Case: 19-30387      Document: 00515406122         Page: 1    Date Filed: 05/06/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-30387                             May 6, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

TONY LAM,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CR-169-1


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
       Tony Lam was convicted, pursuant to his guilty plea, of distribution of
40 grams or more of a mixture and substance containing Fentanyl.                               The
probation officer determined that Lam was a career offender under U.S.S.G.
§ 4B1.1(a) on account of his two prior felony conspiracy convictions involving
controlled substances. The district court sentenced Lam to a 327-month term
of imprisonment, to be followed by an eight-year term of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-30387

      On appeal, Lam contends that the district court erred in applying the
career offender guideline based on his two prior drug conspiracy convictions.
Stated succinctly, his argument is that the Sentencing Commission
impermissibly used the commentary to the Sentencing Guidelines to bring
conspiracy offenses within the career offender guideline’s definition of
“controlled substance offense.”
      We generally review the district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008) (quoting
United States v. Juarez-Duarte, 

, 208 (5th Cir. 2008)). However,
as Lam acknowledges, plain error review applies to his challenge to the
application of the career offender guideline because he did not raise such an
objection in the district court. See United States v. Ellis, 

, 377 (5th
Cir. 2009).
      Under the plain error standard, Lam must show an error that was clear
or obvious and that affected his substantial rights. See Puckett v. United
States, 

, 135 (2009). Were he to make such a showing, this court
would have the discretion to correct the error, but only if it seriously affected
“the fairness, integrity, or public reputation of judicial proceedings.” See id
(quoting United States v. Olano, 

, 736 (1993)).
      In United States v. Lightbourn, 

, 293 (5th Cir. 1997), we
stated that “[t]he Sentencing Commission has now lawfully included drug
conspiracies in the category of crimes triggering classification as a career
offender under § 4B1.1 of the Sentencing Guidelines.” We concluded that “the
amendment to the Background Commentary of § 4B1.1 abrogates the concerns




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                                     No. 19-30387

expressed by this court in Bellazerius 1 and allows convictions for drug
conspiracies to be included in the determination whether career offender
status is warranted.”

      Lam contends that such statements in Lightbourn are merely dicta as it
was unnecessary for the Lightbourn court to determine that the Sentencing
Commission’s post-Bellazerius inclusion of drug conspiracies was lawful.
“Dictum is language unnecessary to a decision, a ruling on an issue not raised,
or the opinion of a judge which does not embody the resolution or
determination of the court, and which is made without argument or full
consideration of the point.” United States v. Castillo, 

, 327 n.9
(5th Cir. 1999) (brackets and internal quotation marks omitted) (quoting
Lawson v. United States, 

, 51 (D.C. Cir. 1949)), reversed on other
grounds, 

(2000). Although not precedential, dictum is persuasive
authority. See Braud v. Transp. Serv. Co. of Ill., 

, 804 (5th Cir.
2006).
         No matter whether the statements in Lightbourn are dicta, a question
we do not decide, Lam fails to show that the district court clearly and obviously
erred in basing application of the career offender guideline on his drug
conspiracy convictions. See 

. He therefore has not
shown plain error. See

claims that his trial counsel was ineffective for failing to
object to application of the career offender enhancement. Because Lam did not
raise this claim in the district court, we conclude that this is not one of the
“rare cases” in which the record is sufficiently developed to allow consideration
of an ineffective assistance of counsel claim on direct appeal. See United States



      1 United States v. Bellazerius, 

(5th Cir. 1994), superseded by Sentencing
Guideline amendments as stated in 

.


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                                No. 19-30387

v. Isgar, 

, 841 (5th Cir. 2014) (quoting United States v. Aguilar,

, 436 (5th Cir. 2007) (per curiam)). Thus, we decline to consider
Lam’s ineffective assistance claim without prejudice to his right to seek
collateral review. See