United States of America v. Xuan Tam

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2349
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
X UAN TAM ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-cr-00158-5 — Virginia M. Kendall, Judge.
____________________
A RGUED M ARCH 29, 2023 — DECIDED S EPTEMBER 7, 2023
____________________
Before S YKES , Chief Judge, and R OVNER and BRENNAN ,
Circuit Judges.
R OVNER , Circuit Judge. Xuan Tam was charged in a super-
seding indictment with conspiracy to commit money launder-
ing in violation of 18 U.S.C. § 1956(h), money laundering in
violation of 18 U.S.C. § 1956(a)(1)(B)(i), and operating an un-
licensed money transmitting business in violation of 18 U.S.C.
§ 1960(a). Pursuant to a written plea agreement, he pled guilty
to conspiracy to commit money laundering, and the court

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2 No. 22-2349
sentenced him to a below-Guidelines sentence of 65 months’
imprisonment. He now raises a number of challenges to the
sentence.
The written plea agreement set forth the factual basis for
the plea, and we limit our facts to those included in that plea
agreement. From February 2017 until September 2017, Tam
worked with Minghan Chen, Zhiqiang Chen, Weishe Tan,
Chris Mei, and others, in a scheme to launder the funds from
unlawful narcotics transactions by Mexican drug traffickers
through bank accounts in China. For instance, between May
and July of 2017, Tam conducted 10-20 pickups of money at
the direction of Weishe Tan, in amounts ranging from $30,000
to $150,000 per pickup. When a client was in possession of
drug proceeds which needed to be collected and exchanged
for Chinese Renminbi (“RMB”), Weishe Tan or Zhiqiang
Chen would contact Tam. He then provided Weishe Tan or
Zhiqiang Chen with the serial number on a dollar bill in his
possession, a cellphone number, and a code name that he
would use for the transaction.
Shortly after Tam provided that information to them, he
would be contacted by an individual who had drug proceeds
to deliver to Chicago. The client provided Tam with the serial
number that Tam had given to Weishe Tan or Zhiqiang Chen,
and once Tam confirmed the match, Tam would make ar-
rangements to meet the caller in Chicago. At that meeting.
Tam took possession of the U.S. dollars obtained through un-
lawful drug transactions. The person who delivered the quan-
tities of U.S. dollars then received from Tam the dollar bill
containing the serial number that had been used as an identi-
fier in the transaction. That dollar bill with the serial number
functioned as a receipt for the bulk currency exchange.

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No. 22-2349 3
Once he received the currency, Tam or others including
Weishe Tan, counted the money and reported the total
amount to Zhiqiang Chen, who then provided information
for Chinese bank accounts to be used in the transaction. Tam
or Weishe Tan then delivered the dollars to a broker, or to an
intermediary who delivered it to a broker, and the broker ar-
ranged payment for the dollars by releasing an equivalent
amount of RMB in China to the bank accounts that Zhiqiang
Chen had provided.
Between approximately May 2017 and August 2017, Tam
participated in the transfer of around $1.4 million in narcotics
proceeds through the collection of those narcotics proceeds
from various individuals and through the exchange of dollars
for RMB. He was paid a small percentage fee for each laun-
dering transaction, earning approximately $7,500 for those
services. Tam acknowledged that he was aware that the pro-
ceeds he was collecting and delivering were derived from the
sale of narcotics, and knew that the manner of collecting and
exchanging the proceeds was designed to hide the proceeds,
as well as the source and nature, from law enforcement, and
ultimately to remit the funds back to drug traffickers in Mex-
ico.
The written plea agreement also included a recognition of
the potential sentence. It included an acknowledgment that
Tam was subject to a maximum sentence of 20 years’ impris-
onment. Moreover, it set forth the Sentencing Guidelines
range for the offense to which he was pleading guilty. The
plea agreement set forth a base offense level of 22 pursuant to
Guidelines §§ 2S1.1(a)(2) and 2B1.1(b)(1)(H), because the
value of the laundered funds was approximately $1.4 million.
It then reflected a potential decrease of 3 levels for acceptance

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4 No. 22-2349
of responsibility under § 3E1.1(a) and § 3E1.1(b), and in-
creases in the offense levels as follows: 6 level increase pursu-
ant to § 2S1.1(b)(1), because § 2S1.1(a)(2) applies and Tam
knew that the laundered funds were proceeds of an offense
involving a controlled substance; 2 level increase under
§ 2S1.1(b)(2)(B), because the defendant was convicted under
18 U.S.C. § 1956; 2 level increase under § 2S1.1(b)(3), because
§ 2S1.1(b)(2)(B) applies and the offense involved sophisticated
laundering. The plea agreement reflected disagreement as to
whether Tam was a minor participant in the offense, and
therefore entitled to a decrease of 2 levels pursuant to
§ 3B1.2(b). The agreement projected a Guidelines range of 87-
108 months’ imprisonment if the minor participant decrease
was not applied, and 70-87 months’ imprisonment if the court
determined that the minor participant reduction was proper.
Following the plea, the court imposed a sentence of 65
months’ imprisonment, which was below both of those
Guidelines ranges.
Tam pursues two challenges on appeal. First, he alleges
that the district court failed to ask the questions required in
Federal Rule of Criminal Procedure 32(i)(1)(A) and that the
error was not harmless. Second, he asserts that the court erred
in denying a downward adjustment on his offense level due
to his minor role in the offense, pursuant to U.S.S.G. § 3B1.2.
Although Tam initially raised an ineffective assistance of
counsel claim in his brief in this appeal, he withdrew that
claim—as we have repeatedly advised defendants to do—in
order to preserve the ability for Tam to pursue it in a subse-
quent proceeding in which the factual basis of the claim can
be developed. See United States v. McClinton, 23 F.4th 732,
736–37 (7th Cir. 2022).

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No. 22-2349 5
We turn, then, to his claim that the district court failed to
comply with Rule 32(i)(1)(A). That rule, in conjunction with
Rule 32(i)(1)(C), required the court to directly ask Tam three
questions—whether he had an opportunity to read the
Presentence Investigation Report (“PSR”), whether he and de-
fense counsel had discussed the PSR, and whether he wished
to challenge any facts in the PSR. United States v. Hise, 65 F.4th
905, 908 (7th Cir. 2023); United States v. Jarigese, 999 F.3d 464,
472 (7th Cir. 2021); United States v. Rone, 743 F.2d 1169, 1174
(7th Cir. 1984). Although “[w]e have advised district courts to
carry out this brief questioning in the interest of focused, ad-
versarial development of the factual and legal issues relevant
to determining the appropriate Guidelines sentence …, we
need not remand for re-sentencing if the defendant’s right to
a fair sentencing process was not compromised, i.e., if the er-
ror was harmless.” (internal quotation marks and citations
omitted) Jarigese, 999 F.3d at 472; Hise, 65 F.4th at 908.
In Jarigese, the defendant argued that the failure of the
court to ask the Rule 32(i)(A)(1) questions was not harmless
because, as a result of that error, he did not have the oppor-
tunity to contest a factual error in the PSR which was relied
upon by the court in sentencing him. Jarigese, 999 F.3d at 472.
We rejected that argument, because the factual error identi-
fied by Jarigese, his title—president or vice president—at two
companies, was correctly stated during the sentencing hear-
ing, and because the court did not rely on his title in deter-
mining Jarigese’s sentence, focusing instead on facts regard-
ing his responsibilities at the companies and his role in sign-
ing contracts. Id. Because the factual error in the PSR which
Jarigese could have raised was not relevant to the sentence
imposed, we held that the error in failing to ensure that he
had reviewed the PSR was harmless. Id. at 472–73

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6 No. 22-2349
Here, the government concedes that the district court
failed to ask those questions but argues that the error was
harmless. In contrast to the defendant in Jarigese, Tam does
not assert that he in fact was denied the opportunity to read
the PSR or to consult with his attorney and register objections,
nor does he identify any specific objections that he would
have made given that opportunity.1 Moreover, at the sentenc-
ing hearing, Tam’s attorney affirmatively confirmed that Tam
had seen the PSR and that they had discussed it, stating: “I
have reviewed both reports with my client, and there are no
factual changes.” Sent. Tr. at 4. Given that representation, and
the failure of Tam to argue even now that he did not see the
report or that he would have raised specific challenges if
given that opportunity, the error was harmless.
Tam next challenges the district court’s refusal to grant a
downward adjustment on his offense level due to his minor
role in the offense, pursuant to U.S.S.G. § 3B1.2. Such an ad-
justment is proper where the defendant is “substantially less
culpable than the average participant” in the conspiracy.
1 In a supplemental filing after oral argument, Tam asserts that,
through appellate counsel, he in fact represented that if the district court
inquired as to whether he had read the report, he would have responded
that he had not. No cite to the brief substantiates that assertion, and in his
brief, he argues only that the error was not harmless because the sentenc-
ing court never learned whether Tam was given the opportunity to read
and review the PSR. He also asserts, without citing any specific example,
that the appellate brief provides numerous examples of what additions,
modifications and corrections would have been made if counsel had dis-
cussed the contents of the PSR with Tam, but his brief states only that his
counsel could have made further inquiries, such as to the nature of Tam’s
role. The brief fails to identify a single fact or legal argument that he would
have presented but was deprived of the opportunity to pursue.

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No. 22-2349 7
U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Freyermuth, ___
F.4th ___, 2023 WL 5006842, *2 (7th Cir. 2023); United States v.
Orlando, 819 F.3d 1016, 1025 (7th Cir. 2016). In assessing the
applicability of that adjustment, then, “[w]e compare the de-
fendant’s role to that of an average member of the conspiracy,
not with that of the leaders.” Orlando, 819 F.3d at 1025.
Tam asserts that the district court denied the adjustment
without considering the five factors identified by the Sentenc-
ing Commission as a non-exhaustive guide for courts in de-
termining whether a defendant should receive a mitigating
role adjustment:
(1) the degree to which the defendant under-
stood the scope and structure of the criminal
activity;
(2) the degree to which the defendant partici-
pated in planning or organizing the criminal
activity;
(3) the degree to which the defendant exercised
decision-making authority or influenced the
exercise of decision-making authority;
(4) the nature and extent of the defendant’s par-
ticipation in the commission of the criminal
activity, including the acts the defendant
performed and the responsibility and discre-
tion the defendant had in performing those
acts; and
(5) the degree to which the defendant stood to
benefit from the criminal activity.

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8 No. 22-2349
U.S.S.G. § 3B1.2 cmt. n.3(C). That issue encompasses a mixed
question of law and fact, requiring us to review de novo the
district court’s interpretation of the Sentencing Guidelines
and for clear error its factual findings. United States v.
Campuzano-Benitez, 910 F.3d 982, 989 (7th Cir. 2018). We have
repeatedly recognized that, “when reviewing sentencing
courts’ decisions on mitigating or aggravating roles for clear
error, we ‘will rarely reverse, as the sentencing court is in the
best position to determine the role that a defendant had in the
criminal activity.’” Id., quoting United States v. Sandoval-
Velazco, 736 F.3d 1104, 1107 (7th Cir. 2013).
Tam asserts that the district court failed to properly
address and consider those factors. As an initial matter, we
note that a court’s failure to state explicit findings on each of
the enumerated factors does not alone constitute reversible
error. Campuzano-Benitez, 910 F.3d at 989. As we explained in
Campuzano-Benitez, “[w]e do not require district courts to treat
sentencing factors as a checklist or to spell out their analyses
of each factor at each sentencing,” … [and] [n]othing in
§ 3B1.2 or its application notes suggests the sentencing judge
is required to treat these mitigating role factors differently.”
Id. at 989–90.
Here, the court in fact identified the factors, and essen-
tially adopted the arguments made by the government with
respect to those factors. The court’s discussion therefore re-
flects that it was aware of the factors and based its decision on
them. At the sentencing hearing, the Assistant U.S. Attorney
(“AUSA”) addressed those factors and argued that they
demonstrated that Tam was not substantially less culpable
than the other participants. Addressing the defense argu-
ments that Tam had been involved for a minimal amount of

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No. 22-2349 9
time and involving a smaller amount of money, the AUSA
pointed out that all of the other couriers were involved for a
truncated period of time as was Tam, and that Tam was not
even the least culpable in terms of the amount of money laun-
dered. The AUSA then argued that the extent and nature of
Tam’s involvement favored denying the adjustment, in that it
was ongoing for seven months, involving 15-20 pickups, and
that it went beyond merely the physical transfer of cash. The
AUSA pointed out that Tam went through an elaborate pro-
cess to engage in the secure transactions between the money
laundering organization in China and the drug trafficking or-
ganization in Mexico, including passing along the infor-
mation needed to conduct the secure transaction and transfer-
ring money to the brokers to conduct the mirror transactions,
thus involving himself in both sides of the transactions. The
AUSA also asserted that Tam understood the scope and struc-
ture of the organization, and knew funds were going through
China to launder money for the Mexican drug cartel. Finally,
the AUSA pointed out that he was profiting to the same extent
as his co-conspirators, receiving a percentage of the laun-
dered money as commission. Therefore, the AUSA discussed
the facts in the context of those factors and set forth why the
factors favored denial of the downward adjustment.
Immediately following that argument, the court began its
analysis by cycling through the elements, stating that the
AUSA “is correct regarding that fact-based determination, be-
cause we look to the degree to which he understood the scope
and structure, and he certainly did …,” which was the first of
the factors. The court then continued the discussion, identify-
ing the other factors, mentioning “the degree to which he par-
ticipated in the planning,” and then stating:

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10 No. 22-2349
[a]nd then, of course, the degree to which he ex-
ercised authority or influenced the exercise and
decision-making authority, the nature and ex-
tent of his participation, and then whether he
stood to benefit. And all of the factors that [the
AUSA] just said really favor the enhancement
being given. … I don’t think the reduction is ap-
propriate based upon the factual statements
that [the AUSA] just made.
See Sent. Tr. at p5-9.
The court therefore recognized the factors that had to be
considered and identified them explicitly. It then endorsed
the facts set forth by the AUSA and the application of those
factors, and determined that the downward adjustment was
not warranted. The court was not required to restate the
AUSA’s argument in order for it to show that it considered
the proper factors. The court explicitly noted the factors, and
adopted the AUSA’s factual arguments in agreeing with the
AUSA that the adjustment was not proper here. The facts
identified by the AUSA and adopted by the court support the
determination to deny the minor role adjustment, and the
court’s factual findings and legal conclusions in denying the
adjustment were not erroneous.
Accordingly, the decision of the district court is
AFFIRMED.

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