United States v. Nguyen ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2007
Charles R. Fulbruge III
No. 06-10108 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SU VAN NGUYEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-58-2
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Su Van Nguyen appeals his 63-month concurrent sentences for
conspiracy to distribute 3, 4-Methylenedioxy-methamphetamine
(MDMA), and possession with intent to distribute MDMA. In his sole
claim of error on appeal, Nguyen argues that, because the
Government failed to prove that he possessed the firearm or that
the firearm was related to drug trafficking, the district court’s
decision overruling his objection to the enhancement of his
sentence based on his possession of a firearm in connection with a
drug trafficking offense pursuant to U.S.S.G. § 2D1.1(b)(1) was
*
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this opinion should not be published and is not precedent except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.
based on the clearly erroneous presumption that he was strictly
liable for the possession of the firearm by his codefendant.
The district court determined that the firearm was connected
with the offense because it was jointly possessed by Nguyen and his
codefendant in a vehicle containing MDMA. Although the testimony
at trial was conflicting, by its ruling, the district court
implicitly found Nguyen’s and his co-defendant’s testimony
incredible. Such credibility determinations are within the
province of the district court and will not be disturbed by this
court. United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996).
The remaining evidence presented at trial indicated that
Nguyen’s codefendant knowingly possessed the firearm for the
purpose of protecting the drugs and the drug proceeds, and that
Nguyen was aware that he was participating in criminal activity
involving transporting drugs. The evidence thus shows that Nguyen
was engaged in jointly undertaken criminal activity, see U.S.S.G.
§ 1B1.3(a)(1)(B), and the district court reasonably inferred that
Nguyen should have foreseen his codefendant’s possession of the
firearm. See United States v. Aguilera-Zapata, 901 F.2d 1209, 1215
(5th Cir. 1990). The district court did not clearly err by
applying the § 2D1.1(b)(1) enhancement. See United States v.
Parker, 133 F.3d 322, 330 (5th Cir. 1998). Nguyen’s sentence is
affirmed.
AFFIRMED.
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