U.S. v. Chau

• Decision Date: 27 September 2005
• Docket Number: No. 05-10640. Non-Argument Calendar.,05-10640. Non-Argument Calendar.
• Citation: 426 F.3d 1318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Quan CHAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

426 F.3d 1318

UNITED STATES of America, Plaintiff-Appellee, v. Quan CHAU, Defendant-Appellant.

No. 05-10640. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 27, 2005.

F. Luke Coley, Jr. (Court-Appointed), Mobile, AL, for Chau.

David Andrew Sigler, Mobile, AL, for U.S.

Appeal from the United States District Court for the Southern District of Alabama.

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Quan Chau appeals his 57-month concurrent sentences imposed for convictions on: one count of conspiracy to possess with intent to distribute more than 700 units of 3, 4-methylenedioxymethamphetamine (usually known as MDMA or ecstasy) in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846; three counts of possession with intent to distribute MDMA in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1); and one count of attempt to distribute MDMA in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846. Chau contends that the use of hearsay at his sentencing hearing violated his Sixth Amendment right of confrontation, and that the enhancement of his sentence based on facts he had not admitted violated his Sixth Amendment right to trial by jury. We affirm.

I.

A federal grand jury indicted Chau on the five counts we have described. Without an agreement he pleaded guilty to all counts. At the plea colloquy, the government presented a factual basis for the plea. At the sentencing hearing, the same facts were established through the testimony of a police officer.

These are those facts. In July 2003 police in Mobile, Alabama identified a confidential informant who agreed to participate in an investigation of MDMA distribution. The next month the informant contacted Trung Truong. The informant asked Truong for 100 tablets of MDMA and discussed with Truong the possibility of obtaining 200 to 300 tablets per week. Truong said that he could supply those amounts. Later the informant wanted 200 tablets, but Truong said he had only 150, and they reached a deal for that amount. In September 2003 the informant purchased 200 more MDMA tablets from Truong.

Truong was arrested, and he identified Chau as his source of supply for MDMA. Then Chau was arrested, and he identified Truong as his source. Chau stated that on two occasions, following Truong's instructions, he had picked up MDMA tablets from an unidentified man in Mississippi and delivered those drugs to Truong.

The Mobile police later learned that, during a surveillance operation FBI agents in Mississippi had stopped Chau in his vehicle, and Chau had given a female passenger 129 MDMA tablets to conceal. A search of the vehicle had revealed a loaded .22 caliber handgun under the driver's side front floor mat. Chau had admitted to the FBI agents that the gun and the drugs were his. Chau also had admitted to them that for six months he had been delivering 50 to 60 tablets, weekly or biweekly, from Alabama to someone in Mississippi.

At the plea colloquy, the government said that it expected to establish Chau was accountable for at least 1,709 MDMA tablets. Chau agreed that the government could prove the necessary elements of the crimes charged, but he said that he disputed for sentencing purposes the drug quantity and the firearm possession. The district court accepted Chau's plea and adjudicated him guilty.

The presentence investigation report held Chau accountable for 1,637 units¹ of MDMA. Under the sentencing guidelines, the quantity of drugs involved in an offense figures into the calculation of the offense level. U.S.S.G. § 2D1.1 (Nov. 2004). For purposes of calculating drug quantity, MDMA is converted to its equivalency in marijuana. See id. According to the conversion tables in the guidelines, the weight of 1,637 units of MDMA is 409.25 grams, and this amount is equivalent to 204.624 kilograms of marijuana. Id.

Using these calculations, the PSI set Chau's base offense level at 26, see U.S.S.G. § 2D1.1(c)(7). The PSI then added two points for the possession of a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1), and subtracted three points for acceptance of responsibility, see U.S.S.G. § 3E1.1. These calculations netted out to an offense level of 25. Chau had no criminal history points. The result was a guideline range of imprisonment of 57-71 months.

At the sentencing hearing, Chau contended that he could be sentenced based only on the facts set out in the charges to which he had pleaded. He objected to the drug quantity relied on in the PSI, which was 1637 units. Chau argued that because the conspiracy count, to which he had pleaded guilty, alleged that he had conspired to distribute "more than 700 units," he should be sentenced based on no more than the 700 units. That argument is a non sequitur, because "more than" means more than, not "not more than."

Chau also objected to the sentencing enhancement for possession of a weapon. The indictment did not mention a weapon, Chau did not plead guilty to any offense related to a weapon, and at the plea hearing he disputed application of the weapons enhancement. At the same time he was doing that Chau told the district court he was not denying what was in the Mississippi arrest report, which stated that Chau had a weapon in the vehicle when he was arrested there.

At the sentencing hearing the government called Joseph Wolfe, a Mobile police officer assigned to a Drug Enforcement Administration task force, to testify. Wolfe testified that he had participated in the investigation of Chau, and he relayed to the court the informant's statements to him about the informant's dealings with Truong. Wolfe's testimony about what the informant had told him matched the factual basis that government counsel had provided at the plea colloquy.

Significantly for sentencing purposes, Wolfe testified that 129 units of MDMA had been recovered from Chau's vehicle in Mississippi, and Chau had admitted to law enforcement in Mississippi that, weekly or biweekly for a six month period, he had delivered 50 to 60 units of MDMA to someone in that state. Wolfe also testified that a firearm had been found in Chau's vehicle when FBI agents stopped him in Mississippi. Chau objected a number of times on hearsay grounds to Wolfe's testimony, but the court overruled those objections. He did not object on Confrontation Clause grounds.

Based on Wolfe's testimony, the government proposed a drug quantity of 1,637 tablets of MDMA. Chau agreed that the math was correct but renewed his hearsay objection. The court overruled it again and found by a preponderance of the evidence that the amount of drugs attributed to Chau in the PSI was correct. The court reasoned that the Mississippi activities were either part of the conspiracy or relevant to it. The court stated that it would question whether Chau was entitled to the acceptance of responsibility reduction if he was denying his Mississippi arrest and the facts in that arrest report. For that or some other reason, Chau did not deny the accuracy of the report's contents.

According to the government, the report stated that Chau had mentioned to the FBI agents the recent shooting of a Vietnamese man and explained that he was carrying a gun because it was dangerous in Mississippi. The court found by a preponderance of the evidence that Chau had possessed a gun in connection with drug transactions, that he had carried it for protection while dealing drugs. Chau argued that the indictment had not charged him with any firearm related offense, and therefore the arrest report did not rise to the level of proof necessary to support the enhancement. The court disagreed.

Using the guidelines as advice, which it decided to follow, the court sentenced Chau to 57 months incarceration (the bottom of the guidelines range) on each count to be served concurrently and to be followed by 3 years supervised release.

II.

Chau contends that the use of hearsay at his sentencing hearing violated his Sixth Amendment right of confrontation. He also contends that his Sixth Amendment right to a jury trial was violated when the district court enhanced his sentence using facts that he had not admitted. We review constitutional challenges to a sentence de novo. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005).

A.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend. VI. When testimonial evidence is presented against a defendant at trial, the Sixth Amendment right of confrontation cannot be denied unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

Chau contends that Crawford, 541 U.S. 36, 124 S.Ct. 1354, applies to sentencing proceedings as well as trials because a sentencing hearing "is obviously a criminal prosecution." Appellant's Br. at 9. He argues that because the district court considered evidence that should have been excluded under the Crawford decision, it miscalculated his sentence under the guidelines.

In the district court Chau made objections on hearsay grounds, but did not mention the Confrontation Clause. Because a hearsay objection does not preserve the Crawford issue, our review is only for plain error. United States v. Luciano, 414 F.3d 174, 178 (1st Cir.2005) ("As Luciano did not raise this Confrontation Clause or Crawford-type claim in the proceedings below — defense objections were framed as hearsay and reliability objections — we review for plain error."); accord United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993).

As the name suggests, any plain error must be "plain." United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.2003). "At a minimum, court[s] of appeals cannot correct an error pursuant to Rule 52(b) [permitting plain error...