United States of America v. Hoang Van Nguyen, also known as Soi, also known as Soy

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
January 4, 2006
Charles R. Fulbruge III
Clerk
REVISED JANUARY 18, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40685
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
Hoang Van Nguyen, also known as Soi, also known as Soy,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant Nguyen’s conviction and sentence. See United States v.
Nguyen, No. 04-40685, 115 Fed. Appx. 239 (5th Cir. 2004)(per
curiam)(unpublished). Following our judgment, Nguyen filed a
petition for certiorari. The Supreme Court granted Nguyen’s

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petition for certiorari, vacated our judgment, and remanded the
case to this court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). We now reconsider the
matter in light of Booker and decide to reinstate our previous
judgment affirming Nguyen’s conviction and sentence.
Nguyen raised a Booker-related challenge to his sentence for
the first time on direct appeal. Because Appellant made no Booker
objection in the district court, however, Appellant’s claim must
fail under the plain-error test discussed in United States v.
Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). The district court
sentenced appellant at the top of the guideline range and gave no
indication of a desire to give a different sentence had the
guidelines been advisory.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Nguyen’s
conviction and sentence.

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