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United States of America v. Biao Huang

August 8, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BIAO HUANG, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of the Northern Mariana Islands William Alsup, District Judge, Presiding D.C. No. 1:09-cr-00014-WHA-1

The opinion of the court was delivered by: Callahan, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted June 13, 2012-Honolulu, Hawaii

Before: Mary M. Schroeder, Consuelo M. Callahan, and N. Randy Smith, Circuit Judges.

Opinion by Judge Callahan

8999

OPINION

Defendant-Appellant Biao Huang, a native and citizen of China residing in the Commonwealth of the Northern Mariana Islands, pleaded guilty to conspiracy and possession with intent to distribute various quantities of methamphetamine, including one quantity of more than 900 grams. The district court sentenced Huang to 135 months in prison. Huang appeals his sentence on the ground that he was the victim of sentencing entrapment, which "occurs when a defendant is predisposed to commit a lesser crime, but is entrapped by the government into committing a crime subject to more severe punishment." United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009). Huang also argues that he should not have received, pursuant to U.S.S.G. § 2D1.1(b)(5), a two-point enhancement for an offense involving the importation of a controlled substance, and that his sentence is substantively unreasonable.

Finding no error in Huang's sentencing, we affirm the district court. Huang was not subject to sentencing entrapment because Huang had the intent and capacity to produce more than 900 grams of methamphetamine and acted on that intent without hesitation. We join the Fifth and Eleventh Circuits in holding that a defendant need not be personally involved in the importation of illegal drugs to receive the § 2D1.1(b)(5) importation enhancement; it is enough for the government to show that the drugs were imported. Finally, Huang's sentence was reasonable even though it was the same as his co-defendant's sentence; the co-defendant cooperated with the government while Huang did not.

BACKGROUND

In 2008, a confidential source on Saipan, in the Northern Mariana Islands, advised agents of the Drug Enforcement Administration ("DEA") that he could purchase large quantities of "ice," or mostly pure methamphetamine, from Chinese nationals residing in the Islands. At the direction of the DEA and other government agents, the confidential source contacted one of these nationals, who directed him to a "source of supply" named Sheng Lian. Lian and Huang had gone to school together in China, and later worked for a company owned by Huang's father, before relocating to a shared residence in Saipan.

On Huang's assurances that the confidential source was trustworthy, Lian met the confidential source and sold him 9.7 net grams of methamphetamine for $5,000. A few months after this initial sale, the confidential source contacted Huang to make another controlled buy. Huang then sold the confidential source 4.8 net grams of methamphetamine for $1,500. A couple of months later, Huang and Lian sold the confidential source another 5.8 net grams of methamphetamine for $1,500.

A few months after these initial transactions, the confidential source contacted Lian and explained that his (the source's) boss wanted to purchase large quantities of methamphetamine. Undercover agents and the confidential source then met with Lian, who agreed to sell one of the agents 900 grams of methamphetamine for $250,000. Lian also stated he would be willing to meet the agent's request for ten kilograms of methamphetamine for delivery in American Samoa and 50 kilograms for delivery in Hawaii during an initial six-month period. Lian explained that his boss had been trafficking methamphetamine in Saipan for twelve years, and that his boss was the biggest dealer on the island.

Two days after this meeting, one of the undercover agents and the confidential source met with Huang and Lian. Lian explained that their boss had agreed to the large shipments to American Samoa and Hawaii and that everything was "ready to go" for the sale of the 900 grams. The parties dispersed, after which Huang called the confidential source and said that he (Huang) and Lian were ready. The parties met in a hotel room, ...


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