United States v. Lee Vang

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, DIANA E. MURPHY and STEVEN M. COLLOTON (UNPUBLISHED) [3748075] [10-2680]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-2680
___________
United States of America,
Appellee,
v.
Lee Vang,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Nebraska.
*
* [UNPUBLISHED]
*
___________
Submitted: December 13, 2010
Filed: January 25, 2011
___________

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Lee Vang pleaded guilty to possessing with the intent to distribute 500 grams
or more of a mixture or substance containing a detectable amount of
methamphetamine and a mixture or substance containing a detectable amount of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and was sentenced by the
district court1 to 84 months’ imprisonment. Vang appeals, contending that the
sentence is procedurally infirm and substantively excessive. We affirm.

1

The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

Appellate Case: 10-2680

Page: 1

Date Filed: 01/25/2011 Entry ID: 3748075

Vang and his co-defendant, Yer Yang, were stopped on Interstate 80 in
Cheyenne County, Nebraska, for a traffic violation. During the stop, a drug detecting
canine circled the vehicle and indicated that drugs were present. The subsequent
search yielded approximately 8.5 pounds of marijuana and a mixture or substance
containing more than 150 grams of methamphetamine.
The district court concluded that Vang was eligible for the “safety valve”
provisions of the U.S. Sentencing Guidelines. Accordingly, it calculated his base
offense as level 29 with a criminal history category I, for a Guidelines range of 87 to
108 months’ imprisonment. The government requested a sentence within this
recommended range; Vang sought a sentence of no more than 60 months’
imprisonment. The district court sentenced Vang to a term of 84 months’
imprisonment, followed by five years of supervised release and a $100 special
assessment. On appeal, Vang contends that this sentence exceeds that which is
sufficient and necessary to comply with the factors Congress set out in 18 U.S.C. §
3553(a)(2) and that it pays unnecessary deference to the Guidelines.
We review appeals from sentencing decisions for abuse of discretion. United
States v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008). We undertake a two-part
inquiry. First, we ensure that the district court “did not commit significant procedural
error, such as miscalculating the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain why a sentence was chosen.”
Id. (citation omitted). If the decision is procedurally sound, we next consider the
substantive reasonableness of the sentence imposed. Id.
We conclude that the court committed no procedural error in sentencing Vang.
At the sentencing hearing, Vang’s counsel argued that 60 months’ imprisonment
would constitute an adequate sentence, noting that it was Vang’s first drug-related
offense, that he was an educated person and could become a productive member of
-2-

Appellate Case: 10-2680

Page: 2

Date Filed: 01/25/2011 Entry ID: 3748075

society, and that he had strong family ties that would help him become that. Vang
apologized for his actions and explained that he had learned much more about the
severity of methamphetamine’s effects than he had known at the time. The district
court weighed this argument and testimony against the seriousness of the offense and
the magnitude of the social problems associated with methamphetamine use. A
sentencing court need not “categorically rehearse” each of the § 3553(a) factors so
long as it is clear from the record that the court considered those factors. United
States v. Hernandez, 518 F.3d 613, 616 (8th Cir. 2008) (citation and quotation
omitted). We are more than satisfied that the district court met that standard here, for
the transcript makes clear that the district court considered the § 3553(a) factors in
imposing the sentence it did.
Vang’s sentence was also substantively reasonable. We find no merit to
Vang’s claims that the sentence is excessive or that the district court was
unnecessarily deferential to the Guidelines. Indeed, we have previously observed that
when a sentencing court imposes a sentence more lenient than that called for by the
Guidelines, “it is nearly inconceivable that the court abused its discretion in not
varying downward still further.” United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009). So too here. Given the recommended range and the surrounding
circumstances, a sentence of 84 months’ imprisonment is substantively reasonable and
the district court did not abuse its discretion in imposing it.
The judgment is affirmed.
______________________________

-3-

Appellate Case: 10-2680

Page: 3

Date Filed: 01/25/2011 Entry ID: 3748075