                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                          FILED
                                                                     U.S. COURT OF APPEALS
                                    No. 00-11124                       ELEVENTH CIRCUIT
                                                                           JULY 11, 2001
                              ________________________
                                                                        THOMAS K. KAHN
                                                                             CLERK
                          D. C. Docket No. 99-00023-CR-4-RH

UNITED STATES OF AMERICA,
                                                                          Plaintiff-Appellee,

                                            versus

NGHIA LE, a.k.a. Vince Le,
                                                                       Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            _________________________

                                       (July 11, 2001)

Before HULL, RONEY and GOODWIN*, Circuit Judges.

GOODWIN, Circuit Judge:

       Nghia Le (“Le”) got the idea that a Tallahassee business man kept a large

supply of cash from his two nail salons at his house. He decided to employ a small

band of rent-a-robbers to fly from Los Angeles, California to Tallahassee, Florida


   *
    Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
to perform a home invasion robbery. After the robbery went awry, the mercenaries

talked, and Le was indicted and convicted under the Hobbs Act and for use of a

firearm in connection with these crimes. He now appeals his convictions and his

sentence on a variety of grounds.

      The principal question before us is whether this is a federal case. We

conclude that Le’s actions had both potential effects and actual, de minimis effects

on interstate commerce, and that the Government thus had jurisdiction to prosecute

Le under the Hobbs Act. In addition, we find that the district court did not err by

admitting into evidence Le’s post-arrest statements and the transcripts of certain

foreign-language telephone conversations. Regarding Le’s sentence, we conclude

that the district court properly applied a two-level car-jacking increase to his base

offense level but erred in applying a seven-level firearm increase.

                                  BACKGROUND

       Kenny Nguyen (“Nguyen”) and his wife owned and operated two nail

salons in two separate shopping malls in Tallahassee, Florida. They ordered their

manicure supplies from Georgia, spending between five and seven thousand

dollars a year. At the end of each business day the Nguyens took that day’s

business receipts to their house. They deposited their business proceeds at a bank

approximately once a week.


                                           2
      Le, who had been observing the apparent prosperity of the Nguyens,

concluded that they likely kept substantial sums of cash from their businesses in

their residence. Not wishing to perform the robbery himself, and apparently unable

to enlist suitable confederates in Tallahassee, Le telephoned acquaintances in

California and recruited five of them. One of these co-conspirators testified at trial

that Le “told us he knew a guy that was living in Tallahassee that had a house and

that he had at least a hundred to two hundred thousand dollars in cash.”

      Le’s acquaintances traveled from California to Florida for the planned

robbery. Le organized the crime, provided temporary housing for the robbers,

furnished one or more weapons, and pointed out the target house. For his efforts,

Le was to receive ten percent of the proceeds. The night of the robbery, he

remained well away from the execution of the plan.

      The five rent-a-robbers entered the Nguyens’ house, bound several of the

occupants, and conducted an unsuccessful search for the promised cash.

Meanwhile, Nguyen, after hearing the commotion, fled the residence with that

day’s business receipts, which amounted to between six and eight thousand dollars.

The Californians later left the house and drove away in a car belonging to Mrs.

Nguyen, the only other fruit of their labors being a stolen wristwatch. They soon

thereafter abandoned the car and fled in the car of one of the co-conspirators. The


                                          3
five Californians were arrested the next morning. Two weeks after the robbery,

Nguyen sold his manicure business. He subsequently reopened the nail salons in

two new locations.

       Following a lengthy investigation, Le was indicted on three counts: 1)

conspiring to obstruct interstate commerce by robbery, in violation of the Hobbs

Act, 18 U.S.C. §§ 1951 and 1952; 2) obstructing interstate commerce, and

attempting to do so, by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951

and 1952; and 3) using or carrying a firearm while obstructing interstate commerce

or attempting to do so, in violation of 18 U.S.C. § 924(c).1

       A jury found Le guilty on all three counts. The district court sentenced Le to

a custodial sentence of 322 months – consisting of consecutive sentences of 240

months for Count One, 22 months for Count Two, and 60 months for Count Three

– together with three years of supervised release and an order of restitution.

                                       DISCUSSION

I. Jurisdiction Under the Hobbs Act

       Le’s primary contention concerning his convictions on Counts One and Two

is that the Government lacked jurisdiction to prosecute him under the Hobbs Act

   1
    Count Two of the indictment included both obstruction of interstate commerce and the lesser
included offense of attempt to obstruct interstate commerce, charging that Le “did knowingly,
willfully and unlawfully obstruct, delay and affect interstate and foreign commerce, and the
movement of articles and commodities in such commerce, and attempt to do so, by robbery . . . .”

                                               4
because it failed to prove that his actions bore a sufficient connection to interstate

commerce. This Court reviews de novo a challenge to the sufficiency of the

evidence concerning whether a robbery had a sufficient effect on interstate

commerce to support a conviction under the Hobbs Act. See United States v.

Guerra, 164 F.3d 1358, 1359 (11th Cir. 1999) (citing United States v. Keller, 916

F.2d 628, 632 (11th Cir. 1990)). “[W]e consider that evidence in the light most

favorable to the government, drawing all inferences and credibility choices in favor

of the jury’s verdict.” Id. (citing United States v. Adair, 951 F.2d 316, 318 (11th

Cir. 1992)).

      The Hobbs Act provides in relevant part, “[w]hoever in any way or degree

obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or attempts or conspires so to do,

or commits or threatens physical violence to any person or property in furtherance

of a plan or purpose to do anything in violation of this section shall be fined under

this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 1951(a).

“Commerce” is defined as including “all commerce between any point in a State

. . . and any point outside thereof.” 18 U.S.C. § 1951(b)(3). The Supreme Court

has stated that in a prosecution under the Hobbs Act, “[t]he charge that interstate

commerce is affected is critical since the Federal Government’s jurisdiction of this


                                           5
crime rests only on that interference.” Stirone v. United States, 361 U.S. 212, 218

(1960).

       This circuit’s precedent makes clear that the type of evidence required for

the Government to satisfy its burden of proof concerning the interstate commerce

nexus differs depending on whether the defendant is charged with the inchoate

offenses of conspiracy and attempt or a substantive offense under the Hobbs Act.

In the case of a substantive Hobbs Act offense, the “impact on commerce does not

need to be substantial; all that is required is minimal impact.’” United States v.

Kaplan, 171 F.3d 1351, 1354 (11th Cir.) (quoting United States v. Castleberry, 116

F.3d 1384, 1388 (11th Cir. 1997)) (en banc), cert. denied, 528 U.S. 928 (1999).

See also United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). Where a

defendant is charged with attempt or conspiracy to violate the Hobbs Act, “the

interstate nexus may be demonstrated by evidence of potential impact on interstate

commerce or by evidence of actual, de minimis impact.’” Kaplan, 171 F.3d at

1354 (quoting United States v. Farrell, 877 F.2d 870, 875 (11th Cir. 1989))

(emphasis added); Diaz, 248 F.3d at 1084 (quoting Farrell, 877 F.2d at 875).2

       This Court previously has stated that “[p]otential impact is measured at the


   2
     The Hobbs Act expressly covers both robbery and extortion cases. The extortion cases
setting forth the Government’s burden of proof in Hobbs Act prosecutions are equally applicable
in the robbery context.

                                               6
time of the attempt, i.e., when the extortion demand is made, based on the assumed

success of the intended scheme. A sufficient potential impact exists when there is

evidence of ‘a plan to embark upon a course of extortionate behavior likely to have

the natural effect of obstructing commerce.’” Farrell, 870 F.2d at 875 (quoting

United States v. Gupton, 495 F.2d 550, 551 (5th Cir. 1974)) (internal citations

omitted).3 In light of this precedent, we can affirm Le’s convictions only if we find

that his actions had either a potential effect or an actual, de minimis effect on

interstate commerce. On several occasions this Court has considered whether a

defendant’s actions had the potential to impact interstate commerce in order to

satisfy the jurisdictional requirements of the Hobbs Act. In Kaplan, the defendant,

who resided in Florida, had given power of attorney over two Panamanian bank

accounts to another individual, who resided in Panama, in order to disguise his

ownership of them. See Kaplan, 171 F.3d at 1352. That individual, however, took

money from the accounts and threatened to report the defendant to the Internal

Revenue Service if he pursued the matter. See id. at 1352-53. The defendant then


   3
     Other circuits also focus on a potential impact on interstate commerce, measured from the
time of the attempt. See, e.g., United States v. Nguyen, 246 F.3d 52, 54 (1st Cir. 2001) (“All that
matters is that [the defendant] entered a conspiracy whose objective was to steal the assets of an
entity in interstate commerce. That the conspiracy failed to accomplish such objective is
irrelevant.”) (emphasis in original); United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th
Cir. 1989) (noting that “the courts have concluded that ‘factual impossibility is no defense to an
inchoate offense’ under the Hobbs Act”) (quoting United States v. Brooklier, 685 F.2d 1208,
1217 (9th Cir. 1982)).

                                                7
enlisted someone with connections to the Panamanian Defense Force to coerce the

individual in Panama holding power of attorney to transfer the funds to the

defendant in Florida. See id. at 1353. The plan, however, was never carried out,

and the funds were never transferred. See id. The defendant was later convicted

by a jury of conspiracy to extort and attempted extortion in violation of the Hobbs

Act. See id.

      This Court upheld the defendant’s two Hobbs Act convictions. We first

observed that “[t]he Hobbs Act, by its own terms, encompasses the inchoate

offenses of attempt to extort and conspiracy to extort.” Id. at 1354. In such cases,

we noted that “the government need only show a realistic probability of an effect,

or some actual de minimis effect, on commerce to bring the extortion within the

reach of the Hobbs Act.” Id. Applying this standard, we stated that the

Government had “brought forth evidence that, if [the defendant’s] scheme had

succeeded, commerce would have been affected.” Id. at 1355. Specifically,

evidence at trial indicated that “[t]he conspiracy required at least one transaction

between Florida and Panama – the payment of the extortion demand to [the

defendant] – for the conspiracy to be of benefit to the coconspirators.” Id.

(footnotes omitted) (emphasis in original). Because the defendant sought these

specific funds and planned to pay the co-conspirators from them, we stated that


                                           8
“the jury was entitled to find that the movement of substantial funds from Panama

to Florida was the object of the co-conspirators’ extortion plan.” Id. (citations

omitted). Thus, we concluded that “[i]n this case, a close and continuing nexus

exists between the acts of coercion and the transmittal of the funds to Florida: the

plan would have served no purpose if the money was not ultimately received by

[the defendant] in Florida.” Id.

      In addition to this potential impact on interstate commerce that the plan

would have had if it had come to fruition, we observed that those efforts taken in

furtherance of the extortion plan had an actual effect on commerce. Specifically,

the plan “was orchestrated in the United States to be carried out in another

country,” which “necessitated activity in interstate and foreign commerce to

coordinate the scheme.” Id. at 1355-56. Also, we noted that the co-conspirators

spoke on the telephone while in different parts of the country. See id. at 1356. We

then stated that “the use of interstate or foreign transportation and communication

facilities to carry out a scheme of robbery or extortion may constitute – in

conjunction with other facts – a sufficient effect upon commerce for a Hobbs Act

conviction for conspiracy or attempt to extort.” Id. (citing United States v.

Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996)). We thus held that “the potential

effects, combined with the evidence of actual effects, are sufficient to establish the


                                          9
minimal effect on commerce required under the Hobbs Act.” Id.

      This Court also addressed the potential effects on interstate commerce of an

attempted extortion scheme in United States v. Farrell, 877 F.2d 870 (11th Cir.

1989), in which we affirmed the defendants’ convictions for conspiracy to extort in

violation of the Hobbs Act. In that case, the defendants kidnaped the daughter of

an officer of a company that was engaged in interstate commerce. See id. at 872-

73. In response to a ransom note, the officer and his wife executed a note payable

to a federal savings and loan association and secured by their home and 30,000

shares of stock. See id. at 873-74.

      In affirming the defendants’ conspiracy convictions, this Court observed that

“[h]ad the [defendants’] extortion scheme succeeded, the likely natural effect was

that interstate commerce would have been affected,” in three possible ways: (1) it

was “inferable” that the savings and loan would have made a claim the denial or

payment of which “necessarily would implicate interstate commerce to some

degree,” id. at 875; (2) “the sheer size of the extortion demand implie[d] that the

utilization of the funds by the [defendants] would have affected interstate

commerce to a legally cognizable degree,” id. at 875-76; and (3) the victims’

pledge of their stock “represented an actual obstruction of their right to freely trade




                                          10
the shares on the New York Stock Exchange,” id. at 876.4 In light of this trio of

potential effects on interstate commerce, we concluded that the nature of the

defendants’ plan to extort money provided jurisdiction under the Hobbs Act.

       In a recent case, this Court applied these same principles to robberies and

acts of extortion directed at individuals rather than businesses. See Diaz, 248 F.3d

at 1084. In Diaz, we observed that “[w]hile the Hobbs Act usually is applied to

robberies of businesses, criminal acts directed toward individuals also may violate

the Hobbs Act.” Id. We then noted:

       Robberies or extortions perpetrated upon individuals are prosecutable
       under the Hobbs Act when any one of the following three conditions
       are met: (1) the crime depletes the assets of an individual who is
       directly engaged in interstate commerce; (2) the crime causes the
       individual to deplete the assets of an entity engaged in interstate
       commerce; or (3) the number of individuals victimized or the sums
       involved are so large that there will be a cumulative impact on
       interstate commerce.

Id. at 1084-85 (emphasis in original) (citations omitted). We defined what it meant

   4
     This Court subsequently rejected as dicta the suggestion that the size of an extortion demand
was relevant to the interstate commerce inquiry in a Hobbs Act case, stating, “[a]lthough a few
courts have suggested that the sheer size or scope of an extortion plot might provide the required
effect on commerce, no court has converted the state crime of extortion into a federal matter
simply by virtue of its size. If such a theory could provide a sufficient nexus to interstate
commerce there would be no need to engage in the extensive analyses of how particular acts of
extortion affected a victim’s position in interstate commerce that are so prevalent in Hobbs Act
cases.” United States v. Kaplan, 133 F.3d 826, 830-31 (11th Cir. 1998) (internal footnote
omitted), vacated on other grounds, 171 F.3d 1351 (11th Cir.) (en banc), cert. denied, 528 U.S.
928 (1999). To the extent this language limits the holding in Farrell, however, it is not relevant
to the facts of our case, as the amount of money at stake in the robbery of the Nguyens’ home is
of little analytical importance.

                                                11
to “deplete the assets” of an individual broadly, by stating that it encompassed

actions that “lessen[ed] in number” an individual’s assets. See id. at 1090.

      In Diaz, a jury convicted multiple defendants of committing and attempting

to commit crimes – including conspiracy to commit a Hobbs Act violation, attempt

to commit a Hobbs Act violation, and a series of substantive Hobbs Act violations

– directed at three sets of individuals in different incidents. See id. at 1081-82.

The defendants challenged their convictions, arguing that the Government had

failed to demonstrate the requisite effect on interstate commerce. See id. at 1087.

      This Court affirmed the defendants’ Hobbs Act convictions. In one of the

three incidents underlying the case, the victims were officers of a corporation that

purchased some of its equipment from out of state. See id. at 1088. Several of the

defendants kidnaped one of these individuals and sought a ransom, while others

robbed his home. See id. at 1075. In affirming the defendants’ convictions with

respect to this incident, we stated that “the role of [the victims of the extortion]

with regard to their business, which was directly engaged in interstate commerce,

was not coincidental. Rather, the Court is convinced by the evidence presented at

trial that [the defendants] targeted [the victims] because of their interest” in the




                                           12
business. Id. at 1088-89 (emphasis in original).5

       In another of the three underlying criminal episodes in Diaz, the facts of

which are quite similar to those in the present case, one of the defendants received

a “tip” that an individual who was a part owner of a gas station with a convenience

store kept a large amount of money in a safe in his house. See id. at 1079. The gas

station purchased many of its supplies from out-of-state. See id. at 1091. Several

of the defendants entered the victim’s house and searched for the reported safe, but

they were unsuccessful in their quest and fled the premises. See id. at 1079-80.

The defendants later kidnaped the individual and demanded that he divulge the

alarm code to another home which he shared with his girlfriend. See id. at 1081.

The victim complied and the defendants stole various items from the home,

including $30,000 in cash receipts from the victim’s business. See id.

       This Court affirmed the defendants’ convictions based on this incident for

attempted robbery and extortion in violation of the Hobbs Act. In so doing, we



   5
    In a factually similar case, the Sixth Circuit stated that the existence of such motivation could
be sufficient to sustain a conviction for conspiracy under the Hobbs Act: “We have suggested
that the Government might make such a showing by demonstrating that the defendant knew of or
was motivated by the individual victim’s connection to interstate commerce.” United States v.
Wang, 222 F.3d 234, 240 (6th Cir. 2000) (citing United States v. Mills, 204 F.3d 669, 670 (6th
Cir. 2000)). In Mills, the Sixth Circuit held that the solicitation of bribes from individuals gave
rise to federal jurisdiction under the Hobbs Act because the defendants “had actual knowledge
that the bribe money would be obtained through loans made in interstate commerce.” Mills, 204
F.3d at 670.

                                                 13
stated, “[d]etermining whether there was an effect on interstate commerce requires

an examination of [the victim] and his businesses and their nexus, if any, to

interstate commerce.” Id. at 1091. We then noted that the victim’s “business made

regular and systematic purchases from out-of-state thereby establishing a greater

connection to interstate commerce.” Id. We continued, “[t]he Court finds that a

reasonable jury could conclude that, as part owner of [the gas station], [the victim]

was directly engaged in interstate commerce through his business.” Id. Applying

the standards set forth above, we found that the attempted robbery “would have

depleted,” and that the subsequent extortion did deplete, the victim’s business

assets. Id. We therefore upheld the defendants’ conviction for affecting interstate

commerce by robbery and extortion and for attempting to do so.

      Applying the above standards to this case, we are compelled to conclude that

Le’s attempted robbery of the business assets kept at the Nguyens’ house had both

potential effects and actual, de minimis effects on interstate commerce, the

combination of which supports the existence of a nexus between Le’s actions and

interstate commerce that supplies jurisdiction over both of his Hobbs Act

convictions.

      First, the evidence in the record indicates that the robbery organized by Le,

if successful, would have affected interstate commerce. Although the rent-a-


                                         14
robbers could have absconded with only six to eight thousand dollars rather than

the one hundred thousand dollars Le believed they would find, this amount was

nonetheless equivalent to or greater than the Nguyens’ total annual expenditures on

manicure supplies from out-of-state. Thus, had the robbery been successful, it

quite conceivably could have delayed or even reduced the Nguyens’ interstate

acquisition of the supplies required to operate their business.6

       Second, like in Kaplan, the preparation for the robbery involved the use by

Le and his co-conspirators of both interstate travel and interstate communication.

The five perpetrators in this case traveled from California to Florida – two by car,

three by air.7 Also, Le placed at least one phone call to his acquaintances in order


   6
    It could be argued that even if the robbery had been successful, the Nguyens could have
sustained their purchase of supplies through funds kept in the Nguyens’ bank account or some
other source. Were such supposition supported by the evidence in the record – and it is not clear
that it is – we are still required to draw all inferences in favor of the jury’s verdict. See Guerra,
164 F.3d at 1359. Therefore, because the jury found Le guilty of the Hobbs Act charges, we
conclude that the taking of the cash in Kenny Nguyen’s possession on the night of the robbery
would have limited his ability to purchase supplies from another state and thus affected interstate
commerce.
   7
    Le argues that we should not find Hobbs Act jurisdiction in this case on the basis of this
interstate travel because to do so “will obliterate the distinction between the Hobbs Act and the
Travel Act.” The Travel Act provides:

       (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in
       interstate or foreign commerce, with intent to--

       (1) distribute the proceeds of any unlawful activity; or
       (2) commit any crime of violence to further any unlawful activity; or
       (3) otherwise promote, manage, establish, carry on, or facilitate the promotion,
       management, establishment, or carrying on, of any unlawful activity,

                                                 15
to recruit them. When these actual, de minimis effects on interstate commerce are

combined with the potential effects on interstate commerce that the robbery would

have had if it had been successful, we are compelled to conclude that there was

sufficient evidence of a nexus between Le’s actions and interstate commerce to

find jurisdiction under the Hobbs Act for Le’s conviction of conspiring and

attempting to violate the Hobbs Act.

       Under the circumstances presented in this case, the fact that Le targeted an

individual’s private residence, rather than his business, does not attenuate the

connection between Le’s actions and interstate commerce.8 Indeed, in light of this


       and thereafter performs or attempts to perform--

       (A) an act described in paragraph (1) or (3) shall be fined under this title, imprisoned not
       more than 5 years, or both; or
       (B) an act described in paragraph (2) shall be fined under this title, imprisoned for not
       more than 20 years, or both, and if death results shall be imprisoned for any term of years
       or for life.

18 U.S.C. § 1952. As we noted in Kaplan, however, “the same conduct may violate more than
one statute.” Kaplan, 171 F.3d at 1356 (citing Missouri v. Hunter, 459 U.S. 359, 366-68
(1983)). At any rate, as discussed above, the fact that some of the co-conspirators traveled
interstate is not the sole basis for jurisdiction under the Hobbs Act in this case, but rather, it is
only one element which, in conjunction with other circumstances, provides that jurisdiction.
   8
    Le argues that in a case in which the target of a robbery was an individual rather than a
business, the connection between the robbery and interstate commerce will generally be too
attenuated to support jurisdiction under the Hobbs Act, such that affirming his conviction would
“extend[] the reach of the federal government to almost every robbery perpetrated against a
private citizen who owns a business.” As a preliminary matter, we note that the Le’s dire
prediction misapprehends the basis of our holding. Our conclusion that Le’s actions implicated
interstate commerce to a degree sufficient to create jurisdiction under the Hobbs Act is based on
the fact that Le specifically targeted business assets that were temporarily kept at a private

                                                  16
Court’s precedent in Diaz, the fact that Le targeted an individual’s home does not

preclude a finding of Hobbs Act jurisdiction in this case. Rather, the overall

circumstances of this case indicate that the Government has satisfied its burden in

proving the requisite connection of the actions at issue here to interstate commerce.

II. Post-Arrest Statements

       Le argues that the Government violated his Fifth and Sixth Amendment

rights by questioning him without an attorney present and by coercing him into

signing a waiver of his Miranda rights and giving an inculpatory statement by

implicitly threatening his family. He contends that the FBI knew he had a lawyer

because he had been represented by a lawyer during the investigation. Le argues

that this circuit ought to follow the Ninth Circuit in establishing a rule that, “when

there is a close nexus between the focus of a pre-indictment investigation and the

ultimate charges brought in the indictment, a defendant’s ongoing relationship with

counsel that is known (or should be known) by the government invokes the Sixth

Amendment right to counsel once that right attaches.” United States v. Harrison,

213 F.3d 1206, 1213 (9th Cir. 2000). Because Le did not argue in the district court

that the Government knew or should have known that he was represented by an



residence which, if stolen, had the potential to delay or obstruct the purchase of products from
another state, and the fact that his preparation for the robbery involved the use of interstate travel
and communication.

                                                 17
attorney, we review this question for plain error. See United States v. Thayer, 204

F.3d 1352, 1358 (11th Cir. 2000).

      We need not decide whether to adopt the rule Le seeks, because the record

does not show plain error in any event. The district court did not err because Le

has not shown that he had an ongoing relationship with counsel. In this case,

evidence of the alleged ongoing attorney-client relationship is scant. Le testified

that he had contacted a lawyer over a year before he was arrested who had told him

not to take a polygraph test and who had written FBI Agent Chester to explain why

he had told Le not to take the test. Le did not give the name of the lawyer, and

there appears to be no other evidence of the letter in the record. Agent Chester

testified that Le had contacted but not “retained” a lawyer concerning the

polygraph. Other than the letter that Le claims “his” lawyer wrote the FBI

concerning the polygraph, the FBI had no contact with any attorney claiming to be

Le’s lawyer.

      Additionally, Le reiterates the argument he made in his motion to suppress

that the FBI implicitly threatened his family and thus coerced him into admitting

he was involved in planning the robbery. At the suppression hearing, the district

judge evaluated the witnesses’ credibility and rejected Le’s testimony in favor of

the FBI agent’s account of the circumstances surrounding Le’s statement. The


                                         18
court found that “Le was mirandized, voluntarily made a statement after having

been mirandized and waived his rights; that he did not invoke any right to an

attorney; that he did not refuse to provide information.” The record provides no

reason to disturb the district court’s determinations of credibility. See Equal

Employment Opportunity Comm’n v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1285-

86 (11th Cir. 2000).

III. English Transcripts of Telephone Conversations

      Le next contends that the district court erred by admitting into evidence for

impeachment purposes, without objection, English-language transcripts of

telephone conversations in Vietnamese between himself and his co-conspirators

without playing the original recordings of those conversations for the jury. We

conclude, however, that Le waived the right to challenge the transcripts. After Le

testified in his defense, the government, in rebuttal, introduced certain Vietnamese-

language audiotapes that contained conversations involving Le. The government’s

witness, a contract interpreter for the FBI, testified that the English-language

transcripts accurately reflected the Vietnamese-language conversations on the

tapes, and the transcripts and tapes were admitted without objection.

      This circuit has adopted the following procedure for challenging the

accuracy of an English-language transcript of a conversation conducted in a


                                          19
foreign language:

      Initially, the district court and the parties should make an effort to produce
      an “official” or “stipulated” transcript, one which satisfies all sides. If such
      an “official” transcript cannot be produced, then each side should produce its
      own version of a transcript or its own version of the disputed portions. In
      addition, each side may put on evidence supporting the accuracy of its
      version or challenging the accuracy of the other side's version.

United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (quoting United States

v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). Le did not avail himself of any

portion of these procedures. Le appears to assert that he was denied the

opportunity to submit an alternative translation, because the prosecution did not

provide him with the tapes. However, as the Government counters, the tapes were

listed in its discovery report and on its proposed exhibit list. Furthermore, on

redirect Le admitted to having listened to one of the tapes and testified that a word

translated as “wrong” should have been translated as “differently.” Defense

counsel conducted a voir dire of the interpreter’s credentials and did not oppose his

qualifications. Le did not object to the admission of the transcripts. Neither party

requested that the tapes be played before the jury. Le’s counsel did not cross-

examine the translator. Accordingly, Le clearly waived his right to challenge the

translation and the transcripts. See id.

      In any event, Le has failed to show any prejudice arising from the fact that

the district court did not play the original recordings to the jury. He has not

                                           20
explained how the translations were inaccurate, nor has he indicated how playing

the original recordings in court would have aided in his defense. Therefore, his

claim would still fail in any event.

IV. Sentencing

A.    Seven-level increase for co-conspirators’ discharge of a firearm

      Because of Amendment 599 to the Sentencing Guidelines and Le’s

consecutive 60-month sentence for his § 924(c) firearms offense, the district court

erred by also applying a seven-level firearm increase under U.S.S.G.

§ 2B3.1(b)(2)(A) to Le’s offense level for his two Hobbs Act convictions.

      Amendment 599 of the 2000 Amendments to U.S.S.G. § 2K2.4 rejected the

interpretation of the sentencing guidelines previously followed by this circuit,

which allowed an increase in a defendant’s offense level for the underlying offense

based on a co-conspirator’s use of a firearm in addition to a consecutive sentence

under § 924(c) for another firearm. See, e.g., United States v. Rodriguez, 65 F.3d

932 (11th Cir. 1995); United States v. Mitchell, 146 F.3d 1338 (11th Cir. 1998).

Specifically, Amendment 599 significantly altered both the language and substance

of Application Note 2 to U.S.S.G. § 2K2.4. Revised Application Note 2, which

went into effect November 1, 2000, states:

      If a sentence under this guideline is imposed in conjunction with a sentence
      for an underlying offense, do not apply any specific offense characteristic

                                         21
       for possession, brandishing, use, or discharge of an explosive or firearm
       when determining the sentence for the underlying offense.

U.S.S.G. Manual § 2K2.4, note 2 (2000). The revised Application Note includes a

prohibition directly on point with Le’s situation: “Do not apply any weapon

enhancement in the guideline for the underlying offense, for example, if (A) a co-

defendant, as part of the jointly undertaken criminal activity, possessed a firearm

different from the one for which the defendant was convicted under 18 U.S.C.

§ 924(c) . . . .” Id.

       The Sentencing Commission has specifically indicated that Amendment 599

applies retroactively. See U.S.S.G. § 1B1.10(c) (Nov. 2000). Furthermore,

Amendment 599, which effects a revision of Application Note 2, is binding on

federal courts. Indeed, the Supreme Court has held that “[a]mended commentary

[to the sentencing guidelines] is binding on the federal courts even though it is not

reviewed by Congress, and prior judicial constructions of a particular guideline

cannot prevent the Sentencing Commission from adopting a conflicting

interpretation,” unless the interpretation violates the Constitution or a federal

statute or is plainly erroneous or inconsistent with the regulation it interprets.

Stinson v. United States, 508 U.S. 36, 37 (1993). The interpretation suggested by

revised Application Note 2 does not violate the Constitution or a federal statute and

is not plainly erroneous or inconsistent with U.S.S.G. § 2K2.4. The Supreme

                                           22
Court has also stated that if a court fails to follow or misreads the commentary in

imposing a sentence, the sentence should be set aside under 18 U.S.C. § 3742(f)(1)

unless the error was harmless. See Stinson, 508 U.S. at 42-43.

         The district court’s error in Le’s sentencing was not harmless. Were it not

for the erroneous application of the adjustment for his co-conspirators’ use of a

firearm, Le would not have received the seven-level increase, which significantly

increased the guideline range of his prison sentence from 121-151 months to 262-

327 months. Accordingly, we remand for re-sentencing on the two Hobbs Act

convictions without the seven-level increase.9

B.       Two-level increase for car-jacking

         Pursuant to U.S.S.G. § 2B3.1(b)(5), the district court increased Le’s offense

level by two levels because the robbery involved a car-jacking by his co-

conspirators. Le contends that this increase violated Apprendi v. New Jersey, 530

U.S. 466 (1999). Specifically, he maintains that the district court erred by

sentencing him to a total of 262 months for his two Hobbs Act convictions, based


     9
      U.S.S.G. § 1B1.10(b) provides:

         In determining whether, and to what extent, a reduction in the term of imprisonment is
         warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the
         court should consider the term of imprisonment that it would have imposed had the
         amendment(s) to the guidelines listed in subsection (c) been in effect at the time the
         defendant was sentenced, except that in no event may the reduced term of imprisonment
         be less than the term of imprisonment the defendant has already served.

                                               23
in part on an adjustment for car-jacking, when those convictions under § 1951

carried a 20-year (240-month) statutory maximum sentence. He argues that

because the indictment did not charge him with car-jacking and the issue was never

submitted to the jury, his enhanced sentence violates Apprendi.

      Apprendi does not apply to Le’s sentence. First, Apprendi does not apply to

calculations under the guidelines. See United States v. Nealy, 232 F.3d 825, 829

n.3 (11th Cir. 2000) (“The Sentencing Guidelines are not subject to the Apprendi

rule.”). Second, to the extent Le contends that the carjacking increase caused his

sentence to exceed the statutory maximum penalty, Apprendi is inapplicable,

because neither his 240-month sentence for conspiracy nor his 22-month sentence

for robbery exceeded the prescribed statutory maximum penalties for those

convictions. See United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000)

(holding that “there is no error, plain or otherwise, under Apprendi where the term

of imprisonment is within the statutory maximum”).

      Le was convicted of two separate violations of the Hobbs Act – conspiracy

and robbery. The Supreme Court has held that convictions under the Hobbs Act

for conspiracy and for the substantive offense are separate crimes that can be

punished with consecutive sentences. See Callahan v. United States, 364 U.S. 587,

597 (1961); see also U.S.S.G. § 5G1.2(d) (authorizing consecutive sentences to the


                                         24
extent necessary to produce a combined sentence equal to the “total punishment”

required under the sentencing guidelines).

        Consistent with this authorized practice, the district court sentenced Le to a

custodial sentence of 240 months for the conspiracy conviction in Count I and 22

months consecutive to Count I for the robbery conviction in Count II.10 The

statutory maximums for those charges were twenty years apiece. See 18 U.S.C.

§ 1951(a). Therefore, neither of Le’s sentences for his Hobbs Act violations were

“more severe than the statutory maximum for the offense established by the jury’s

verdict.” Apprendi, 530 U.S. at 487 n.13. Accordingly, we affirm the district

court’s award of a two-level increase for car-jacking.11



V. Ineffective Assistance

        Finally, Le asserts that he was denied effective assistance of counsel due to

his counsel’s failure (1) “to advise the district court at the Suppression Hearing that

Appellant was represented by counsel at the time of his arrest and interrogation;”

   10
     The district court also sentenced Le to a consecutive 60-months sentence for using and
carrying firearms during and in relation to the commission of the crimes in the first two counts,
which Le does not challenge.
   11
     We recognize that on remand, Le’s lower offense level for his Hobbs Act violations without
the seven-level firearm will result in a reduced guideline range and a reduced sentence to some
extent. However, it remains that Apprendi does not apply when the sentences on two related
offenses are allowed to run consecutively under the relevant law and the sentence on each
offense does not exceed the prescribed statutory maximum for that particular offense.

                                                25
(2) “to confront the FBI Agent with his conversations with a government informant

who attempted to elicit information from Le while he was in custody awaiting

trial;” (3) “to demand that the tapes used to impeach the defense witnesses be

played for the witnesses;” and, (4) “to prepare an alternative translation of the tapes

to challenge the accuracy of the translation offered by the Government.” Le asserts

that “information dehors the record reveals that a local attorney who had been

hired by [Le] when he was first questioned by Agent Chester on February 23, 1998

wrote a letter to Chester explaining why [Le] refused to submit to a polygraph on

advice of counsel. This letter (which also constitutes Brady material) was never

produced by the Government.”

      Claims of ineffective assistance of counsel generally are not considered for

the first time on direct appeal unless the record is sufficiently developed. See

United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000) (citations omitted).

Because, by Le’s own admission, the record is insufficient here to decide whether

Le received ineffective assistance of counsel, we do not decide the ineffective

assistance claim. See id. (affirming the convictions but not deciding the ineffective

assistance claims due to insufficiency of the record); United States v. Mayes, 158

F.3d 1215, 1219 n.6 (11th Cir. 1998).

                                  CONCLUSION


                                          26
        Other than the seven-level firearm increase in calculating the total offense

level on the Hobbs Act convictions, all of the district court’s rulings in this case

were free from error. Accordingly, we affirm Le’s convictions and affirm in part

and vacate in part his sentence. We affirm Le’s sentence except for the

imprisonment portion of his sentence on the two Hobbs Act convictions. We

vacate only that imprisonment portion and remand for re-sentencing in that regard

on the two Hobbs Act convictions.12

        AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




   12
     Specifically, the district court is permitted to reconsider and recalculate Le’s total offense
level for the two Hobbs Act violations and is not required to simply deduct mathematically the
seven-level firearm increase. Although the district court may ultimately decide to do that, our
point is only that because the imprisonment portion of Le’s sentence has been vacated, the
district court, as the sentencing judge, is allowed to reconsider any aspects of the total offense
level in determining the term of imprisonment for Le’s Hobbs Act convictions

                                                 27
