                     UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT                            FILED
                                                                              JUL 20 2011
UNITED STATES OF AMERICA,                      No. 09-50265
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

              Plaintiff - Appellee,            D.C. No. 2:07-cr-00449-PSG-6
                                               Central District of California,
  v.                                           Los Angeles

PETER XUONG LAM, AKA Kiet,
                                               ORDER
              Defendant - Appellant.


Before: TROTT and RYMER, Circuit Judges, and BEISTLINE, Chief District
Judge.*



       Appellant’s petition for panel rehearing filed July 13, 2011, is DENIED. An

amended memorandum disposition is filed concurrently with this order. No further

petitions shall be entertained.




       *
             The Honorable Ralph R. Beistline, Chief District Judge for the
District of Alaska, sitting by designation.
                                                                              FILED
                              NOT FOR PUBLICATION                              JUL 20 2011

                                                                           MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                            No. 09-50265

             Plaintiff - Appellee,                    D.C. No. CR-07-449-PSG

   v.                                                 AMENDED
                                                      MEMORANDUM*
 PETER XUONG LAM,

             Defendant - Appellant.


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

                           Argued and Submitted June 8, 2011
                                 Pasadena, California


Before: RYMER, TROTT, Circuit Judges, and BEISTLINE,**1Chief District
        Judge.

        Lam appeals his convictions and sentence in the District Court for selling

illegally imported fish in violation of 18 U.S.C. § 545 and introducing misbranded


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Ralph R. Beistline, Chief District Judge for the
District of Alaska, sitting by designation.

                                            1
fish into interstate commerce with the intent to defraud in violation of 21 U.S.C.

§§ 331(a)&(c), § 333(a)(2). This court has jurisdiction pursuant to 18 U.S.C. §

3742 and 28 U.S.C. § 1291, and we affirm the convictions and remand for

resentencing.

      There was sufficient evidence presented at trial to support defendant’s

convictions. Even were we to conclude that some of the government’s comments

during closing argument were inappropriate, which we do not, any error would be

harmless and have had no impact on the verdict rendered. Furthermore, venue was

appropriate pursuant to 18 U.S.C. § 3237(a). Defendant’s convictions are

therefore AFFIRMED.

      However, there was a procedural error by the District Court in determining

the amount of tax loss to assess against defendant. This resulted in a two level

enhancement of defendant’s offense level. Accordingly, this matter is remanded

for an open resentencing pursuant to Pepper v. United States, ___ U.S. ___, 131

S.Ct. 1229, 1239-40 (2011) and United States v. Matthews, 278 F.3d 880, 885-86

(9th Cir. 2002). Furthermore, the forfeiture order is hereby vacated. The district

court may reconsider the forfeiture as part of the resentencing.

      The court REMANDS this matter to the District Court for resentencing

consistent herewith.

      It is so ordered.



                                          2
                                                                               FILED
United States v. Lam, No. 09-50265 (Pasadena – June 8, 2011)                    JUL 20 2011

                                                                            MOLLY C. DWYER, CLERK
RYMER, Circuit Judge, concurring in part and dissenting in part:             U.S. COURT OF APPEALS



      I would hold that venue in the Central District of California was improper

for Lam’s convictions under 18 U.S.C. § 545.

      The indictment does not charge Lam with smuggling fish into the United

States—only with receiving, selling, and transporting the fish after its importation.1

This anterior criminal conduct does not count towards venue. United States v.

Cabrales, 524 U.S. 1, 6-8 (1998).

      I am not persuaded that 18 U.S.C. § 3237(a) permits venue in this case. The

indictment didn’t charge Lam with moving the fish in interstate commerce. See

Cabrales, 524 U.S. at 8-9 (holding that § 3237(a) did not establish venue in a non-

interstate commerce offense).




      1
         To be precise, the indictment charges that Lam “did knowingly receive,
conceal, buy, sell, and facilitate the transportation, concealment, and sale” of the
fish after illegal importation.
