United States v. Hua

59 F. App'x 125
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 16, 2003
DocketNo. 02-2476
StatusPublished

This text of 59 F. App'x 125 (United States v. Hua) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hua, 59 F. App'x 125 (7th Cir. 2003).

Opinion

ORDER

Cuong Hua pleaded guilty to one count of conspiring to possess with intent to distribute more than 50 grams of crack in violation of 21 U.S.C. §§ 846 and 841(a)(1). He appeals his 70-month sentence, arguing that the district court erred by not decreasing his base offense level based on what he claims was his mitigating role in the offense. See U.S.S.G. § 3B1.2(b).

Seven individuals led by Phuong Vu Nguyen (“Vu”) conspired to distribute crack in the Argyle Street area of Chicago from approximately January 1999 until June 19, 2000. Vu obtained most of the crack through Sharon Sawyer, but also had several other suppliers. Vu’s girlfriend, co-conspirator Phuong “Julie” Lam Nguyen, worked closely with Vu and managed the drug distribution when he visited Vietnam in November 1999 and April 2000. In late February 2000 defendant Hua allowed Vu to use his name and address to subscribe for a cellular telephone to facilitate drug transactions. During the final two months of the conspiracy, the government obtained an intercept order for this telephone and recorded both Vu and Julie conducting drug deals.

On April 23, 2000, Vu traveled to Vietnam and left Julie in charge until his re[126]*126turn on May 18. At Vu’s request, Hua agreed to protect Julie when she made drug sales and replenished her drug supply during Vu’s absence. During that same period, Hua called the cellular phone registered in his name and told Julie during a recorded conversation that she should sell crack valued at $60 to “Tuan” for $50. Hua later called Julie to verify that the crack had been sold at a discount to “Tuan.”

After Hua’s car was stopped and searched by police on May 16, 2000, he called Julie and warned her to “hide everything” and to avoid leaving any “stuff in the house or car.” Hua also called Vu when he returned from Vietnam and warned him that he believed the FBI was after Vu.

In September 2000 the government indicted the seven alleged co-conspirators. Pursuant to a written plea agreement, Hua pleaded guilty to conspiracy (count one of the indictment), stipulating to most guidelines calculations but reserving the right to argue at sentencing that his offense level be decreased by two points because he had a minor role in the offense. See U.S.S.G. § 3B1.2(b). The government disagreed, and the probation officer likewise recommended against reducing Hua’s offense level under § 3B1.2(b).

Over Hua’s objection, the district court determined at sentencing that Hua’s role in the conspiracy was not “minor.” The court agreed with the recommendation in the PSR that Hua played neither an aggravating nor a mitigating role in the offense. In his plea agreement Hua admitted that 127.6 grams was the amount of crack reasonably foreseeable to him, making his base offense level 32. See U.S.S.G. § 2Dl.l(c)(4). After other adjustments, the district court arrived at a total offense level of 27, making Hua’s range of imprisonment 70-87 months. The district court sentenced Hua to 70. Had the district court granted the requested minor-participant reduction, the resulting imprisonment range would have been 57-71 months. So Hua could have saved himself 14 months (on the other hand, although it is unlikely, his sentence with the requested reduction could have been one month more than he actually received).

Section 3B1.2(b) permits a sentencing court to reduce by two the offense level of a defendant who is “less culpable than most other participants, but whose • role could not be described as minimal.” U.S.S.G. § 3B1.2, comment, (n.5). The adjustment is appropriate “for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” Id. § 3B1.2, comment. (n.3(A)). The defendant bears the burden of proving his entitlement to the adjustment. United States v. Felix-Felix, 275 F.3d 627, 636 (7th Cir. 2001). Further, the sentencing court’s determination as to whether the reduction is warranted “involves a determination that is heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (n.3(C)). We therefore review the district court’s finding only for clear error. United States v. Crowley, 285 F.3d 553, 559 (7th Cir.2002).

Hua argues that the finding was clearly erroneous for three reasons. First, he says, the court did not properly compare his role with that of his co-conspirators. Second, the court erroneously viewed Hua’s role as integral to the success of the conspiracy. And third, according to Hua, the court ignored the fact that his culpability was overstated by the relevant conduct conceded in his plea agreement — 127.6 grams — when he was personally involved in only one transaction involving two grams.

[127]*127As to Hua’s first contention, he correctly notes that a minor role adjustment is appropriate when a defendant’s conduct makes him substantially less culpable than other participants; but comparative roles, though important, are not determinative. See id.; United States v. Cea, 963 F.2d 1027, 1033 (7th Cir.1992) (sustaining refusal to grant minor role adjustment to “go-between” based partly on the recognition that individuals may play different but essential roles in drug transactions). In comparing Hua’s role with other members of the conspiracy, the district court concluded that his participation “did not either exceed or fall below that of other persons involved in the conspiracy.” Hua maintains this conclusion is clearly erroneous because, unlike others, he “did not negotiate drug transactions, he did not store, package, supply or deliver drugs, he did not carry money, and he never cooked the cocaine into ‘crack.’” He also relies on this distinction in his reply brief, but the page in the PSR he cites identifies him as one of the defendants who was “responsible for delivering crack cocaine to the conspiracy’s customers.” The government’s version of the offense appended to the PSR also details that Hua assisted Vu by “delivering quantities of crack to Vu’s customers and others.”

Further, Hua maintains that he did not profit from the conspiracy. The government, citing its objections to the PSR for co-defendant Dai Cong Truong, admits that the only defendants who received money were Vu’s source Sharon Sawyer, Vu himself, Julie and Dai Cong Truong. However, the PSR details the government’s conflicting position that with the exception of one defendant (Hoang Tuan Nguyen), all the remaining defendants received either cash, narcotics, or clothing for their services. However, that Hua realized no profit, if he in fact did not, does not compel the conclusion that his role in the conspiracy was minor. See United States v. Brown, 136 F.3d 1176, 1186 (7th Cir.1998) (“The fact that [the defendant] did not profit from his illegal actions is not our concern.”); United States v. Brick, 905 F.2d 1092

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Bluebook (online)
59 F. App'x 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hua-ca7-2003.