United States v. Nghia Le , 256 F.3d 1229 ( 2001 )

  •                                                                                   [PUBLISH]
                                FOR THE ELEVENTH CIRCUIT
                                 ________________________                          FILED
                                                                         U.S. COURT OF APPEALS
                                        No. 00-11124                       ELEVENTH CIRCUIT
                                                                               JULY 11, 2001
                                                                            THOMAS K. KAHN
                              D. C. Docket No. 99-00023-CR-4-RH
    NGHIA LE, a.k.a. Vince Le,
                          Appeal from the United States District Court
                              for the Northern District of Florida
                                           (July 11, 2001)
    Before HULL, RONEY and GOODWIN*, Circuit Judges.
    GOODWIN, Circuit Judge:
           Nghia Le (“Le”) got the idea that a Tallahassee business man kept a large
    supply of cash from his two nail salons at his house. He decided to employ a small
    band of rent-a-robbers to fly from Los Angeles, California to Tallahassee, Florida
        Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by
    to perform a home invasion robbery. After the robbery went awry, the mercenaries
    talked, and Le was indicted and convicted under the Hobbs Act and for use of a
    firearm in connection with these crimes. He now appeals his convictions and his
    sentence on a variety of grounds.
          The principal question before us is whether this is a federal case. We
    conclude that Le’s actions had both potential effects and actual, de minimis effects
    on interstate commerce, and that the Government thus had jurisdiction to prosecute
    Le under the Hobbs Act. In addition, we find that the district court did not err by
    admitting into evidence Le’s post-arrest statements and the transcripts of certain
    foreign-language telephone conversations. Regarding Le’s sentence, we conclude
    that the district court properly applied a two-level car-jacking increase to his base
    offense level but erred in applying a seven-level firearm increase.
           Kenny Nguyen (“Nguyen”) and his wife owned and operated two nail
    salons in two separate shopping malls in Tallahassee, Florida. They ordered their
    manicure supplies from Georgia, spending between five and seven thousand
    dollars a year. At the end of each business day the Nguyens took that day’s
    business receipts to their house. They deposited their business proceeds at a bank
    approximately once a week.
          Le, who had been observing the apparent prosperity of the Nguyens,
    concluded that they likely kept substantial sums of cash from their businesses in
    their residence. Not wishing to perform the robbery himself, and apparently unable
    to enlist suitable confederates in Tallahassee, Le telephoned acquaintances in
    California and recruited five of them. One of these co-conspirators testified at trial
    that Le “told us he knew a guy that was living in Tallahassee that had a house and
    that he had at least a hundred to two hundred thousand dollars in cash.”
          Le’s acquaintances traveled from California to Florida for the planned
    robbery. Le organized the crime, provided temporary housing for the robbers,
    furnished one or more weapons, and pointed out the target house. For his efforts,
    Le was to receive ten percent of the proceeds. The night of the robbery, he
    remained well away from the execution of the plan.
          The five rent-a-robbers entered the Nguyens’ house, bound several of the
    occupants, and conducted an unsuccessful search for the promised cash.
    Meanwhile, Nguyen, after hearing the commotion, fled the residence with that
    day’s business receipts, which amounted to between six and eight thousand dollars.
    The Californians later left the house and drove away in a car belonging to Mrs.
    Nguyen, the only other fruit of their labors being a stolen wristwatch. They soon
    thereafter abandoned the car and fled in the car of one of the co-conspirators. The
    five Californians were arrested the next morning. Two weeks after the robbery,
    Nguyen sold his manicure business. He subsequently reopened the nail salons in
    two new locations.
           Following a lengthy investigation, Le was indicted on three counts: 1)
    conspiring to obstruct interstate commerce by robbery, in violation of the Hobbs
    Act, 18 U.S.C. §§ 1951 and 1952; 2) obstructing interstate commerce, and
    attempting to do so, by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951
    and 1952; and 3) using or carrying a firearm while obstructing interstate commerce
    or attempting to do so, in violation of 18 U.S.C. § 924(c).1
           A jury found Le guilty on all three counts. The district court sentenced Le to
    a custodial sentence of 322 months – consisting of consecutive sentences of 240
    months for Count One, 22 months for Count Two, and 60 months for Count Three
    – together with three years of supervised release and an order of restitution.
    I. Jurisdiction Under the Hobbs Act
           Le’s primary contention concerning his convictions on Counts One and Two
    is that the Government lacked jurisdiction to prosecute him under the Hobbs Act
        Count Two of the indictment included both obstruction of interstate commerce and the lesser
    included offense of attempt to obstruct interstate commerce, charging that Le “did knowingly,
    willfully and unlawfully obstruct, delay and affect interstate and foreign commerce, and the
    movement of articles and commodities in such commerce, and attempt to do so, by robbery . . . .”
    because it failed to prove that his actions bore a sufficient connection to interstate
    commerce. This Court reviews de novo a challenge to the sufficiency of the
    evidence concerning whether a robbery had a sufficient effect on interstate
    commerce to support a conviction under the Hobbs Act. See United States v.
    164 F.3d 1358
    , 1359 (11th Cir. 1999) (citing United States v. Keller, 
    916 F.2d 628
    , 632 (11th Cir. 1990)). “[W]e consider that evidence in the light most
    favorable to the government, drawing all inferences and credibility choices in favor
    of the jury’s verdict.” Id. (citing United States v. Adair, 
    951 F.2d 316
    , 318 (11th
    Cir. 1992)).
          The Hobbs Act provides in relevant part, “[w]hoever in any way or degree
    obstructs, delays, or affects commerce or the movement of any article or
    commodity in commerce, by robbery or extortion or attempts or conspires so to do,
    or commits or threatens physical violence to any person or property in furtherance
    of a plan or purpose to do anything in violation of this section shall be fined under
    this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a).
    “Commerce” is defined as including “all commerce between any point in a State
    . . . and any point outside thereof.” 18 U.S.C. § 1951(b)(3). The Supreme Court
    has stated that in a prosecution under the Hobbs Act, “[t]he charge that interstate
    commerce is affected is critical since the Federal Government’s jurisdiction of this
    crime rests only on that interference.” Stirone v. United States, 
    361 U.S. 212
    , 218
           This circuit’s precedent makes clear that the type of evidence required for
    the Government to satisfy its burden of proof concerning the interstate commerce
    nexus differs depending on whether the defendant is charged with the inchoate
    offenses of conspiracy and attempt or a substantive offense under the Hobbs Act.
    In the case of a substantive Hobbs Act offense, the “impact on commerce does not
    need to be substantial; all that is required is minimal impact.’” United States v.
    171 F.3d 1351
    , 1354 (11th Cir.) (quoting United States v. Castleberry, 
    116 F.3d 1384
    , 1388 (11th Cir. 1997)) (en banc), cert. denied, 
    528 U.S. 928
    See also United States v. Diaz, 
    248 F.3d 1065
    , 1084 (11th Cir. 2001). Where a
    defendant is charged with attempt or conspiracy to violate the Hobbs Act, “the
    interstate nexus may be demonstrated by evidence of potential impact on interstate
    commerce or by evidence of actual, de minimis impact.’” Kaplan, 171 F.3d at
    1354 (quoting United States v. Farrell, 
    877 F.2d 870
    , 875 (11th Cir. 1989))
    (emphasis added); Diaz, 248 F.3d at 1084 (quoting Farrell, 877 F.2d at 875).2
           This Court previously has stated that “[p]otential impact is measured at the
         The Hobbs Act expressly covers both robbery and extortion cases. The extortion cases
    setting forth the Government’s burden of proof in Hobbs Act prosecutions are equally applicable
    in the robbery context.
    time of the attempt, i.e., when the extortion demand is made, based on the assumed
    success of the intended scheme. A sufficient potential impact exists when there is
    evidence of ‘a plan to embark upon a course of extortionate behavior likely to have
    the natural effect of obstructing commerce.’” Farrell, 870 F.2d at 875 (quoting
    United States v. Gupton, 
    495 F.2d 550
    , 551 (5th Cir. 1974)) (internal citations
    omitted).3 In light of this precedent, we can affirm Le’s convictions only if we find
    that his actions had either a potential effect or an actual, de minimis effect on
    interstate commerce. On several occasions this Court has considered whether a
    defendant’s actions had the potential to impact interstate commerce in order to
    satisfy the jurisdictional requirements of the Hobbs Act. In Kaplan, the defendant,
    who resided in Florida, had given power of attorney over two Panamanian bank
    accounts to another individual, who resided in Panama, in order to disguise his
    ownership of them. See Kaplan, 171 F.3d at 1352. That individual, however, took
    money from the accounts and threatened to report the defendant to the Internal
    Revenue Service if he pursued the matter. See id. at 1352-53. The defendant then
         Other circuits also focus on a potential impact on interstate commerce, measured from the
    time of the attempt. See, e.g., United States v. Nguyen, 
    246 F.3d 52
    , 54 (1st Cir. 2001) (“All that
    matters is that [the defendant] entered a conspiracy whose objective was to steal the assets of an
    entity in interstate commerce. That the conspiracy failed to accomplish such objective is
    irrelevant.”) (emphasis in original); United States v. DiCarlantonio, 
    870 F.2d 1058
    , 1061 (6th
    Cir. 1989) (noting that “the courts have concluded that ‘factual impossibility is no defense to an
    inchoate offense’ under the Hobbs Act”) (quoting United States v. Brooklier, 
    685 F.2d 1208
    1217 (9th Cir. 1982)).
    enlisted someone with connections to the Panamanian Defense Force to coerce the
    individual in Panama holding power of attorney to transfer the funds to the
    defendant in Florida. See id. at 1353. The plan, however, was never carried out,
    and the funds were never transferred. See id. The defendant was later convicted
    by a jury of conspiracy to extort and attempted extortion in violation of the Hobbs
    Act. See id.
          This Court upheld the defendant’s two Hobbs Act convictions. We first
    observed that “[t]he Hobbs Act, by its own terms, encompasses the inchoate
    offenses of attempt to extort and conspiracy to extort.” Id. at 1354. In such cases,
    we noted that “the government need only show a realistic probability of an effect,
    or some actual de minimis effect, on commerce to bring the extortion within the
    reach of the Hobbs Act.” Id. Applying this standard, we stated that the
    Government had “brought forth evidence that, if [the defendant’s] scheme had
    succeeded, commerce would have been affected.” Id. at 1355. Specifically,
    evidence at trial indicated that “[t]he conspiracy required at least one transaction
    between Florida and Panama – the payment of the extortion demand to [the
    defendant] – for the conspiracy to be of benefit to the coconspirators.” Id.
    (footnotes omitted) (emphasis in original). Because the defendant sought these
    specific funds and planned to pay the co-conspirators from them, we stated that
    “the jury was entitled to find that the movement of substantial funds from Panama
    to Florida was the object of the co-conspirators’ extortion plan.” Id. (citations
    omitted). Thus, we concluded that “[i]n this case, a close and continuing nexus
    exists between the acts of coercion and the transmittal of the funds to Florida: the
    plan would have served no purpose if the money was not ultimately received by
    [the defendant] in Florida.” Id.
          In addition to this potential impact on interstate commerce that the plan
    would have had if it had come to fruition, we observed that those efforts taken in
    furtherance of the extortion plan had an actual effect on commerce. Specifically,
    the plan “was orchestrated in the United States to be carried out in another
    country,” which “necessitated activity in interstate and foreign commerce to
    coordinate the scheme.” Id. at 1355-56. Also, we noted that the co-conspirators
    spoke on the telephone while in different parts of the country. See id. at 1356. We
    then stated that “the use of interstate or foreign transportation and communication
    facilities to carry out a scheme of robbery or extortion may constitute – in
    conjunction with other facts – a sufficient effect upon commerce for a Hobbs Act
    conviction for conspiracy or attempt to extort.” Id. (citing United States v.
    94 F.3d 1237
    , 1243 (9th Cir. 1996)). We thus held that “the potential
    effects, combined with the evidence of actual effects, are sufficient to establish the
    minimal effect on commerce required under the Hobbs Act.” Id.
          This Court also addressed the potential effects on interstate commerce of an
    attempted extortion scheme in United States v. Farrell, 
    877 F.2d 870
     (11th Cir.
    1989), in which we affirmed the defendants’ convictions for conspiracy to extort in
    violation of the Hobbs Act. In that case, the defendants kidnaped the daughter of
    an officer of a company that was engaged in interstate commerce. See id. at 872-
    73. In response to a ransom note, the officer and his wife executed a note payable
    to a federal savings and loan association and secured by their home and 30,000
    shares of stock. See id. at 873-74.
          In affirming the defendants’ conspiracy convictions, this Court observed that
    “[h]ad the [defendants’] extortion scheme succeeded, the likely natural effect was
    that interstate commerce would have been affected,” in three possible ways: (1) it
    was “inferable” that the savings and loan would have made a claim the denial or
    payment of which “necessarily would implicate interstate commerce to some
    degree,” id. at 875; (2) “the sheer size of the extortion demand implie[d] that the
    utilization of the funds by the [defendants] would have affected interstate
    commerce to a legally cognizable degree,” id. at 875-76; and (3) the victims’
    pledge of their stock “represented an actual obstruction of their right to freely trade
    the shares on the New York Stock Exchange,” id. at 876.4 In light of this trio of
    potential effects on interstate commerce, we concluded that the nature of the
    defendants’ plan to extort money provided jurisdiction under the Hobbs Act.
           In a recent case, this Court applied these same principles to robberies and
    acts of extortion directed at individuals rather than businesses. See Diaz, 248 F.3d
    at 1084. In Diaz, we observed that “[w]hile the Hobbs Act usually is applied to
    robberies of businesses, criminal acts directed toward individuals also may violate
    the Hobbs Act.” Id. We then noted:
           Robberies or extortions perpetrated upon individuals are prosecutable
           under the Hobbs Act when any one of the following three conditions
           are met: (1) the crime depletes the assets of an individual who is
           directly engaged in interstate commerce; (2) the crime causes the
           individual to deplete the assets of an entity engaged in interstate
           commerce; or (3) the number of individuals victimized or the sums
           involved are so large that there will be a cumulative impact on
           interstate commerce.
    Id. at 1084-85 (emphasis in original) (citations omitted). We defined what it meant
         This Court subsequently rejected as dicta the suggestion that the size of an extortion demand
    was relevant to the interstate commerce inquiry in a Hobbs Act case, stating, “[a]lthough a few
    courts have suggested that the sheer size or scope of an extortion plot might provide the required
    effect on commerce, no court has converted the state crime of extortion into a federal matter
    simply by virtue of its size. If such a theory could provide a sufficient nexus to interstate
    commerce there would be no need to engage in the extensive analyses of how particular acts of
    extortion affected a victim’s position in interstate commerce that are so prevalent in Hobbs Act
    cases.” United States v. Kaplan, 
    133 F.3d 826
    , 830-31 (11th Cir. 1998) (internal footnote
    omitted), vacated on other grounds, 
    171 F.3d 1351
     (11th Cir.) (en banc), cert. denied, 
    528 U.S. 928
     (1999). To the extent this language limits the holding in Farrell, however, it is not relevant
    to the facts of our case, as the amount of money at stake in the robbery of the Nguyens’ home is
    of little analytical importance.
    to “deplete the assets” of an individual broadly, by stating that it encompassed
    actions that “lessen[ed] in number” an individual’s assets. See id. at 1090.
          In Diaz, a jury convicted multiple defendants of committing and attempting
    to commit crimes – including conspiracy to commit a Hobbs Act violation, attempt
    to commit a Hobbs Act violation, and a series of substantive Hobbs Act violations
    – directed at three sets of individuals in different incidents. See id. at 1081-82.
    The defendants challenged their convictions, arguing that the Government had
    failed to demonstrate the requisite effect on interstate commerce. See id. at 1087.
          This Court affirmed the defendants’ Hobbs Act convictions. In one of the
    three incidents underlying the case, the victims were officers of a corporation that
    purchased some of its equipment from out of state. See id. at 1088. Several of the
    defendants kidnaped one of these individuals and sought a ransom, while others
    robbed his home. See id. at 1075. In affirming the defendants’ convictions with
    respect to this incident, we stated that “the role of [the victims of the extortion]
    with regard to their business, which was directly engaged in interstate commerce,
    was not coincidental. Rather, the Court is convinced by the evidence presented at
    trial that [the defendants] targeted [the victims] because of their interest” in the
    business. Id. at 1088-89 (emphasis in original).5
           In another of the three underlying criminal episodes in Diaz, the facts of
    which are quite similar to those in the present case, one of the defendants received
    a “tip” that an individual who was a part owner of a gas station with a convenience
    store kept a large amount of money in a safe in his house. See id. at 1079. The gas
    station purchased many of its supplies from out-of-state. See id. at 1091. Several
    of the defendants entered the victim’s house and searched for the reported safe, but
    they were unsuccessful in their quest and fled the premises. See id. at 1079-80.
    The defendants later kidnaped the individual and demanded that he divulge the
    alarm code to another home which he shared with his girlfriend. See id. at 1081.
    The victim complied and the defendants stole various items from the home,
    including $30,000 in cash receipts from the victim’s business. See id.
           This Court affirmed the defendants’ convictions based on this incident for
    attempted robbery and extortion in violation of the Hobbs Act. In so doing, we
        In a factually similar case, the Sixth Circuit stated that the existence of such motivation could
    be sufficient to sustain a conviction for conspiracy under the Hobbs Act: “We have suggested
    that the Government might make such a showing by demonstrating that the defendant knew of or
    was motivated by the individual victim’s connection to interstate commerce.” United States v.
    222 F.3d 234
    , 240 (6th Cir. 2000) (citing United States v. Mills, 
    204 F.3d 669
    , 670 (6th
    Cir. 2000)). In Mills, the Sixth Circuit held that the solicitation of bribes from individuals gave
    rise to federal jurisdiction under the Hobbs Act because the defendants “had actual knowledge
    that the bribe money would be obtained through loans made in interstate commerce.” Mills, 204
    F.3d at 670.
    stated, “[d]etermining whether there was an effect on interstate commerce requires
    an examination of [the victim] and his businesses and their nexus, if any, to
    interstate commerce.” Id. at 1091. We then noted that the victim’s “business made
    regular and systematic purchases from out-of-state thereby establishing a greater
    connection to interstate commerce.” Id. We continued, “[t]he Court finds that a
    reasonable jury could conclude that, as part owner of [the gas station], [the victim]
    was directly engaged in interstate commerce through his business.” Id. Applying
    the standards set forth above, we found that the attempted robbery “would have
    depleted,” and that the subsequent extortion did deplete, the victim’s business
    assets. Id. We therefore upheld the defendants’ conviction for affecting interstate
    commerce by robbery and extortion and for attempting to do so.
          Applying the above standards to this case, we are compelled to conclude that
    Le’s attempted robbery of the business assets kept at the Nguyens’ house had both
    potential effects and actual, de minimis effects on interstate commerce, the
    combination of which supports the existence of a nexus between Le’s actions and
    interstate commerce that supplies jurisdiction over both of his Hobbs Act
          First, the evidence in the record indicates that the robbery organized by Le,
    if successful, would have affected interstate commerce. Although the rent-a-
    robbers could have absconded with only six to eight thousand dollars rather than
    the one hundred thousand dollars Le believed they would find, this amount was
    nonetheless equivalent to or greater than the Nguyens’ total annual expenditures on
    manicure supplies from out-of-state. Thus, had the robbery been successful, it
    quite conceivably could have delayed or even reduced the Nguyens’ interstate
    acquisition of the supplies required to operate their business.6
           Second, like in Kaplan, the preparation for the robbery involved the use by
    Le and his co-conspirators of both interstate travel and interstate communication.
    The five perpetrators in this case traveled from California to Florida – two by car,
    three by air.7 Also, Le placed at least one phone call to his acquaintances in order
        It could be argued that even if the robbery had been successful, the Nguyens could have
    sustained their purchase of supplies through funds kept in the Nguyens’ bank account or some
    other source. Were such supposition supported by the evidence in the record – and it is not clear
    that it is – we are still required to draw all inferences in favor of the jury’s verdict. See Guerra,
    164 F.3d at 1359. Therefore, because the jury found Le guilty of the Hobbs Act charges, we
    conclude that the taking of the cash in Kenny Nguyen’s possession on the night of the robbery
    would have limited his ability to purchase supplies from another state and thus affected interstate
        Le argues that we should not find Hobbs Act jurisdiction in this case on the basis of this
    interstate travel because to do so “will obliterate the distinction between the Hobbs Act and the
    Travel Act.” The Travel Act provides:
           (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in
           interstate or foreign commerce, with intent to--
           (1) distribute the proceeds of any unlawful activity; or
           (2) commit any crime of violence to further any unlawful activity; or
           (3) otherwise promote, manage, establish, carry on, or facilitate the promotion,
           management, establishment, or carrying on, of any unlawful activity,
    to recruit them. When these actual, de minimis effects on interstate commerce are
    combined with the potential effects on interstate commerce that the robbery would
    have had if it had been successful, we are compelled to conclude that there was
    sufficient evidence of a nexus between Le’s actions and interstate commerce to
    find jurisdiction under the Hobbs Act for Le’s conviction of conspiring and
    attempting to violate the Hobbs Act.
           Under the circumstances presented in this case, the fact that Le targeted an
    individual’s private residence, rather than his business, does not attenuate the
    connection between Le’s actions and interstate commerce.8 Indeed, in light of this
           and thereafter performs or attempts to perform--
           (A) an act described in paragraph (1) or (3) shall be fined under this title, imprisoned not
           more than 5 years, or both; or
           (B) an act described in paragraph (2) shall be fined under this title, imprisoned for not
           more than 20 years, or both, and if death results shall be imprisoned for any term of years
           or for life.
    18 U.S.C. § 1952. As we noted in Kaplan, however, “the same conduct may violate more than
    one statute.” Kaplan, 171 F.3d at 1356 (citing Missouri v. Hunter, 
    459 U.S. 359
    , 366-68
    (1983)). At any rate, as discussed above, the fact that some of the co-conspirators traveled
    interstate is not the sole basis for jurisdiction under the Hobbs Act in this case, but rather, it is
    only one element which, in conjunction with other circumstances, provides that jurisdiction.
        Le argues that in a case in which the target of a robbery was an individual rather than a
    business, the connection between the robbery and interstate commerce will generally be too
    attenuated to support jurisdiction under the Hobbs Act, such that affirming his conviction would
    “extend[] the reach of the federal government to almost every robbery perpetrated against a
    private citizen who owns a business.” As a preliminary matter, we note that the Le’s dire
    prediction misapprehends the basis of our holding. Our conclusion that Le’s actions implicated
    interstate commerce to a degree sufficient to create jurisdiction under the Hobbs Act is based on
    the fact that Le specifically targeted business assets that were temporarily kept at a private
    Court’s precedent in Diaz, the fact that Le targeted an individual’s home does not
    preclude a finding of Hobbs Act jurisdiction in this case. Rather, the overall
    circumstances of this case indicate that the Government has satisfied its burden in
    proving the requisite connection of the actions at issue here to interstate commerce.
    II. Post-Arrest Statements
           Le argues that the Government violated his Fifth and Sixth Amendment
    rights by questioning him without an attorney present and by coercing him into
    signing a waiver of his Miranda rights and giving an inculpatory statement by
    implicitly threatening his family. He contends that the FBI knew he had a lawyer
    because he had been represented by a lawyer during the investigation. Le argues
    that this circuit ought to follow the Ninth Circuit in establishing a rule that, “when
    there is a close nexus between the focus of a pre-indictment investigation and the
    ultimate charges brought in the indictment, a defendant’s ongoing relationship with
    counsel that is known (or should be known) by the government invokes the Sixth
    Amendment right to counsel once that right attaches.” United States v. Harrison,
    213 F.3d 1206
    , 1213 (9th Cir. 2000). Because Le did not argue in the district court
    that the Government knew or should have known that he was represented by an
    residence which, if stolen, had the potential to delay or obstruct the purchase of products from
    another state, and the fact that his preparation for the robbery involved the use of interstate travel
    and communication.
    attorney, we review this question for plain error. See United States v. Thayer, 
    204 F.3d 1352
    , 1358 (11th Cir. 2000).
          We need not decide whether to adopt the rule Le seeks, because the record
    does not show plain error in any event. The district court did not err because Le
    has not shown that he had an ongoing relationship with counsel. In this case,
    evidence of the alleged ongoing attorney-client relationship is scant. Le testified
    that he had contacted a lawyer over a year before he was arrested who had told him
    not to take a polygraph test and who had written FBI Agent Chester to explain why
    he had told Le not to take the test. Le did not give the name of the lawyer, and
    there appears to be no other evidence of the letter in the record. Agent Chester
    testified that Le had contacted but not “retained” a lawyer concerning the
    polygraph. Other than the letter that Le claims “his” lawyer wrote the FBI
    concerning the polygraph, the FBI had no contact with any attorney claiming to be
    Le’s lawyer.
          Additionally, Le reiterates the argument he made in his motion to suppress
    that the FBI implicitly threatened his family and thus coerced him into admitting
    he was involved in planning the robbery. At the suppression hearing, the district
    judge evaluated the witnesses’ credibility and rejected Le’s testimony in favor of
    the FBI agent’s account of the circumstances surrounding Le’s statement. The
    court found that “Le was mirandized, voluntarily made a statement after having
    been mirandized and waived his rights; that he did not invoke any right to an
    attorney; that he did not refuse to provide information.” The record provides no
    reason to disturb the district court’s determinations of credibility. See Equal
    Employment Opportunity Comm’n v. Joe’s Stone Crab, Inc., 
    220 F.3d 1263
    , 1285-
    86 (11th Cir. 2000).
    III. English Transcripts of Telephone Conversations
          Le next contends that the district court erred by admitting into evidence for
    impeachment purposes, without objection, English-language transcripts of
    telephone conversations in Vietnamese between himself and his co-conspirators
    without playing the original recordings of those conversations for the jury. We
    conclude, however, that Le waived the right to challenge the transcripts. After Le
    testified in his defense, the government, in rebuttal, introduced certain Vietnamese-
    language audiotapes that contained conversations involving Le. The government’s
    witness, a contract interpreter for the FBI, testified that the English-language
    transcripts accurately reflected the Vietnamese-language conversations on the
    tapes, and the transcripts and tapes were admitted without objection.
          This circuit has adopted the following procedure for challenging the
    accuracy of an English-language transcript of a conversation conducted in a
    foreign language:
          Initially, the district court and the parties should make an effort to produce
          an “official” or “stipulated” transcript, one which satisfies all sides. If such
          an “official” transcript cannot be produced, then each side should produce its
          own version of a transcript or its own version of the disputed portions. In
          addition, each side may put on evidence supporting the accuracy of its
          version or challenging the accuracy of the other side's version.
    United States v. Cruz, 
    765 F.2d 1020
    , 1023 (11th Cir. 1985) (quoting United States
    v. Wilson, 
    578 F.2d 67
    , 69-70 (5th Cir. 1978)). Le did not avail himself of any
    portion of these procedures. Le appears to assert that he was denied the
    opportunity to submit an alternative translation, because the prosecution did not
    provide him with the tapes. However, as the Government counters, the tapes were
    listed in its discovery report and on its proposed exhibit list. Furthermore, on
    redirect Le admitted to having listened to one of the tapes and testified that a word
    translated as “wrong” should have been translated as “differently.” Defense
    counsel conducted a voir dire of the interpreter’s credentials and did not oppose his
    qualifications. Le did not object to the admission of the transcripts. Neither party
    requested that the tapes be played before the jury. Le’s counsel did not cross-
    examine the translator. Accordingly, Le clearly waived his right to challenge the
    translation and the transcripts. See id.
          In any event, Le has failed to show any prejudice arising from the fact that
    the district court did not play the original recordings to the jury. He has not
    explained how the translations were inaccurate, nor has he indicated how playing
    the original recordings in court would have aided in his defense. Therefore, his
    claim would still fail in any event.
    IV. Sentencing
    A.    Seven-level increase for co-conspirators’ discharge of a firearm
          Because of Amendment 599 to the Sentencing Guidelines and Le’s
    consecutive 60-month sentence for his § 924(c) firearms offense, the district court
    erred by also applying a seven-level firearm increase under U.S.S.G.
    § 2B3.1(b)(2)(A) to Le’s offense level for his two Hobbs Act convictions.
          Amendment 599 of the 2000 Amendments to U.S.S.G. § 2K2.4 rejected the
    interpretation of the sentencing guidelines previously followed by this circuit,
    which allowed an increase in a defendant’s offense level for the underlying offense
    based on a co-conspirator’s use of a firearm in addition to a consecutive sentence
    under § 924(c) for another firearm. See, e.g., United States v. Rodriguez, 
    65 F.3d 932
     (11th Cir. 1995); United States v. Mitchell, 
    146 F.3d 1338
     (11th Cir. 1998).
    Specifically, Amendment 599 significantly altered both the language and substance
    of Application Note 2 to U.S.S.G. § 2K2.4. Revised Application Note 2, which
    went into effect November 1, 2000, states:
          If a sentence under this guideline is imposed in conjunction with a sentence
          for an underlying offense, do not apply any specific offense characteristic
           for possession, brandishing, use, or discharge of an explosive or firearm
           when determining the sentence for the underlying offense.
    U.S.S.G. Manual § 2K2.4, note 2 (2000). The revised Application Note includes a
    prohibition directly on point with Le’s situation: “Do not apply any weapon
    enhancement in the guideline for the underlying offense, for example, if (A) a co-
    defendant, as part of the jointly undertaken criminal activity, possessed a firearm
    different from the one for which the defendant was convicted under 18 U.S.C.
    § 924(c) . . . .” Id.
           The Sentencing Commission has specifically indicated that Amendment 599
    applies retroactively. See U.S.S.G. § 1B1.10(c) (Nov. 2000). Furthermore,
    Amendment 599, which effects a revision of Application Note 2, is binding on
    federal courts. Indeed, the Supreme Court has held that “[a]mended commentary
    [to the sentencing guidelines] is binding on the federal courts even though it is not
    reviewed by Congress, and prior judicial constructions of a particular guideline
    cannot prevent the Sentencing Commission from adopting a conflicting
    interpretation,” unless the interpretation violates the Constitution or a federal
    statute or is plainly erroneous or inconsistent with the regulation it interprets.
    Stinson v. United States, 
    508 U.S. 36
    , 37 (1993). The interpretation suggested by
    revised Application Note 2 does not violate the Constitution or a federal statute and
    is not plainly erroneous or inconsistent with U.S.S.G. § 2K2.4. The Supreme
    Court has also stated that if a court fails to follow or misreads the commentary in
    imposing a sentence, the sentence should be set aside under 18 U.S.C. § 3742(f)(1)
    unless the error was harmless. See Stinson, 508 U.S. at 42-43.
             The district court’s error in Le’s sentencing was not harmless. Were it not
    for the erroneous application of the adjustment for his co-conspirators’ use of a
    firearm, Le would not have received the seven-level increase, which significantly
    increased the guideline range of his prison sentence from 121-151 months to 262-
    327 months. Accordingly, we remand for re-sentencing on the two Hobbs Act
    convictions without the seven-level increase.9
    B.       Two-level increase for car-jacking
             Pursuant to U.S.S.G. § 2B3.1(b)(5), the district court increased Le’s offense
    level by two levels because the robbery involved a car-jacking by his co-
    conspirators. Le contends that this increase violated Apprendi v. New Jersey, 
    530 U.S. 466
     (1999). Specifically, he maintains that the district court erred by
    sentencing him to a total of 262 months for his two Hobbs Act convictions, based
          U.S.S.G. § 1B1.10(b) provides:
             In determining whether, and to what extent, a reduction in the term of imprisonment is
             warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the
             court should consider the term of imprisonment that it would have imposed had the
             amendment(s) to the guidelines listed in subsection (c) been in effect at the time the
             defendant was sentenced, except that in no event may the reduced term of imprisonment
             be less than the term of imprisonment the defendant has already served.
    in part on an adjustment for car-jacking, when those convictions under § 1951
    carried a 20-year (240-month) statutory maximum sentence. He argues that
    because the indictment did not charge him with car-jacking and the issue was never
    submitted to the jury, his enhanced sentence violates Apprendi.
          Apprendi does not apply to Le’s sentence. First, Apprendi does not apply to
    calculations under the guidelines. See United States v. Nealy, 
    232 F.3d 825
    , 829
    n.3 (11th Cir. 2000) (“The Sentencing Guidelines are not subject to the Apprendi
    rule.”). Second, to the extent Le contends that the carjacking increase caused his
    sentence to exceed the statutory maximum penalty, Apprendi is inapplicable,
    because neither his 240-month sentence for conspiracy nor his 22-month sentence
    for robbery exceeded the prescribed statutory maximum penalties for those
    convictions. See United States v. Gerrow, 
    232 F.3d 831
    , 834 (11th Cir. 2000)
    (holding that “there is no error, plain or otherwise, under Apprendi where the term
    of imprisonment is within the statutory maximum”).
          Le was convicted of two separate violations of the Hobbs Act – conspiracy
    and robbery. The Supreme Court has held that convictions under the Hobbs Act
    for conspiracy and for the substantive offense are separate crimes that can be
    punished with consecutive sentences. See Callahan v. United States, 
    364 U.S. 587
    597 (1961); see also U.S.S.G. § 5G1.2(d) (authorizing consecutive sentences to the
    extent necessary to produce a combined sentence equal to the “total punishment”
    required under the sentencing guidelines).
            Consistent with this authorized practice, the district court sentenced Le to a
    custodial sentence of 240 months for the conspiracy conviction in Count I and 22
    months consecutive to Count I for the robbery conviction in Count II.10 The
    statutory maximums for those charges were twenty years apiece. See 18 U.S.C.
    § 1951(a). Therefore, neither of Le’s sentences for his Hobbs Act violations were
    “more severe than the statutory maximum for the offense established by the jury’s
    verdict.” Apprendi, 530 U.S. at 487 n.13. Accordingly, we affirm the district
    court’s award of a two-level increase for car-jacking.11
    V. Ineffective Assistance
            Finally, Le asserts that he was denied effective assistance of counsel due to
    his counsel’s failure (1) “to advise the district court at the Suppression Hearing that
    Appellant was represented by counsel at the time of his arrest and interrogation;”
         The district court also sentenced Le to a consecutive 60-months sentence for using and
    carrying firearms during and in relation to the commission of the crimes in the first two counts,
    which Le does not challenge.
         We recognize that on remand, Le’s lower offense level for his Hobbs Act violations without
    the seven-level firearm will result in a reduced guideline range and a reduced sentence to some
    extent. However, it remains that Apprendi does not apply when the sentences on two related
    offenses are allowed to run consecutively under the relevant law and the sentence on each
    offense does not exceed the prescribed statutory maximum for that particular offense.
    (2) “to confront the FBI Agent with his conversations with a government informant
    who attempted to elicit information from Le while he was in custody awaiting
    trial;” (3) “to demand that the tapes used to impeach the defense witnesses be
    played for the witnesses;” and, (4) “to prepare an alternative translation of the tapes
    to challenge the accuracy of the translation offered by the Government.” Le asserts
    that “information dehors the record reveals that a local attorney who had been
    hired by [Le] when he was first questioned by Agent Chester on February 23, 1998
    wrote a letter to Chester explaining why [Le] refused to submit to a polygraph on
    advice of counsel. This letter (which also constitutes Brady material) was never
    produced by the Government.”
          Claims of ineffective assistance of counsel generally are not considered for
    the first time on direct appeal unless the record is sufficiently developed. See
    United States v. Tyndale, 
    209 F.3d 1292
    , 1294 (11th Cir. 2000) (citations omitted).
    Because, by Le’s own admission, the record is insufficient here to decide whether
    Le received ineffective assistance of counsel, we do not decide the ineffective
    assistance claim. See id. (affirming the convictions but not deciding the ineffective
    assistance claims due to insufficiency of the record); United States v. Mayes, 
    158 F.3d 1215
    , 1219 n.6 (11th Cir. 1998).
            Other than the seven-level firearm increase in calculating the total offense
    level on the Hobbs Act convictions, all of the district court’s rulings in this case
    were free from error. Accordingly, we affirm Le’s convictions and affirm in part
    and vacate in part his sentence. We affirm Le’s sentence except for the
    imprisonment portion of his sentence on the two Hobbs Act convictions. We
    vacate only that imprisonment portion and remand for re-sentencing in that regard
    on the two Hobbs Act convictions.12
         Specifically, the district court is permitted to reconsider and recalculate Le’s total offense
    level for the two Hobbs Act violations and is not required to simply deduct mathematically the
    seven-level firearm increase. Although the district court may ultimately decide to do that, our
    point is only that because the imprisonment portion of Le’s sentence has been vacated, the
    district court, as the sentencing judge, is allowed to reconsider any aspects of the total offense
    level in determining the term of imprisonment for Le’s Hobbs Act convictions

Document Info

DocketNumber: 00-11124

Citation Numbers: 256 F.3d 1229

Filed Date: 7/11/2001

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (28)

United States v. Kaplan , 133 F.3d 826 ( 1998 )

United States v. Mitchell , 146 F.3d 1338 ( 1998 )

United States v. Mayes , 158 F.3d 1215 ( 1998 )

United States v. Guerra , 164 F.3d 1358 ( 1999 )

United States v. Tyndale , 209 F.3d 1292 ( 2000 )

United States v. Diaz , 248 F.3d 1065 ( 2001 )

Stirone v. United States , 361 U.S. 212 ( 1960 )

Callanan v. United States , 364 U.S. 587 ( 1961 )

Missouri v. Hunter , 459 U.S. 359 ( 1983 )

Stinson v. United States , 508 U.S. 36 ( 1993 )

United States v. Robert Walker Gupton, Jr. , 495 F.2d 550 ( 1974 )

United States v. Franklin D. Wilson and Gary Wayne Bugbee , 578 F.2d 67 ( 1978 )

United States v. Dominic Phillip Brooklier, Samuel Orlando ... , 685 F.2d 1208 ( 1982 )

United States v. Leonicio Fernando Cruz, Orlando Vincent ... , 765 F.2d 1020 ( 1985 )

United States v. Anthony Dicarlantonio (88-3151/3248), and ... , 870 F.2d 1058 ( 1989 )

United States v. Peter R. Farrell and Paul A. Farrell , 877 F.2d 870 ( 1989 )

United States v. Riley Harrington Keller, Iii, Millard Lee ... , 916 F.2d 628 ( 1990 )

United States v. Doug Adair , 951 F.2d 316 ( 1992 )

United States v. Luis Rodriguez , 65 F.3d 932 ( 1995 )

96-cal-daily-op-serv-6492-96-daily-journal-dar-12115-united-states , 94 F.3d 1237 ( 1996 )

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