USA v. Christopher Aucoin, et al

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USA v. Christopher Aucoin, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 2, 2010 N o . 09-30319 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C H R I S T O P H E R AUCOIN, also known as C; BOUNTHONG XAPHILOM, a ls o known as Nick; MISAY CHANDAKHAM; DUC HUU PHAM, D e fe n d a n t s - Appellants

A p p e a l from the United States District Court for the Western District of Louisiana N o . 6:07-CR-60037-8

B e fo r e JOLLY, SMITH, and OWEN, Circuit Judges. P E R CURIAM:* I n this appeal, four defendants convicted of participating in a conspiracy t o distribute methamphetamine in the New Iberia, Louisiana, area ask us to r e v e r s e their convictions. They bring a variety of challenges to their convictions a n d sentences, which we consider defendant by defendant, proceeding in a lp h a b e t ic a l order. After reviewing the trial record, briefs, and oral arguments

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

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No. 09-30319 r e l a t in g to each defendant, we affirm the judgment of the district court as to e a c h defendant. I. W e begin with a recitation of the facts based on the evidence presented at t r ia l, drawing reasonable inferences in favor of the jury's verdict. By 2002, Bounthong Xaphilom was manufacturing methamphemine, c o m m o n ly known simply as "meth," in a shed behind his home in New Iberia and s e llin g it through at least one local dealer, Eng Champkungsing. On February 2 6 , Iberia Parish sheriff's deputies went to Xaphilom's home in the course of in v e s t ig a t in g reports that Xaphilom was involved in meth distribution. They fo u n d him outside the shed, holding money with crystalline powder on it. After h is arrest, Xaphilom gave officers permission to search the shed. Inside, they d is c o v e r e d the shed to be a meth lab, and called in a hazmat team. They also d is c o v e r e d meth buried at various locations on the property, seizing 1,028 grams to ta l. A fte r a state conviction, Xaphilom found himself in jail in Iberia Parish, w h e r e he met Phanut Phonchinda some time in 2002. At some point during t h e ir time together Xaphilom told Phonchinda that he had been in the fourth y e a r of a five-year plan at the time of his arrest. He wanted to unite the Asian g a n g s of southwest Louisiana into a drug-dealing alliance called the Nineteen D r a g o n s , and he told Phonchinda that he planned to resume his plan when he w a s released. In the meantime, Champkungsing continued to sell meth,

o b ta in in g it from sources other than Xaphilom. X a p h ilo m also met a man named Arthur Basaldua in the Iberia Parish jail. Basaldua, who was from California, arrived in 2004. According to Phonchinda, t h e two discussed their experience in the drug business and began plans to work t o g e t h e r . Xaphilom was not the only one talking to Basaldua about drugs. Through phone calls arranged by Dominic Sonemangkhala, Basaldua, while in 2

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No. 09-30319 ja il, contacted various associates, including Duc Pham, regarding the possibility o f selling drugs in Louisiana. These calls often concerned the "construction b u s in e s s " (i.e., the drug trade) and "windshield wipers" (i.e., meth). Sonemangkhala was no stranger to the drug trade or to law enforcement. A

n a r c o t ic s task force--a partnership between local authorities and the FBI--had h ir e d Sonemangkhala as an informant after his arrest on drug charges to help t h e m dismantle the Asian drug trade in southwest Louisiana. As he helped B a s a ld u a contact the outside world, he helped the FBI monitor Basaldua's c o m m u n ic a tio n s . After his release, Xaphilom found himself incarcerated again, this time in B a k e r s fie ld , California. He and Basaldua stayed in touch, however, through the m a il and Sonemangkhala-arranged phone calls. One of Basaldua's letters, dated F e b r u a r y 13, 2006, asked if Xaphilom was "still down with that power move that w e have plan[n]ed out for that world." They also discussed plans to unite after t h e two regained their freedom. In early 2006, after they were both out of jail, t h e y moved into a house on Henry Street in New Iberia, Louisiana, and began s e llin g meth. Whereas Xaphilom manufactured meth before his arrest in 2002, h e and Basaldua now turned to sources in California, including Pham, to supply t h e ir new business. Basaldua generally handled the drugs, while Xaphilom used h is local connections to find customers and dealers. Xaphilom told his former c u s t o m e r and dealer Champkungsing about Basaldua, and Champkungsing p u r c h a s e d from Basaldua on several occasions, selling to support his habit. Xaphilom also contacted a former coworker, Sammy Thibodeaux, another userd e a l e r , to tell him he had the "hook up." When Thibodeaux hesitated to buy fr o m Basaldua, whom he did not know, Xaphilom told him that the only way he w o u ld get any meth was through Basaldua. Thibodeaux began purchasing an e ig h t ball or two each week from Basaldua, using some and selling the rest, p a y in g about $200 each time. Other times, Thibodeaux would make larger 3

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No. 09-30319 p u r c h a s e s , up to a half-pound at a time, costing $8,000. The pair also sold to P h o n c h in d a , whom Xaphilom had told about his Nineteen Dragons ambitions in ja il, seven times over a three-week period before Phonchinda was arrested. Aucoin, who had met Basaldua in jail, also purchased an eight ball a month, u s in g some and selling the rest to fund his habit. A n o t h e r customer was Sonemangkhala, the informant. At a meeting arrange d by Basaldua, Basaldua and Xaphilom agreed to sell and

S o n e m a n g k h a la agreed

to purchase an ounce of meth for $2,000.

Sonemangkhala, as an informant, first purchased an ounce on June 9, 2006, at t h e Henry Street residence. On June 30, he purchased another ounce at Henry S treet. For his third purchase, he traveled to Los Angeles, California, to

p u r c h a s e directly from Pham. He met Pham behind a gas station and purchased t h r e e ounces at a discounted price of $2,400. For each purchase, the FBI gave h im cash immediately before and received the drugs immediately after. A s time went on, Basaldua became increasingly fearful that the FBI was w a t c h in g him. Meth is known to cause paranoia, and like his dealers, Basaldua u s e d the drug frequently. To quell his anxiety, he required female

a c q u a in t a in c e s to empty their purses to make sure they were not wired, and he fo r c e d a coconspirator, Israel Perez, to ingest meth to prove he was not a police o ffic e r . To protect the Henry Street residence, he hired Aucoin to install security c a m e r a s . When that proved unsatisfactory, Xaphilom arranged for Basaldua to s p e n d several nights a week with Misay Chandakham, in her Lafayette, L o u is ia n a , townhouse. In January 2007, Basaldua moved there full- time with h is girlfriend and her children.1 Chandakham was an addict, and he paid her in meth. She also pooled her money with her friends to purchase "party packs" o f meth that they would consume. Finally, after Basaldua paid to bail her out
1

Xaphilom relocated to Dallas, Texas, but he continued to consult with Basaldua on the drug business by telephone.

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No. 09-30319 o f jail after an arrest for passing bad checks, Basaldua made her move out of the t o w n h o m e . He changed the locks and attempted to install a security camera on t h e roof, though he could not get it to work. All through Basaldua's residency, C h a n d a k h a m had paid the rent on time and in full, even though she lacked a job o r any other apparent source of income. T h e conspiracy began to unravel in February 2007. On February 26, B a s a ld u a and Perez were arrested after a high-speed chase in Youngsville, L o u is ia n a . Officers found a bag containing 121 grams of meth, a scale, and a h a n d g u n , all of which had been thrown from the car. Basaldua managed to get o u t of jail, but on March 19 he shot two bail bondsmen. A manhunt involving a p p r o x im a t e ly fifty law-enforcement personnel ensued. Hoping Aucoin could tell t h e m where to find Basaldua, members of the task force went to Aucoin's father's h o m e to ask Aucoin if he could help. Although they received no help from A u c o in , they did see some success, as Aucoin agreed to a meeting two days later t o discuss his relationship with Basaldua. At that meeting, without notice of his M ir a n d a rights, Aucoin gave the task force information that would eventually b e key to his conviction. The task force interviewed other members of the conspiracy and the grand ju r y handed down an indictment on October 11. In addition to the appellants, t h e indictment named Basaldua, Perez, Pham, Champkungsing, Phonchinda, a n d Joseph--all of whom pleaded guilty, and some of whom would testify against t h e ir coconspirators at trial. The indictment charged all of the appellants with o n e count of conspiring to possess meth with the intent to distribute, see 21 U .S .C . §§ 841(a)(1), 846. It also charged Pham with three counts of unlawful use o f a communication facility, see § 843(b). Before trial, Chandakham moved to s e v e r her trial from her coconspirators, but the district court denied the motion. Aucoin moved to suppress his statement to the task force. The district court a s s ig n e d the motion to a magistrate judge, who recommend denying the motion 5

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No. 09-30319 a ft e r an evidentiary hearing. Aucoin did not object, and the district court denied t h e motion on the magistrate's recommendation. The case proceeded to trial. Evidence before the jury consisted primarily o f testimony from members of the task force and coconspirators who had pleaded g u ilt y . At the close of the government's evidence, the appellants moved for ju d g m e n t of acquittal. Aucoin also moved for a severance, though he did not e x p la in the basis. The district court also denied this motion. The jury returned a guilty verdict against the defendants on all counts, and the district court d e n ie d the motions for a judgment of acquittal. Aucoin and Chandakham moved fo r a new trial, and the district court denied those motions. The appellants t im e ly appealed. II. W e first consider Aucoin's appeal. The indictment charged him with p a r tic ip a t in g in the conspiracy and specifically attributed to him one affirmative a c t : installing video surveillance cameras at the Henry Street residence.2 The g o v e r n m e n t argues that it presented evidence showing that his actions s u p p o r t e d the aims of the conspiracy in at least three ways: selling meth, in s t a llin g cameras to protect the Henry Street residence, and selling property t o raise money to get Basaldua out of jail. Although there was other evidence at t r ia l, the record shows that the testimony regarding Aucoin's confession was the m o s t significant evidence against him. In an interview with two members of the t a s k force, he described his relationship with Basaldua. The two met in prison. When they were free, Aucoin purchased an eight ball of meth per month from B a s a ld u a , using some and selling the rest to customers he refused to name. He a ls o admitted installing security cameras at Henry Street in exchange for

The indictment reads, "On or about October 27, 2006, CHRISTOPHER AUCOIN, a/k/a "C", installed video surveillance cameras on ARTHUR BASALDUA'S, a/k/a Yogi, a/k/a Joey, a/k/a Art, a/k/a Artie, a/k/a Leo Perez, a/k/a Joe Perez, House[.]"

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No. 09-30319 a n o t h e r eight ball of meth and selling an amplifier to help raise bail for B a s a ld u a . On appeal, Aucoin raises essentially three challenges, two of which r e la t e to his confession. First, he says the district court should have granted his m o t io n to sever. Second, he says the district court should have suppressed his c o n fe s s io n . Third, he says that, if the confession was admissible, the government fa ile d to present sufficient evidence to corroborate his confession. Reviewing t h e s e arguments in order, we find no error and affirm Aucoin's conviction. A. A u c o in first argues that he is entitled to a new trial because the court s h o u ld have severed his trial from his coconspirators. A defendant must move fo r severance before trial, unless he can show cause why he should be able to file a t a later date. FED. R. CRIM. P. 12 (b)(5) & (f). Here, Aucoin moved for

s e v e r a n c e after the government put on its evidence. Because he makes no a r g u m e n t on appeal why such a delay was justified, he is not entitled to a new t r ia l. United States v. Tolliver, 61 F.3d 1189, 1198-99 (5th Cir. 1995), vacated a n d remanded on other grounds sub nom. Moore v. United States, 519 U.S. 802, 8 0 2 (1996). B. W e turn now to whether Aucoin's confession should have been suppressed. The district court referred the motion to a magistrate judge, who held a s u p p r e s s io n hearing. At the hearing, two members of the task force, Douglas C a r r and Shane Landry, testified for the government, and Aucoin testified on his o w n behalf. The evidence showed that members of the task force went to

A u c o in 's father's house looking for Basaldua after he shot the bail bondsmen on M a r c h 19, 2007. Carr explained that the task force urgently needed help finding B a s a l d u a . Carr also told Aucoin that he was a target of an investigation into m e t h distribution, a crime that carried serious penalties. Aucoin told Carr that h e had heard from Basaldua that evening but did not know where to find him. 7

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No. 09-30319 C a r r and the rest of the task force left soon afterward, but before leaving, Carr t o ld Aucoin that the task force would like to interview him. The task force also le ft with Aucoin's driver's license, which one member had requested but failed t o return. Aucoin arranged a meeting at the office of a lawyer who previously r e p r e s e n t e d him in a personal injury matter. At the meeting were five or six members of the task force, Aucoin, and his la w y e r . The lawyer asked Agent Carr if Aucoin was a suspect in the

in v e s t ig a t io n . After Agent Carr indicated that Aucoin was a target, the lawyer t o ld Aucoin he would be better served by a lawyer familiar with criminal law. Nevertheless, Aucoin was willing to speak to the agents. Carr told Aucoin and t h e lawyer that it would be better to speak without the lawyer present so he c o u l d develop Aucoin as an informant, a condition Aucoin apparently did not p r o t e s t . Although Aucoin wanted to speak to Carr only, Carr told him that such in t e r v ie w s should involve two agents. Aucoin chose Landry to participate in the in t e r v ie w , which was outside so Aucoin could smoke. During the interview, A u c o in was generally cooperative, confessing his involvement in the conspiracy b u t refusing to identify those who purchased meth from him. The three

w it n e s s e s agreed that the task force members never gave him a Miranda w a r n in g . After the hearing, the magistrate recommended denying the motion to s u p p r e s s . The report and recommendation notified Aucoin that failing to object t o the recommendation would result in plain-error review on appeal. Aucoin did n o t object to the recommendation, and the district court denied the motion. Because Aucoin did not ask the district court to reconsider the magistrate's r u lin g , which notified Aucoin of forfeiture for failing to ask for review, we review fo r plain error only. United States v. Francis, 183 F.3d 450, 452 (5th Cir. 1999). For us to consider reversing Aucoin's conviction, Aucoin must show that the m a g is tr a t e 's conclusion that he was not in custody was erroneous, that the error 8

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No. 09-30319 w a s plain, and that the error affected his substantial rights. United States v. S c h e r , 601 F.3d 408, 411 (5th Cir. 2010). Upon such a showing, we have the d is c r e t io n to reverse if we determine "the error seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings." q u o t a t io n s omitted). O n this record, we cannot say that the district court plainly erred. Miranda warnings are necessary only if "a reasonable person in the suspect's p o s it io n would have understood the situation to constitute a restraint on freed o m of movement to the degree which the law associates with formal arrest." United States v. Stevens, 487 F.3d 232, 241 (5th Cir. 2007) (quoting United S ta te s v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc)). As Aucoin p o in ts out, "a statement by a law enforcement officer that an individual is s u s p e c t e d of illegal activity is persuasive evidence" that a suspect is in custody. United States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996). But the totality of t h e circumstances indicates enough voluntariness that any error in the district c o u r t's decision was not plain. It was Aucoin's decision when and where to meet, a n d it was his decision to speak to law enforcement without a lawyer, even after h is lawyer told him he should find a criminal lawyer. Moreover, the interview t o o k place outside at Aucoin's request, where he was free to smoke and evidently fe lt comfortable enough to refuse to answer certain questions. Even assuming t h e district court erred, the error is not plain. We will not reverse on this grou n d. C. A u c o in next challenges the sufficiency of the evidence against him, arguing t h a t the government failed adequately to corroborate his confession. Before a d d r e s s in g that argument, we must address Aucoin's contention that the g o v e r n m e n t 's introduction of evidence tending to prove overt acts not alleged in t h e indictment amounts to a variance between the indictment and proof. We 9 Id. (citations and

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No. 09-30319 h a v e long held that the government's proof is not limited to evidence of the overt a c t s alleged in the indictment. See, e.g., United States v. Wilson, 657 F.2d 755, 7 6 3 (5th Cir. 1981). Accordingly, in considering the sufficiency of the

g o v e r n m e n t 's evidence, we are not limited to evidence concerning Aucoin's a lle g e d installation of the cameras at Henry Street. A s noted above, Aucoin confessed that he bought meth from Basaldua to u s e and sell it; installed cameras at Henry Street; and sold property to raise bail fo r Basaldua. Although confessions can be crucial to a conviction, a conviction c a n n o t stand on the confession alone. Smith v. United States, 348 U.S. 147, 152 (1 9 5 4 ). This rule reflects the reality that defendants sometimes confess to c r im e s they did not commit. Id. When the government offers a defendant's c o n fe s s io n as part of its evidence, it must also offer evidence that "fortifies the t r u t h of the confession." United States v. Deville, 278 F.3d 500, 506 (5th Cir. 2 0 0 2 ) (quoting United States v. Garth, 773 F.2d 1469, 1479 (5th Cir. 1985)). This e v id e n c e does not, however, need to prove every element of the offense, so long a s there is substantial evidence to show the offense was committed and all the e v id e n c e is sufficient for the jury to convict. Id. In this case, the evidence had t o show a conspiracy to possess and distribute meth as defined by 21 U.S.C. §§ 8 4 1 (a )(1 ) and 846. Thus, the government had to prove as to each defendant the e x is t e n c e of an agreement to possess meth with the intent to distribute, that the d e fe n d a n t knew of the agreement, and that the defendant voluntarily p a r tic ip a t e d in the agreement. See United States v. Brito, 136 F.3d 397, 409 (5th C ir . 1998). There is no need for direct evidence; circumstantial evidence may s u ffic e to show the agreement. Id. Evidence that the defendant merely

a s s o c ia t e d with members of the conspiracy is not enough, but such associations c a n be circumstantial evidence of a conspiracy. See United States v. WilliamsH e n d r ic k s , 805 F.2d 496, 503 (5th Cir. 1986).

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No. 09-30319 A review of the record discloses sufficient corroboratory evidence. First, p h o n e records showed 105 phone calls between Basaldua and Aucoin from D e c e m b e r 18, 2006, to February 17, 2007--almost two per day--demonstrating a close relationship between the two. Basaldua's girlfriend at the time of the s h o o t in g s also testified that she went to Aucoin's home to try to get money for B a s a ld u a 's bail, showing that people close to Basaldua expected Aucoin to help p a y to get Basaldua out of jail. In addition, testimony from Perez that Aucoin in s t a lle d cameras at Henry Street and FBI surveillance photographs of the in s t a lla t io n support Aucoin's admission that he installed the cameras for B a s a ld u a . Futher testimony attested to Basaldua's paranoia, and the jury could r e a s o n a b ly infer that someone who regularly spoke to Basaldua and had a r e la t io n s h ip with him was at least generally aware of Basaldua's activities and h is fear of law-enforcement detection. Taken together, this evidence supports a n inference that he installed the cameras to protect Basaldua's illegal drug a c tiv it i e s . In view of this corroboratory evidence, the jury had sufficient

e v id e n c e to conclude he joined Basaldua in the conspiracy to distribute meth. Finding no error, we affirm Aucoin's conviction. III. N e x t, we consider Chandakham's appeal. Chandakham's townhouse is w h e r e Basaldua moved as he became increasingly concerned with his safety, e v e n t u a lly displacing Chandakham. She makes two arguments against her c o n v ic t io n : first, that the district court should have granted her motion for a s e p a r a t e trial, and second, that the evidence before the jury was insufficient to s u p p o r t her conviction. In addition, she argues that her ten-year mandatory m in im u m sentence violates the Eighth Amendment. a ffir m . Finding no error, we

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No. 09-30319 A. Chandakham first argues that the district court should have severed her t r ia l. Unlike Aucoin, Chandakham presented her motion at the appropriate t im e , so we review for abuse of discretion. United States v. Sudeen, 434 F.3d 3 8 4 , 387 (5th Cir. 2005). Generally, judicial economy calls for trying

c o c o n s p ir a t o r s together and "the mere presence of a spillover effect does not o r d in a r ily warrant severance." United States v. Posada-Rios, 158 F.3d 832, 863 (5 t h Cir. 1998) (quotations omitted). To merit reversal, the defendant must show "clear, specific, and compelling prejudice that resulted in an unfair trial." Id. She argues that such prejudice existed in two ways: first, that the evidence r e g a r d in g bad acts of her coconspirators overwhelmed the jury's ability to c o n s id e r separately the evidence against her, and second, that she was unable t o call key witnesses to testify on her behalf. We find no error. R e g a r d in g the first, although Chandakham is certainly correct that the lio n 's share of evidence concerned other members of the conspiracy, that s p illo v e r was not out of the mainstream of conspiracy cases. Especially in the lig h t of the district court's instruction to the jury to consider the evidence s e p a r a t e l y as to each defendant, we think the "jury could . . . be expected to c o m p a r t m e n t a liz e the evidence as it related to separate defendants." United S ta te s v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987). Similarly, Chandakham h a s not demonstrated a need for a separate trial to obtain exculpatory testimony. To prevail, she must show: "(1) a bona fide need for the testimony; (2) the s u b s t a n c e of the testimony; (3) its exculpatory nature and effect; [and] (4) that t h e co-defendant would in fact testify if severance were granted." United States v . Villarreal, 963 F.2d 725, 732 (5th Cir. 1992). Regarding the need for a s e v e r a n c e to obtain exculpatory testimony, Chandakham's motion stated only: " C o u n s e l for your defendant believes there is potential exculpatory evidence from a co-defendant which will not be available if the co-defendant asserts his 5th 12

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No. 09-30319 A m e n d m e n t rights at trial." This brief statement failed to argue any of the four n e c e s s a r y factors. On appeal, her brief and oral argument also omitted any s p e c ific argument on the relevant factors. Accordingly, we will not reverse for fa ilu r e to grant a severance. B. W e next consider Chandakham's claim of the insufficiency of the evidence. Our analysis of Aucoin's sufficiency of the evidence argument contains the r e le v a n t legal standard for conspiracy to distribute meth, so we will not repeat it here. Chandakham argues there was no evidence sufficient to allow the jury t o infer an agreement to participate in the conspiracy to distribute meth. We d is a g r e e . Perez, a coconspirator, testified that "Arthur [Basaldua] would give M is a y methamphetamine . . . so she could pay the rent," i.e., from sales of meth. Perez further testified that Chandakham became angry when someone she knew s t a r t e d purchasing directly from Basaldua, suggesting that the friend was also h e r customer who earlier might have been purchasing meth from her. Given her u n e m p lo y m e n t and her landlord's testimony that her rent was always paid on t im e , the jury reasonably could infer an agreement that Basaldua would give C h a n d a k h a m meth, which she would sell to pay the rent. The jury had more t h a n enough evidence to conclude that Chandakham joined the conspiracy to d is t r ib u t e meth. C. C h a n d a k h a m also says that her ten-year mandatory minimum sentence v io la t e s her Eighth Amendment right to be free from cruel and unusual p u n is h m e n t. We disagree. The Eighth Amendment embraces a "narrow

p r o p o r t io n a lity principle," that tolerates severe sentences so long as they are not " g r o s s ly disproportionate." Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1 9 9 1 ) (Kennedy, J., concurring in part and concurring in the judgment). We c a n n o t say that Chandakham's sentence is so grossly disproportionate that it is 13

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No. 09-30319 u n c o n s t it u t io n a l in the light of other severe sentences we have approved. See, e .g ., United States v. Cathey, 259 F.3d 365, 368-69 (5th Cir. 2001). We affirm her s e n te n ce .

IV . P h a m raises two challenges to his sentence, neither of which merits r e v e r s a l. First, he argues that the district court violated his Sixth Amendment r ig h t s by finding that he possessed a gun in the commission of his crime and a p p ly in g U.S.S.G. § 2D1.1(b)(1). He says the jury, not the court, should have m a d e the factual finding. "Booker contemplates that, with the mandatory use of t h e Guidelines excised, the Sixth Amendment will not impede a sentencing judge fr o m finding all facts relevant to sentencing." United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). There is no error. Next, he argues that his counsel was in e ffe c t iv e in failing to object to the amount of drugs used to calculate his s e n te n c e . The record contains insufficient to evaluate that claim on direct a p p e a l. United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010). V. W e turn now to Xaphilom's arguments against his conviction and sentence. We should reverse his conviction, he argues, because the evidence at trial proved t w o conspiracies, whereas the indictment alleged only one. Regarding his

s e n t e n c e , he makes two arguments. First, if we find that two conspiracies e x is t e d but decline to reverse his conviction, he says he at least deserves to be s e n te n c e d only for the conduct relating to the later activity. Second, he argues t h a t the district court erred by attributing his brother's conviction to him, c a u s in g it to deny his request for a variance. After a review of the record and c o n s id e r a t io n of the briefs and oral argument, we find no error.

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No. 09-30319 A. W e first consider Xaphilom's argument that the proof at trial varied from t h e indictment. Specifically, he argues that whereas the indictment charged o n ly one conspiracy, the evidence presented at trial showed two. He contends that his 2002 conduct--manufacturing meth for distribution in New I b e r ia -- in v o lv e d a conspiracy different from his later activities with Basaldua. We determine whether there is a variance by comparing the proof at trial to the a lle g a t io n s in the indictment. United States v. Mitchell, 484 F.3d 762, 769 (5th C ir . 2007). The number of conspiracies is a question of fact, and in the face of a ju r y 's determination that only one conspiracy existed, we will find multiple c o n s p ir a c ie s only if the jury lacked sufficient evidence to conclude the activities w e r e part of a single conspiracy. Id. In evaluating the evidence, we consider p r in c ip a lly three factors: the purposes, means, and composition of the c o n s p ir a c y . Id. at 771. In addition to a variance, Xaphilom would have to show p r e ju d ic e for us to vacate his conviction. Id. We need not, however, reach the is s u e of prejudice, because we conclude that sufficient evidence exists for the ju r y to conclude there was a single, continuing conspiracy to profit from the sale o f meth in the New Iberia, Louisiana, area. I n 2002, Xaphilom was manufacturing meth in a shed behind his house on a fairly significant scale, as evidenced by seizure of more than a kilogram of the d r u g at his arrest. Although the government did not introduce much evidence a s to the character of the conspiracy in 2002, Champkungsing, who pleaded g u ilt y to the conspiracy charged in this case, told the jury he both consumed and s o ld meth obtained from Xaphilom both before and after Xaphilom's in c a r c e r a t io n , demonstrating a clear connection between the 2002 conduct and t h e conduct after Xaphilom got out of jail. Once in jail, Xaphilom recruited o t h e r s to join his meth distribution ring after his release. Phonchinda testified t h a t Xaphilom told him of his incomplete plan to create a Nineteen Dragons 15

Case: 09-30319

Document: 00511190936

Page: 16

Date Filed: 08/02/2010

No. 09-30319 g a n g to dominate the meth trade in southwest Louisiana and that he planned t o continue dealing meth after his release. Xaphilom's pitch seems to have w o r k e d , as Phonchinda bought drugs from the conspiracy after his release. Xaphilom's most significant jailhouse recruit, of course, was Basaldua, who h e lp e d to bring other new members to the conspiracy and provided the c o n n e c t io n s to import meth from California. Once released, Xaphilom

r e c o n n e c t e d with his old dealer, Champkungsing, and resumed dealing through h im , but now with Xaphilom's jail-mate, Basaldua, as the primary contact in this c o n t in u in g and growing arrangement. The evidence sufficiently establishes a s in g le conspiracy, both alleged and proved, and we affirm Xaphilom's conviction. B. W e next consider Xaphilom's sentence. We review sentences for abuse of d is c r e t io n , reviewing factual findings for clear error and application of the g u id e lin e s de novo. United States v. Valencia, 600 F.3d 389, 433 (5th Cir. 2010) (p e r curiam). We will not reverse for harmless error. Id. Because we have d e t e r m in e d that the jury had sufficient evidence to conclude that there was only o n e ongoing conspiracy, we address only briefly Xaphilom's argument that the t h e district court should not have considered the drugs seized in 2002. Because p o s s e s s io n of those drugs was part of the conspiracy, the district court did not err in considering those drugs to sentence Xaphilom. We turn now to his second a rg u m en t. Xaphilom's argument that he should get a new sentence concerns a 1999 c o n v ic t io n for possession of marijuana and drug paraphernalia. His presentence r e p o r t attributed the conviction to him, but Xaphilom contends it belongs to his b r o t h e r , Bounnong. He acknowledges that the sentence made no difference to h is criminal history category, but he says that the district court might have g r a n t e d his request for a variance had it not concluded that the 1999 conviction w a s his. The record, briefs, and oral arguments convince us that the district 16

Case: 09-30319

Document: 00511190936

Page: 17

Date Filed: 08/02/2010

No. 09-30319 c o u r t did not clearly err in rejecting Xaphilom's argument, and even if it did, the e r r o r would be harmless. As noted above, the presentence report attributed the conviction to X a p h ilo m . The district court is permitted to rely on the report unless the

d e fe n d a n t shows it is materially unreliable. United States v. Ford, 558 F.3d 371, 3 7 7 (5th Cir. 2009). Xaphilom filed an objection to the report, stating that he " d [id ] not think he pled to this offense." At the sentencing hearing, he provided a n uncertified record from the Lafayette Parish Clerk of Court that showed the s o c ia l security number and date of birth associated with the plea matched those o f Xaphilom's brother, Bounnong. The probation officer explained that the p r e s e n t e n c e report attributed the conviction to Xaphilom because it was in his n a m e and the address also matched. The district court asked Xaphilom if he had a n y other evidence, but he did not. Having reviewed the record, we cannot say t h a t Xaphilom carried his burden to show that the presentence report was m a t e r ia lly unreliable, so we find no clear error. Moreover, the record discloses n o reason to believe that the district court would have granted a variance had it not concluded the conviction belonged to Xaphilom. Consequently, even if the d is t r ic t court had erred, that error would have been harmless. Accordingly, X a p h ilo m 's sentence stands. V I. I n this appeal, we have thoroughly considered the trial record, the briefs a n d the oral arguments. We are satisfied that the district court did not commit e r r o r , and certainly not reversible error, so the judgment is, in all respects, A F F IR M E D .

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