United States v. Quang T. Nguyen , 211 F. App'x 191 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4770
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
QUANG T. NGUYEN,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-279)
Argued: October 26, 2006 Decided: December 28, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Kimberly Riley Pedersen, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant. Thomas Brian Walsh, PETROVICH & WALSH, P.L.C.,
Springfield, Virginia, for Appellee. ON BRIEF: Paul J. McNulty,
United States Attorney, Alexandria, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The government appeals a district court order that
replaced the defendant’s original sentence with an alternative one
announced pursuant to United States v. Hammoud, 381 F.3d 316 (4th
Cir. 2004). We conclude that the district court lacked
jurisdiction to alter the original sentence. We therefore do not
reach the government’s arguments that the alternative sentence was
unreasonable.
I.
Quang The Nguyen pled guilty to conspiracy to commit
money laundering. Between October 2002 and March 31, 2004, Nguyen
laundered $2.5-$7 million in proceeds from the distribution of
controlled substances. At the direction of Tuan Nguyen and Tuyen
Le, he deposited cash into bank accounts in the Washington, D.C.,
area and obtained cashier’s checks payable to fictitious
individuals and entities. Nguyen then sent the checks to addresses
provided by Tuan Nguyen and Tuyen Le. Eventually, Nguyen recruited
several friends to assist him with the deposits. Nguyen admitted
that he knew that the laundered funds derived from illicit
activity.
Based on these facts, the presentence report recommended
a range of 188 to 235 months in prison. This included a six-level
enhancement for knowledge that the laundered funds derived from
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drug trafficking, U.S.S.G. § 2S1.1(b)(1), and a three-level
enhancement for Nguyen’s role as a manager or supervisor in the
conspiracy, U.S.S.G. § 3B1.1(b). The district court imposed a 188-
month sentence in accordance with the presentence report’s
recommendation. In the alternative, the court announced a 70-month
sentence, which it would have imposed but for the mandatory nature
of the guidelines. See Hammoud, 381 F.3d at 353-54. After the
Supreme Court decided United States v. Booker, 543 U.S. 220 (2005),
Nguyen made a motion to clarify his sentence. The district court
then entered an order vacating the original sentence and replacing
it with the alternative one. The government appeals.
II.
In 2004, in anticipation of a Supreme Court decision on
the constitutionality of the federal sentencing guidelines, we (1)
instructed district courts in the Fourth Circuit to continue to
impose guideline sentences, and (2) recommended that those courts
announce alternative sentences treating the guidelines as advisory.
Hammoud, 381 F.3d at 353-54. This procedure was aimed at
conserving judicial resources in the event the expected Supreme
Court decision altered guidelines sentencing. An alternative
sentence would memorialize the district court’s reasoning with
respect to the appropriate non-guidelines sentence and save time
and effort if resentencing under a different scheme became
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necessary. See id. Nothing in Hammoud gave district courts
authority to do anything more than announce alternative sentences.
The alternative sentence plays its role when resentencing is
required by Booker. Booker, in turn, applies retroactively only to
cases that were pending on direct review when it was decided. See
543 U.S. at 268. Nguyen did not appeal his original sentence.
Thus, his case was not pending on direct review when Booker was
decided, and Booker therefore does not provide a jurisdictional
vehicle to activate the alternative sentence announced under
Hammoud.
The district court also lacked any other basis of
jurisdiction to order the imposition of the alternative sentence.
A district court has limited jurisdiction to change a sentence
after it has been imposed. It may do so only (1) upon motion of
the Director of the Bureau of Prisons, (2) under express statutory
authority or Federal Rule of Criminal Procedure 35, or (3) when a
defendant was sentenced to a term of imprisonment based on a
sentencing range subsequently lowered by the Sentencing Commission.
18 U.S.C. § 3582(c). None of these exceptions apply here.
Because the district court lacked jurisdiction to alter
Nguyen’s original sentence, we vacate the order imposing the
previously announced alternative sentence. We remand for the
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district court to enter an order reimposing Nguyen’s original
guidelines sentence.
VACATED AND REMANDED
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