                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                          December 3, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 03-20284
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                    versus

                        NHUT HINH DO; JOHN HOANG,

                                                  Defendants-Appellants.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (H-02-CR-366-2)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

      Following a jury trial, Nhut Hinh Do and John Hoang were

convicted      of   possession        with   intent       to       distribute

methylenedioxymethamphetamine (MDMA; commonly known as “Ecstasy”).

Do was sentenced to 120 months’ imprisonment; Hoang, to 240 months.

      In separate briefs, Do and Hoang present numerous issues

contesting their convictions and sentences.           Each seeks to adopt

and incorporate the contentions raised by the other.            An appellant

is   not   permitted,   by   mere   reference,   to   raise    fact-specific



      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
challenges to his own conviction or sentence. See United States v.

Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996).             Because the sentencing

challenges raised by Do and Hoang are fact-specific, such adoption

is not permitted.   See id.      They are, however, permitted under FED.

R. APP. P. 28(i) to adopt by reference non fact-specific challenges

to their convictions, because the contentions apply to both.

     Appellants claim that, during closing argument, the Government

violated Bruton v. United States, 391 U.S. 123 (1968) (violation of

confrontation    right,    at    joint       trial,    where   one    defendant’s

extrajudicial statement used to implicate another defendant and

first defendant did not testify).            After reviewing the record, we

have determined:        if a violation of Bruton occurred, it was

harmless as to each defendant in the light of the other evidence.

See United States v. Kelly, 973 F.2d 1145, 1150 (5th Cir. 1992).

In this regard, Do contends the evidence showed he thought he

possessed steroids.     The Government was required to show only that

Do knowingly possessed a controlled substance.                 See United States

v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003). Anabolic

steroids are a controlled substance.                  See 21 U.S.C. § 812(c),

Schedule III(e).

     Appellants claim the district court erred in refusing to

instruct   the   jury     that   testimony       discussing      an   unrecorded

incriminating statement should be disregarded unless the statement

was corroborated and that an involuntary confession should be

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disregarded.         The   refusal       was    not   an   abuse   of   discretion.

See United States v. Morales, 272 F.3d 284, 289 (5th Cir. 2001).

     Hoang     challenges          the   district     court’s    deciding   he    was

responsible for 6000 grams of MDMA. He contends evidence set forth

in the Presentence Investigation Report (PSR) that linked him to

60,000 MDMA tablets (equivalent to 6000 grams) is uncorroborated

and, hence, should not be considered in determining his sentence.

Hoang    has   not    shown        the   district     court’s    consideration     of

uncorroborated statements was clear error.                  See United States v.

Slaughter, 238 F.3d 580, 585 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001).

     Hoang also contends the district court improperly relied on

suppressed     evidence       at     sentencing.       “The     exclusionary     rule

applicable to Fourth Amendment violations is generally inapplicable

to the district court’s consideration of evidence for purposes of

sentencing.”     See United States v. Robins, 978 F.2d 881, 891 (5th

Cir. 1992).

     Hoang further contends the 60,000 MDMA tablets do not fall

within the definition of “relevant conduct”.                  Hoang has not shown

the district court clearly erred in its determination that his

relevant conduct encompassed 6000 grams of MDMA.                   See U.S.S.G. §

1B1.3(a)(2); United States v. Wall, 180 F.3d 641, 644 (5th Cir.

1999).




                                            3
     Noting the trial testimony of the Government’s chemist, Hoang

submits the jury’s determination that he was responsible for 1235

grams of MDMA is “too high”.               Hoang’s contention is inapposite

because his sentence was determined by facts pertaining to his

relevant conduct, which were reported in the PSR.                  Moreover, Hoang

has pointed to no evidence of record that any of the 60,000 MDMA

tablets did not contain MDMA.              Hoang has not shown the PSR was

inaccurate.        He has, therefore, not shown the district court

committed clear error.          See United States v. Lage, 183 F.3d 374,

383 (5th Cir. 1999).

     Hoang contends the district court erred in increasing his

offense level by two, pursuant to U.S.S.G. § 2D1.1(b)(1), for

possession    of    a   firearm.      In       a   jointly   undertaken    criminal

activity, relevant conduct includes all reasonably foreseeable acts

and omissions of others involved in the activity.                        U.S.S.G. §

1B1.3(a)(1)(B). A firearm was possessed by a fellow participant in

the MDMA distribution scheme.               Hoang has failed to show clear

error.   See United States v. Ortiz-Granados, 12 F.3d 39, 43 (5th

Cir. 1994).

     Hoang maintains the district court erred in applying a four-

level increase for his role in the offense, under U.S.S.G. §

3B1.1(a), because:        the Government did not prove five or more

people   participated      in   the   MDMA         organization;   and    the   trial

evidence did not show he enjoyed the bulk of the fruits of the MDMA


                                           4
distribution scheme.   Hoang has not shown the PSR was inaccurate

with respect to facts supporting an adjustment for his leadership

role.   Hoang has, therefore, not shown clear error.   See Lage, 183

F.3d at 383.

     Do contends the district court erred in sentencing him based

on 1000 grams of MDMA.       He claims statements supporting his

sentence were uncorroborated and contends tablets not seized should

not be considered in calculating his sentence.    Do has not shown

the district court erred in considering uncorroborated statements.

See Slaughter, 238 F.3d at 585.      Nor has he shown the PSR was

inaccurate regarding the quantity of MDMA attributed to him.       Do

has, therefore, not shown clear error.   See Lage, 183 F.3d at 383.

     Do also asserts the district court erred in increasing his

offense level by two for obstruction of justice, pursuant to

U.S.S.G. § 3C1.1.    He contends his testimony at the suppression

hearing did not constitute perjury because it was not intended to

mislead or to deceive.     The district court’s finding that Do

obstructed justice by falsely testifying regarding a crucial event

linking him to the offense was plausible in light of the record as

a whole and, therefore, was not clearly erroneous.       See United

States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999), cert. denied

528 U.S. 945 (1999).

                                                        AFFIRMED




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