USA v. Nguyen et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
VS. CASE NO. 2:03-cr-20039-001
NHAN VAN NGUYEN DEFENDANT/PETITIONER
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is the Petitioner’s Motion to Modify and Reduce Sentence filed June 16,
2016. (Doc. 235) The United States filed its response on September 7, 2016. (Doc. 235) Petitioner
has not filed a reply. The matter is ready for Report and Recommendation.
I. Background
On September 24, 2003, Defendant/Petitioner, Nahn Van Nguyen (“Nguyen”), was named
in a multi-count Indictment charging him with: conspiracy to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (Count One); aiding and abetting in the
distribution of more than five grams of actual methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(viii) and 18 U.S.C. § 2 (Counts Two and Three); aiding and abetting in the
distribution of more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(viii) and 18 U.S.C. § 2 (Count Four); aiding and abetting in the possession with intent to
distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(viii) and 18 U.S.C. § 2 (Count Five); and, while under indictment for a crime punishable
by imprisonment for a term exceeding one year, willfully receiving a firearm, which had been
previously shipped in interstate commerce, in violation of 18 U.S.C. §§ 922(n) and 924 (Count Six).
(Doc. 28) Nguyen appeared with his retained counsel for arraignment before the Hon. Beverly S.
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Jones, United States Magistrate Judge, on September 29, 2003, at which time he entered a plea of
not guilty to the Indictment. (Doc. 31)
On November 17, 2003, Nguyen appeared with counsel before the Hon. Robert T. Dawson,
United States District Judge, for a change of plea hearing. (Doc. 76) Pursuant to a written plea
agreement, Nguyen pleaded guilty to Count Five of the Indictment, charging him with aiding and
abetting in the possession with intent to distribute more than 50 grams of methamphetamine, and to
Count Six of the Indictment, charging him with possession of a firearm by a prohibited person.
(Docs. 76, 77)
An initial PSR was prepared by the United States Probation Office on December 15, 2003.
(Doc. 118) The PSR determined that Nguyen was accountable for 263.1 grams of actual
methamphetamine, and his Base Offense Level was determined to be 34. (Doc. 118, ¶¶ 21, 24) A
two level enhancement was assessed pursuant to U.S.S.G. § 2D1.1(b)(1) due to Nguyen’s possession
of a dangerous weapon (firearm). (Doc. 118, ¶ 25) After a three level reduction for acceptance of
responsibility, Nguyen’s Total Offense Level was determined to be 33. (Doc. 118, ¶¶ 30-31)
Nguyen had no criminal history, resulting in a criminal history score of zero, placing him in Criminal
History Category I. (Doc. 118, ¶ 37) The statutory minimum sentence for the offense of conviction
(Count Five) was 10 years imprisonment, and the statutory maximum sentence was 40 years
imprisonment. (Doc. 118, ¶ 46) Nguyen’s guidelines range was 135 to 168 months imprisonment.
(Doc. 118, ¶ 47)
On December 30, 2003, the Government advised that it had no objections to the PSR. (Doc.
118, p. 14) On January 14, 2004, Nguyen also advised that he had no objections to the PSR. (Id.)
A final PSR was submitted to the Court on January 14, 2004. (Doc. 118)
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Nguyen appeared for sentencing on February 10, 2004. (Doc. 117) The Court imposed a
below-guidelines sentence of 70 months imprisonment, five years supervised release, a $5,000.00
fine, and a $100.00 special assessment. (Doc. 117) Judgment was entered on February 11, 2004.
(Doc. 119) Nguyen did not pursue a direct appeal from the Judgment.
After serving his sentence of 70 months imprisonment and being released, a Petition for
Warrant or Summons for Offender under Supervision (Doc. 217) was filed with the Court on
October 22, 2010. The petition alleged that Nguyen’s supervision commenced on January 28, 2009,
and that he violated the terms and conditions of his supervised release by testing positive for
methamphetamine on October 4, 2010, and by being arrested and subsequently charged on October
19, 2010 with conspiring to possess with intent to deliver methamphetamine. (Id.) Nguyen was
arrested on the petition to revoke on October 22, 2010. (Doc. 220) Nguyen and his retained counsel
appeared for initial appearance on the petition to revoke on May 5, 2011. (Doc. 222)
Nguyen appeared before the Hon. Robert T. Dawson, United States District Judge, on
November 3, 2011 for a revocation hearing. (Doc. 224) Nguyen had plead guilty to the underlying
law violation, and the Court revoked Nguyen’s supervised release and sentenced him to 18 months
imprisonment, to run concurrently with the 125 month sentence imposed in Case No. 2:10-CR-
20057, with no further supervised release. (Doc. 226) Judgment on the supervised release
revocation was entered on November 4, 2011. (Doc. 225)
Nguyen did not pursue an appeal from the sentence imposed in the revocation of his
supervised release. He completed serving his 18 month sentence on February 7, 2012. (Doc. 243-1)
On June 16, 2016, Nguyen filed his pro se Motion to Modify and Reduce Sentence (the
“motion”). (Doc. 235) The motion asserts that “[a] charge for possession of firearm/s was included,
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or an enhancement for the present (sic) of a firearm was applied to the main charges,” that “the
elements of Defendant’s offense do not describe inherently dangerous conduct, and Defendant’s
crime should not qualify as a ‘violent felony’,” and that Nguyen is entitled to relief under Johnson
v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Welch v. United States, 136 S.Ct.
1257, 194 L.Ed.2d 387 (2016). (Doc. 235, pp. 1-2) The motion also cites Bailey v. United States,
516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) and asserts that the “the ‘use’ prong punishes
only ‘active employment of the firearm’ and not mere possession.” (Doc. 235, p. 2) Finally, Nguyen
claims that “Amendment 2K2.1(b)(2) mentions that a deduction of points should be considered in
an offense if the offender possessed all ammunition and firearm(s) for lawful sporting purposes, or
collection, and did not unlawfully discharge or otherwise unlawfully use such firearm(s) or
ammunition.” (Doc. 235, p. 2) Nguyen seeks a two-level reduction of his sentence based upon such
claims. (Id.)
The United States’ response to the motion was filed on September 7, 2016. (Doc. 243)
Nguyen did not file a reply.
II. Discussion
“A prisoner in custody under sentence . . . claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a) (emphasis
added). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise open to collateral attack, or that there has been such
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a denial or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge
the prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate.” 28 U.S.C. § 2255(b). A thorough review of the motion and the files and records of
this case conclusively shows that Nguyen is not entitled to relief, and the undersigned recommends
the denial and dismissal of his motion without an evidentiary hearing.
A. Lack of Subject Matter Jurisdiction
The conviction and sentence challenged by Nguyen was entered on February 11, 2004. (Doc.
119) The Judgment reflects that Nguyen pleaded guilty to Counts Five and Six of the Indictment,
and Nguyen was sentenced to 70 months imprisonment, five years supervised release, a $5,000.00
fine, and a $100.00 special assessment. (Id.)
Having fully served his sentence of imprisonment, Nguyen was released from the Bureau of
Prisons on an unknown date and his period of supervision began on January 28, 2009. (Doc. 217)
Nguyen was arrested on October 19, 2010, and a Petition for Warrant or Summons for Offender
under Supervision was filed with the Court on October 22, 2010. (Id.) Satisfaction of all financial
obligations imposed was filed on March 24, 2011. (Doc. 221) On November 3, 2011, the Court
revoked Nguyen’s supervised release and sentenced him to 18 months imprisonment, to run
concurrently with the 125 month sentence imposed in Case No. 2:10-CR-20057, with no further
supervised release. (Doc. 226) Judgment on the supervised release revocation was entered on
November 4, 2011. (Doc. 225) Nguyen did not appeal from the sentence imposed in the revocation
of his supervised release. He completed serving his 18 month sentence on February 7, 2012. (Doc.
243-1)
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Nguyen’s sentence under conviction has unconditionally and fully expired. In Maleng v.
Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 4537 (1989), the Supreme Court held that
once the sentence imposed for a conviction has completely expired, the collateral consequences of
that conviction are not themselves sufficient to render an individual “in custody” for purposes of a
habeas attack upon it. See also Bent v. United States, 340 F.2d 703, 706 (8th Cir. 1965) (sentences
which had long since been served were not subject to collateral attack under § 2255 motion to vacate
convictions) (internal citations omitted).
Accordingly, since the federal sentence Nguyen is now attacking has been fully served, relief
is not available to him under 28 U.S.C. § 2255 and his motion should be summarily dismissed.
B. Johnson and Welch Are Inapplicable
The Armed Career Criminal Act (“ACCA”) defines the term “violent felony” as a crime
punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion of subsection (ii) above is known
as the “residual clause” of the ACCA. See James v. United States, 550 U.S. 192, 197, 127 S.Ct.
1586, 1591, 167 L.Ed.2d 532 (2007) (question of whether attempted burglary, as defined by Florida
law, fell within the ACCA’s residual provision for crimes that “otherwise involv[e] conduct that
presents a serious potential risk of physical injury to another”).
On June 26, 2015, the United States Supreme Court ruled in Johnson that the residual clause
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of the ACCA was unconstitutionally vague. On April 18, 2016, the Supreme Court decided in Welch
that its ruling in Johnson announced a new substantive rule that applied retroactively on collateral
review.
Nguyen refers to the definition of a firearm in Johnson, the ACCA’s definition of a “violent
felony,” and Johnson’s holding that the residual clause of the ACCA is unconstitutionally vague.
(Doc. 235, pp. 1-2) Nguyen then makes a vague argument that his crime “should not qualify as a
‘violent felony’,” and that “the residual clause should not apply in [his] case” in light of Johnson and
Welch. (Doc. 235, p. 2) Nguyen fails to explain, however, how his case falls within the scope of
those decisions, and the record before the Court plainly shows that Johnson and Welch are
inapplicable to his case.
Vague and conclusory allegations are not sufficient to state a ground for relief under 28
U.S.C. § 2255. See Hollis v. United States, 796 F.2d 1043, 1046 (8th Cir. 1986) (citing Richardson
v. United States, 577 F.2d 447, 452 (8th Cir. 1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2824, 61
L.Ed.2d 276 (1979)); Smith v. United States, 677 F.2d 39, 41 (8th Cir. 1982) (conclusory
allegations, unsupported by any specifics, are subject to summary dismissal).
A review of Nguyen’s PSR (Doc. 118) shows that his advisory guidelines range did not
include an enhancement under either the unconstitutional residual clause of the ACCA or the
identically worded residual clause of the career offender guideline in U.S.S.G. § 4B1.2(a)(2).
Instead, Nguyen’s advisory guidelines calculation was enhanced pursuant to U.S.S.G. § 2D1.1(b)(1)
because two firearms, a loaded Ruger 9mm pistol and a Ruger .22 caliber rifle, were found in his
residence along with ten heat-sealed bags that contained approximately 365.4 grams of crystal meth,
another plastic bag containing 25.6 grams of crystal meth, two digital scales, and other drugs and
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drug paraphernalia. (Doc. 118, ¶¶ 19-21) Nguyen made no objections to the facts contained in
paragraphs 19 to 21 of the PSR, nor did he object to the two level enhancement under U.S.S.G. §
2D1.1(b)(1). Further, he made no argument that he possessed the firearms for lawful sporting
purposes or collection. “A fact in a PSR to which the defendant has not specifically objected is a
fact admitted by the defendant.” See United States v. Abrica-Sanchez, 808 F.3d 330, 334 (8th Cir.
2015) (quoting United States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006)).
Unlike the ACCA at issue in Johnson, which involves whether a defendant’s prior
convictions are “violent felonies,” the two-level specific offense characteristic enhancement pursuant
to U.S.S.G. § 2D1.1(b)(1) concerns whether “a dangerous weapon (including a firearm) was
possessed.” The enhancement “reflects the increased danger of violence when drug traffickers
possess weapons.” U.S.S.G. § 2D1.1(b)(1), Application Note 11.
To prove that the firearm was “possessed,” the Government need not prove ownership of
either the weapon or the premises on which it is found for a § 2D1.1(b)(1) enhancement to apply.
See United States v. Payne, 81 F.3d 759, 762 (8th Cir.1996); see also United States v. Weaver, 906
F.2d 359, 360 (8th Cir.1990). Also, “[i]t is not necessary that an individual be observed using the
weapon, and either actual or constructive possession is sufficient, i.e., the individual must have
exercised ‘ownership, dominion, or control’ either over the firearm or the premises on which it is
found.” Payne, 81 F.3d at 762. By not objecting to the facts set forth in the PSR regarding the
firearm, Nguyen admitted that the firearms, which were found in his residence with a large quantity
of methamphetamine and drug trafficking paraphernalia, were in his legal possession.
Nguyen makes no specific argument regarding the § 2D1.1(b)(1) enhancement, only that “the
elements of [his] offense do not describe inherently dangerous conduct, and [his] crime should not
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qualify as a ‘violent felony’” in the wake of Johnson. (Doc. 235, p. 2) His argument has nothing
to do with the propriety of the §2D1.1(b)(1) enhancement or the rule announced in Johnson, and the
undersigned must conclude that Johnson is inapplicable to the instant case.
There is, therefore, no basis upon which Nguyen could seek to benefit from the Supreme
Court’s rulings in Johnson and Welch, and this claim affords him no relief.
C. Procedural Default
Whether U.S.S.G. § 2D1.1(c)(2) applies is a matter for direct appeal and not for collateral
review. Nguyen has procedurally defaulted his claim on this point.
The United States Supreme Court has “long and consistently affirmed that a collateral
challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct.
1584, 1593, 71 L.Ed.2d 816 (1982) (internal citations omitted). Relief under § 2255 “is reserved for
transgressions of constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.”
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). The circumstances under which a guilty
plea may be attacked on collateral review are strictly limited, and “[i]t is well settled that a voluntary
and intelligent plea of guilty made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543,
2546-47, 81 L.Ed.2d 437 (1984). Even the voluntariness and intelligence of a guilty plea can be
attacked on collateral review only if first challenged on direct review, as “[h]abeas review is an
extraordinary remedy and ‘will not be allowed to do service for an appeal.’” Bousley v. United
States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (internal quotation marks
and citation omitted). “[T]he concern with finality served by the limitation on collateral attack has
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special force with respect to convictions based on guilty pleas.” Id.
Nguyen did not pursue a direct appeal. By failing to do so, Nguyen procedurally defaulted
the claim he now raises.
Procedural default may be excused only if a petitioner “can show both (1) a cause that
excuses the default, and (2) actual prejudice from the errors that are asserted.” Matthews v. United
States, 114 F.3d 112, 113 (8th Cir. 1997) (quoting Bousley v. Brooks, 97 F.3d 284, 287 (8th Cir.
1996)); Apfel, 97 F.3d at 1076; and, Frady, 456 U.S. at 167-68. “For cause to exist, the external
impediment, whether it be governmental interference or the reasonable unavailability of the factual
basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499
U.S. 467, 497, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991).
Nguyen makes no such showing here. He fails to demonstrate how the factual or legal basis
for his claim was not reasonably available to him in time to pursue relief on direct appeal. Further,
there is no assertion by Nguyen that some interference by government officials, or some external
impediment, prevented him from raising his claim on direct appeal.
Since Nguyen has not shown adequate cause to overcome the procedural bar in his case, the
Court need not consider the issue of actual prejudice. Ashker v. Class, 152 F.3d 863, 871 (8th Cir.
1998) (citing Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982)).
Even so, Nguyen has presented absolutely no new, reliable evidence to support a challenge to the
voluntary and intelligent nature of his guilty plea. “Without any new evidence of innocence, even
the existence of a concededly meritorious constitutional violation is not in itself sufficient to
establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred
claim.” Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
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Nguyen has failed to demonstrate “cause and prejudice” or a “miscarriage of justice” to
overcome the procedural default of the sentencing claim he now asserts, and his § 2255 Motion
should be dismissed.
D. Reliance on Bailey is Misplaced
Nguyen also cites Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472
(1995) and asserts that the “the ‘use’ prong punishes only ‘active employment of the firearm’ and
not mere possession.” (Doc. 235, p. 2) His argument is misplaced, as three years after Bailey was
decided, and in a direct response to Bailey, Congress amended 18 U.S.C. § 924(c) and added the
word “possesses” to the principal paragraph. See United States v. O’Brien, 560 U.S. 218, 232, 130
S.Ct. 2169, 176 L.Ed.2d 979 (2010).
E. No Evidentiary Hearing Is Warranted
A movant is not entitled to an evidentiary hearing on a § 2255 motion if “the motion and the
files and records of the case conclusively show that the [movant] is entitled to no relief.” Nguyen
v. United States, 114 F.3d 699, 703 (8th Cir. 1997), quoting from Voytik v. United States, 778 F.2d
1306, 1308 (8th Cir. 1985). Such are the circumstances in this case where Nguyen has alleged
virtually no facts to support his claims. Accordingly, the undersigned recommends the summary
dismissal of Nguyen’s § 2255 Motion without an evidentiary hearing.
III. Conclusion
For the reasons and upon the authorities discussed above, Nguyen’s claims are unsupported
by the record in this case. I recommend that Nguyen’s motion (Doc. 235) be DISMISSED with
PREJUDICE.
The parties have fourteen (14) days from receipt of this Report and Recommendation
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in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
written objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 9th day of January, 2017.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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