United States v. Tien Truong Nguyen , 543 F. App'x 715 ( 2013 )

FILED
NOT FOR PUBLICATION
OCT 25 2013
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10406
Plaintiff-Appellee, D.C. No. 2:07-cr-164-MCE-1
v.
TIEN TRUONG NGUYEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted October 8, 2013
San Francisco, California
Before: N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior District
Judge.**
Tien Nguyen appeals from the 151–month sentence imposed following his plea
of guilty to conspiracy to commit computer fraud and access device fraud, in violation
of 18 U.S.C. § 371, access device fraud, in violation of 18 U.S.C. § 1029(a)(2),
*
This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S. District
Court for the Western District of Michigan, sitting by designation.
possession of more than 15 unauthorized access devices, in violation of 18 U.S.C. §
1029(a)(3), aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), and
being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §
922(g)(1). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Nguyen challenges his sentence under the Ex Post Facto Clause. “Ex
post facto challenges are reviewed de novo. However, an ex post facto claim raised
for the first time on appeal is reviewed for plain error.” United States v. Chi Mak, 683
F.3d 1126, 1134 (9th Cir. 2012) (internal citations omitted). A district court properly
applies the version of the Sentencing Guidelines in effect at the time of sentencing,
unless doing so would violate the Ex Post Facto Clause. U.S.S.G. §§ 1B1.11(a),
(b)(1). In this case, the district court applied the definition of “victim” in effect at the
time of the offense, U.S.S.G. § 2B1.1 cmt. n.1 (2006), rather than the expanded
definition in the 2010 Sentencing Guidelines, U.S.S.G. § 2B1.1 cmt. n.4(E) (2010).
Nguyen received the same sentence he would have received under the Sentencing
Guidelines in effect at the time of his offense. Accordingly, the sentence does not
violate the Ex Post Facto Clause.
2. We reject Nguyen’s contention that the district court failed to comply
with Federal Rule of Criminal Procedure 32. We review this contention de novo.
United States v. Herrera-Rojas, 243 F.3d 1139, 1142 (9th Cir. 2001). “Although the
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district court’s findings under Rule 32(c) must be ‘express,’ they need only state the
court’s resolution of the disputed issues.” United States v. Karterman, 60 F.3d 576,
583 (9th Cir. 1995) (quoting United States v. Rigby, 896 F.2d 392, 394 (9th Cir.
1990)). The district court made an express ruling on the record, overruling both
parties’ objections to the presentence report and adopting its factual findings. As
such, the district court satisfied the requirements of Rule 32. See Fed. R. Civ. P.
32(i)(3)(B).
3. Finally, Nguyen objects to the sentence enhancements applied by the
district court. “We review the district court’s interpretation of the sentencing
guidelines de novo, its application of the guidelines to the facts of the case for abuse
of discretion, and its factual findings for clear error.” United States v. Zolp, 479 F.3d
715, 718 (9th Cir. 2007). The standard for finding facts at sentencing is a
preponderance of the evidence. United States v. Showalter, 569 F.3d 1150, 1159 (9th
Cir. 2009).
The 20-level enhancement for amount of loss is supported by the record. For
crimes involving stolen or counterfeit credits cards and access devices, loss may be
calculated at $500 per access device, as the district court did. See U.S.S.G. § 2B1.1
cmt. n.3(F)(i) (2006), (2010). The district court was required only to make a
reasonable estimate of the loss, and was not required to take into account Nguyen’s
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anticipated likelihood of success using access devices he obtained. See United States
v. Yellowe, 24 F.3d 1110, 1111 (9th Cir. 1994). Because the court’s estimate was
reasonable based on the number of access devices in Nguyen’s possession, there was
no error.
The victim impact statements, as well as Nguyen’s chat logs, provide sufficient
evidence to demonstrate that at least 10 financial institutions suffered actual loss.
Thus, the district court did not err in applying a two-level enhancement for offenses
involving 10 or more victims. See U.S.S.G. § 2B1.1(b)(2)(A)(i).
The record demonstrates that Nguyen recruited and directed others in schemes
to cash money orders and test counterfeit debit cards. Thus, there was sufficient
evidence to establish that Nguyen was an organizer, leader, manager or supervisor in
the conspiracy, and the district court did not err in applying an aggravating role
enhancement. See U.S.S.G. § 3B1.1(c).
The judgment of the district court is AFFIRMED.
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