United States v. Paul Tran , 683 F. App'x 421 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0177n.06
No. 16-5448
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 22, 2017
UNITED STATES OF AMERICA ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
PAUL SINH TRAN, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
BEFORE: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Paul Sinh Tran was sentenced to
27 months’ imprisonment after pleading guilty to tax fraud and to structuring currency
transactions. Tran appeals the imposition of a two-point enhancement under Section 2S1.3(b)(1)
of the United States Sentencing Guidelines (the Guidelines). That enhancement applies if Tran
knew or believed that the funds from his structured transactions were the proceeds of unlawful
activity or if he intended that the transactions promote unlawful activity. Given his concessions
before the district court, Tran has waived this claim. Even on the merits, however, the district
court did not plainly err in applying the enhancement because Tran conceded that his structured
transactions were intended to promote illegal activity—namely, filing false tax returns.
Accordingly, we affirm the sentence imposed by the district court.
I.
In July 2015, Paul Sinh Tran was indicted by a federal grand jury in the Eastern District
of Kentucky. Tran was charged with three counts of willfully aiding and assisting in the
No. 16-5448
United States v. Tran
preparation of materially false tax returns that understated his income for the 2009 (Count 1),
2010 (Count 2), and 2011 (Count 3) tax years, in violation of 26 U.S.C. § 7206(2). Tran was
also charged with structuring more than $100,000 in currency transactions during a twelve-
month period in order to evade federal reporting requirements while violating another law or as
part of a pattern of illegal activity, in violation of 31 U.S.C. § 5324(a)(3).
In January 2015, Tran entered into a plea agreement with the United States. In exchange
for his agreement to plead guilty to Count 2, the 2010 tax-fraud charge, and Count 4, the
currency-structuring charge, the government agreed to dismiss Counts 1 and 3 at sentencing.
The parties stipulated that the government could prove facts sufficient to establish the essential
elements of both Count 2 and Count 4.
The facts established that Tran, a licensed chiropractor, owned and operated Champion
Family Chiropractic (CFC) in Kentucky. CFC received a portion of its income directly from
insurance companies. These payments included a Form 1099 to ensure that there was a record of
the payment for the IRS. CFC, however, also received payments directly from patients.
These payments were made by cash, personal check, or through an insurer’s check to the patient
that was then signed over to CFC.
Tran used a tax preparer to complete and file his federal tax returns and to account for his
income from CFC. Instead of reporting all of his income, however, he provided the tax preparer
with only the 1099 forms that CFC received when it was reimbursed directly by an insurance
company. Tran did not provide personal or business bank statements, which would have
reflected additional income. In total, by so limiting what he disclosed to his tax preparer, Tran
failed to report $44,820 of income in 2009, $26,680 in 2010, and $30,060 in 2011. This resulted
in an outstanding tax liability of $36,575.70 to the IRS.
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At the same time, Tran was withdrawing and depositing cash at various financial
institutions to support his gambling habit. He kept his transactions just below $10,000 to keep
from triggering the institutions’ obligations under the Bank Secrecy Act to file a Currency
Transaction Report with the federal government. In total, Tran made $196,190.71 in structured
transactions, over $100,000 of which occurred during 2010 while he was assisting in the
preparation of false tax returns.
In the plea agreement, Tran and the government also agreed to non-binding calculations
under the November 2015 Sentencing Guidelines pursuant to Fed. R. Crim. P. 11(c)(1)(B). The
agreement contemplated a base offense level of 16 with a two-point enhancement under
§ 2S1.3(b)(1) because Tran knew or believed that the funds were proceeds of unlawful activity or
intended to promote unlawful activity and a two-point enhancement under § 2S1.3(b)(2) because
the currency transactions were committed as part of a pattern of unlawful activity involving more
than $100,000 in a twelve-month period. The calculation also included a two-point reduction for
acceptance of responsibility and a one-point reduction for Tran’s timely notice of intent to plead
guilty. This resulted in a total offense level of 17. Tran and the government did not reach an
agreement as to Tran’s criminal-history designation. The parties, however, did agree that the
IRS was entitled to $36,575.70 in restitution and that Tran must forfeit $108,600 for the
structured transactions.
Tran waived his right to appeal his guilty plea and conviction as well as his right to
collaterally attack his plea, conviction, or sentence on any ground other than ineffective
assistance of counsel. Tran did not waive his right to appeal his sentence.
On January 4, 2016, the district court accepted the plea agreement as well as Tran’s
guilty plea. In advance of sentencing, the United States Probation Office issued a Pre-Sentence
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United States v. Tran
Report (PSR). The PSR concluded that Tran’s total offense level was 17, which included the
two-point enhancement under § 2S1.3(b)(1). The PSR also noted that Tran’s criminal-history
category was III, resulting in a guideline range of 27–33 months’ imprisonment. There were no
objections to the PSR. Tran, however, filed a sentencing memorandum arguing that, given the
18 U.S.C. § 3553(a) factors, he should receive a sentence at the low-end of the guideline range.
The district court held a sentencing hearing on April 4, 2016. After confirming that there
were no objections to the PSR, the district court reviewed the sentencing calculations, including
the § 2S1.3(b)(1) enhancement. When asked, counsel for Tran and for the government agreed
with the district court’s calculation of a total offense level of 17 and a Guidelines range of 27–33
months. The district court then sentenced Tran to 27 months’ imprisonment on Count 2 and 27
months’ imprisonment on Count 4, to be served concurrently. Tran was also sentenced to 3
years’ supervised release. The court ordered restitution and forfeiture in line with the plea
agreement and granted the government’s motion to dismiss Counts 1 and 3. After the district
court entered judgment on April 6, 2016, Tran filed a timely notice of appeal challenging his
sentence.
II.
The government asks that we dismiss Tran’s appeal because he has waived his ability to
challenge the § 2S1.3(b)(1) enhancement. Although Tran concedes that he failed to object to the
sentencing enhancement before the district court, he argues that his actions do not constitute a
waiver of this claim.
“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’” United
States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)); United States v. Priddy, 808 F.3d 676, 681 (6th Cir. 2015). “A defendant’s failure to
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United States v. Tran
object to a sentencing error, or even his acknowledgment that he has no objection, does not
amount to a waiver of that error.” United States v. Mabee, 765 F.3d 666, 671 (6th Cir. 2014);
see also United States v. Fowler, 819 F.3d 298, 306 (6th Cir. 2016). “However, where the
defendant has ‘explicitly agreed’ that a particular guideline calculation or enhancement applies to
his sentence, any challenge to that enhancement on appeal is waived.” Priddy, 808 F.3d at 681
(citing United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002)); Mabee, 765 F.3d
at 671. We have said that an explicit agreement occurs when a defendant expresses a “plain,
positive concurrence” or a “plain, explicit concession on the record” with respect to the
application of the enhancement. Mabee, 765 F.3d at 672–73; see also Priddy, 808 F.3d at 681;
Fowler, 819 F.3d at 306. “After agreeing, the defendant cannot make the opposite argument on
appeal; the argument is waived and [we do] not review it.” Priddy, 808 F.3d at 681.
We have held that a defendant waived his right to challenge a calculation or enhancement
under the Guidelines because he had “explicitly agreed” to its applicability on four different
occassions. See Aparco-Centeno, 280 F.3d at 1086 (finding that a defendant’s admission in his
sentencing memorandum that his prior convictions qualified as aggravated felonies precluded
him from challenging such a designation on appeal); Priddy, 808 F.3d at 682 (relying on Aparco-
Centeno to hold that a defendant waived his ability to challenge his designation as an Armed
Career Criminal when his sentencing memorandum and his lawyer’s statements in court
reiterated that the designation applied); United States v. McBride, 826 F.3d 293, 295 (6th Cir.
2016) (holding that statements in a defendant’s plea agreement, sentencing memorandum, and
during his sentencing hearing, which reflected his agreement with his career-offender
designation, constituted waiver of a challenge to that designation on appeal); United States v.
Moore, 654 F. App’x 705, 709 (6th Cir. 2016) (finding explicit agreement to a statutory
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United States v. Tran
enhancement because a defendant had acknowledged he was subject to the enhancement in his
plea agreement and during his change-of-plea hearing).
In this case, Tran explicitly agreed to the applicability of § 2S1.3(b)(1) in his plea
agreement. At his rearraignment, Tran told the court that he had reviewed the agreement with
counsel, understood its terms, and was entering the agreement voluntarily. After the government
summarized the agreement—specifically stating: “In paragraph 7, the parties set out the
recommended sentencing guideline calculations, and the paragraph permits that the parties may
object to or argue in favor of other calculations”—both Tran and his attorney agreed that this
accurately reflected the terms of the parties’ agreement. When Tran returned for his sentencing
hearing, the district court reviewed Tran’s base offense level, criminal history, and sentencing
enhancements, including an explicit reference to § 2S1.3(b)(1)’s applicability. When asked,
Tran’s attorney agreed that the Guidelines were accurately calculated.
Tran’s situation is thus sufficiently similar to McBride and Moore—where the defendants
conceded the applicability of sentencing provisions in their plea agreements and in open court—
for these cases to control the outcome here. See McBride, 826 F.3d at 295; Moore, 654 F. App’x
at 709. Accordingly, we conclude that Tran explicitly agreed to the applicability of
§ 2S1.3(b)(1) and waived his ability to challenge it on appeal.
III.
For the foregoing reasons, we affirm the sentence imposed by the district court.
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