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United States v. Nguyen

United States District Court, W.D. Arkansas, Fort Smith Division

January 9, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
NHAN VAN NGUYEN DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         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. 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)

         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, 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. ...


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