted by a jury of the crimes noted above. At 

sentencing, the District Court calculated the advisory Guidelines’ range to be 262 to 327 
4

months.1 It sentenced Thach to 262 months’ imprisonment, five years of supervised 

release, a $1,000 fine, and a $200 special assessment. Thach now objects to the two-level 

enhancement for obstruction of justice and claims that the District Court should have 

imposed a below-Guidelines sentence. 

For the reasons that follow, we affirm the District Court’s denial of Thach’s 

motion to suppress and his sentence.

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III. Discussion

A. Motion to Suppress

We review the District Court’s order denying the motion to suppress for “clear 

error as to the underlying facts, but exercise plenary review as to its legality in light of the 

court’s properly found facts.” United States v. Lafferty, 503 F.3d 293, 298 (3d Cir. 2007) 

(quoting United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)).

Thach argues that the officers engaged in a series of unlawful actions, each of 

which demands suppression of the physical evidence found in the car and on Thach’s 

person. He claims that they did not have a legal basis to stop the car. Nor, he urges, did 

Officer Fredericksdorf have a lawful basis to frisk him and remove the cash. Finally, he 

argues that the consent to search the car was involuntary. We disagree with each 

assertion.

 

1

Thach’s base offense level was 34 and his criminal history category was IV. 

2

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

18 U.S.C. § 1291 and 18 U.S.C. § 3742.
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The car in which Thach was riding was stopped for speeding. Any violation of the 

traffic code provides a ground for a legitimate traffic stop, “even if the stop is merely 

pretext for an investigation of some other crime.” United States v. Mosley, 454 F.3d 249 

(3d Cir. 2006) (interpreting Whren v. United States, 517 U.S. 806, 813 (1996)). Pursuant 

to a valid stop, a police officer may order the occupants—including passengers—out of 

the car “pending completion of the stop.” Maryland v. Wilson, 519 U.S 408, 415 (1997). 

The District Court credited the officer’s testimony that, by following the car for 

some time, he observed that the car was traveling about 80 miles per hour, 25 miles per 

hour over the limit. Our review of the District Court’s factual findings that are based on 

credibility determinations proceeds with great deference, particularly where the District 

Court’s “decision is based on testimony that is coherent and plausible, not internally 

inconsistent and not contradicted by external evidence.” United States v. Igbonwa, 120 

F.3d 437, 441 (3d Cir. 1997). In this situation, we do not believe that the Court was 

clearly in error. Thus, we conclude that the initial traffic stop and questioning of Thach 

was lawful.

After a traffic stop, an officer may frisk a person whom he has ordered out of the 

car if he has a reasonable suspicion that the person is armed. See Pennsylvania v. 

Mimms, 434 U.S. 106, 111-13 (1977) (per curiam). Reasonable suspicion is formed 

when, under the totality of the circumstances, the officer reasonably believed his safety 

was threatened. Terry v. Ohio, 392 U.S. 1, 27 (1968). The totality of the circumstances 

includes an officer’s “knowledge, experience, and common sense judgments about 

human behavior.” United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002). Here, 
6

we believe that there was ample evidence to establish the reasonableness of Officer 

Fredericksdorf’s suspicion that Thach was armed and dangerous. He knew the occupants 

of the car were suspects in a drug investigation. 3 Based on his training and experience, 

he also knew that guns often accompanied drugs. Both officers became aware that the 

occupants’ stories were inconsistent and that none of them was authorized to drive the 

car. Finally, in testimony credited by the District Court, Officer Fredericksdorf explained 

that Thach’s furtive conduct during the stop suggested that he might be attempting to 

stash something. In this context, “a reasonably prudent man in the circumstances would 

be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. 

at 27. 

Nor do we believe that seizing the cash was unlawful. Non-weapon contraband 

will not be suppressed where an officer feels a “hard, bulky object” and seizes it on the 

belief it is a gun. See, e.g., United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995). In 

this case, Officer Fredericksdorf testified that he felt a brick-like bulge, which he 

removed because he did not know for certain whether it was a weapon. He testified that 

he thought it could have been a gun in a square holster. The District Court was 

reasonable in crediting this testimony. Here, as in Edwards, the officer “could reasonably 

 

3

This information was relayed to them from the ICE agents, who had reliable 

information that Le had received a shipment of drugs and had observed Thach leaving 

Le’s home with a bag. As we have held elsewhere, “[i]t is well settled that reasonable 

suspicion can be based on information gathered from another person.” Robertson, 305 

F.3d at 168. 
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have confused the square, bulky mass . . . for a small handgun sheathed in a square, 

leather holster.” Id. 

Finally, we reject Thach’s claim that Hilley’s consent to search was not voluntary. 

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), requires that the totality of the

circumstances demonstrate that consent was voluntary. The District Court also credited 

testimony that Hilley’s consent was knowing and voluntary. We agree. There was none 

of the signature signs of coercion, such as a display of force, authority, or intimidation. 

The officers did not draw their guns, handcuff Hilley, or deceive or intimidate her into 

signing the consent form. Nothing in the record suggests that Hilley’s ability to 

understand the consequences of consent was compromised by her background, education, 

or intelligence. 

Thus, we conclude that the officers’ actions were consistent with Fourth 

Amendment requirements. Accordingly, we affirm the District Court’s denial of the 

motion to suppress the cash seized from Thach and the drugs seized from the car. 

B. The Sentence 

We review a District Court’s application of the now advisory Sentencing 

Guidelines for reasonableness under an abuse-of-discretion standard. Gall v. United 

States, 552 U.S. 38, 46 (2007); United States v. Booker, 543 U.S. 220, 261 (2005). For a 

sentence to be procedurally reasonable, sentencing judges must follow a three-step 

sentencing process: (1) calculate a defendant’s sentencing range under the Guidelines; (2) 

rule on motions for departures of both parties and state on the record whether they are 

granting a departure and how that departure affects the Guidelines’ calculation; and (3) 
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“exercise their discretion by considering the relevant [18 U.S.C.] § 3553(a) factors in 

setting the sentence they impose regardless whether it varies from the sentence calculated 

under the Guidelines.” United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) 

(internal citations and quotation marks omitted). “[I]f the district court’s sentence is 

procedurally sound, we will affirm it unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for the reasons the district court 

provided.” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

As noted above, Thach argues that the District Court erred in applying a two-point 

enhancement for obstruction of justice and for not imposing a below-Guidelines sentence 

in light of his “cooperation.” We disagree.

Section 3C1.1 of the Guidelines provides for a two-level enhancement for 

obstruction of justice. His conduct falls squarely within what is contemplated by that

provision. As its application note points out, examples of obstruction of justice include 

“producing or attempting to produce a false, altered, or counterfeit document or record 

during an official investigation or judicial proceeding” and “providing materially false 

information to a judge.” U.S.S.G. § 3C1.1 app. 4. It also includes any “other conduct 

prohibited by obstruction of justice provisions under Title 18, United States Code.” Id. 

Section § 1503 of Title 18 prohibits an attempt to influence improperly or intimidate a 

federal prosecutor or judge. The record shows that Thach engaged willfully in this 

scheme and that he believed it would succeed. The District Court did not abuse its 

discretion in applying a § 3C1.1 enhancement. 
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Thach also claims that he was entitled to a two-point reduction for acceptance of 

responsibility pursuant to § 3E1.1 of the Guidelines.4 He explains that his defense at trial 

was inhibited because of prior proffer sessions with the Government, and therefore he 

should be awarded a two-point reduction, presumably to make up for this alleged 

limitation. The acceptance-of-responsibility adjustment is typically applied to those 

defendants who plead guilty, and “is not intended to apply to a defendant who puts the 

government to its burden of proof at trial.” Id. § 3E1.1 app. 2. In any case, only Thach is 

to blame for aborting his cooperation with the Government. A two-point reduction for 

acceptance of responsibility is also inconsistent with the obstruction-of-justice 

enhancement, as the latter demonstrates “that the defendant has not accepted 

responsibility for his criminal conduct.” Id. app. 4. The District Court did not err, 

plainly or otherwise, by not applying the two-point reduction here. 

In a related claim, Thach suggests that the District Court’s decision not to impose 

a below-Guidelines sentence was unreasonable. On appeal, he argues the District Court 

should have departed downward under § 5K2.2(a) of the Guidelines, which allows 

departures in calculating the Guidelines’ range for “mitigating circumstance[s] . . . not 

adequately taken into consideration by the Sentencing Commission . . . to advance the 

objectives set forth in 18 U.S.C. § 3553(a)(2).” Id. § 5K2.0(a)(1). Thach asserts as a 

mitigating circumstance that he did cooperate to some extent (citing the proffer sessions), 

which should receive some credit even though he ultimately proceeded to trial. We are 

not persuaded. 

 

4

Thach did not argue this claim at sentencing and so we review it for plain error. 
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In the first instance, Thach confuses departures and variances. At sentencing, 

Thach did not make a formal motion for a § 5K2 departure. Rather, he argued for a 

variance (which draws on the 18 U.S.C. § 3553(a) factors) based on his attempted, but

aborted, cooperation and because his co-defendants received lower sentences. Insofar as 

Thach means to attack the District Court’s failure to depart at step two of our sentencing 

analysis under Gunter, 462 F.3d at 247, his argument fails, as we lack jurisdiction over a 

District Court’s decision not to exercise its discretion to depart from the advisory 

Guidelines. United States v. Minutoli, 374 F.3d 236, 239 (3d Cir. 2004). 

We also believe that the District Court’s assessment of the § 3553(a) factors, and 

its decision not to vary outside the advisory Guidelines’ range, was reasonable. Though a 

District Court certainly has the discretion to vary outside the Guidelines, Gall, 552 U.S. 

38, it is under no obligation to do so. Here, the Court applied a sentence at the low end of 

the sentencing range. It considered on the record Thach’s arguments in connection with 

§ 3553(a). It noted that, although his co-defendants had received lesser sentences based 

on their substantial assistance, Thach was not a similarly situated defendant. Unlike his

co-defendants, the sentencing Court believed that Thach had not accepted responsibility 

or evidenced a likelihood of rehabilitation. 

We conclude that the District Court did not commit procedural error in sentencing.

Nor was the sentence substantively unreasonable in light of the Court’s careful 

consideration of the § 3553(a) factors. We thus affirm Thach’s sentence.