United States v. Xi Andy Lieng

548 F. App'x 397

9th Cir.

2013

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Docket

Sukhvinder Singh Pelia v. Board of Immigration Appeals

United States Court of Appeals, Ninth Circuit

397

Before: CANBY, TROTT, and THOMAS, Circuit Judges.

OIL, Claire Workman, Trial, DOJ—U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

MEMORANDUM **

Sukhvinder Singh Pelia, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). We deny the petition for review.

The BIA did not abuse its discretion in denying Pelia’s motion to reopen because Pelia did not show prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (the BIA may deny a motion to reopen for failure to establish a prima facie case for the underlying relief sought); INS v. Elias-Zacarias, 502 U.S. 478, 481-83, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (fear of persecution must be on account of a protected ground, and petitioner must provide some evidence of persecutor’s motive).

PETITION FOR REVIEW DENIED.

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UNITED STATES of America, Plaintiff-Appellee, v. XI ANDY LIENG, aka Andy Lieng, aka Andy Xi Lieng, Jr., Defendant-Appellant.

No. 12-10429.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2013. Filed Dec. 5, 2013.

Before: THOMAS and RAWLINSON, Circuit Judges, and DUFFY, District Judge.*

Karen A. Escobar, Yasin Mohammad, USF-Office of the U.S. Attorney, Fresno, CA, for Plaintiff-Appellee. Katherine L. Hart, Law Offices of Katherine L. Hart, Fresno, CA, for Defendant-Appellant.

MEMORANDUM **

Xi “Andy” Lieng, a Vietnam native, appeals his jury conviction and sentence imposed for conspiring to manufacture, distribute and possess with the intent to distribute marijuana, and manufacturing marijuana. We presume the parties’ familiarity with the facts of the case and proceedings below. This Court has jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s decision.

I. The Statutory and Constitutional Right to a Courtroom Interpreter

The use and availability of interpreters in the courtroom is a matter within the trial court’s discretion. United States v. Lim, 794 F.2d 469, 471 (9th Cir.1986). A district court’s ruling on the use of a courtroom interpreter should be reversed only for clear error. Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir.1994). The Court Interpreters Act (“CIA”) requires that “[t]he presiding judicial officer ... shall utilize the services of [a] certified interpreter ... in judicial proceedings instituted by the United States, if the presiding judicial officer determines on such officer’s own motion or on the motion of a party that such party (including a defendant in a criminal case) ... speaks only or primarily a language other than the English language.” 28 U.S.C. § 1827(d)(1)(A). Lieng made no mention of his difficulty comprehending the proceedings against him until sentencing, and the record reflects he had no difficulty speaking and understanding English. Therefore, we affirm the district court’s determination that Lieng did not need the assistance of a courtroom interpreter.

II. The Four-Level Sentencing Enhancement for a Defendant’s Role in the Offense

A district court’s four-level leadership adjustment is reviewed for clear error. United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir.2000). The United States Sentencing Guideline § 3B1.1(a) provides for a four-level increase in a defendant’s offense level “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).

“It is not necessary that the district court make specific findings of fact to justify the imposition of the role enhancement. There must, however, be evidence in the record that would support the conclusion that the defendant exercised [a] ... level of control.” United States v. Whitney, 673 F.3d 965, 975 (9th Cir.2012) (internal citations omitted). Here, there was evidence that Lieng exerted some level of control over other individuals involved in the criminal enterprise. See United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir.2007). We thus affirm the district court’s decision to apply a four-level sentencing enhancement.

III. Rule 32 of the Federal Rules of Criminal Procedure

Under Rule 32(i)(3), “[a]t sentencing, the court: may accept any undisputed portion of the presentence report as a finding of fact; [and] 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 sentenc- ing, or because the court will not consider the matter in sentencing.” Fed.R.Crim.P. 32(i)(3)(A), (B). Because Lieng’s objections to the Presentence Report were resolved by the district judge in the government’s favor at Lieng’s sentencing, Lieng’s argument that the district court failed to comply with Rule 32 lacks merit.

IV. Rule 33 Motion for a New Trial Based on Newly Discovered Evidence

This court reviews a district court’s denial of a motion for a new trial based on newly discovered evidence for an abuse of discretion. United States v. Sarno, 73 F.3d 1470, 1488 (9th Cir.1995). On appeal, “the defendant carries a ‘significant burden’ to show that the district court abused its discretion in denying a new trial” based on newly discovered evidence. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.1989) (quoting United States v. Steel, 759 F.2d 706, 713 (9th Cir.1985)).

Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Rule 33(b)(1) provides that “[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” All other grounds for a motion for new trial are filed under Rule 33(b)(2) and must be filed within 14 days after the verdict or finding of guilty. In order for a criminal defendant “[t]o prevail on a Rule 33 motion for a new trial based on newly discovered evidence, a defendant must satisfy a five-part test: ‘(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal.’” United States v. Harrington, 410 F.3d 598, 601 (9th Cir.2005) (quoting United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991)). Lieng did not satisfy this test, so the district court did not abuse its discretion in denying Lieng’s Rule 33 Motion for a new trial on the basis of newly discovered evidence.

AFFIRMED.

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Notes

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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