United States v. Thung Van Huynh

• Decision Date: 06 March 2018
• Docket Number: No. 17-2417,17-2417
• Citation: 884 F.3d 160
• Parties: UNITED STATES of America v. THUNG VAN HUYNH, Appellant
• Court: U.S. Court of Appeals — Third Circuit

884 F.3d 160

UNITED STATES of America

v.THUNG VAN HUYNH, Appellant

No. 17-2417

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a January 26, 2018

Filed: March 6, 2018

George J. Rocktashel, Office of United States Attorney, 240 West Third Street, Suite 316, Williamsport, PA 17701, Attorney for Appellee

Edward J. Rymsza, III, Miele & Rymsza, P.C., 125 East Third Street, Williamsport, PA 17701, Attorney for Appellant

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Thung Van Huynh pleaded guilty in the United States District Court for the Middle District of Pennsylvania to conspiracy to commit bank and wire fraud. The District Court sentenced Huynh to 70 months' imprisonment in part based on its findings that he was subject to sentencing enhancements for being an organizer or leader of the conspiracy and for relocating the conspiracy to evade detection by the authorities. Huynh now argues that neither enhancement was warranted and that the Government breached its plea agreement with him at the sentencing hearing. For the reasons that follow, we will affirm.

I

This case involves a scheme to fraudulently purchase luxury wristwatches at jewelry stores throughout the country. To finance the purchases, which totaled $815,553, Huynh and his co-conspirators used loans they obtained through identity theft. Huynh paid an employee of a California car dealership to give him identification and credit reporting information from customer records. Using the stolen information and photographs of his co-conspirators, Huynh arranged for counterfeit driver's licenses and credit cards to be made in the victims' names.

At dozens of jewelry stores in 16 states, Huynh's co-conspirators used the counterfeit licenses and credit cards to apply to various financial institutions for credit in the amount of each watch purchase. Huynh then sold the watches to a woman in California who served as a fence for the scheme. Huynh used the proceeds to cover all of the scheme's expenses and compensate his co-conspirators, keeping a share for himself. Huynh selected the jewelry stores, made all travel arrangements, and supplied his co-conspirators with the personal information of the defrauded individuals. On two occasions, law enforcement stopped Huynh around the time conspirators purchased watches. Specifically, Huynh and a co-conspirator were detained in Michigan at the United States-Canada border, where border agents "recovered the fraudulently obtained watches and counterfeit driver's licenses." PSR ¶ 17. Huynh "falsely told the agents that he had purchased the watches with money won at the casinos." Id. Two months later, Huynh and a different co-conspirator went to a store in Texas and attempted to purchase a luxury watch, but "store personnel alerted the police." PSR ¶ 19. Huynh's co-conspirator was arrested. Based upon information from the store's employees, a police officer approached Huynh, who was standing in the parking lot near the store. Huynh falsely told the officer he had no connection to the co-conspirator. Huynh did not return to either Michigan or Texas after these interactions with law enforcement but continued to make fraudulent transactions in several other states.

As part of a written agreement, Huynh pleaded guilty to conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349. Huynh and the Government stipulated as to how certain provisions of USSG § 2B1.1 (the Guideline for fraud-related offenses) applied to Huynh's sentencing. In Paragraph 10 of the agreement, the parties stipulated to: a base offense level of seven under § 2B1.1(a)(1) ; a 12-level increase under § 2B1.1(b)(1)(G) based on the amount of loss; a two-level increase under § 2B1.1(b)(2)(A) based on the number of victims; and a two-level increase under § 2B1.1(b)(11) because the scheme used an unlawfully produced means of identification. After a three-level reduction for acceptance of responsibility, Paragraph 10 established Huynh's total offense level at 20. At the same time, the Government reserved the right to seek an additional four-level enhancement under USSG § 3B1.1(a) for Huynh's role as an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive."

Also at issue in this appeal is the applicability of the two-level enhancement under Guidelines § 2B1.1(b)(10)(A) for relocating "a fraudulent scheme to another jurisdiction to evade law enforcement or regulatory officials." Huynh's plea agreement was silent as to the application of that enhancement, but the Government retained significant flexibility in responding to questions by the District Court and providing the Court with information the Government deemed relevant to the application of the Guidelines or other sentencing issues. The Presentence Investigation Report (PSR) prepared by the Probation Office applied the two-level "relocation" enhancement and the four-level "organizer or leader enhancement" to Huynh's offense level. Huynh objected to both enhancements before sentencing.

At the sentencing hearing, the District Court overruled both of Huynh's objections. After determining that the plea agreement did not "specifically exclude" the relocation enhancement, the Court asked the Government for its position on the enhancement's applicability. App. 17. The Government responded that it was "really taking no position" and did not "want to be viewed as undermining the plea agreement," but noted that the agreement expressly provides that the Government was not restricted in responding to the Court's questions regarding the application of the Guidelines. Id. The Court then repeated its question more specifically: did Huynh's travel back and forth from his home in California to make fraudulent purchases at jewelry stores across the country constitute relocation under § 2B1.1(b)(10)(A) ? In response, the Government offered an analysis of the facts and relevant caselaw that, in effect, supported Huynh's principal argument. The Government agreed with Huynh that while "[m]ovement was integral to the conspiracy[,] ... it was integral more for economic reasons than for evading law enforcement." App. 19. Thereafter, the Government's only significant comment on the enhancement was a confirmation, at the Court's request, that the Court correctly understood that the scheme was focused primarily on locations in the eastern half of the country despite Rolex watches being sold nationwide.

After hearing Huynh's arguments and reviewing the offense conduct as described in the PSR, which it adopted in full, the Court agreed with the Probation Office that the relocation enhancement applied. The Court based this determination on Huynh's pattern of targeting jewelry stores at great distances from California and from one another, as well as specific instances of apparent efforts to evade detection by the authorities. The Court also overruled Huynh's objection to the organizer or leader enhancement, agreeing with the Government that Huynh was the "leader and organizer of [the] group," that the scheme involved the requisite five or more participants, and that even if it did not, it was "otherwise extensive," as required by § 3B1.1(a). App. 28. As a result, Huynh's final offense level was 26, and his Guidelines imprisonment range was 70 to 87 months. In addition to restitution and a special assessment, the District Court sentenced Huynh to 70 months' imprisonment and three years of supervised release. Huynh filed a timely notice of appeal.

II

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

In general, "[w]e review the District Court's application of the Guidelines to facts for abuse of discretion" and its factual findings for clear error. United States v. Tupone , 442 F.3d 145, 149 (3d Cir. 2006). But where the Guidelines "set[ ] forth a predominantly fact-driven test," these two standards become indistinguishable, because we would find that the Court had "abused its discretion in applying the enhancement based on a particular set of facts only if those facts were clearly erroneous." United States v. Richards , 674 F.3d 215, 223 (3d Cir. 2012). We have already held that the organizer or leader enhancement of § 3B1.1(a) sets forth such a fact-driven test. See United States v. Starnes , 583 F.3d 196, 216–17 (3d Cir. 2009).

As for the relocation enhancement of § 2B1.1(b)(10)(A), we now hold that clear error review is appropriate because "the legal issue decided by the district court is, in essence, a factual question." Richards , 674 F.3d at 220. Whether or not a scheme was relocated to another jurisdiction to evade law enforcement or regulatory officials is, at bottom, "a strictly factual test, such that once the test is stated[,] no legal reasoning is necessary to the resolution of the issue." Id. at 221 (internal quotation marks omitted) (quoting United States v. Brown , 631 F.3d 638, 644 (3d Cir. 2011) ). Was the scheme relocated? Was it relocated to evade the authorities? These are fact-intensive questions that the district courts, given their "relative institutional advantages," are best equipped to answer. Id. We therefore review the District Court's application of the relocation enhancement for clear error.

By contrast, "[w]hether the government's conduct violate[d] the terms of [a] plea agreement is a question of law[,] and our review is plenary." United States v. Moscahlaidis , 868 F.2d 1357, 1360 (3d Cir. 1989).

III

Huynh makes three arguments on appeal. First, he claims the Government breached the plea agreement when it failed to oppose the relocation enhancement. Second, he argues the enhancement did not apply because Huynh's travels did not constitute relocation of the scheme and were not intended to evade the authorities. Third, he contends the District Court erred in applying the organizer or...