United States v. Van Nguyen ( 2016 )


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  •                  United States Court of Appeals
                                For the Eighth Circuit
                            ___________________________
    
                                    No. 16-3120
                            ___________________________
    
                                 United States of America
    
                            lllllllllllllllllllll Plaintiff - Appellee
    
                                               v.
    
                                    Van Phong Nguyen
    
                          lllllllllllllllllllll Defendant - Appellant
                                          ____________
    
                        Appeal from United States District Court
                      for the Southern District of Iowa - Davenport
                                     ____________
    
                              Submitted: November 30, 2016
                                Filed: December 12, 2016
                                      ____________
    
    Before LOKEN, MURPHY, and BENTON, Circuit Judges.
                               ____________
    
    PER CURIAM.
    
          Federal prisoner Van Phong Nguyen appeals the district court’s1 denial of his
    Federal Rule of Criminal Procedure 36 motion. We affirm.
    
    
    
          1
           The Honorable John A. Jarvey, Chief Judge, United States District Court for
    the Southern District of Iowa.
           In 2008, Nguyen was sentenced to 210 months in prison, after a jury in the
    Southern District of Iowa convicted him of conspiracy to distribute
    methylenedioxymethamphetamine, a.k.a. ecstasy, in violation of 21 U.S.C. §§ 846,
    841(b)(1)(C), 851. In his Rule 36 motion, Nguyen sought to have his sentence
    modified to reflect the district court’s intent to give him sentencing credit for time
    served on an undischarged 108-month prison sentence for an earlier conspiracy to
    distribute the same drug in the District of Minnesota.
    
          While Nguyen may be correct that the district court could have fashioned a
    sentence that took into account his Minnesota sentence by downwardly adjusting his
    prison term and expressly referencing U.S.S.G. § 5G1.3(b), see Coloma v. Holder,
    
    445 F.3d 1282
    , 1284-85 (11th Cir. 2006) (per curiam), the district court did not do so.
    The district court is now without authority under Rule 36 to modify the sentence it
    imposed. See United States v. Yakle, 
    463 F.3d 810
    , 811 (8th Cir. 2006) (per curiam)
    (Rule 36 relief is available only for “mere scrivener’s mistake”); United States v.
    Tramp, 
    30 F.3d 1035
    , 1037 (8th Cir. 1994) (Rule 36 does not authorize sentence
    modification at any time); see also 18 U.S.C.§ 3582(c).
    
          Accordingly, we affirm the denial of Rule 36 relief.
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