                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0428n.06
                             Filed: July 17, 2008

                                             No. 05-1857

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
CHANH CHAN LAO,                                    )    EASTERN DISTRICT OF MICHIGAN
                                                   )
        Defendant-Appellant.                       )




        Before: ROGERS, COOK, and MCKEAGUE, Circuit Judges.


        COOK, Circuit Judge. After a jury found Chanh Chan Lao guilty of conspiracy to import

and distribute Ecstasy from Canada to Michigan, the district court sentenced him to a 240-month

prison term. Lao argues that this sentence is procedurally unreasonable because the district court,

in adopting the jury’s findings as to both drug quantity and Lao’s role in the offense, violated Federal

Rule of Criminal Procedure 32(i)(3)(B)’s requirement that a court articulate independent findings

on “disputed” or “controverted matter[s].” We disagree and affirm.


                                                   I.




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No. 05-1857
United States v. Lao


       On September 22, 2003, a grand jury returned an indictment charging Lao and codefendant

Patrick Chapin with conspiring to possess, distribute, and import Ecstasy in violation of 21 U.S.C.

§§ 841, 846, 952, 960, and 963 (Count 1); importing Ecstasy in violation of 21 U.S.C. §§ 952, 960,

and 18 U.S.C. § 2 (Counts 5–13, 15); and using a telephone to facilitate a conspiracy to import and

distribute Ecstasy in violation of 21 U.S.C. §§ 841, 843, 952, 960, and 963 (Counts 26–29).


       Although a successful Rule 29 motion acquitted Lao on Count 7, a jury found him guilty on

the remaining counts. In a special verdict, the jury found that the government proved beyond a

reasonable doubt that: (1) under Count 1, Lao was responsible for at least 600,000 Ecstasy tablets,

or 60 kilograms of Ecstasy; and (2) Lao organized or led a conspiracy with five or more participants.

JA 81–82.


       The presentence report (“PSR”) assigned Lao a base offense level of 38 based on the jury’s

finding that Lao was accountable for 60 kilograms of Ecstasy. U.S.S.G. § 2D1.1(c)(1). The PSR

also recommended a four-level increase based on the jury’s finding that Lao organized or led a

criminal activity with five or more participants, id. § 3B1.1(a), and a two-level increase for

obstruction of justice based on Lao’s threats to two Government trial witnesses, id. § 3C1.1. In sum,

the PSR calculated Lao’s total offense level to be 44. Given Lao’s category I criminal history, the

PSR determined that the Guidelines recommended life imprisonment. Lao objected to the PSR.




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United States v. Lao


       In a sentencing memorandum, the Government argued for a life sentence, or, alternatively,

a sentence of at least 360 months without the two-level increase for obstruction of justice. The

memorandum further stated:


       It is the position of the government that sentencing factors have to be determined by
       the court and not the jury. The government therefore requests that the court make
       independent determinations of the sentencing factors that are applicable to the
       circumstances of this case. While the court could be guided by the decision of the
       jury, the government believes the court must make its own findings.


JA 126–27.


       At the sentencing hearing, without making independent factual findings on the record, the

court explicitly adopted the jury’s special verdict with respect to both drug quantity and Lao’s role

in the offense. Declining to impose a two-level enhancement for obstruction of justice, the court

determined the applicable Guidelines range for an offense level of 42 to be between 360 months and

life imprisonment. The district court stated:


              The jury determined that Mr. Lao was responsible for Ecstasy distribution
       amounting to [30,000] kilograms of marijuana equivalence, which yields a base
       offense level of 38 pursuant to Section 2D1.1C1.
               The jury also made a determination that the defendant was an organizer or an
       organization that consisted of five or more individuals. And under Section 3B1.1A,
       four levels would be added. The court adopts those findings as its own.


JA 157–58.




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United States v. Lao


       After calculating the Guidelines range, the court considered the proportionality and

uniformity of the sentence as counseled by 18 U.S.C. § 3553(a). Observing that other members of

the conspiracy received much lower sentences,1 the court declared:


       The sentences which these other individuals received, I can’t say I would have given
       myself. Of course, I have not had the benefit of those presentence reports or received
       information. But the court is confronted with a circumstances in which to apply
       some sense of proportionality and uniformity, I must deal with sentences that I
       believe are likely too lenient.


JA 168. Accounting for these lower sentences, the court varied Lao’s sentence downward from the

Guidelines range by 120 months, committing Lao to concurrent terms of 240 months on Counts 1,

5, 6, 8–13, and 15; and 48 months for Counts 26–29. Lao timely appealed.


                                                  II.


       Lao raises a single issue for our review. Specifically, he contends that his sentence is

procedurally unreasonable because the district court violated Federal Rule of Criminal Procedure

32(i)(3)(B) by adopting the jury’s special verdict as to the quantity of Ecstasy attributable to Lao and

Lao’s role in the offense. See Gall v. United States, 128 S. Ct. 586, 597 (2007) (requiring an



        1
        Chapin was sentenced to fourteen years in prison on charges of conspiracy to import a
controlled substance. JA 168. In separate but related cases, Adam Pope, Andrew Goldstein, and
Daniel Wurster were sentenced to three years of probation each after they individually pleaded guilty
on charges of conspiracy to import a controlled substance. Shawn Hamlin was sentenced to twelve
months in custody with two years of supervised release after Hamlin pleaded guilty to the same
charges. JA 556.

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United States v. Lao


appellate court to “ensure that the district court committed no significant procedural error”). Rule

32(i)(3)(B) provides that, at sentencing, the court “must—for any disputed portion of the presentence

report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not consider the matter

in sentencing.” Because Lao objected to the PSR’s findings, he argues that both the drug quantity

and his role in the offense are “disputed” or “controverted matter[s]” that required the sentencing

judge to make independent findings. Reviewing de novo, we reject this argument. See United States

v. White, 492 F.3d 380, 414 (6th Cir. 2007).


       As a threshold matter, Lao’s failure during sentencing to object on the basis of Rule

32(i)(3)(B) precludes him from raising the issue now, absent plain error. United States v. Vonner,

516 F.3d 382, 385 (6th Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir.

2004).2 A “plain error” occurs where (1) an error occurred in district court (2) that was plain, (3)

affected substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Vonner, 516 F.3d at 386; Bostic, 371 F.3d at 873; see also United States v.




       2
         Not only did the district judge ask whether the defense objected to the court’s Guidelines
range determination, he specifically inquired: “Just to make the record clear, this is the time I’m
inviting elocution [sic], do you have any other procedural matters with respect to the guidelines
issue?” Defense counsel made no response. JA 160–61. By not raising the Rule 32(i)(3)(B) issue
during sentencing, Lao subjects his appeal to plain error review. White, 492 F.3d at 415; see also
United States v. Atencio, 476 F.3d 1099, 1106 (10th Cir. 2007) (en banc) (applying plain error
review “despite prior submission of a written objection”).

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No. 05-1857
United States v. Lao


Atencio, 476 F.3d 1099, 1106 (10th Cir. 2007) (en banc). We conclude that Lao fails to demonstrate

any error, plain or not, because the court satisfied Rule 32(i)(3)(B) in adopting the jury’s findings.


       Lao’s primary support is United States v. Solorio, 337 F.3d 580 (6th Cir. 2003), where this

court stated that after a criminal defendant disputes the findings of a presentence report, the

sentencing court “may not merely summarily adopt the factual findings in the presentence report or

simply declare that the facts are supported by a preponderance of the evidence.” Id. at 598 (internal

quotation marks omitted). The main obstacle to Lao’s position is that in order for this panel to

vacate his sentence and remand, we must accept that “there is no real difference between accepting

a presentence report’s recommendations and accepting a jury’s special verdict findings, for purposes

of Rule 32.” Appellant’s Br. at 14–15. That argument is without merit.


       The analogy between a jury’s special verdict and the factual findings recited in a presentence

report is inapposite because while the recommendations of a probation officer do not bind a

sentencing court, the court “cannot rely on a finding that directly conflicts with the jury’s verdict.”

United States v. Cockett, 330 F.3d 706, 711 (6th Cir. 2003) (emphasis added); see also United States

v. Reed, 264 F.3d 640, 648 (6th Cir. 2001) (holding that the district court could not depart below the

applicable Guidelines range on the basis of a finding that conflicted directly with the jury’s verdict).

The jury in Lao’s case found beyond a reasonable doubt that Lao was accountable for over 600,000

tablets (or 60 kilograms) of Ecstasy, yielding a base offense level of 38, and that Lao led or

organized a conspiracy involving five or more participants, yielding a four-level enhancement. The


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United States v. Lao


invocation of Rule 32(i)(3)(B) is inappropriate here. Rule 32(i)(3)(B) ensures an accurate sentence

and record by requiring a court to rule on disputed matters, and thus applies more directly to

situations where “the defendant pled guilty and the court lacked the advantage of having observed

a trial.” United States v. Vandeberg, 201 F.3d 805, 810 (6th Cir. 2000); see also United States v.

Clark, 254 F. App’x. 528, 536 (6th Cir. 2007). In situations like this, where the jury’s special verdict

included findings based on a beyond-a-reasonable-doubt standard, and all involved viewed the same

evidence and heard the same witnesses, a sentencing judge complies with Rule 32(i)(3)(B) by

adopting the jury’s special verdict. Cockett, 330 F.3d at 711; United States v. Grant, No. 07-10814,

2008 WL 44481, at *4 (11th Cir. Jan. 3, 2008) (per curiam); United States v. Sanchez-Ordaz, 225

F. App’x. 456, 458 (9th Cir. 2007).


        In sum, Lao’s analogy fails because he offers no dispositive holding that suggests that a

district court must make an independent judicial finding on a sentencing fact that the jury necessarily

found beyond a reasonable doubt. The district court did not err under Rule 32(i)(3)(B)—much less

plainly err—by adopting the jury’s findings with respect to drug quantity and Lao’s role in the

offense.


                                                  III.


        The district court properly resolved all disputes under Rule 32(i)(3)(B) by adopting the jury’s

findings. Lao’s contention to the contrary is meritless, so we affirm.




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