                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 29, 2009
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-8058
 v.                                                     (D. Wyoming)
 QUY TU PHAN,                                  (D.C. No. 08-CR-00002-2-CAB)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Quy Tu Phan appeals the sentence imposed

following his plea of guilty to conspiracy to possess with intent to distribute and

to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(b)(1)(D). The district court denied Mr. Phan a reduction in his sentencing

offense level, rejecting his claim that he was a minor or minimal participant in the

offense. The court then sentenced him to thirty-seven months’ imprisonment,

followed by three years of supervised release. We affirm Mr. Phan’s sentence.



                                 BACKGROUND

      In January of 2008, Quan Quoc Lai asked Duc Ngoc Le to take part in a

plan to transport a large quantity of marijuana by car from Seattle, Washington, to

Wichita, Kansas. Le used his credit card to purchase airplane tickets for himself,

Lai and a third individual, Thuang Michael Pham, to fly from Atlanta, Georgia, to

Seattle on January 6, 2008. Appellant Phan and another individual, Dung Tien

Vo, traveled from Wichita to Seattle and met Le, Lai and Pham in Seattle on that

same day.

      At the Seattle airport, Le again used his credit card and rented a van. Lai

rented a second van from a different rental agency. Le and Lai each represented

to the particular rental agency that the vans would be returned to the Seattle

airport three days later. Le’s vehicle rental agreement also represented that the

van would not be driven outside of the state of Washington.

      After renting the vehicles, all of the men traveled in the two vans to a gas

station not far from the airport, where they met a male and a female. Lai was the

only one who actually spoke to the couple at the gas station. The couple then led

                                         -2-
the men to a single family dwelling in a residential neighborhood not far from

downtown Seattle. The men left the vans parked at the residence and rode with

the couple to a nearby restaurant for dinner, after which they returned to the

residence. The men then left the van Lai had rented at the residence, and drove

Le’s van to a nearby motel for the night.

      The following morning, all the men, including Mr. Phan, returned to the

residence. Lai and the couple placed pre-packaged marijuana, weighing

approximately 126 pounds, in cardboard boxes and plastic storage bins and loaded

them into Lai’s van. Additionally, fresh marijuana plant material, along with wet

newspapers, was packed into a plastic cooler and placed in Lai’s van. The couple

and Lai also boxed and loaded into Lai’s van other items commonly used for

growing marijuana indoors. Besides Lai’s role in loading the van, it is unclear

what role the other men, including Mr. Phan, played in loading the contraband.

After the van was loaded, all five men left Seattle and drove the two vans in

tandem until they were stopped for speeding on Interstate 80 in Laramie County,

Wyoming.

      At the time the Wyoming Highway Patrol stopped the vans, Lai was driving

the vehicle rented by Le, and Le and Vo were passengers in that van. Appellant

Phan was driving the vehicle rented by Lai, in which the marijuana and other

items were stored. Pham was a passenger in that van. When Wyoming Highway

Patrol Trooper Mrsny tried to stop the load vehicle driven by appellant Phan, the

                                            -3-
other van, driven by Lai, swerved towards Trooper Mrsny’s car, as if the driver

(Lai) was attempting to interfere with the stop of the load vehicle. When the

trooper moved closer to the load vehicle to effect the stop, the van driven by Lai

drove off. During these events, Trooper McKay was nearby and observed the

erratic movements of the van driven by Lai. Trooper Mrsny told Trooper McKay

to stop the van driven by Lai, which he did.

      After both vehicles were stopped, the five men apparently claimed not to be

traveling together and told inconsistent stories about their travel plans. In

particular, Mr. Phan claimed not to be traveling with Le’s van, and Lai claimed

not to be traveling with the load vehicle driven by Mr. Phan. Trooper Mrsny

further observed that neither Phan nor Pham were listed on the rental agreement

as authorized drivers for the load vehicle, and the agreement indicated that the

vehicle was to be driven only within the state of Washington. When both vans

were searched, the troopers discovered the marijuana. The total weight of the

contraband was determined to be 58.34 kilograms.

      As indicated, Mr. Phan pled guilty to one count of conspiracy to possess

with intent to distribute and to distribute marijuana. In preparation for

sentencing, the United States Probation Office prepared a presentence report

(“PSR”). The PSR calculated a total offense level of 17 which, with a criminal

history category of III, yielded an advisory United States Sentencing Commission,

Guidelines Manual (“USSG”), sentencing range of thirty to thirty-seven months.

                                          -4-
Both in his written objections to the PSR and at his sentencing hearing, Mr. Phan

objected to the PSR’s failure to recommend a four-level downward departure in

his offense level for having a minimal role in the offense. In particular, he argued

that he deserved such a downward reduction because his co-defendant, Le, “who

purchased the airline tickets with a credit card and also . . . [had] in his personal

property receipt for digital scales, . . . was a driver, and . . . used his credit card to

rent one of the two vehicles,” did receive a minor participant downward

adjustment. Tr. of Sentencing at 108-09, R. Vol. 4. Mr. Phan argued that he, by

contrast, only got paid to drive one of the vans, that he did not rent any of the

vans or buy any of the airline tickets, that he was not involved in arranging the

transaction, nor was he to be involved in the distribution of the marijuana.

       The district court rejected Mr. Phan’s argument, observing that he was

“driving the car at the time he was stopped”; that he “was an active participant at

that point”; that the “car ha[d] the marijuana in it”; that he “accepted the travel on

the [airline] ticket that was purchased for him”; and that Mr. Phan “played an

equal and similar role in this entire . . . criminal enterprise.” Id. at 109-112.

There had also been considerable testimony at the sentencing hearing about

Mr. Phan’s involvement in a gang, the Viet Boyz, which was engaged in drug

trafficking.

       The court subsequently sentenced Mr. Phan to thirty-seven months, with the

following explanation:

                                            -5-
             I don’t feel that I can agree with the Government that you
      should be sentenced at the low end of the guidelines which are on the
      offense level of 17 with a criminal history category of III, the
      guideline provision is 30 to 37 months. I feel that you were equally
      culpable with the others in the activity for which you are now being
      sentenced, and I believe that your activity in the past as a member of
      this Viet Boyz gang is certainly wrong activity. It is, in my
      judgment, reprehensible, but you may not know that word. It is
      nonetheless something that you are going to have to pay the penalty
      for. I’m not going to give you the low end of the guidelines because
      I don’t think your past conduct warrants the low end. I think it
      warrants the high end. And I almost think that it warrants an upward
      adjustment, but I’m not going to do that.

Id. at 121-22. This appeal followed, in which Mr. Phan essentially reiterates the

same argument he made below, that he was a minimal participant compared to the

others, and particularly compared to Le, who received a minor participant offense

level reduction.



                                  DISCUSSION

      In determining whether the district court correctly calculated the

recommended Guidelines range, we review the court’s legal conclusions de novo

and its factual findings for clear error. United States v. Todd, 515 F.3d 1128,

1135 (10th Cir. 2008). “We review a sentencing court’s refusal to award a

defendant minor or minimal participant status for clear error because it is a

finding of fact.” United States v. Virgen-Chavarin, 350 F.3d 1122, 1131 (10th




                                         -6-
Cir. 2003) (further quotation omitted). 1 The defendant has the burden of proving

eligibility for a reduction as a minimal participant by a preponderance of the

evidence. Id. “The defendant’s own assertion that he was a minimal participant

is not enough to overcome the clearly erroneous standard.” Id.

      Mr. Phan seeks a four-level reduction based upon his claim that he is a

minimal participant. “A minimal participant is one who is ‘plainly among the

least culpable of those involved in the conduct of a group.’” Id. (quoting USSG

§3B1.2 comment. (n.4)). As applied to a drug trafficking offense, the Guideline

notes further explain:

      A defendant who is accountable under §1B1.3 (Relevant Conduct)
      only for the conduct in which the defendant personally was involved
      and who performs a limited function in concerted criminal activity is
      not precluded from consideration for an adjustment under this
      guideline. For example, a defendant who is convicted of a drug
      trafficking offense whose role in that offense was limited to
      transporting or storing drugs and who is accountable under §1B1.3
      only for the quantity of drugs the defendant personally transported or
      stored is not precluded from consideration for an adjustment under
      this guideline.



      1
        We review federal criminal sentences for reasonableness, giving deference
to the district court under “the familiar abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, __, 128 S. Ct. 586, 594 (2007); see United States v.
Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir. 2008). “[R]easonableness
includes both a procedural component, encompassing the method by which a
sentence was calculated, as well as a substantive component, which relates to the
length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th
Cir. 2008). Because Mr. Phan is challenging only the method by which his
sentence was calculated, he challenges only the procedural reasonableness of his
sentence.

                                        -7-
USSG §3B1.2 comment. (n.3(A)). Accordingly, while Mr. Phan is eligible for a

minimal participant reduction, he is not automatically entitled to such a reduction

because of his claimed status as merely a courier or driver. “[W]e have

consistently refused to adopt a per se rule allowing a downward adjustment based

solely on a defendant’s status as a drug courier. [D]rug couriers are an

indispensable component of drug dealing networks. To debate whether couriers

as a group are less culpable . . . [is] akin to the old argument over which leg of a

three-legged stool is the most important leg.” United States v. Martinez, 512 F.3d

1268, 1276 (10th Cir.) (internal quotation marks and citations omitted), cert.

denied, 128 S. Ct. 2461 (2008).

      Moreover, there was evidence that Mr. Phan was more than a mere driver

for the drug trafficking enterprise. There was testimony at sentencing that

Mr. Phan was an active member of the Viet Boyz gang, one of whose regular

items of business was drug trafficking. There was also testimony that other

defendants were involved in that gang. By contrast, there was no evidence that

defendant Le, who received a minimal participant reduction, was a member of the

Viet Boyz gang, nor was he driving or even in the load vehicle when it was

stopped.

      In short, we cannot say that the district court clearly erred when it

concluded that Mr. Phan’s participation in the offense of conviction did not




                                          -8-
warrant a minimal participant reduction. 2 We accordingly affirm Mr. Phan’s

sentence.



                                CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence in this case.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




      2
       Indeed, as the district court’s remarks indicate, it actually considered
whether to sentence Mr. Phan above the advisory Guideline range. As it was, the
court sentenced Mr. Phan to the high end of the range.

                                       -9-
