United States v. Peter Lam , 444 F. App'x 168 ( 2011 )


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  •                      UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT                            FILED
    JUL 20 2011
    UNITED STATES OF AMERICA,                      No. 09-50265
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    Plaintiff - Appellee,            D.C. No. 2:07-cr-00449-PSG-6
    Central District of California,
    v.                                           Los Angeles
    PETER XUONG LAM, AKA Kiet,
    ORDER
    Defendant - Appellant.
    Before: TROTT and RYMER, Circuit Judges, and BEISTLINE, Chief District
    Judge.*
    Appellant’s petition for panel rehearing filed July 13, 2011, is DENIED. An
    amended memorandum disposition is filed concurrently with this order. No further
    petitions shall be entertained.
    *
    The Honorable Ralph R. Beistline, Chief District Judge for the
    District of Alaska, sitting by designation.
    FILED
    NOT FOR PUBLICATION                              JUL 20 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                            No. 09-50265
    Plaintiff - Appellee,                    D.C. No. CR-07-449-PSG
    v.                                                 AMENDED
    MEMORANDUM*
    PETER XUONG LAM,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Philip S. Gutierrez, District Judge, Presiding
    Argued and Submitted June 8, 2011
    Pasadena, California
    Before: RYMER, TROTT, Circuit Judges, and BEISTLINE,**1Chief District
    Judge.
    Lam appeals his convictions and sentence in the District Court for selling
    illegally imported fish in violation of 
    18 U.S.C. § 545
     and introducing misbranded
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Ralph R. Beistline, Chief District Judge for the
    District of Alaska, sitting by designation.
    1
    fish into interstate commerce with the intent to defraud in violation of 
    21 U.S.C. §§ 331
    (a)&(c), § 333(a)(2). This court has jurisdiction pursuant to 
    18 U.S.C. § 3742
     and 
    28 U.S.C. § 1291
    , and we affirm the convictions and remand for
    resentencing.
    There was sufficient evidence presented at trial to support defendant’s
    convictions. Even were we to conclude that some of the government’s comments
    during closing argument were inappropriate, which we do not, any error would be
    harmless and have had no impact on the verdict rendered. Furthermore, venue was
    appropriate pursuant to 
    18 U.S.C. § 3237
    (a). Defendant’s convictions are
    therefore AFFIRMED.
    However, there was a procedural error by the District Court in determining
    the amount of tax loss to assess against defendant. This resulted in a two level
    enhancement of defendant’s offense level. Accordingly, this matter is remanded
    for an open resentencing pursuant to Pepper v. United States, ___ U.S. ___, 
    131 S.Ct. 1229
    , 1239-40 (2011) and United States v. Matthews, 
    278 F.3d 880
    , 885-86
    (9th Cir. 2002). Furthermore, the forfeiture order is hereby vacated. The district
    court may reconsider the forfeiture as part of the resentencing.
    The court REMANDS this matter to the District Court for resentencing
    consistent herewith.
    It is so ordered.
    2
    FILED
    United States v. Lam, No. 09-50265 (Pasadena – June 8, 2011)                    JUL 20 2011
    MOLLY C. DWYER, CLERK
    RYMER, Circuit Judge, concurring in part and dissenting in part:             U.S. COURT OF APPEALS
    I would hold that venue in the Central District of California was improper
    for Lam’s convictions under 
    18 U.S.C. § 545
    .
    The indictment does not charge Lam with smuggling fish into the United
    States—only with receiving, selling, and transporting the fish after its importation.1
    This anterior criminal conduct does not count towards venue. United States v.
    Cabrales, 
    524 U.S. 1
    , 6-8 (1998).
    I am not persuaded that 
    18 U.S.C. § 3237
    (a) permits venue in this case. The
    indictment didn’t charge Lam with moving the fish in interstate commerce. See
    Cabrales, 
    524 U.S. at 8-9
     (holding that § 3237(a) did not establish venue in a non-
    interstate commerce offense).
    1
    To be precise, the indictment charges that Lam “did knowingly receive,
    conceal, buy, sell, and facilitate the transportation, concealment, and sale” of the
    fish after illegal importation.
    

Document Info

Docket Number: 09-50265

Citation Numbers: 444 F. App'x 168

Judges: Beistline, Rymer, Trott

Filed Date: 7/20/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023