Case: 14-10439, 03/13/2015, ID: 9456542, DktEntry: 16-1 ... · Case: 14-10439, 03/13/2015, ID:...

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.A. NO. 14-10439 UNITED STATES OF AMERICA, ) CR. NO. 12-01259 DKW ) (USDC-Hawaii)

Plaintiff-Appellee, ) )

vs. ) ) DAVID STEIDELL, ) )

Defendant-Appellant. ) ) ___________________________________)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

PLAINTIFF-APPELLEE’S ANSWERING BRIEF

FLORENCE T. NAKAKUNI United States Attorney District of Hawaii

CHRIS A. THOMAS Assistant U.S. Attorney Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, Hawaii 96850 Telephone: (808) 541-2850 mail: [email protected] Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA

Case: 14-10439, 03/13/2015, ID: 9456542, DktEntry: 16-1, of 48

TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES........................................i-iii I. STATEMENT OF JURISDICTION, TIMELINESS, BAIL STATUS.........1

II. ISSUES PRESENTED ON APPEAL.................................1 III. STATEMENT OF THE CASE......................................1

IV. STATEMENT OF THE FACTS.....................................3

A. The Investigation.....................................3

B. Defendant’s Change of Plea............................9 C. Inadvertent Destruction of Evidence..................11 D. Defendant’s Sentencing...............................12

V. SUMMARY OF THE UNITED STATES’ ARGUMENT....................17

VI. ARGUMENT..................................................18

A. Defendant Initiated the Discussion of Other Drugs and

Was Therefore Predisposed to Distributing Methamphetamine and Not Subjected to Sentencing Entrapment...........................................18

1. Standard of Review..............................18

2. Defendant Forfeited His Claim...................19

3. Defendant Was Not Entrapped.....................20

B. The District Court Properly Applied a Two-Level

Enhancement for Defendant’s Leadership Role..........28

1. Standard of Review..............................28


2

2. The Court Properly Found That Defendant Was a Leader..........................................29

C. The District Court Imposed a Substantively Reasonable

Sentence.............................................34

1. Standard of Review.........................34

2. Defendant’s Sentence Was Substantively Reasonable.................................34

VII. CONCLUSION................................................38


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TABLE OF AUTHORITIES Cases Page(s) Alleyne v. United States, 133 S. Ct. 2151 (2013)...............27 Gall v. United States, 552 U.S. 38 (2007)......................34 Rita v. United States, 551 U.S. 338 (2007).....................35 United States v. Avila, 905 F.2d 295 (9th Cir. 1990)...........31 United States v. Benny, 786 F.2d 141 (9th Cir. 1986)...........29 United States v. Burgum, 633 F.3d 810 (9th Cir. 2011)..........37 United States v. Carty, 520 F.3d 984 (9th Cir. 2008)........34-35 United States v. Carvajal, 905 F.2d 1292 (9th Cir. 1990).......31 United States v. Daniels, 541 F.3d 915 (9th Cir. 2008).........34 United States v. Davis, 36 F.3d 1424 (9th Cir. 1994)...........20 United States v. Farrell, 893 F.2d 690 (5th Cir. 1990).........30 United States v. Gutierrez-Sanchez, 587 F.3d 904 (9th Cir. 2009)...........................................37 United States v. Mares-Molina, 913 F.2d 770 (9th Cir. 1990)....30 United States v. Marin-Cuevas, 147 F.3d 889 (9th Cir. 1998)....30 United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009)..........20 United States v. Milton, 153 F.3d 891 (8th Cir. 1998), cert. denied, 119 S. Ct. 1082 (1999)............................30 United States v. Olano, 507 U.S. 725 (1993)....................19 United States v. Pinkney, 15 F.3d 825 (9th Cir. 1994)..........29


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United States v. Rendon-Duarte, 490 F.3d 1142 (9th Cir. 2007)..20 United States v. Ressam, 679 F.3d 1069 (9th Cir. 2012).........34 United States v. Riewe, 165 F.3d 727 (9th Cir. 1999)...........20 United States v. Robinson, 94 F.3d 1325 (9th Cir. 1996)....20, 25 United States v. Ruelas, 106 F.3d 1416 (9th Cir.), cert. denied, 520 U.S. 1282 (1997)......................................29 United States v. Schafer, 625 F.3d 629 (9th Cir. 2010)..20-21, 25 United States v. Si, 343 F.3d 1116 (9th Cir. 2003).............20 United States v. Wills, 88 F.3d 704 (9th Cir. 1996)............31 Stautues and Rules 18 U.S.C. § 924(c)(1)(A)........................................2 18 U.S.C. § 3553...........................................14, 16 18 U.S.C. § 3553(a)................................15, 18, 34, 38 18 U.S.C. § 3553(a)(2).........................................15 18 U.S.C. § 3584...............................................17 21 U.S.C. § 841(a)(1)...........................................2 21 U.S.C. § 841(b)(1)(A)........................................2 21 U.S.C. § 841(b)(1)(C)........................................2 21 U.S.C. § 846.................................................2 28 U.S.C. § 1291................................................1


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Fed. R. App. P. Rule 4(b)(1)....................................1 Fed. R. Crim. P. 52(b).........................................19


1

PLAINTIFF-APPELLEE’S ANSWERING BRIEF

I. STATEMENT OF JURISDICTION, TIMELINESS, BAIL STATUS

The United States of America, plaintiff–appellee

herein (hereinafter the “government”), hereby responds to

defendant–appellant David Steidell’s (hereinafter “Defendant”)

Opening Brief. The Government does not dispute this Court’s

jurisdiction to hear the instant appeal pursuant to 28 U.S.C.

§ 1291. The Notice of Appeal was timely filed in accordance

with Fed. R. App. P. Rule 4(b)(1). Defendant is presently

incarcerated at FCD Honolulu in Honolulu, Hawaii.

II. ISSUES PRESENTED ON APPEAL

A. Whether Defendant was predisposed to distributing

methamphetamine and therefore not subjected to sentencing

entrapment.

B. Whether the District Court properly applied a two-

level enhancement for Defendant’s leadership role in the

offense.

C. Whether the District Court imposed a reasonable

sentence.

III. STATEMENT OF THE CASE

Defendant along with Co-defendants Jesse Cho-Paek,

Jasmine Trujillo and Demario Bell were charged by Indictment on

December 20, 2012, with a violation of Title 21, United States


2

Code, Sections 841(a)(1), (b)(1)(C) and 846, conspiracy to

possess with intent to distribute MDMA and N-Benzypiperazine,

also known as BZP). ER 103-106.

On February 5, 2014, a Superseding Indictment was

filed charging: Count 1 – as to the same four (4) defendants,

conspiracy to possess with intent to distribute MDMA and BZP in

violation of Title 21 United States Code, Sections 841(a)(1),

(b)(1)(C) and 846; Count 2 – as to Defendant and co-defendant

Cho, conspiracy to possess with intent to distribute fifty (50)

grams or more of methamphetamine in violation of Title 21 United

States Code, Sections 841(a)(1), (b)(1)(A) and 846; Count 3 – as

to Defendant and co-defendant Cho, possession with intent to

distribute fifty (50) grams or more of methamphetamine in

violation of Title 21 United States Code, Sections 841(a)(1) and

(b)(1)(A); Count 4 – as to co-defendant Bell, possession of a

firearm, during and in relation to a drug trafficking crime in

violation of Title 18 United States Code, Section 924(c)(1)(A);

and Count 5 – as to Defendant, possession with intent to

distribute BZP in violation of Title 21 United States Code,

Sections 841(a)(1), (b)(1)(C). ER 89-93.

On May 20, 2014, Defendant withdrew his not guilty

plea and pled guilty as charged in the Superseding Indictment.

Defendant was sentenced on September 9, 2014 to 170 months

imprisonment as to each count, to run concurrently with each


3

other, and consecutively with Defendant’s State of California

Case No. SDC244487. Defendant was also sentenced to 5 years

supervised release as to each count, with each term to run

concurrently, and a special assessment of $400. The Court filed

its judgment as to Defendant on September 10, 2014. Defendant

filed his notice of appeal on September 18, 2014. ER 26-32.

IV. STATEMENT OF THE FACTS

A. The Investigation

On August 07, 2012, a Cooperating Defendant (indicted

in another case) (hereinafter the “CD”) along with a HSI

undercover agent (hereinafter referred to as “UC”) met with Co-

defendant Jesse CHO (hereinafter “CHO”) to pick up one thousand

(1,000) tablets of ecstasy. During this meeting, the “CD”

introduced the “UC” to CHO. CHO and the “UC” then made verbal

arrangements to meet later that evening so that CHO could

provide the “UC” with an additional five thousand (5,000)

tablets of ecstasy from his source of supply in Riverside,

California. PSR1 ¶ 14.

Later that evening, the “UC” arrived at the residence

of CHO. CHO entered the front passenger seat of the Undercover

Agent vehicle (hereinafter referred to as “UCV”) and was

carrying a GPS device with a power cord. CHO directed the “UC”

1 Defendant filed the PSR via ECF with the Ninth Circuit Court of Appeals under seal on 12/31/2014.


4

to drive towards Riverside. PSR ¶ 15. Upon arrival in

Riverside, the “UC” handed CHO fifteen thousand dollars to pay

for the expected 5,000 tablets of ecstasy. CHO left the “UC.”

The “UC” later met with CHO and Defendant at Defendant’s

residence. PSR ¶¶ 15, 16.

Inside of Defendant’s residence, Defendant came up to

the “UC” and placed 1,000 ecstasy tablets in front of the “UC”.

After greeting CHO, Defendant told the “UC” that an additional

quantity of ecstasy would be delivered. PSR ¶¶ 18, 19.

Defendant and the UC then conversed about distributing

drugs between California and Hawaii. Defendant asked the “UC”

what else he could use in Hawaii, which the “UC” understood to

mean that Defendant was asking the “UC” what other drugs the UC

would like to distribute. The “UC” advised Defendant that

methamphetamine was the big money maker in Hawaii. Defendant

asked the “UC” what he’d be willing to pay for a pound. PSR

¶ 19. The “UC” told Defendant methamphetamine usually sold for

between $2,800 and $3,200 per pound. Defendant advised the “UC”

that the quality of methamphetamine in their area of California

was poor, so he would not sell any methamphetamine to the “UC”

until good quality methamphetamine was available in California.

Co-defendant Jasmine TRUJILLO (“TRUJILLO”) then entered the

kitchen and was introduced to the “UC.” Co-Defendant Demario

BELL (“BELL”) also joined the group in the kitchen. Id.


5

In the presence of the “UC,” CHO, TRUJILLO, and BELL,

Defendant then placed five Ziploc type baggies containing

ecstasy tablets before the “UC” which were taken by the “UC.”

PSR ¶ 19. The pills received on August 7, 2012 were submitted

for laboratory testing. According to the lab report, the total

unit count of tablets seized was 4,927 tablets and the active

drug ingredient was BZP.2 PSR ¶¶ 19, 20.

On August 10, 2012, CHO sent a series of telephone

text messages to the “UC” to discuss the shipment of 1,000

tablets of ecstasy to Hawaii. On August 14, 2012, the “UC”

received a parcel in Hawaii containing approximately 997 tablets

of MDMA that was sent by Defendant via the U.S. Postal Service.

PSR ¶ 21. The pills received on August 14, 2012 were submitted

for laboratory testing. According to the lab report, the total

unit count of tablets seized was 997 tablets and the active drug

ingredient was BZP. Id.

Between August 31, 2012 and September 13, 2012, the

“UC” placed several recorded telephone conversations to

Defendant. During the conversations, Defendant told the “UC”

that he could get any type of narcotic at any quantity that the

“UC” wanted. PSR ¶ 21a.

2 Throughout their interactions, the “UC” negotiated with the defendant for ecstasy and was delivered BZP. PSR ¶¶ 19, 20. Ecstasy is MDMA, however, BZP is a controlled substance similar to BZP.


6

On September 13, 2012, Defendant agreed to sell the

“UC” 10,000 tablets of ecstasy for a price of $28,000 and four

ounces of crystal methamphetamine for $1,300 per ounce (for a

total of $5,200 for the crystal methamphetamine). PSR ¶ 22.

On September 14, 2012, the “UC” arrived at CHO’s

residence and met with CHO and Defendant. During the

conversation between the “UC,” CHO and Defendant, the “UC”

provided $30,000 in United States currency to Defendant for the

purchase of the agreed upon amount of ecstasy and

methamphetamine. PSR ¶ 22. Of the $30,000 provided to

Defendant, $28,000 was provided for the 10,000 tablets of

ecstasy and $2,000 was “fronted” to Defendant for the purchase

of four ounces of crystal methamphetamine. Defendant also

stated that the “UC” would owe the remaining balance for the

crystal methamphetamine back to Defendant once the “UC” returned

to Hawaii. After providing the funds to Defendant, Defendant

then provided ten plastic Ziploc bags (each containing

approximately 1,000 tablets of ecstasy) to the “UC.” The pills

received by the “UC” from CHO and Defendant on September 14,

2012, were submitted for laboratory testing. According to the

lab report, the total unit count were 8,030 tablets and the

active drug ingredient was BZP. PSR ¶ 22.

On September 14, 2012, the “UC” received information

from CHO that the four ounces of crystal methamphetamine were


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available for the “UC” to pick up the following day. On

September 15, 2012, the “UC” drove to CHO’s residence and CHO

approached the “UC’s” vehicle and handed a paper bag to the “UC”

that contained four plastic bags with a crystal like substance

inside. CHO stated that the drugs were from Dave’s

(Defendant’s) boy. PSR ¶ 23. The crystal like substance was

submitted to the Drug Enforcement Administration Southwest

Laboratory for analysis. The Southwest Laboratory later

analyzed the substance and found that substance contained

Methamphetamine HCl at a weight of 110.09 grams with a purity of

93.0%. Id.

On December 7, 2012, federal agents executed a federal

arrest warrant out of the District of Hawaii for the arrest of

BELL. After seen departing his residence in a white Mercedes

Benz, federal agents executed a traffic stop of BELL’s vehicle.

While BELL was being arrested, he made the spontaneous utterance

that he had “a gun” inside his vehicle. PSR ¶ 25. Federal

agents then recovered from the center console in the back of the

vehicle a Glock 19, 9mm semi-automatic pistol, bearing serial

number PUX510. Id. Federal agents then executed a federal

search warrant on BELL’s residence. Seized from BELL’s

residence was Taurus “Judge” revolver loaded with three .410

shotgun shells and tow .45LC cartridges and a small EIG revolver

loaded with 3 rounds of .22 caliber ammunition. Id. During the


8

search, agents recovered paperwork for a storage unit. Upon

searching the storage unit with BELL’s consent, recovered was a

TEC-9 semi-automatic machine pistol, a Browning .22 caliber

pistol and pill pressing equipment and a cocaine kilo press.

PSR ¶ 26.

On December 8, 2012, CHO was arrested and agreed to

make a statement and to cooperate with law enforcement. CHO

stated that Defendant was a dangerous guy and that Defendant did

not want to lose the “UC” as a customer. CHO placed a recorded

phone call to TRUJILLO. During this recorded phone call,

TRUJILLO told CHO to meet with Defendant’s father to get the key

to a storage unit in which Defendant had “six” boats of Ecstasy

pills stored. PSR ¶ 29.

On December 10, 2012, federal agents interviewed David

Steidell, Sr. who gave both verbal and written consent to search

Defendant’s storage unit in Riverside, California. PSR ¶ 33.

On December 10, 2012, federal agents conducted a search of the

storage unit and recovered a “Huggies” diaper box which

contained approximately 4,000 yellow tablets and 2,000 purple

tablets. Additionally, agents recovered a Ruger P94 .40 caliber

semi-automatic pistol, with a magazine containing nine rounds of

ammunition. Id. Subsequent laboratory analysis revealed that

only 2,569 tablets, weighing 553.2 grams, contained the active

drug ingredient of BZP. Id.


9

On December 14, 2014, Defendant claimed ownership of

the tablets and firearm recovered from the storage unit. PSR

¶ 34. Defendant also admitted that TRUJILLO was trying to sell

the drugs in the storage unit to pay for an attorney to

represent him in his state charges. Id.

B. Defendant’s Change of Plea

On May 20, 2014, Defendant entered a plea of guilty as

charged without a plea agreement. At the change of plea

hearing, the Court advised the Defendant that at any trial the

government, because it was a drug case would have to prove the

type of drug involved to the jury beyond a reasonable doubt, but

that by proceeding with a plea of guilty he would be waiving

that right and admitting to both the type of drug involved as

well as his knowledge as to the type of drug involved at the

time of each of the offenses that were set forth in the

superseding indictment. SER3 10. The defendant acknowledged

that he understood. Id. The defendant acknowledged that by

pleading guilty he was waiving that right. Id.

The Court also advised the Defendant that because a

mandatory minimum sentence was involved, at least with respect

to Counts 2 and 3 of the Superseding Indictment, that at any

trial the government would have to prove both the type of drug

involved as well as its weight and purity to the jury beyond a

3 SER denotes the Government’s Supplemental Excerpts of Record.


10

reasonable doubt and that he was waving that right. SER 10.

The defendant acknowledged that he understood. Id.

At the change of plea hearing, Defendant also admitted

to the following:

1. That he had an agreement with Co-defendant CHO

and that Defendant purchased the narcotics and handed them off

knowing that it would be sold to the “UC.” SER 22;

2. That at his residence, he sold the “UC”

approximately 5,000 tablets of ecstasy on August 7, 2012. SER

23;

3. That on August 10, 2012, he arranged for the sale

of 1,000 ecstasy tablets and also mailed those tablets to the

“UC”. SER 24-25;

4. That in his conversations with the “UC” with

regard to the type and quantity of narcotics, he “could get him

anything he wanted.” SER 25;

5. That with regard to ecstasy, Defendant told the

“UC” that he could get him 50,000 tablets on a weekly basis.

SER 25;

6. That on September 13, 2012, he reached an

agreement with the “UC” to sell him four ounces of

methamphetamine at a price of $5,200 and 10,000 ecstasy tablets

at a price of $28,000. SER 25-26;


11

7. That the transaction took place on September 14,

2012, and that the “UC” handed him $30,000 in U.S. currency in

exchange for the 10,000 ecstasy tablets and the four ounces of

methamphetamine. SER 26-27;

8. That the balance of the $3,200 owed by the “UC”

would be paid by the “UC” to the Defendant upon the return of

the “UC” to Hawaii. SER 27;

9. That he set up the deal for the four ounces of

methamphetamine, and left it to Co-defendant CHO to get it to

the “UC.” SER 28; and

10. That his father rented a storage unit for him and

that the contents of the storage unit belonged to him. SER 29.

C. Inadvertent Destruction of Evidence

In preparation for trial, on June 2, 2014, the

government became aware that the 2,569 tablets seized from

Defendant’s storage locker on December 10, 2012, and which were

subsequently tested by the laboratory, were later inadvertently

destroyed while in storage by an employee of U.S. Customs and

Border Protection (“CBP”). ER 17-25. A chain of custody was

established from seizure, through laboratory testing, and

through storage. An employee from CBP testified as to the

circumstance surrounding the inadvertent destruction of the

tablets. ER 17-25. On June 2, 2014, Defendant was promptly


12

notified, through his attorney, when the government became aware

of the inadvertent destruction. SER 40-41.

D. Defendant’s Sentencing

Defendant was sentenced on September 9, 2014.

Defendant objected to the leadership role and argued that

Defendant and Co-defendant CHO were working in tandem on this

case and that they were equal co-defendants. ER 34-35.

The government argued that Defendant was responsible

as a leader based on his exercise of decision making authority,

his nature and participation in the commission of the offense,

and the degree and control and authority exercised by the

Defendant over others. ER 35-37.

The Court acknowledged that Co-defendant Bell stated

that he took direction from the defendant as far as ordering the

chemicals used for processing the drugs that were sold from

Defendant. ER 38. Co-defendant Bell also said that the money

to pay for the chemicals came from Defendant. Id. Co-defendant

Bell also stated that he was the messenger for Defendant and

delivered drugs for Defendant. Id.

The Court also acknowledged that Co-defendant CHO

similarly described his role of drug sales occurring on behalf

of the Defendant. ER 8. That Defendant was Co-defendant CHO’s

source of supply at least for MDMA, BZP and methamphetamine, not

for cocaine. Id.


13

However, the Court also stated that he did not only

rely on the statements of the co-defendants, but the fact that

the Defendant told the “UC” directly that he wanted to open

Hawaii as his market and the he could get the “UC” whatever he

wanted in whatever quantity. ER 40. The Court recognized that

the drugs were located at Defendant’s residence and at his

storage unit. Id. The Court also cited the version from the

“UC” that the $30,000 went directly to Defendant for the payment

of the ecstasy and methamphetamine. Id.

The Court also pointed out that the mere fact that

some of the drug quantities are attributed to the Defendant

based on statements from his codefendants is of little

consequence. The co-defendants are not avoiding and cannot

avoid personal responsibility for the same drugs by attributing

them to the Defendant, since each of the codefendants would be

held responsible for the drugs that they transacted. ER 42.

The Court then resolved Defendant’s objections to

being held accountable for 302.1 grams of MDMA for a February

2012 transaction. ER 42-44. It was made clear on the record

that Defendant was not being held accountable for that February

2012 transaction, but was only being held responsible for 34.1

grams of MDMA based on a December 8, 2012 occurrence. Id.

Defendant’s counsel had no further factual objections to the

guideline calculations. ER 47.


14

The Court adopted the factual statements as its own

findings of fact. ER 47. The court found that the total

offense level was 33 with a criminal history category of IV,

resulting in a guideline range of imprisonment between 188 to

235 months. ER 48. Counsel concurred with the guideline

calculation. Id. The government did not object to a two level

reduction based on a contemplated change in the sentencing

guidelines, therefore the guideline calculation was reduced to a

total offense level 31, criminal history category level IV with

a guideline range of imprisonment from 151 to 188 months. ER

68-69.

The government argued in mitigation that Defendant

readily accepted responsibility, had a supportive family and

that Defendant expressed a desire and willingness to turn his

life around and pursue higher education. ER 48. In

aggravation, the government argued that Defendant was

cultivating the “UC” to accomplish his objective of distributing

ecstasy, and even methamphetamine, in Hawaii. The government

expressed its concern with the ready accessibility of the drugs

in the case, the presence of a loaded firearm by Defendant and

Co-defendant Bell, and Defendant’s likelihood for recidivism

based on his poor record in his past criminal history. ER 48-

52. The government also argued for a consecutive sentence based

on the factors listed in 18 U.S.C. § 3553 and that the nature


15

and circumstances of Defendant’s cases were completely

different. Defendant’s state case involved white-collar crime,

i.e., grand theft, money laundering and theft of property.

Defendant’s federal case involved drug distribution. ER 60-62.

Defendant’s counsel argued, among other things, that

the mandatory minimum of 10 years was a sufficient sentence and

that Defendant will be deterred and removed from the community.

Defendant’s counsel noted that Defendant was a more of a big

talker, than a person of action and as such was not a danger to

the community. Defendant’s counsel also asked that if the Court

would not order a mandatory minimum 10-year sentence, the low

end of the guidelines at 155 months was appropriate. ER 52-57.

Defendant’s counsel also argued that Defendant’s federal

sentence be concurrent with his state sentence. ER 57-59.

Defendant, among other things, apologized to the Court

for his actions. Defendant stated that he understood that his

actions hurt people and that he knew that what he did was wrong.

ER 60.

The Court stated that it considered each of the

factors set forth in Section 3553(a) of Title 18 of the United

States Code, mindful of the need to impose a sentence that was

sufficient but not greater than necessary to achieve the goals

set forth at 18 U.S.C. § 3553(a)(2). ER 62-63.


16

The Court recognized the mitigation factor of

Defendant accepting responsibility and that defendant did appear

to appreciate the consequences of his actions. Id. The Court

considered Defendant’s letter to the Court, and his general

cooperation with law enforcement. The Court noted Defendant’s

intermittent employment history and that he had a number of

interactions with the criminal justice system which were

serious. ER 64-65. The Court also stated that Defendant was

convicted of robbery and theft in 2008 and 2013, respectively,

and also found the time to commit his federal offenses. ER 65.

The Court was of the opinion that, in light of Defendant’s

criminal history, it did not appear that Defendant was deterred

from criminal conduct. The Court stated that Defendant had lots

of opportunity to turn over a new leaf, however, he continued to

commit offense after offense. ER 65-66. The Court

characterized Defendant’s actions, along with his

coconspirators, as attempting to flood the local market with

BZP, MDMA and to a lesser extent methamphetamine, and that

Defendant wanted to be a big time player. The Court also noted

that Defendant had an added danger to the community based on his

possession of a loaded handgun. ER 67-68.

The Court concluded that this case was not a low-end

guideline case. The Court stated he carefully considered

§§ 5G1.2 and 5G1.3 of the U.S. Sentencing Guidelines and §§ 3553


17

and 3584 of Title 18 of the United States Code and determined

that Defendant’s federal sentence would be consecutive to his

state sentence. ER 68-69.

Defendant was sentenced to 170 months imprisonment as

to each count, to run concurrently with each other, and

consecutively with Defendant’s State of California Case No.

SDC244487. Defendant was also sentenced to 5 years supervised

release as to each count, with each term to run concurrently,

and a special assessment of $400. ER 69-71.

The Court filed its judgment as to Defendant on

September 10, 2014. Defendant filed his notice of appeal on

September 18, 2014. ER 26-32.

V. SUMMARY OF THE UNITED STATES’ ARGUMENT

Defendant failed to bring his claim for sentencing

entrapment before the trial court and raised it for the first

time on appeal and therefore forfeited that claim, and there was

no plain error. Defendant initiated the discussion with the

“UC” regarding the need of the “UC” for other drugs. Defendant

represented to the “UC” that Defendant could get any type of

narcotic at any quantity that the “UC” wanted.

The Court did not commit clear error in enhancing

Defendant’s sentence for his supervisory role in the offense.

Defendant told the “UC” directly that he wanted to open Hawaii

as his market and that he could get the “UC” whatever he wanted


18

in whatever quantity. The Court recognized that Defendant

negotiated directly with the “UC” for the drug transactions, the

drugs were sent to the “UC” by the Defendant, and that the

ecstasy sold to the “UC” were located at Defendant’s residence

and at his storage unit. The Court was also aware that the “UC”

paid $30,000 directly to Defendant for the payment of the

ecstasy and methamphetamine. Based on these facts, the court

correctly determined that a role enhancement was justified.

In arriving at the mid-Guidelines-range sentence

imposed, the court fairly considered all of the 18 U.S.C.

§ 3553(a) factors and took into consideration defendant’s

acceptance of responsibility and Defendant’s acknowledgement of

the consequences of his actions. The sentences of Defendant and

co-defendant Cho were not disparate based on individual and

distinct sentencing guideline calculations. The district court

imposed a reasonable sentence.

VI. ARGUMENT A. Defendant Initiated the Discussion of Other Drugs and

Was Therefore Predisposed to Distributing Methamphetamine and Not Subjected to Sentencing Entrapment.

1. Standard of Review

A defendant’s failure to raise his claim of sentencing

entrapment before the district court at the time of, or prior

to, sentencing, is forfeited, and the Court reviews for plain


19

error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 732, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993) (plain error

standard permits an appellate court to reverse if there was (a)

an error, (b) that was plain, and (c) that affected substantial

rights).

2. Defendant Forfeited His Claim

Because the sentencing entrapment claim was not raised

below in this case, recorded conversations between the “UC” and

Defendant regarding drugs other than ecstasy were not placed on

the record. In addition, during the transaction on August 7,

2012, when the Defendant initiated the inquiry by asking the

“UC” whether he could “use” anything else in Hawaii, the “UC”

was wearing a recording device. That recording of the

transaction could have been entered on the record to verify and

affirm that Defendant initiated the conversation into other

drugs. In addition, later telephone calls between the “UC” and

the Defendant could also have been admitted regarding

Defendant’s assertion that he could produce any drug at any

quantity for the “UC” to purchase.

However, despite the evidence that could have been

presented, plain error has not occurred because as set forth

more fully below, there are enough facts which readily

demonstrate that Defendant initiated the inquiry into other

drugs and readily set up the transaction that resulted in the


20

distribution of the methamphetamine. Defendant has the burden

of establishing plain error. United States v. Rendon-Duarte,

490 F.3d 1142, 1146 (9th Cir. 2007).

3. Defendant Was Not Entrapped Sentencing entrapment takes place “when a defendant is

predisposed to commit a lesser crime, but is entrapped by the

government into committing a crime subject to more severe

punishment.” United States v. Schafer, 625 F.3d 629, 639 (9th

Cir. 2010) (quoting, United States v. Mejia, 559 F.3d 1113, 1118

(9th Cir. 2009)).

The defendant bears the burden to establish sentencing

entrapment, United States v. Riewe, 165 F.3d 727, 729 (9th Cir.

1999), and must show that “the government participated in

‘outrageous official conduct which caused the individual to

commit a more significant crime for which a greater penalty

attaches’” Schafer, 625 F.3d at 639-40 (quoting, United States

v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003)). See also, United

States v. Robinson, 94 F.3d 1325, 1328-29 (9th Cir. 1996)

(defendant must show he was unduly pressured by the government

to commit a crime of greater severity than what he was

originally willing to commit); United States v. Davis, 36 F.3d

1424, 1433 (9th Cir. 1994) (defendant must show “government

engaged in outrageous official conduct which overcomes the will

of an individual predisposed only to dealing in small quantities


21

for the purpose of increasing the amount of drugs and the

resulting sentence of the entrapped defendant.”). This court

has “never found sentencing entrapment unless it involves active

inducement by government officials.” Schafer, 625 F.3d at 640

(concluding there must be “more than passive government

involvement”).

In this case, at the initial meeting between the “UC”

and Defendant on August 7, 2012, it was the Defendant who first

raised the question and initiated the conversation when he asked

the “UC” what else he could use in Hawaii. PSR ¶ 19.4 The “UC”

understood that Defendant was asking the “UC” what other drugs

the UC would like to distribute. Based on Defendant’s inquiry,

the “UC” advised Defendant that methamphetamine was the big

money maker in Hawaii. In response, without hesitation, the

Defendant asked the “UC” what he’d be willing to pay for a

pound. Id.

It was the Defendant who first inquired into drugs

other than ecstasy and also the first to state the amount of

methamphetamine that he would be willing to sell. Defendant’s

response was revealing - he responded to the “UC” by inquiring

what the “UC” would be willing to pay for a pound - showing not

only that he had a predisposition, but that his predisposition

4 Defendant did not object to paragraph 19 of the PSR.


22

to sell was at a very high level. This conversation clearly

shows that Defendant was willing to distribute methamphetamine.

Defendant’s response was also revealing in what he did

not say. Defendant did not say that he did not deal with

methamphetamine, or that he refused to do it. In fact,

Defendant expressed his willingness and wanted to ensure that

the “UC” got good quality and advised the “UC” he would only

sell good quality methamphetamine. PSR ¶ 19.

In addition, at Defendant’s change of plea hearing

held on May 20, 2014, Defendant readily admitted to his intent

and capability to distribute methamphetamine:

THE COURT: What did you do to accomplish the objective of your conspiracy to distribute methamphetamine and BZP? THE DEFENDANT: I purchased the narcotics and I handed them off knowing that they would be sold to Reyn, who was the undercover agent from Homeland Security. SER 22.

* * * THE COURT: Then approximately a month later, on September 13, 2012, you had a series of conversations on the telephone with the same undercover officer, correct?

THE DEFENDANT: Yes, Your Honor. THE COURT: And unbeknownst to you apparently, the

conversations that you had with this officer were recorded by law enforcement?

THE DEFENDANT: Yes, sir.


23

THE COURT: And during these conversations, you had indicated that you could get additional narcotics for this officer, who you knew to be in Hawaii, in whatever quantity he desired; is that also true?

THE DEFENDANT: I believe my exact words were I could

get him anything he wanted. THE COURT: And that specifically included 50,000

tablets of ecstasy on a weekly basis? THE DEFENDANT: Yes, Your Honor. THE COURT: During these same recorded conversations

on September 13th of 2012, you reached an agreement with this undercover officer to sell him additional ecstasy tablets as well as methamphetamine, specifically four ounces of methamphetamine, at the price of $1,300 per ounce or $5,200 total, as well as 10,000 ecstasy tablets at a price of $28,000; is that also true?

THE DEFENDANT: That’s true, Your Honor. THE COURT: And to accomplish this and complete this

transaction, the very next day, on September 14th of 2012, you and your codefendant, Mr. Cho, in fact met with the undercover officer in Mr. Cho’s residence in Torrance; is that true?

THE DEFENDANT: Yes, Your Honor. THE COURT: At the time the undercover officer handed

you $30,000 n U.S. currency in cash, correct? THE DEFENDANT: That’s correct, Your Honor. THE COURT: The $30,000 was intended to be payment for

the 10,000 ecstasy tablet that you and the officer discussed on the phone the previous day, correct?

THE DEFENDANT: That’s correct. THE COURT: And in addition, the $2,000 beyond the

cost of the ecstasy was intended to be front money for the four ounces of methamphetamine; is that also true?

THE DEFENDANT: That’s true.


24

THE COURT: So I’m not a great mathematician, but my calculation is he then would have owed you $3,200 remaining balance which he promised – “he” being the undercover officer – promised to pay for ounce he returned to Hawaii; is that all correct?

THE DEFENDANT: That’s true.

SER 25-27. Emphasis added.

* * *

THE COURT: Now, on September 14th, the four ounces of methamphetamine that you sold to the undercover officer were not actually given to him on that day; is that correct? THE DEFENDANT: That’s correct. THE COURT: But it was given to him the next day; is that also correct? THE DEFENDANT: From my understanding, yes. THE COURT: And that was September 15th of 2012? THE DEFENDANT: That’s correct. THE COURT: And you gave the four ounces of methamphetamine to your codefendant, Mr. Cho, to pass on the undercover officer? THE DEFENDANT: No, that’s incorrect. THE COURT: How did that come about then? THE DEFENDANT: You know what, Your Honor, I have no idea how he acquired them. I set up the deal, but I have no idea how he acquired the methamphetamine. THE COURT: So you arranged for the deal, the four ounces of methamphetamine, to be sold to the undercover officer, correct?

THE DEFENDANT: That’s correct.


25

THE COURT: And you received at least a partial payment for that methamphetamine directly from the undercover officer?

THE DEFENDANT: That’s correct. THE COURT: But Mr. Cho, your co-defendant, was the

one who actually handed over the narcotic to the undercover officer?

THE DEFENDANT: As far as I understand, yes.

SER 27-28. Emphasis added.

It is readily apparent that in subsequent

conversations between Defendant and the “UC” in September of

2012, Defendant was again willing and capable to distribute

methamphetamine. It is also readily apparent that Defendant’s

admissions are completely devoid of any type of action that

would describe outrageous official conduct on the part of the

“UC” which caused the Defendant to commit a more significant

crime for which a greater penalty attaches. Schafer, supra.

Likewise, there is absolutely no evidence to show that the “UC”

engaged in outrageous official conduct which overcame the will

of the Defendant who was predisposed only to dealing in small

quantities. Robinson, supra.

To the contrary, Defendant clearly admitted that he

negotiated to sell the “UC” four ounces of methamphetamine.

Defendant engaged in the negotiation for the sale of the

methamphetamine, by establishing the amount and the price. The

amount that he negotiated was an amount significantly below the


26

one pound of methamphetamine that Defendant initially suggested

in their first meeting on August 7, 2012. Although Co-defendant

CHO physically handed the methamphetamine to the “UC” the

following day, Defendant readily admitted at his change of plea

hearing what he intended and was capable of doing - setting up

the deal with the “UC” to sell him four ounces of

methamphetamine.

Defendant also clearly admitted that he accepted the

$30,000 directly from the “UC” that was a payment for both the

10,000 tablets of ecstasy and a portion of the methamphetamine.

Defendant was also comfortable enough with the transaction that

he allowed the “UC” to pay him back for the balance of $3,200

that was owed for the methamphetamine.

Based on this evidence, it is clear that the “UC” did

not engage in outrageous conduct which overcame Defendant’s will

or caused him to commit a more significant crime. Defendant has

failed to establish that there was an error, much less that it

was plain. Consequently, there is no plain error which affected

Defendant’s substantive rights.

Defendant also argues in his brief that the error

affected Defendant’s substantial rights and was prejudicial

because the amount of methamphetamine resulted in a mandatory


27

minimum and should not have been included in the calculation

since Defendant was entrapped.5

Defendant finally asserts in his brief that inclusion

of the methamphetamine resulted in a miscarriage of justice and

seriously affected the integrity of the judicial process.6 In

support of that argument, Defendant completely misreads Alleyne

v. United States, 133 S. Ct. 2151, 186 L.ed.2d 314 (2013).

Alleyne, supra, did not eliminate a defendant’s ability to waive

the right to have a jury determine the facts necessary to

establish a mandatory minimum by pleading guilty and admitting

to those facts.

Defendant’s arguments fail because on May 2, 2014, at

his plea of guilty, Defendant acknowledged and understood that

because a mandatory minimum sentence was involved, at least with

respect to Counts 2 and 3 of the Superseding Indictment, that at

any trial the government would have to prove both the type of

5 Defendant’s Opening Brief at pages 37-39. In addition, Defendant did not object to the inclusion of the 34.1 grams of MDMA found in Cho’s possession constituted error. Defendant failed to object to the inclusion in the court below, this is also subject to plain error analysis. Defendant has failed to establish that inclusion of a quantity of the same type of drugs possessed by his coconspirators during the time period of the conspiracy is plain error. Defendant’s assertion in footnote 6 is incorrect, because the 553.2 grams of BZP found in Defendant’s storage unit was included as part of Count 5. See PSR ¶ 42. 6 Defendant’s opening Brief at pages at 39-40.


28

drug involved as well as its weight and purity to the jury

beyond a reasonable doubt and that he was waving that right.

THE COURT: Do you understand that at any trial the government, because this is a drug case would have to prove the type of drug involved to the jury beyond a reasonable doubt, but that by proceeding with a plea of guilty he would be waiving that right and admitting to both the type of drug involved as well as your knowledge as to the type of drug involved at the time of each of the offenses that were set forth in the superseding indictment?

THE DEFENDANT: Yes, Sir. THE COURT: Do you understand that because a mandatory

minimum sentence was involved, at least with respect to Counts 2 and 3, at any trial the government would have to prove both the type of drug involved as well as its weight and purity to the jury beyond a reasonable doubt and that you are waiving that right? THE DEFENDANT: Yes, Sir. SER 10.

In addition, as previously stated, it was clear that

the “UC” did not engage in outrageous conduct which overcame

Defendant’s will or caused him to commit a more significant

crime and that Defendant failed to meet his burden to establish

sentencing entrapment. Consequently, there was no plain error

which affected Defendant’s substantive rights.

B. The District Court Properly Applied a Two-Level Enhancement for Defendant’s Leadership Role.


A trial court’s determination of whether a defendant

qualifies for a role adjustment is reviewed for clear error.


29

United States v. Ruelas, 106 F.3d 1416, 1419 (9th Cir.), cert.

denied, 520 U.S. 1282 (1997), United States v. Pinkney, 15 F.3d

825, 828 (9th Cir. 1994). A factual finding made by the

district court in this regard is not “clearly erroneous” unless

a reviewing court is left with the definite and firm conviction

that a mistake has been made. United States v. Benny, 786 F.2d

1410, 1419 (9th Cir. 1986).

2. The Court Properly Found That Defendant Was a Leader

The United States Sentencing Guidelines (“USSG”)

provides for a two-level upward adjustment for aggravating role:

[I]f the defendant was an organizer, leader, manager, or

supervisor in any criminal activity other than described in (a)

or (b) [which deal with extensive criminal activities and

activities involving five or more participants]. USSG

§ 3B1.1(c).

The application notes to USSG § 3B1.1 further provide:

To qualify for an adjustment under this section, the Defendant

must have been the organizer, leader, manager, or supervisor of

one or more participants. An upward departure may be warranted,

however, in the case of a Defendant who did not organize, lead,

manage, or supervise another participant, but who nevertheless

exercised management responsibility over the property, assets,


30

or activities of a criminal organization. USSG § 3B1.1, comment

(n.2).

The Court rejected Defendant’s objection to the

leadership enhancement and his argument that Defendant and co-

defendant CHO were regarded as equal. Notwithstanding

Defendant’s objection, the Court clearly had the discretion to

decide whether a role adjustment was proper given the facts set

forth in the PSR. See United States v. Marin-Cuevas, 147 F.3d

889, 895 (9th Cir. 1998) (the Ninth Circuit held that a district

court may rely on an unchallenged PSR at sentencing to find by a

preponderance of the evidence that the facts underlying a

sentence enhancement have been established); and United States

v. Milton, 153 F.3d 891, 897 (8th Cir. 1998), cert. denied, 119

S. Ct. 1082 (1999) (holding that “a court may use its discretion

to determine that sufficient evidence exists to support an

enhancement when that enhancement is recommended in a

presentence report”).

The Ninth Circuit has identified several factors that

justify a leadership role adjustment. In United States v.

Mares-Molina, 913 F.2d 770, 774 (9th Cir. 1990), the Ninth

Circuit referred to United States v. Farrell, 893 F.2d 690 (5th

Cir. 1990), where it held that defendant’s holding the key to a

motel room which contained cash was considered evidence of a

managerial role in a drug conspiracy. The Ninth Circuit also


31

upheld a leader role adjustment based on coordination of buying

and selling drugs. United States v. Avila, 905 F.2d 295 (9th

Cir. 1990).

The Ninth Circuit specifically upheld the application

of a two-level upward adjustment for a role where the offense

involved even a single criminal transaction and the Defendant

only over-saw one other participant. United States v. Carvajal,

905 F.2d 1292 (9th Cir. 1990) (two-level upward adjustment

appropriate where Defendant engaged in single cocaine sale in

which he had arranged for another participant to deliver the

cocaine and collect the money); see also, United States v.

Wills, 88 F.3d 704, 721 (9th Cir. 1996) (two-level upward role

adjustment upheld where district court concluded Defendant was

the “mastermind” of the bank robbery who recruited a get-away

driver to whom he paid $1,500, keeping over $35,000 of the

proceeds for himself.)

In this case, Defendant entirely ignores the

admissions by the Defendant given at his change of plea and the

PSR paragraphs that were adopted by the Court as its findings of

fact. Instead, the Defendant relies primarily upon the

statements of Co-defendant CHO given at his change of plea and

interpreting his statements out of context in an effort to

characterize Co-defendant CHO as the leader. However, the facts

show that Defendant in fact was the leader.


32

The basis for the leadership role was set forth in ¶

50 of the PSR, in which: (1) Defendant instructed co-defendant

BELL as to which chemicals to order and paid him between $9,000

and $10,00 per order; (2) Co-defendant BELL estimated that he

distributed at least “twenty boats” (20,000 pills) of ecstasy

for the Defendant, which included deliveries to Co-defendant

Cho; (3) Defendant negotiated the drug transactions with the

“UC” and coordinated the shipping of drug parcels; 4) handled

all the money during the drug transactions; (5) collected a

larger share of the drug proceeds; and (6) was in possession of

the drugs.

In addition to the facts set forth in paragraph 50 of

the PSR, Co-defendant CHO stated that BELL made deliveries for

Defendant and previously delivered drugs to him on several

occasions. PSR ¶ 29. Co-defendant TRUJILLO also confirmed that

it was Defendant who did not want to “lose Hawaii” (referring to

the “UC”) and as a result, she agreed (with Defendant) to

provide CHO with approximately 6,000 tablets for the “UC”. PSR

¶ 29. It was those same 6,000 tablets which were found in

Defendant’s storage unit, all the contents of the storage unit

of which Defendant claimed ownership. PSR ¶¶ 32, 34.

During the initial transaction on August 7, 2012, it

was Defendant who had possession of the ecstasy. Defendant

placed the initial 1,000 ecstasy tablets in front of the “UC”


33

and told him that the rest was being delivered. PSR ¶¶ 18, 19.

It was also the Defendant that placed the five bags of ecstasy

tablets before the “UC,” representing the total amount of

ecstasy for the transaction. PSR ¶ 19; SER 23. In addition, as

discussed in the preceding section, it was the Defendant who

first raised the question and initiated the conversation when he

asked the “UC” what else he could use in Hawaii. Based on

Defendant’s inquiry, the “UC” advised Defendant that

methamphetamine was the big money maker in Hawaii. In response,

the Defendant did not hesitate and asked the “UC” what he’d be

willing to pay for a pound. PSR ¶ 19.7

It was the Defendant in August of 2012 who sent the

parcel of 997 tablets of BZP to the “UC.” PSR ¶ 21.8 It was the

Defendant who told the “UC” that he could get any drug the “UC”

wanted and at any quantity. PSR ¶ 21a;9 SER 25. As previously

stated, it was the Defendant who negotiated and reached an

agreement with the “UC” to sell him four ounces of

methamphetamine at a price of $5,200 and 10,000 ecstasy tablets

at a price of $28,000. SER 25. Defendant also admitted that he

received the $30,000 in U.S. currency as payment for the ecstasy

and partial payment for the methamphetamine. PSR ¶ 22;10 SER 26-

7 Defendant did not object to paragraph 19 of the PSR. 8 Defendant did not object to paragraph 21 of the PSR. 9 Defendant did not object to paragraph 21a of the PSR. 10 Defendant did not object to paragraph 22 of the PSR.


34

27. It was also the Defendant who told the “UC” about his plans

to travel to Hawaii and to “teach” the “UC” “good techniques” on

how to send drug proceeds. PSR ¶ 22.

Based on the above evidence, Defendant clearly

exercised decision making authority, and exercised control over

his co-defendants. Consequently, there are more than sufficient

facts to support the district court’s determination that

Defendant’s actions justified a two-level upward adjustment for

a leadership role in accordance with USSG § 3B1.1(c).

C. The District Court Imposed a Substantively Reasonable Sentence.


Review of all federal sentences is under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S.

38, 49 (2007); United States v. Carty, 520 F.3d 984, 988 (9th

Cir. 2008) (en banc). Because of this deferential standard of

review, reversals will only be warranted in “rare cases.”

United States v. Ressam, 679 F.3d 1069, 1087-88 (9th Cir. 2012)

(en banc). This court reviews procedurally sound sentences for

reasonableness. Gall, 552 U.S. at 46; Carty, 520 F.3d at 993.

2. Defendant’s Sentence Was Substantively Reasonable

Substantive reasonableness is reviewed “in light of

all the 18 U.S.C. § 3553(a) [sentencing] factors, including the

applicable Guidelines range.” United States v. Daniels, 541


35

F.3d 915, 922-23 (9th Cir. 2008) (citation omitted). In

reviewing the reasonableness of a sentence, a properly

calculated guideline sentence is the “starting point and the

initial benchmark” and must be “kept in mind throughout the

process.” Carty, 520 F.3d at 991. When the district court’s

calculation of the advisory guidelines range and “both the

sentencing judge and the Sentencing Commission reach the same

conclusion as to the proper sentence in a particular case,

[t]hat double determination significantly increases the

likelihood that the sentence is a reasonable one.” Rita v.

United States, 551 U.S. 338, 347 (2007). Thus, a guidelines

sentence is usually reasonable. Carty, 520 F.3d at 994, citing

Rita, 551 U.S. at 350-351.

In this case, there are justifications for the

difference in the sentence received by Defendant and the

sentence received by Co-defendant CHO. Defendant is correct in

that both Defendant and Co-defendant CHO started at a base

offense level of 32. However, the primary factors

distinguishing Defendant from Co-defendant CHO is that: (1)

Defendant had a specific offense characteristic of possessing a

dangerous weapon pursuant to § 2D1.1(b)(1) of the U.S.

Sentencing Guidelines which resulted in an increase of 2 levels,

see PSR ¶ 48; (2) Defendant had an adjustment for role in the

offense as an organizer, leader, manager or supervisor pursuant


36

to § 3B1.1(c) of the U.S. Sentencing Guidelines which resulted

in an increase of 2 levels, see PSR ¶ 50; and (3) Defendant had

a criminal history score of 6 and committed the federal offenses

while under a criminal justice sentence under his state case

pursuant to § 4A1.1(d) of the U.S. Sentencing Guidelines which

resulted in an increase of 2 points and a criminal history

category of IV, see PSR ¶¶ 62 and 63.

Defendant has failed to establish that the two

increases of two levels were also given to Co-defendant CHO.

Defendant has also failed to establish that Co-defendant CHO was

not safety valve eligible, which would have resulted in a

further reduction of 2 levels pursuant to § 2D1.1(b)(11) of the

U.S. Sentencing Guidelines.

Consequently, the accumulation of those primary

factors results in a difference between Defendant and Co-

defendant CHO of 6 total offense levels and a marked distinction

in criminal history categories. Added to this, and the final

distinction, is Defendant’s concession that Co-defendant CHO

received a substantial assistance departure of an amount that he

cannot ascertain, while Defendant has none. The conclusion is

that Defendant has failed to establish sentencing disparity

between similarly situated defendants.

Defendant, in his brief, has consistently failed to

recognize that the Court addressed all of Defendant’s objections


37

to the PSR, ruled on them, and then adopted the factual

statements as its own findings of fact. ER 47. In addition, as

stated in the previous section, the Court based the

justification for Defendant’s leadership role enhancement upon

facts that: (1) were either not objected to by Defendant in the

PSR; (2) were admitted to by Defendant in his change of plea

hearing; or (3) were corroborated by co-defendants who although

may have attributed a certain amount of drugs to Defendant, also

did not avoid personal responsibility for the same drugs because

they were also held responsible for those drugs. ER 42.

The manner in which the district court considered and

weighed the aggravating and mitigating factors in this case was

both generous and reasonable. Defendant’s 170-month mid-

guideline range sentence was within the range of reasonable

sentences that the district court had the discretion to impose.

The Ninth Circuit has made clear that “the weight to be given

the various factors in a particular case is for the discretion

of the court.” United States v. Gutierrez-Sanchez, 587 F.3d

904, 908 (9th Cir. 2009), see also, United States v. Burgum, 633

F.3d 810, 813 (9th Cir. 2011) (rejecting a substantive

reasonableness challenge to a sentence based on findings that

were “rational, clearly explained, and closely tied to the

factual record”).


38

Moreover, the district court in this case weighed all

of the 18 U.S.C. 3553(a) factors and articulated a rational

basis for the sentence selected. The court balanced defendant’s

acceptance of responsibility and desire to reform against his

reoccurring criminal conduct, particularly the instant crimes

committed while under a criminal justice sentence for his state

case. ER 65. The district court did not abuse its discretion.

Giving due deference to the district court’s individualized

determination regarding the appropriate sentence in this case,

defendant’s sentence is substantively reasonable.

VII. CONCLUSION

Based on the foregoing, the district court’s sentence

of Defendant should be affirmed.

DATED: March 13, 2015, Honolulu, Hawaii.

Respectfully Submitted, FLORENCE T. NAKAKUNI United States Attorney District of Hawaii

By s/ Chris A. Thomas CHRIS A. THOMAS Assistant U.S. Attorney

Attorney for Plaintiff–Appellee UNITED STATES OF AMERICA


CERTIFICATION OF RELATED CASES

Pursuant to Rule 28-2.6, Rules of the United States Court of

Appeals for the Ninth Circuit, Appellee United States of America,

by and through its undersigned attorney, hereby certifies that it

is unaware of any other pending cases related to this appeal.

DATED: March 13, 2015, at Honolulu, Hawaii.

By s/ Chris A. Thomas CHRIS A. THOMAS

Assistant U.S. Attorney


Certificate of Compliance Pursuant to Fed. R.App. 32(a)(7)(C)and Circuit Rule 32-1 for Case Number 14-10439 (see next page) Form Must Be Signed By Attorney or Unrepresented Litigant And Attached to the Back of Each Copy of the Brief I certify that: (check appropriate options(s)) X 1. Pursuant to Fed.R.App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the attached

opening/answering/reply/cross-appeal brief is

Proportionately spaced, has a typeface of 14 points or more and contains ________ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words, reply briefs must not exceed 7,000 words),

or is

☒ Monospaced, has 10.5 or fewer characters per inch and contains 8,305 words or

_____ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).

2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P.

32(a)(7)(B) because

This brief complies with Fed.R.App.P. 32(a)(1)(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;

This brief complies with a page or size-volume limitation established by separate

court order dated and is

Proportionately spaced, has a typeface of 14 points or more and contains ______ words, or is

Monospaced, has 10.5 or fewer characters per inch and contains ______ pages or

______ words or ______ lines of text.


2

3. Briefs in Capital Cases This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is

Proportionately spaced, has a typeface of 14 points or more and contains_____ words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words)

or is

Monospaced, has 10.5 or fewer characters per inch and contains _______ words or _______ lines of text opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).

4. Amicus Briefs

Pursuant to Fed.R.App.P. 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less,

or is

Monospaced, has 10.5 or fewer characters per inch and contains not more than either 7,000 words or 650 lines of text,

or is

Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32(a)(1)(5).

March 13, 2015 s/ Chris A. Thomas Date Signature of Attorney or Unrepresented Litigant


CERTIFICATE OF SERVICE

I hereby certify on March 13, 2015, I electronically filed the

foregoing with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF

users and that service will be accomplished by the appellate CM/ECF

system.

s/ Dawn Aihara


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