                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 09-1857
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Tung Thanh Nguyen,                      *
also known as Tung Nguyen,              *
                                        *
            Appellant.                  *

      ___________
                                            Appeals from the United States
      No. 09-1858                           District Court for the
      ___________                           District of Minnesota.

United States of America,              *      [UNPUBLISHED]
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Christian Pham,                        *
                                       *
            Appellant.                 *
                                   __________

                             Submitted: March 8, 2010
                                Filed: April 6, 2010
                                 ___________
Before RILEY,1 Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.

      Tung Thanh Nguyen and Christian Pham each pled guilty to one count of
conspiracy to manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A) and 846. The district court2 sentenced Nguyen to 120
months imprisonment and Pham to 37 months imprisonment. Nguyen and Pham
appeal their sentences.

       Nguyen claims the district court erred in finding he was a leader or organizer
in the conspiracy, disqualifying Nguyen for safety valve relief under 18 U.S.C.
§ 3553(f)(4) and U.S.S.G. § 5C1.2, and thereafter in sentencing Nguyen “without
regard for the safety valve provision in 18 U.S.C. § 3553(f).” “A defendant’s offense
level must be increased by four levels if the defendant was ‘an organizer or leader of
a criminal activity that involved five or more participants or was otherwise
extensive.’” United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir. 2008) (quoting
U.S.S.G. § 3B1.1(a)). “The terms ‘organizer’ and ‘leader’ are interpreted broadly.”
Id. (citation omitted). “The Government has the burden of proving by a
preponderance of the evidence that the aggravating role enhancement is warranted.”
United States v. Garcia-Hernandez, 530 F.3d 657, 665 (8th Cir. 2008). Courts
determining a defendant’s role in the offense should consider:

      the exercise of decision making authority, the nature of participation in
      the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of

      1
       The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
      2
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.

                                         -2-
      participation in planning or organizing the offense, the nature and scope
      of the illegal activity, and the degree of control and authority exercised
      over others.

U.S.S.G. § 3B1.1 cmt. n.4. “We review for clear error the district court’s factual
findings underlying the imposition of a sentencing enhancement based on [Nguyen’s]
role in the offense.” United States v. Rosas, 486 F.3d 374, 376 (8th Cir. 2007)
(citation omitted).

       After five days of trial, Nguyen pled guilty to conspiring to manufacture
marijuana. Throughout the trial, witnesses and co-conspirators testified regarding
Nguyen’s role as an “investor,” establishing Nguyen (1) purchased the equipment
needed for growing marijuana and set up grow houses for others to maintain;
(2) recruited co-conspirators to live in grow houses; (3) taught one co-conspirator how
to maintain a grow house; and (4) received a 30% share of the profits. During
Nguyen’s sentencing hearing, the district court adopted, without objection, the factual
statements contained in Nguyen’s presentence investigation report (PSR) which also
support a finding Nguyen was a leader or organizer in the conspiracy. The district
court did not clearly err in finding Nguyen was a leader or organizer, and therefore,
Nguyen did not qualify for the safety valve reduction under 18 U.S.C. § 3553(f)(4).

       Pham argues the district court erred in finding he was an average participant in
the conspiracy. During sentencing, Pham did not object to the PSR’s conclusion or
the district court’s finding that Pham was an average participant in the conspiracy, nor
did Pham seek an adjustment under U.S.S.G. § 3B1.2 for being a minor or minimal
participant in the offense.3 We therefore review Pham’s claim “for plain error

      3
       Pham admits his counsel “agreed with the finding in the [PSR] that [Pham] was
an ‘average’ participant,” and claims this was ineffective assistance of counsel.
“Claims of ineffective assistance of counsel, however, are usually best litigated in
collateral proceedings.” United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27
(8th Cir. 2006); see also 28 U.S.C. § 2255. We therefore decline to address Pham’s

                                          -3-
resulting in a miscarriage of justice.” United States v. Nichols, 151 F.3d 850, 854 (8th
Cir. 1998). The stipulated facts set forth in Pham’s plea agreement, the factual
statements in the PSR, which were adopted by the district court, and the facts Pham
conceded during sentencing and in his brief on appeal support the district court’s
finding Pham was an average participant in the conspiracy. The district court did not
plainly err in sentencing Pham as an average participant.

       Finally, Pham argues the district court inadequately considered the 18 U.S.C.
§ 3553(a) factors and created unwarranted sentencing disparities when the court gave
lesser sentences to some of Pham’s co-defendants who were also classified as average
participants in the conspiracy. “On appeal, a district court’s sentence is reviewed for
abuse of discretion.” United States v. Mosby, 543 F.3d 438, 440 (8th Cir. 2008)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Upon a thorough review of the
record, we find the district court adequately considered the § 3553(a) factors. See
United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009) (“We do not require the
district court to mechanically recite the § 3553(a) factors when, as here, it is clear
from the record that the court properly considered those factors.”). Pham received the
lowest sentence given any of the non-cooperating defendants responsible for 1,000 or
more marijuana plants. Likewise, the record does not support Pham’s claim of
sentencing disparity, as there is no evidence that his co-defendants “were similarly
situated in terms of conduct, criminal history, and acceptance of responsibility.”
United States v. Boyce, 564 F.3d 911, 917 (8th Cir. 2009); see also United States v.
Moore, 581 F.3d 681, 683 (8th Cir. 2009) (noting sentencing disparities which are
based on legitimate distinctions between co-conspirators are not unreasonable); United
States v. Watson, 480 F.3d 1175, 1178 (8th Cir. 2007) (same).

      We affirm the district court’s sentences for both Nguyen and Pham.
                      ______________________________


ineffective assistance of counsel claim. See Ramirez-Hernandez, 449 F.3d at 827.

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