United States v. Hoang Le ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10249
Plaintiff-Appellee, D.C. No.
2:99-cr-00433-WBS-AC-7
v.
HOANG AI LE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted October 18, 2021**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and SESSIONS,*** District
Judge.
Hoang Ai Le appeals the district court’s sentence of 240 months’
imprisonment for his conviction for conspiracy to commit robbery under the Hobbs
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
Act, 18 U.S.C. § 1951. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we vacate Le’s sentence and remand for resentencing.
1. The district court applied § 2B3.1 of the United States Sentencing
Guidelines (“Guidelines”) in calculating Le’s base offense level. Le argues that
the district court applied the incorrect Guideline and should have applied § 2X1.1,
the default Guideline for inchoate offenses such as conspiracies. Le argues that, by
failing to apply § 2X1.1, the district court did not consider and thus did not award
Le a three-level downward adjustment under § 2X1.1(b)(2) for incomplete
conspiracies, an error which may have increased his sentence and constituted plain
error. We agree.
We review the district court’s sentencing decision for abuse of discretion.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). If the district
court improperly calculates the Guidelines range or bases its decision on clearly
erroneous facts, it abuses its discretion. Id. We review for plain error when a
defendant fails to object at sentencing to the district court’s implementation of the
Guidelines. See United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015).
Le was convicted of conspiracy to commit robbery under the Hobbs Act, 18
U.S.C. § 1951. The applicable Guideline for such a crime is § 2X1.1. United
States v. Simon, 858 F.3d 1289, 1294, 1298 (9th Cir. 2017) (en banc). The district
court therefore erred in applying § 2B3.1, the Guideline for a completed robbery.
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This misapplication constituted plain error because the district court did not
consider whether Le was entitled to the three-level reduction under § 2X1.1(b)(2).
United States v. Koziol, 993 F.3d 1160, 1186 (9th Cir. 2021). Because the district
court did not consider § 2X1.1 and did not make any factual findings concerning
whether Le was entitled to a three-level reduction under § 2X1.1(b)(2), there is “at
least a reasonable probability that the district court would have imposed a three-
level reduction had it imposed the correct Sentencing Guideline.” Id. This error
may have increased Le’s sentence and thus affected Le’s “substantial rights and the
integrity of the judicial proceedings.” Id. We accordingly vacate Le’s sentence
and remand to the district court for resentencing.
2. Le also argues that the district court erred in imposing a three-level
role enhancement under § 3B1.1(b). “To qualify for a three-level sentencing
enhancement under § 3B1.1(b), a defendant must have managed or supervised one
or more other ‘participants’ in an extensive criminal activity.” United States v.
Gagarin, 950 F.3d 596, 606 (9th Cir. 2020). “In particular, ‘there must be
evidence that the defendant exercised some control over others involved in
commission of the offense [or was] responsible for organizing others for the
purpose of carrying out the crime.” Id. (alteration in original) (quoting United
States v. Gadson, 763 F.3d 1189, 1222 (9th Cir. 2014)). The district court found
that a role enhancement under § 3B1.1(b) was warranted because there was a
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“clear inference” that Le “met with other defendants and helped to plan the . . .
robbery, and further, that he played a leadership role in that robbery.” The district
court also concluded that, based on the evidence in the record, there was a “fair,
reasonable inference, and it [was] most probable that Le was the one in charge of”
one of the two robbery crews. Le argues that the role enhancement was erroneous
because there is no evidence in the record that he exercised control over any of the
other crew members.
We review a district court’s “determination whether the defendant qualifies
for a role adjustment” under the Guidelines for clear error. United States v.
Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000). “Review under the clearly
erroneous standard is deferential, ‘requiring for reversal a definite and firm
conviction that a mistake has been made.’” Id. (quoting United States v. Palafox-
Mazon, 198 F.3d 1182, 1186 (9th Cir. 2000)). “An increase of offense level for an
aggravating role is appropriate if there is sufficient evidence to support a finding that
the defendant occupied one of the . . . specified roles.” Id. “When a defendant
supervises other participants, she or he need exercise authority over only one of the
other participants to merit the adjustment,” and a “single incident of persons acting
under a defendant’s direction is sufficient evidence to support a . . . role
enhancement.” Id. “Although ‘[i]t is not necessary that the district court make
specific findings of fact to justify the imposition of the role enhancement,’ there
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must be sufficient evidence in the record to support the enhancement.” Gagarin,
950 F.3d 596, 606 (9th Cir. 2020) (alteration in original) (quoting United States v.
Holden, 908 F.3d 395, 401 (9th Cir. 2018)).
The district court did not commit clear error in imposing the role
enhancement. The record supports that Le was a high-ranking member of the
conspiracy, he was present at a planning meeting for the robbery, he was introduced
and singled out by another member of the conspiracy for his role in one of the crews,
and one of the teams was referred to as Le “and his crew.” This evidence was
sufficient to support the district court’s imposition of the role enhancement. See id.;
United States v. Koenig, 952 F.2d 267, 274 (9th Cir. 1991). The district court’s
findings were plausible and not illogical, so the district court did not commit clear
error in imposing the role enhancement. See Pom Wonderful LLC v. Hubbard, 775
F.3d 1118, 1123 (9th Cir. 2014); United States v. Yi, 704 F.3d 800, 805 (9th Cir.
2013). Accordingly, we affirm the district court’s imposition of a role enhancement
under § 3B1.1(b).
Sentence VACATED in part and AFFIRMED in part and REMANDED
for resentencing.
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