Filed: Dec. 03, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT December 3, 2004 Charles R. Fulbruge III Clerk No. 03-20284 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NHUT HINH DO; JOHN HOANG, Defendants-Appellants. Appeal from the United States District Court for the Southern District of Texas (H-02-CR-366-2) Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Following a jury trial, Nhut Hinh Do and John Hoang were con
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT December 3, 2004 Charles R. Fulbruge III Clerk No. 03-20284 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NHUT HINH DO; JOHN HOANG, Defendants-Appellants. Appeal from the United States District Court for the Southern District of Texas (H-02-CR-366-2) Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Following a jury trial, Nhut Hinh Do and John Hoang were conv..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 3, 2004
Charles R. Fulbruge III
Clerk
No. 03-20284
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NHUT HINH DO; JOHN HOANG,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(H-02-CR-366-2)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Following a jury trial, Nhut Hinh Do and John Hoang were
convicted of possession with intent to distribute
methylenedioxymethamphetamine (MDMA; commonly known as “Ecstasy”).
Do was sentenced to 120 months’ imprisonment; Hoang, to 240 months.
In separate briefs, Do and Hoang present numerous issues
contesting their convictions and sentences. Each seeks to adopt
and incorporate the contentions raised by the other. An appellant
is not permitted, by mere reference, to raise fact-specific
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
challenges to his own conviction or sentence. See United States v.
Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996). Because the sentencing
challenges raised by Do and Hoang are fact-specific, such adoption
is not permitted. See
id. They are, however, permitted under FED.
R. APP. P. 28(i) to adopt by reference non fact-specific challenges
to their convictions, because the contentions apply to both.
Appellants claim that, during closing argument, the Government
violated Bruton v. United States, 391 U.S. 123 (1968) (violation of
confrontation right, at joint trial, where one defendant’s
extrajudicial statement used to implicate another defendant and
first defendant did not testify). After reviewing the record, we
have determined: if a violation of Bruton occurred, it was
harmless as to each defendant in the light of the other evidence.
See United States v. Kelly,
973 F.2d 1145, 1150 (5th Cir. 1992).
In this regard, Do contends the evidence showed he thought he
possessed steroids. The Government was required to show only that
Do knowingly possessed a controlled substance. See United States
v. Gamez-Gonzalez,
319 F.3d 695, 699-700 (5th Cir. 2003). Anabolic
steroids are a controlled substance. See 21 U.S.C. § 812(c),
Schedule III(e).
Appellants claim the district court erred in refusing to
instruct the jury that testimony discussing an unrecorded
incriminating statement should be disregarded unless the statement
was corroborated and that an involuntary confession should be
2
disregarded. The refusal was not an abuse of discretion.
See United States v. Morales, 272 F.3d 284, 289 (5th Cir. 2001).
Hoang challenges the district court’s deciding he was
responsible for 6000 grams of MDMA. He contends evidence set forth
in the Presentence Investigation Report (PSR) that linked him to
60,000 MDMA tablets (equivalent to 6000 grams) is uncorroborated
and, hence, should not be considered in determining his sentence.
Hoang has not shown the district court’s consideration of
uncorroborated statements was clear error. See United States v.
Slaughter, 238 F.3d 580, 585 (5th Cir. 2000), cert. denied,
532
U.S. 1045 (2001).
Hoang also contends the district court improperly relied on
suppressed evidence at sentencing. “The exclusionary rule
applicable to Fourth Amendment violations is generally inapplicable
to the district court’s consideration of evidence for purposes of
sentencing.” See United States v. Robins, 978 F.2d 881, 891 (5th
Cir. 1992).
Hoang further contends the 60,000 MDMA tablets do not fall
within the definition of “relevant conduct”. Hoang has not shown
the district court clearly erred in its determination that his
relevant conduct encompassed 6000 grams of MDMA. See U.S.S.G. §
1B1.3(a)(2); United States v. Wall, 180 F.3d 641, 644 (5th Cir.
1999).
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Noting the trial testimony of the Government’s chemist, Hoang
submits the jury’s determination that he was responsible for 1235
grams of MDMA is “too high”. Hoang’s contention is inapposite
because his sentence was determined by facts pertaining to his
relevant conduct, which were reported in the PSR. Moreover, Hoang
has pointed to no evidence of record that any of the 60,000 MDMA
tablets did not contain MDMA. Hoang has not shown the PSR was
inaccurate. He has, therefore, not shown the district court
committed clear error. See United States v. Lage, 183 F.3d 374,
383 (5th Cir. 1999).
Hoang contends the district court erred in increasing his
offense level by two, pursuant to U.S.S.G. § 2D1.1(b)(1), for
possession of a firearm. In a jointly undertaken criminal
activity, relevant conduct includes all reasonably foreseeable acts
and omissions of others involved in the activity. U.S.S.G. §
1B1.3(a)(1)(B). A firearm was possessed by a fellow participant in
the MDMA distribution scheme. Hoang has failed to show clear
error. See United States v. Ortiz-Granados, 12 F.3d 39, 43 (5th
Cir. 1994).
Hoang maintains the district court erred in applying a four-
level increase for his role in the offense, under U.S.S.G. §
3B1.1(a), because: the Government did not prove five or more
people participated in the MDMA organization; and the trial
evidence did not show he enjoyed the bulk of the fruits of the MDMA
4
distribution scheme. Hoang has not shown the PSR was inaccurate
with respect to facts supporting an adjustment for his leadership
role. Hoang has, therefore, not shown clear error. See Lage, 183
F.3d at 383.
Do contends the district court erred in sentencing him based
on 1000 grams of MDMA. He claims statements supporting his
sentence were uncorroborated and contends tablets not seized should
not be considered in calculating his sentence. Do has not shown
the district court erred in considering uncorroborated statements.
See Slaughter, 238 F.3d at 585. Nor has he shown the PSR was
inaccurate regarding the quantity of MDMA attributed to him. Do
has, therefore, not shown clear error. See
Lage, 183 F.3d at 383.
Do also asserts the district court erred in increasing his
offense level by two for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1. He contends his testimony at the suppression
hearing did not constitute perjury because it was not intended to
mislead or to deceive. The district court’s finding that Do
obstructed justice by falsely testifying regarding a crucial event
linking him to the offense was plausible in light of the record as
a whole and, therefore, was not clearly erroneous. See United
States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999), cert. denied
528 U.S. 945 (1999).
AFFIRMED
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