USA v. Vincent Vo Tran

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13660
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT VO TRAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:22-cr-00006-KD-MU-1
____________________
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2 Opinion of the Court 22-13660
Before J ORDAN, JILL PRYOR , and L AGOA , Circuit Judges.
PER CURIAM:
A jury convicted Vincent Tran of conspiracy to distribute
methamphetamine and possession with intent to distribute meth-
amphetamine. For those crimes, the district court sentenced him
to 150 months’ imprisonment with five years of supervised release.
Tran now appeals his convictions and sentence. He argues
that the district court erred when it denied his suppression motion,
the evidence was insufficient to support his conspiracy conviction,
and the district court erred when it imposed a sentence enhance-
ment for methamphetamine importation.
We affirm Tran’s convictions. The district court did not err
when it denied his suppression motion. And sufficient evidence
supported the jury’s verdict on the conspiracy charge.
We vacate Tran’s sentence and remand to the district court.
The court erred when it imposed the importation enhancement
because the government failed to prove, by a preponderance of the
evidence, that Tran possessed imported methamphetamine.
I. BACKGROUND
Tran raises three issues on appeal, related to the search of
his residence and his suppression motion, the evidence at his trial
and his acquittal motion, and the sentence he received and his sen-
tence enhancement. We describe an earlier search of where Tran
was living and then detail the facts relevant to each issue.
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A. The First Search
In the spring of 2021, deputies of the Mobile County Sher-
iff’s Office attempted to arrest Bailey Bostwick. But when deputies
arrived in her neighborhood, she handed methamphetamine to her
partner, Robert Draughon, and fled. The deputies captured
Draughon and arrested him for trafficking methamphetamine.
Later that day, a deputy located Bostwick at Tran’s Irvington
residence in Mobile. When deputies arrived there looking for
Bostwick, Tran sent her outside. The deputies arrested Bostwick
and searched her vehicle.
That same day, deputy Raylene Busby of the Mobile County
Sheriff’s Office obtained a warrant to search Tran’s Irvington resi-
dence. When deputies executed the warrant, they found marijuana
and digital scales with methamphetamine residue. They arrested
Tran for possession of a controlled substance and marijuana. Tran
was incarcerated and then released in early fall. Upon his release,
he lived with his girlfriend at a residence on Azalea Road.
B. The Second Search and Tran’s Suppression Motion
In the fall of 2021, two months after Tran’s release, Busby
obtained a second warrant to search the Azalea Road residence in
Mobile, where Tran was living. Busby obtained this warrant be-
cause a drug dealer she arrested told her that he bought more than
a pound of methamphetamine from Tran.
To obtain the Azalea Road warrant, she drafted and submit-
ted an affidavit, which alleged that cooperating defendants had
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4 Opinion of the Court 22-13660
recently purchased marijuana and methamphetamine from Tran
and seen firearms at his residence. The affidavit stated that cooper-
ating defendants believed Tran had large amounts of methamphet-
amine delivered to his residence. And it noted that Tran was a tar-
get of federal and state drug investigations.
A state court judge issued the search warrant. When depu-
ties, including Busby, executed the warrant, they discovered drugs
and drug paraphernalia, including methamphetamine, cocaine,
marijuana, a vacuum sealer, digital scales, and a glass pipe. The
deputies then received and executed an arrest warrant. When they
arrested Tran, they recovered approximately 26 grams of metham-
phetamine from his person.
A grand jury indicted Tran on one count of conspiracy to
distribute methamphetamine, two counts of possession with intent
to distribute methamphetamine, and one count of possessing a
firearm in furtherance of a drug trafficking crime. Tran pleaded
not guilty.
Before trial, Tran moved to suppress evidence seized from
the Azalea Road residence. He argued the district court should sup-
press the evidence because a deficient affidavit supported the search
warrant. Specifically, Tran asserted that the affiant, Busby, relied on
others’ statements rather than her personal knowledge, failed to
mention where she executed a previous search warrant, and failed
to disclose the number of cooperating defendants. Tran argued
that, under the totality of the circumstances, the affidavit failed to
establish the reliability, veracity, or basis of the cooperating
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22-13660 Opinion of the Court 5
defendants’ knowledge. He also maintained that the good-faith ex-
ception was inapplicable because the affidavit so lacked probable
cause that no reasonable official would believe probable cause ex-
isted to support the search.
The district court held a suppression hearing, at which
Busby testified. She described the events leading up to swearing the
warrant affidavit, including her search of Tran’s Irvington resi-
dence and her separate interviews with the cooperating defend-
ants. She explained that she had known the cooperating defendants
for years and “had a history with both of them,” although she had
used neither as an informant before. Doc. 92 at 56.1 She included
that information in her affidavit, detailing Tran’s continuous in-
volvement with drugs and noting other individuals who had iden-
tified Tran as their supplier.
Busby also testified that, after she submitted the affidavit,
she learned that Tran made additional drug transactions. To secure
the search warrant, she visited the state court judge’s residence,
presenting the affidavit and the additional information about Tran’s
recent drug activity. Busby believed the warrant “to be reasonable”
and to contain “sufficient probable cause.” Id. at 75.
The district court found the search warrant affidavit insuffi-
cient. It drew this conclusion based on the lack of corroboration of
the cooperating defendants and the lack of evidence of their relia-
bility. But the court found that the state court judge maintained his
1 “Doc.” numbers are the district court’s docket entries.
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neutral and detached role and that the affidavit contained some in-
dicia of probable cause, rendering Busby’s belief in the existence of
probable cause reasonable. The district court therefore concluded
that the officials relied in good faith on the search warrant. And
because the officials relied in good faith on the warrant, the evi-
dence was admissible. The district court denied the motion to sup-
press.
C. The Conspiracy Evidence and Tran’s Acquittal Mo-
tion
At trial, the government attempted to demonstrate that
Tran conspired with Bostwick, Draughon, and others to distribute
methamphetamine. To prove this conspiracy, the government in-
troduced drug distribution evidence it uncovered, Tran’s state-
ments and cell phone evidence, and evidence from alleged cocon-
spirators.2
The government pointed to evidence uncovered during the
searches and arrests to establish a conspiracy to distribute metham-
phetamine. The first search, for example, revealed digital scales
with methamphetamine residue. The second search revealed even
more: a bag of 18 grams of methamphetamine, a vacuum sealer,
two digital scales, and a half pound of methamphetamine pack-
aged in eight different containers. When deputies arrested Tran,
they found 26 grams of methamphetamine on his person.
2 We recount the evidence in the light most favorable to the jury’s verdict
because this is a sufficiency challenge.
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22-13660 Opinion of the Court 7
The government also introduced Tran’s statements and evi-
dence found on his cell phone. Tran told police, after being read his
Miranda rights, that he owned the 26 grams of methamphetamine
they found on him and that he dealt drugs. The government un-
covered text messages and photographs from Tran’s phone as well.
The messages discussed buying bags of drugs. The photographs
depicted marijuana and a white substance. To explain the phone
evidence, the government introduced testimony from Amber
Westfall, a special agent with the Drug Enforcement Administra-
tion, whom the district court qualified as a drug trafficking expert.
Westfall discussed the text messages and how drug dealers com-
municate. She admitted that Tran’s text messages appeared to focus
on marijuana.
In addition to the evidence uncovered from the search and
arrest, Tran’s statements, and evidence from Tran’s phone, the gov-
ernment introduced evidence from and about Tran’s alleged co-
conspirators. One of those coconspirators was Bostwick, who tes-
tified for the government. Bostwick admitted that she used meth-
amphetamine with and purchased methamphetamine from Tran.
She bought methamphetamine from Tran roughly once a week.
She had been buying from Tran since March 2021 and had obtained
between 10 and 20 ounces of methamphetamine from him, even
though he was not her main source of methamphetamine. She said
that she regularly distributed methamphetamine. And she testified
that Tran supplied the methamphetamine she had handed to
Draughon when she fled the police. Police found 160 grams of
methamphetamine when they arrested Draughon.
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Tran moved for a judgment of acquittal on the conspiracy
count, which the district court denied. The jury found Tran guilty
of conspiracy to distribute methamphetamine and possession with
intent to distribute methamphetamine. Tran renewed his acquittal
motion, and the district court denied it.
D. Tran’s Sentencing
Before sentencing, a probation officer prepared a presen-
tence investigation report. The probation officer recommended a
two-level enhancement because the offense involved the importa-
tion of methamphetamine. The following evidence was introduced
at trial regarding importation. Westfall, the DEA special agent and
drug trafficking expert, testified that drug trafficking operations in
Houston and Atlanta sourced the methamphetamine found in Mo-
bile. According to Westfall, if the methamphetamine came from
Houston, the drug was “smuggled directly from Mexico.” Doc. 88
at 209. If it came from Atlanta, the drug was smuggled from Miami
or Texas. And she testified that “super labs” in Mexico made meth-
amphetamine with a purity level of “about 99 percent.” Id. at 210–
11. Based on her training and experience, Westfall said that meth-
amphetamine located in Mobile with a 99 percent purity level
“most likely originated from Mexico.” Id. at 212. Tran previously
had stipulated that the methamphetamine the police recovered had
a purity level above 99 percent.
Tran objected to the enhancement, arguing that the govern-
ment did not prove the factual basis for the importation enhance-
ment by a preponderance of the evidence. He thought the
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22-13660 Opinion of the Court 9
methamphetamine’s purity failed to prove whether it was imported
from Mexico and Westfall’s testimony merely speculated that pos-
sibility.
The district court overruled Tran’s objection, finding suffi-
cient evidence to support the importation enhancement. It im-
posed the importation enhancement and sentenced Tran to 150
months’ imprisonment, followed by five years of supervised re-
lease. Tran timely appealed.
II. STANDARDS OF REVIEW
We use “a mixed standard” to review a district court’s denial
of a suppression motion, reviewing for clear error the district
court’s factual findings and reviewing de novo “the application of
law to those facts.” United States v. Pierre, 825 F.3d 1183, 1191 (11th
Cir. 2016). We “constru[e] the facts in the light most favorable to”
the government, which is “the prevailing party below.” Id. We re-
view de novo “whether the good faith exception applies” but review
for clear error “the underlying facts upon which that determination
is based.” United States v. Morales, 987 F.3d 966, 974 (11th Cir. 2021)
(internal quotation marks omitted). “The government bears the
burden of demonstrating that the good faith exception applies.” Id.
We review sufficiency-of-the-evidence challenges de novo,
considering the evidence in the light most favorable to the govern-
ment and drawing all reasonable inferences and credibility choices
in the government’s favor. United States v. Capers, 708 F.3d 1286,
1296 (11th Cir. 2013). We may overturn a jury’s verdict only if no
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10 Opinion of the Court 22-13660
reasonable construction of the evidence would have allowed the
jury to convict. Id. at 1297.
When looking at Tran’s sentencing, we review the district
court’s factual findings for clear error and its application of the Sen-
tencing Guidelines de novo. United States v. Perez-Oliveros, 479 F.3d
779, 783 (11th Cir. 2007). The government bears the burden of es-
tablishing, by a preponderance of the evidence, the facts necessary
to support a sentencing enhancement. Id.
III. DISCUSSION
We organize our discussion around the three issues Tran
raises on appeal.
A. Whether the District Court Erred in Denying Tran’s
Suppression Motion
The district court did not err when it denied Tran’s suppres-
sion motion because the Fourth Amendment’s good-faith excep-
tion to the exclusionary rule applies. The Fourth Amendment re-
quires that “no Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” U.S. Const.
amend. IV. To deter Fourth Amendment violations, the Supreme
Court created the exclusionary rule, which generally “preclude[es]
the use of evidence obtained in violation of” the Fourth Amend-
ment. United States v. Leon, 468 U.S. 897, 906 (1984).
The “judicially created [exclusionary] rule” has a “judicially
created exception”: the good-faith exception. Davis v. United States,
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22-13660 Opinion of the Court 11
564 U.S. 229, 248 (2011). The good-faith exception renders the ex-
clusionary rule inapplicable when police act “in objectively reason-
able reliance on a subsequently invalidated search warrant.” Leon,
468 U.S. at 922. The exception is unavailable when (1) the judge
who issues a warrant is misled by false information; (2) the issuing
judge abandons his neutral and detached role; (3) the affidavit lacks
probable cause indicia, rending official belief in its existence unrea-
sonable; or (4) the warrant is facially deficient, rendering official re-
liance on it unreasonable. Id. at 923. When the exception is availa-
ble, it requires us to ask only “whether a reasonably well trained
officer would have known that the search was illegal in light of all
of the circumstances.” Herring v. United States, 555 U.S. 135, 145
(2009) (internal quotation marks omitted).
Tran argues that the good-faith exception is inapplicable,
stating that the issuing judge abandoned his neutral and detached
role, and the affidavit lacked probable cause indicia. Both argu-
ments fail.
The issuing judge, Tran argues, abandoned his neutral role
because the information provided to him was insufficient to make
an independent assessment of probable cause. But even if this in-
formation were insufficient, it does not mean that the issuing judge
abandoned his neutral and detached role. See United States v. Martin,
297 F.3d 1308, 1318 (11th Cir. 2002) (“Just because the affidavit is
later found to be lacking in probable cause does not mean the [is-
suing judge] served as a mere rubber stamp.”). That is because
when we analyze whether the issuing judge abandoned his neutral
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12 Opinion of the Court 22-13660
and detached role, we rarely look to the affidavit itself. Rather, we
analyze surrounding factors, such as whether the judge read the
affidavit, whether he relied solely on his relationship with the affi-
ant, or whether the affiant’s identity interfered with the judge’s in-
dependent review of the case’s facts. Id. Tran has not argued, and
the record does not reveal, any surrounding circumstances that
cause us to question the issuing judge’s neutrality and detachment.
We do, however, look to the affidavit to determine whether
it lacks probable cause indicia. United States v. Robinson, 336 F.3d
1293, 1296 (11th Cir. 2003). To be lacking in probable cause indicia,
the affidavit must “provide[] no hint as to why the police believed
they would find incriminating evidence in the residence.” United
States v. Morales, 987 F.3d 966, 976 (11th Cir. 2021) (internal quota-
tion marks omitted). The affidavit here provides many hints about
why the police believed they would find illegal drugs in the Azalea
Road residence. For example, the affiant spoke with cooperating
defendants who stated that they purchased marijuana and meth-
amphetamine from someone in the Azalea Road residence. The co-
operating defendants also reported that they saw methampheta-
mine at the residence and being delivered to it.
True, the district court found that these statements failed to
provide sufficient probable cause due to the lack of corroboration
and reliability. But that does mean the affidavit provides no hints
as to why the police thought they would uncover marijuana and
methamphetamine at the Azalea Road residence. And, as detailed
above, this affidavit provides those hints.
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Because the good-faith exception is available, we must ask
whether, considering all the circumstances, a reasonably well-
trained officer would have known that the search was illegal. See
Herring, 555 U.S. at 145. We conclude that a reasonably well-
trained officer would not have known that the search was illegal.
The affidavit contained the exact location to be searched and ex-
plained how the suspected drugs were connected to that place. And
“we can look beyond the four corners of the affidavit and search
warrant to determine whether [an officer] reasonably relied upon
the warrant.” Martin, 297 F.3d at 1318.
When we look beyond the affidavit at the totality of the cir-
cumstances, we conclude that Busby reasonably believed that
probable cause existed when she executed the warrant. She learned
from a cooperating defendant that Tran sold him methampheta-
mine and lived at the Azalea Road residence. Another cooperating
defendant told her that Tran had large amounts of methampheta-
mine and marijuana, and Busby had reviewed emails between a
cooperating defendant and Tran. She knew about other investiga-
tions into Tran’s suspected drug activity. On these facts, a well-
trained officer with Busby’s knowledge would not have known
that the search was illegal. The district court therefore did not err
when it applied the good-faith exception and denied Tran’s sup-
pression motion.
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B. Whether the Evidence Was Sufficient to Support
Tran’s Conspiracy Conviction
The evidence was sufficient to support Tran’s conspiracy
conviction. To sustain a conspiracy conviction, the government
had to prove beyond a reasonable doubt that Tran and at least one
other person agreed to commit a drug-related offense, that Tran
knew of the conspiracy, and that he agreed to become a member.
United States v. Louis, 861 F.3d 1330, 1333 (11th Cir. 2017) (citing
21 U.S.C. §§ 841, 846). In his brief, Tran appears to contest only the
first element, whether an “agreement exist[ed] between two or
more person to achieve an unlawful objective.” United States v.
Achey, 943 F.3d 909, 916 (11th Cir. 2019) (internal quotation marks
omitted). He argues that the government failed to prove an agree-
ment because the text messages introduced concern marijuana, not
methamphetamine. And he states that the government failed be-
cause Tran’s relationship with Bostwick was a buyer-seller relation-
ship, which “does not, by itself, form a conspiracy.” Id. at 917. Each
argument fails.
First, Tran argues that the text messages “fail to provide suf-
ficient evidence of a methamphetamine conspiracy.” Appellant’s
Br. 40. Two issues exist with this argument. The first is that suffi-
cient evidence exists for the conspiracy conviction even without
the text messages. As discussed below, the frequency of metham-
phetamine sales, volume of methamphetamine sold, and circum-
stantial evidence provide sufficient evidence for Tran’s conspiracy
conviction. The second issue is that the text messages’ focus on ma-
rijuana fails to undermine the methamphetamine conviction. In
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22-13660 Opinion of the Court 15
fact, it may even bolster the conviction. Westfall testified that it
was common for individuals engaged in the trafficking of metham-
phetamine to sell other drugs as well. Tran’s text message argu-
ment therefore fails.
Second, Tran argues that he and Bostwick “shared no more
than a buyer/seller relationship.” Id. at 49. But here, sufficient evi-
dence existed for the jury to believe that Tran “knew the drugs
were for distribution” rather than Bostwick’s “personal drug
habit.” Achey, 943 F.3d at 917 (internal quotation marks omitted).
Specifically, the frequency of methamphetamine sales, volume of
methamphetamine sold, and circumstantial evidence of a metham-
phetamine conspiracy were sufficient evidence to prove the agree-
ment.
On frequency, we have held that an “agreement may be in-
ferred when the evidence shows a continuing relationship that re-
sults in the repeated transfer of illegal drugs to the purchaser.”
United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999). The gov-
ernment presented to the jury evidence of a continuing relation-
ship. Bostwick admitted to buying methamphetamine from Tran
roughly once a week since March 2021. That exceeds the frequency
we have found sufficient in past cases. See, e.g., United States v.
Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (concluding that evidence
established “far more than merely a buyer-seller relationship” in
part because the buyer “purchased [illegal drugs] from [the seller]
on several occasions” over a month).
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On volume, we have held that a “conspiracy to distribute
controlled substances may also be inferred from a drug transaction
where the amount of drugs allows an inference of a conspiracy to
distribute drugs.” Achey, 943 F.3d at 917. The government presented
evidence that Tran sold and moved large quantities of metham-
phetamine. Bostwick, for example, testified that she obtained be-
tween 10 and 20 ounces of methamphetamine from Tran. And the
methamphetamine Tran provided to her shortly before her arrest
weighed over 160 grams, or 5.6 ounces. These large amounts of
methamphetamine allowed to jury to infer an agreement.
On circumstantial evidence, we have held that the existence
of a conspiracy agreement may be proved “from the conduct of
the alleged participants or from circumstantial evidence of a
scheme.” United States v. Wenxia Man, 891 F.3d 1253, 1265 (11th Cir.
2018) (internal quotation marks omitted). Alleged participant
Bostwick testified that she distributed methamphetamine regularly.
The government introduced physical evidence that allowed the
jury to infer that Tran was involved in a scheme. When officers
searched Tran’s home, they uncovered multiple sets of scales, some
with methamphetamine residue on them. They also found a bag of
18 grams of methamphetamine, a vacuum sealer, and a half pound
of methamphetamine packaged in eight different packages.
Bostwick’s admission and the physical evidence could lead a jury to
infer an agreement.
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Because the evidence sufficiently supported the conspiracy
conviction, the district court did not err when it denied Tran’s ac-
quittal motion.
C. Whether the District Court Erred in Imposing the Im-
portation Sentence Enhancement
The district court erred when it overruled Tran’s objection
and imposed a two-level enhancement for importing methamphet-
amine. The Sentencing Guidelines instruct a court to impose a two-
level enhancement if among other things “the offense involved the
importation of . . . methamphetamine or the manufacture
of . . . methamphetamine from listed chemicals that the defendant
knew were imported unlawfully.” U.S. Sent’g Guidelines Manual
§ 2D1.1(b)(5).
The government had to prove, by a preponderance of the
evidence, that a factual basis existed for this sentencing enhance-
ment. See United States v. Perez-Oliveros, 479 F.3d at 783. A district
court cannot “speculate concerning the existence of a fact which
would permit a more severe sentence under the guidelines.” United
States v. Cataldo, 171 F.3d 1316, 1321–22 (11th Cir. 1999) (internal
quotation marks omitted). A court, instead, must base its factual
findings “on reliable and specific evidence.” United States v. Newman,
614 F.3d 1232, 1238 (11th Cir. 2010).
Here, the government failed to produce reliable and specific
evidence to support the importation enhancement. The govern-
ment, and the district court, relied exclusively on Westfall’s testi-
mony that methamphetamine in Mobile with a purity level of 99
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18 Opinion of the Court 22-13660
percent or higher “most likely originated from Mexico.” Doc. 88 at
212. But Westfall failed to provide reliable and specific evidence that
the methamphetamine Tran possessed came from Mexico. She tes-
tified that most methamphetamine in Mobile came from Houston
or Atlanta. The methamphetamine from Houston was “smuggled
directly from Mexico” and the methamphetamine from Atlanta
came from Miami or Texas. Tran’s methamphetamine could have
come from any of those places: Miami, Texas, or Mexico. Thus, it
was speculative to conclude that Tran’s methamphetamine came
from Mexico.
The government cites one unpublished case to support the
district court’s determination. Appellee’s Br. 27 (citing United
States v. Rivera-Fernandez, No. 19-12990, 2021 WL 6144162 (11th
Cir. Dec. 30, 2021) (unpublished)). But even in that case, the gov-
ernment provided more than just an agent’s testimony about
where the drugs may or may not have originated. In addition to a
Drug Enforcement Administration report like the agent’s testi-
mony here, the government in that case “provided the district court
with messages between the methamphetamine supplier in Mexico
and a co-defendant” and “submitted an additional conversation be-
tween the supplier and an undercover agent.” Rivera-Fernandez,
2021 WL 6144162, at *3. But here, the government has provided
nothing further. Because the government failed to provide reliable
and specific evidence supporting that the methamphetamine recov-
ered from Tran originated in Mexico, the district court erred when
it imposed the importation enhancement.
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22-13660 Opinion of the Court 19
IV. CONCLUSION
For the reasons given above, we affirm Tran’s convictions,
vacate the district court’s sentence, and remand for resentencing.
AFFIRMED IN PART; VACATED IN PART;
REMANDED.
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