U.S. v. Dinh

• Decision Date: 04 April 2019
• Docket Number: No. 18-10099,18-10099
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Jenney DINH, also known as Jenney Thi Dinh, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

920 F.3d 307

UNITED STATES of America, Plaintiff – Appellee,

v.Jenney DINH, also known as Jenney Thi Dinh, Defendant – Appellant.

No. 18-10099

United States Court of Appeals, Fifth Circuit.

FILED April 4, 2019

Sean Jeffrey Taylor, Sean Jeffrey Taylor, U.S. Attorney's Office, Amarillo, TX, for Plaintiff-Appellee.

Taylor Wills Edwards Brown, Federal Public Defender's Office, Fort Worth, TX, for Defendant-Appellant.

Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Jenney Dinh pleaded guilty to distributing a large volume of pills containing Fentanyl analogues. Two crime laboratories tested samples of the pills and reported that every pill tested contained the analogues. At sentencing, the district court used the total weight of all the pills as the attributable drug quantity. On appeal, Dinh objects to the district court’s use of that drug quantity when calculating her sentence. Because the district court did not err in using that drug quantity, we AFFIRM.

I.

Dinh pleaded guilty to being in the illegal opioid business and she is serving a 151-month sentence in prison. As admitted in a factual resume signed pursuant to her plea agreement, she was caught possessing and selling large quantities of pills on four separate occasions. The pills were advertised as Hydrocodone and Oxycodone; however, lab reports from the first three batches detected that they contained Fentanyl

analogues instead.¹

In the first seizure, a bag containing 991 pills was found during an inventory of Dinh’s car after an arrest. Those pills were sent to a Texas Department of Public Safety crime lab for analysis. The lab tested a sample of 29 pills from that batch and detected a Fentanyl analogue in every tested pill. The lab report notes that the bag contained "991 white oblong tablets," and states that "[t]he statistical sampling plan used indicates a 95% confidence that at least 90% of the items will have the reported results." In the second seizure, Dinh sold an undercover DEA agent 1,001 pills. Those pills were sent to a DEA lab for analysis. The lab tested 28 pills from that batch and detected a Fentanyl analogue in every tested pill. As with the Texas DPS lab report, the DEA lab report does not indicate any way in which the pills were distinguishable from one another and states that the sampling plan represents a 95% level of confidence that at least 90% of the pills contain the analogue. In the third seizure, Dinh sold an undercover DEA agent 506 pills. Those pills were again sent to a DEA lab for analysis. The lab again tested 28 pills from that batch and again detected a Fentanyl

analogue in every tested pill. The lab report again does not indicate any way in which the pills were distinguishable from one another and again states a 95% level of confidence that at least 90% of the pills contain the analogue.

In total, 2,498 pills from three separate batches, with a net weight of 838.9 grams, were sent to the labs. The labs tested 85 of those pills (28-29 from each batch) and detected Fentanyl

analogues in every single pill that was tested. The lab reports then stated that based on those samplings there was a 95% level of confidence that at least 90% of all the pills contained Fentanyl analogues. None of the lab reports go into depth on the chemical equations underlying their results nor the mathematical models underlying their ranges of statistical certainty.

Based on those lab reports, the Presentence Report (PSR) concluded that the relevant drug quantity was the net weight of all the pills submitted for testing—838.9 grams. Dinh objected to the use of that quantity on the grounds that: (1) it violated Due Process to test only a small sample of the pills; (2) it violated Due Process not to ascertain the exact composition of each pill; and (3) it violated the Confrontation Clause not to be able to cross-examine the lab technicians. The district court overruled those objections, and sentenced Dinh to 151 months’ imprisonment (the bottom end of a Guidelines range of 151–188 months). Dinh filed a timely notice of appeal, and we have jurisdiction under 18 U.S.C. § 3742(a).

II.

"We apply the clearly erroneous standard of review to the district court’s factual determination regarding the quantity of drugs used to establish the base offense level." United States v. Alaniz , 726 F.3d 586, 618 (5th Cir. 2013) (citing United States v. Johnston , 127 F.3d 380, 403 (5th Cir. 1997) ). "Ultimately, the district court need only determine its factual findings at sentencing by a preponderance of the relevant and sufficiently reliable evidence." Id. at 618–19 (citing United States v. Betancourt , 422 F.3d 240, 247 (5th Cir. 2005) ). "A factual finding is not clearly erroneous as long as it is plausible in light of the record read as a whole." United States v. Sanders , 942 F.2d 894, 897 (5th Cir. 1991).

"We review the district court’s interpretation and application of the Sentencing Guidelines de novo [.]" United States v. Rodriguez-Lopez , 756 F.3d 422, 434 (5th Cir. 2014) (citing United States v. Miller , 607 F.3d 144, 147 (5th Cir. 2010) ). "[W]hen faced with a preserved constitutional challenge to the Guidelines’ application, our review is de novo ." United States v. Preciado-Delacruz , 801 F.3d 508, 511 (5th Cir. 2015).

III.

On appeal, Dinh argues that the district court’s reliance on the PSR’s drug quantity was legal error for three reasons: (1) it reflected the mixture weight of the pills rather than just the controlled substance weight; (2) there was no opportunity to confront the lab technicians; and (3) the PSR did not provide an adequate evidentiary basis for extrapolating the drug quantity to include all of the untested pills. We address each argument in turn.

A.

Dinh repeats the argument she made before the district court that using mixture weight to calculate the overall drug quantity, rather than the isolated weight of the Fentanyl analogue components, is a Due Process violation. She asserts that the Sentencing Guideline’s direction to calculate Fentanyl analogue quantities in that manner is unconstitutional. She argues it is absurd and disproportional to sentence two offenders with identical amounts of Fentanyl analogues to dramatically different sentences just because one offender mixes her Fentanyl analogue with sugar (or, in this case, acetaminophen) and the other leaves it pure. She points out that if she had been selling Hydrocodone and Oxycodone—like she allegedly believed—the quantity would be based on the actual controlled substance weight rather than the mixture weight.

However, Dinh’s argument is unavailing. Under the 2016 Sentencing Guidelines,² the default rule for calculating the weight of a controlled substance is its mixture weight. U.S.S.G. § 2D1.1(c), Note A ("Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."). Fentanyl analogues, unlike Hydrocodone and Oxycodone,³ are not otherwise specified, so they are subject to the mixture rule. Moreover, the Supreme Court has already held that mixture weight calculations do not violate Due Process when, as here, the drug cannot be easily separated from the mixture and is intended for sale and consumption in the mixture—rejecting the same absurdity and disproportionality arguments that Dinh makes on this appeal. Chapman v. United States , 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).⁴

B.

Next, Dinh argues that the Sixth Amendment’s Confrontation Clause right, as enunciated by the Supreme Court in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), should be extended to the sentencing phase. Despite whatever intuitive strength such an argument may have, Dinh acknowledges that we already have precedent declining to do so. See, e.g ., United States v. Beydoun , 469 F.3d 102, 108 (5th Cir. 2006). Our precedent on this point is in line with other circuits. See , e.g. , United States v. Katzopoulos , 437 F.3d 569, 576 (6th Cir. 2006) ; United States v. Littlesun , 444 F.3d 1196, 1200 (9th Cir. 2006) ; United States v. Luciano , 414 F.3d 174, 179 (1st Cir. 2005) ; United States v. Martinez , 413 F.3d 239, 243–44 (2d Cir. 2005) ; United States v. Roche , 415 F.3d 614, 618 (7th Cir. 2005), abrogated in part on other grounds by Kimbrough v. United States , 552 U.S. 85, 128, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) ; United States v. Brown , 430 F.3d 942, 944 (8th Cir. 2005) ; United States v. Chau , 426 F.3d 1318, 1323 (11th Cir. 2005). Dinh attempts to distinguish her argument from those that have already been rejected by stating that she is not asking for a general right of confrontation when any testimonial evidence is introduced at sentencing, but is instead asking only for a narrow exception when "scientific and technical evidence" is introduced.⁵

But Dinh’s argument for an exception in cases dealing with "scientific and technical information" also fails. Dinh does not cite any authority to support her argument that Crawford should now be read to recognize a Confrontation Clause right at sentencing for certain types of evidence. Moreover, it has long been established by the Supreme Court that defendants do not have a constitutional right of confrontation or cross-examination at the sentencing phase. See , e.g. , Williams v. Oklahoma , 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) ; Williams v. New York , 337 U.S. 241, 246–51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). As every circuit court to address the question has held, Crawford did not address the rights of a defendant at sentencing, so the Supreme Court’s precedent in those earlier cases remains binding on this court. See Agostini v. Felton , 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) ("[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected...