United States v. Phuoc Xuan Ngo

concurring in part and dissenting in part.

I agree that the conviction on counts one and two should be affirmed, but I would reverse on count three for lack of sufficient evidence of any connection with the firearms. For this reason, I would not reach the issue of instructional error; however, as the conviction on count three is being affirmed, I agree that no plain error occurred. Also for this reason, and for the further reason that the conspiracy was to transport not to rob, I would hold that there is no basis for enhancing Ngo’s sentence on account of physical restraint of, and bodily injury to, Oki employees.

MEMORANDUM *

Defendant-Appellant Phuoc Xuan Ngo appeals his convictions for conspiring to transport stolen goods in interstate commerce in violation of 18 U.S.C. §§ 371 , 2314 (Count I), conspiring to obstruct commerce by robbery in violation of 18 U.S.C. §§ 371 , 1951(a) (Count II), and using firearms during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924 (c) (Count III). He also appeals the resulting sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a), and we affirm in part and remand in part. Because the parties are familiar with the factual and procedural history, we do not repeat it here except to the extent necessary for our disposition.

I.

A.

Although Ngo does not contest the existence of the conspiracies to transport stolen goods in interstate commerce and to obstruct commerce by robbery, Ngo does contend that the evidence at trial was insufficient to prove beyond a reasonable doubt the requisite “slight connection” between him and these conspiracies. See United States v. Castro, 972 F.2d 1107, 1110 (9th Cir.1992), overruled on other grounds by United States v. Recio, 537 U.S. 270 , 123 S.Ct. 819…