United States v. Hoang Van Nguyen , 115 F. App'x 239 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
No. 04-40685 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOANG VAN NGUYEN, also known as Soi, also known as Soy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-53-1-LED
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Hoang Van Nguyen appeals the 240-month sentence imposed by
the district court following his guilty-plea conviction of one
count of conspiring to manufacture, distribute, or possess with
intent to manufacture, distribute or dispense Ecstasy,
methamphetamine, cocaine, cocaine base, and marijuana. Nguyen
first argues that the district court clearly erred in finding
that he was responsible for 50,000 units of Ecstasy, a
determination that affected his base offense level. He attacks
the credibility of testimony presented at his sentencing hearing,
*
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this opinion should not be published and is not precedent except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.
No. 04-40685
-2-
and he argues that there is no reliable evidence to connect him
to 50,000 units of Ecstasy. In view of the testimony adduced at
his sentencing hearing, Nguyen has failed to show that the
district court clearly erred in holding him accountable for
50,000 units of Ecstasy. See United States v. Posada-Rios,
158 F.3d 832, 878 (5th Cir. 1998); U.S.S.G. § 1B1.3.
Nguyen also challenges the district court’s determination
that he was a manager or supervisor under U.S.S.G. § 3B1.1(b).
Because Nguyen’s Factual Resume and the testimony adduced at his
sentencing hearing support the district court’s application of
the three-level adjustment under U.S.S.G. § 3B1.1(b), Nguyen has
failed to show that the district court’s factual finding as to
his role in the offense was clearly erroneous. See United States
v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
Finally, relying on Blakely v. Washington, 124 S. Ct. 2531(2004), Nguyen contends that the sentencing guidelines are
unconstitutional as applied to his case because he has not
admitted to being involved with 50,000 units of Ecstasy or to his
role in the offense. Nguyen acknowledges that his argument is
foreclosed by this court’s decision in United States v. Pineiro,
377 F.3d 464, 473 (5th Cir. 2004), petition for cert. filed (U.S.
July 14, 2004) (No. 04-5263), but he seeks to preserve the issue
for further review. Nguyen’s Blakely argument is foreclosed.
See Pineiro, 377 F.3d at 473.
The judgment of the district court is AFFIRMED.