United States of America v. Viet Nguyen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5273
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VIET NGUYEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00252-01)
Submitted: September 26, 2007 Decided: October 17, 2007
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, Arden, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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*United States v. Booker, 543 U.S. 220 (2005).
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PER CURIAM:
Viet Nguyen challenges his 210-month sentence, imposed
upon his guilty plea to conspiracy to possess with intent to
distribute and to distribute MDMA (“ecstasy”) in violation of 21
U.S.C.A. §§ 846, 841(b)(1)(C) (West 2000 & Supp. 2006), and
possession with intent to distribute ecstacy on April 21, 2005, in
violation of 18 U.S.C. § 2, 21 U.S.C. § 841(a)(1) (2000). Nguyen
argues that the district court violated his Sixth Amendment rights
by making factual findings to calculate his advisory guideline
range under U.S. Sentencing Guidelines Manual (“USSG”) (2005).
Nguyen also contends the court erred in determining the drug
quantity attributable to him and by enhancing his sentence based on
his leadership role in the offense. For the reasons that follow,
we affirm.
After Booker, * a district court is no longer bound by the
range prescribed by the sentencing guidelines. Cunningham v.
California, 127 S. Ct. 856, 875 (2007); United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). Because Nguyen was sentenced
under an advisory guideline scheme, the district court did not
violate the Sixth Amendment by making findings for sentencing
purposes under a preponderance of the evidence standard. See
United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert.

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denied, 127 S. Ct. 121 (2006) (Booker did “not in the end move any
decision from judge to jury, or change the burden of persuasion”).
A district court’s determination of the drug quantity
attributable to a defendant is a factual finding reviewed for clear
error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.
1999). “The Government bears the burden of proving by a
preponderance of the evidence the quantity of drugs for which a
defendant should be held accountable at sentencing.” United States
v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993).
In this case, the evidence amply supported the drug
quantity (14,141.4 grams, converted to 7,070.7 kilograms of
marijuana) for which Nguyen was held responsible. The Government
presented reliable evidence at sentencing that established that
Nguyen was responsible for 14,000 grams of ecstacy supplied to and
sold by an accomplice over a seven-month period and 141.4 grams
delivered by a co-conspirator during a controlled purchase. These
amounts total 14,141.4 grams. There was also credible evidence
that Nguyen was responsible for additional drugs not included in
this calculation, including 20,000 ecstacy tablets (5,045 grams)
that a courier was delivering to Nguyen, and approximately 2,500
ecstasy tablets purchased by undercover officers from co-
conspirators who were supplied by Nguyen. We conclude the district
court committed no error.

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A district court’s determination of the defendant’s role
in the offense is also reviewed for clear error. United States v.
Sayles, 296 F.3d 219, 224 (4th Cir. 2002). A four-level adjustment
for role in the offense is appropriate when “the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” USSG § 3B1.1(a).
An enhancement for an aggravating role requires, at a minimum, that
“the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.” USSG § 3B1.1,
comment. (n.2); United States v. Harriott, 976 F.2d 198, 200 (4th
Cir. 1992) (enhancement appropriate where defendant directed
activities of one other person); United States v. Kincaid, 964 F.2d
325, 329 (4th Cir. 1992) (same).
As the district court concluded, there were at least five
participants in the conspiracy, and there was evidence that Nguyen
directed the actions of at least two members of the conspiracy by
sending them to conduct transactions on his behalf. Accordingly,
the district court did not err in determining that the enhancement
based on Nguyen’s leadership role was warranted.
Accordingly, we affirm Nguyen’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED

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