United States v. Ngoc Nguyen , 361 F. App'x 597 ( 2010 )

Case: 09-10403 Document: 00511007835 Page: 1 Date Filed: 01/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 19, 2010
No. 09-10403
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NGOC HONG NGUYEN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-119-18
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Ngoc Hong Nguyen appeals the 151-month sentence that he received after
he pleaded guilty to conspiring to possess with intent to distribute
Methylenedioxymethamphetamine, also known as ecstacy. The district court
sentenced Nguyen based on a finding that Nguyen was involved with 101,080
ecstacy tablets. Nguyen does not challenge the district court’s finding on the
first 50,000 tablets. The crux of Nguyen’s argument is that the district court
clearly erred in relying on DEA Special Agent West’s testimony about Nguyen’s
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-10403
involvement with 51,080 tablets. According to Nguyen, Agent West’s testimony
was unreliable because it was based on wiretapped conversations in which
Nguyen was identified only by Jimmy Nguyen, and Jimmy lacked credibility.
This court reviews the district court’s determination of drug quantity for
clear error, meaning that the court will affirm the finding as long as it is
“plausible in light of the record as a whole.” United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005) (internal quotation marks and citation omitted).
To determine drug quantity, the district court may consider “any information
that has sufficient indicia of reliability to support its probable accuracy,
including a probation officer’s testimony, a policeman’s approximation of
unrecovered drugs, and even hearsay.” Id. at 247. “Ultimately, the district court
need only determine its factual findings at sentencing by a preponderance of the
relevant and sufficiently reliable evidence.” Id. Nguyen bears the burden of
demonstrating that Agent West’s testimony about Nguyen’s involvement with
51,080 ecstacy tablets is materially untrue, inaccurate, or unreliable. See United
States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004).
Agent West did not reference Jimmy when he testified about the
wiretapped conversations. Instead, his testimony was that the DEA conducted
a wiretap on Nguyen’s telephone and recorded conversations in which Nguyen
discussed ecstacy with “other co-conspirators” in California in September 2008.
In those conversations, Nguyen discussed three different deals totaling 51,080
ecstacy tablets. Nguyen points to nothing that renders Agent West’s testimony
about the recorded conversations unreliable. Moreover, Nguyen’s argument that
Agent West’s testimony is unreliable because the deals discussed in the recorded
conversations did not come to fruition is specious because Nguyen pleaded guilty
to conspiracy, which does not require completed transactions. See United States
v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
Because the record supports the district court’s finding that Nguyen conspired
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No. 09-10403
to possess with intent to distribute 101,080 ecstacy tablets, its calculation of the
drug quantity was not clearly erroneous. See Betancourt, 422 F.3d at 246.
AFFIRMED.
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