United States v. Truong Mai Vo, Also Known as Jimmy Vo

Citations: 425 F.3d 511; 2005 U.S. App. LEXIS 21611; 2005 WL 2456947Docket: 05-1722

Court: Court of Appeals for the Eighth Circuit; October 6, 2005; Federal Appellate Court

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Truong Mai Vo, also known as Jimmy Vo, was convicted by a jury of conspiracy to distribute controlled substances, specifically for distributing drugs within 1,000 feet of a playground and a school. He received a 156-month prison sentence and is appealing for resentencing on the grounds of sentencing entrapment and manipulation. 

The case originated in August 2003 when Iowa law enforcement was informed by New York officials about significant shipments of MDMA (Ecstasy) heading to Des Moines. A confidential informant identified Vo, leading to eight undercover purchases, in which he sold 4 ounces of cocaine, 1,045 Ecstasy pills, and marijuana for a total of $13,400. The undercover agent's objective was to uncover the drug source and identify other participants in the distribution network.

As part of "Operation Candy Box," a large-scale drug operation, authorities executed thirty-five searches in the U.S. and fifty in Canada on March 31, 2004, resulting in the seizure of over $2.8 million in cash, thousands of Ecstasy tablets, weapons, and vehicles, along with the arrest of 130 individuals. At Vo's home, officers found 797 Ecstasy tablets, cocaine, marijuana, and a cutting agent.

Vo and four others were indicted for conspiracy to distribute Ecstasy, cocaine, and marijuana. He faced additional charges related to drug distribution near a playground and a school, while a charge for distributing Ecstasy to a minor was dismissed prior to trial. The jury convicted him on the conspiracy and distribution counts but acquitted him on a firearm charge. During deliberations, the jury confirmed that 100 kilograms or more of marijuana and 5 kilograms of cocaine were involved in the conspiracy and foreseeable to Vo, but did not assess the foreseeability of the quantity of Ecstasy involved.

Vo was sentenced following the Supreme Court's decision in United States v. Booker, with the district court determining his responsibility for significant quantities of drugs: 35,700 Ecstasy pills, 11.25 kilograms of cocaine, and over 100 kilograms of marijuana, resulting in a base offense level of 34. His arguments to limit his responsibility based on specific purchases and jury findings were rejected. A one-level enhancement for proximity to a protected location was applied, but enhancements for firearm possession and role in the offense were declined. Vo's total offense level of 35 and criminal history category I led to an advisory guideline range of 168 to 210 months, but he received a sentence of 156 months after the court considered his background and cooperation attempts.

On appeal, Vo contends that his sentence resulted from sentencing entrapment and manipulation. Although he did not raise these arguments at the district court level, the government did not assert a waiver of these claims. Therefore, the appellate court chose to address them under plain error review. To establish plain error, Vo must demonstrate an error that is clear, affected his substantial rights, and seriously undermined judicial integrity.

Vo's claims focus on alleged governmental conduct during the investigation that led to an increased sentence. He posits that if a defendant predisposed to a lesser offense is entrapped into committing a greater one, it may serve as a defense for sentencing entrapment. Conversely, sentencing manipulation examines whether the government prolonged the investigation to enhance the defendant's sentence. However, this defense is weakened if evidence shows that undercover purchases were made to investigate the criminal enterprise's scope. Vo also references U.S.S.G. D1.1, cmt. 12, which allows for a sentence reduction if a defendant can show they did not intend to provide, or were not capable of providing, the agreed-upon quantity of drugs.

Vo was held accountable for 35,700 Ecstasy pills, 11.25 kilograms of cocaine, and over 100 kilograms of marijuana, which were deemed reasonably foreseeable quantities linked to the conspiracy, rather than the smaller amounts sold to an undercover officer. The district court reviewed evidence of the undercover agent's multiple purchases aimed at uncovering the larger conspiracy and Vo's established intent to sell significant quantities of drugs, as corroborated by testimonies from his coconspirators. Vo did not adequately argue that sentencing manipulation or enhancement applied, as his sentence was determined by his involvement in the conspiracy rather than the limited drug quantities sold to the undercover agent. Furthermore, there was substantial evidence of Vo's predisposition to commit these offenses, and the transactions yielded valuable information regarding other coconspirators. The court found no plain error or any error in Vo's sentence and affirmed the district court's judgment.