                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50196

              Plaintiff - Appellee,              D.C. No. 2:05-cr-00806-DSF-2

  v.
                                                 MEMORANDUM *
YI QING CHEN, AKA Seal B,

              Defendant - Appellant.




                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted May 10, 2013
                               Pasadena, California

Before: O’SCANNLAIN, PAEZ, and IKUTA, Circuit Judges.

       Yi Qing Chen appeals his conviction and sentence on five counts involving

smuggling of cocaine, methamphetamine, cigarettes, and missiles. We affirm.

       Chen’s requested instruction that pretending to conspire is not a crime was

reasonably covered by the instructions given by the district court. See United


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
States v. Del Toro-Barboza, 673 F.3d 1136, 1147 (9th Cir. 2012). The district

court’s clarification, in response to a juror’s question, that the jury could consider

evidence of whether the defendant believed that he could accomplish the

conspiracy’s objectives was adequate to address any lingering confusion. See

United States v. Frega, 179 F.3d 793, 809–10 (9th Cir. 1999).

      The district court erred by failing to instruct the jury that the statute

underlying Chen’s conviction for conspiracy to acquire missiles designed to

destroy aircraft, 18 U.S.C. § 2332g, was enacted during the alleged conspiracy

period. However, the error was not prejudicial. The jury was presented with,

among other evidence, transcripts of numerous post-enactment meetings between

Chen, Wu, and Hamer in which terms of a missile deal were negotiated. During

those meetings, Chen and Wu had conversations in Chinese indicating their candid

desire to complete a deal. In his post-arrest statement Chen stated that the missiles

would have been delivered if Hamer had paid. Accordingly, there is no reasonable

probability that the jury convicted Chen exclusively on the basis of pre-enactment

conduct. See United States v. Marcus, 130 S. Ct. 2159, 2164–66 (2010).

      Chen and Wu’s repeated and detailed proposals to build a factory in Asia to

supply methamphetamine if Hamer would pay them a certain amount of money,

and their agreement to buy cocaine from Hamer under certain conditions, are


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sufficient to uphold his conviction for conspiracy to distribute methamphetamine

and cocaine, regardless of whether the parties agreed to specific terms. See United

States v. Pemberton, 853 F.2d 730, 733 (9th Cir. 1988).

      With respect to Chen’s conviction for using a counterfeit mark in trafficking

cigarettes, the stipulated expert testimony from Muse that the cigarettes were

counterfeit under the terms of 18 U.S.C. § 2320 was sufficient to establish that

Marlboro’s trademark was registered on the U.S. Patent and Trademark Office’s

principal register and in use. See 18 U.S.C. § 2320(e)(1)(A)(ii) (2002) (amended

2006). Hamer’s testimony regarding the cigarettes, considered with the photos in

evidence, were sufficient to establish that the cigarettes were likely to cause

confusion, to cause mistake, or to deceive. See § 2320(e)(1)(A)(iii).

      The district court erred in instructing the jury that Chen need only have

transported 10,000 contraband cigarettes to be convicted under the statute in effect

at the time of his conduct in 2004, which required evidence of 60,000 cigarettes.

18 U.S.C. § 2341(2) (2002) (amended 2006). On plain error review, the error was

not prejudicial because there was overwhelming evidence that Chen transported

roughly 8 million cigarettes on the date in question.

      The district court plainly erred under Apprendi v. New Jersey, 530 U.S. 466

(2000), by imposing a 25-year sentence for conspiracy to distribute


                                           3
methamphetamine and cocaine, but the error was not prejudicial because the court

imposed the sentence concurrently to a 25-year mandatory minimum for the

missile conspiracy count. United States v. Ramos-Godinez, 273 F.3d 820, 825 (9th

Cir. 2001).

      With respect to Chen’s challenge to his base offense level for conspiracy to

distribute methamphetamine, because he did not object to the factual accuracy of

the pre-sentence report, “the district court was entitled to treat the factual assertions

therein as established,” and did not plainly err in doing so here. United States v.

Hilgers, 560 F.3d 944, 948 n.4 (9th Cir. 2009).

      Because Chen’s trial testimony directly contradicted his proffer statements,

the district court did not err in determining that the government’s factual basis for

refusing to renew its motion under U.S.S.G. § 5K1.1 for a departure based on

substantial assistance was sound. See United States v. Murphy, 65 F.3d 758, 760,

763 (9th Cir. 1995).

       Since Chen did not provide truthful, complete information before

sentencing, the district court did not clearly err in determining that he did not meet

his burden in showing his eligibility for safety valve relief. See United States v.

Mejia-Pimental, 477 F.3d 1100, 1105 (9th Cir. 2007).




                                            4
      The district court did not abuse its discretion by imposing within-Guidelines

sentences for Chen’s convictions for distribution of methamphetamine, trafficking

in counterfeit cigarettes, and transporting contraband cigarettes. See U.S.S.G.

§ 5G1.2(b); United States v. Carter, 560 F.3d 1107, 1120 (9th Cir. 2009).

      There was no cumulative error.

      AFFIRMED.




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